2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-13-2004

Rompilla v. Horn

Precedential or Non-Precedential: Precedential

Docket No. 00-9005

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Volume 1 of 2

PRECEDENTIAL

Filed January 13, 2004

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 00-9005, 00-9006

RONALD ROMPILLA

v.

MARTIN HORN, COMMISSIONER,

PENNSYLVANIA DEPARTMENT OF

CORRECTIONS

Martin Horn,

Appellant/Cross-Appellee

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civ. No. 99-cv-00737)

District Judge: Honorable Ronald L. Buckwalter

Argued: May 22, 2002

Before: SLOVITER, ALITO, AND STAPLETON,

Circuit Judges.

(Filed: January 13, 2004)

AMY ZAPP (Argued)

Senior Deputy Attorney General

Office of Attorney General

16th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellant/Cross-Appellee
BILLY H. NOLAS (Argued)

DAVID W. WYCOFF

MICHAEL WISEMAN

Defender Association of Philadelphia

Federal Court Division

The Curtis Center, Suite 545 West

Independence Square West

Philadelphia, PA 19106

Counsel for Appellee/Cross-Appellant

OPINION OF THE COURT

ALITO, Circuit Judge:

The Commissioner of the Pennsylvania Department of

Corrections (hereinafter “the Commonwealth”) appeals from

a District Court order granting the petition for a writ of

habeas corpus that was filed by Ronald Rompilla, a

Pennsylvania prisoner who was sentenced to death. The

District Court ordered that Rompilla be released unless he

is either resentenced to life imprisonment or a new penalty

phase trial is held. Rompilla cross-appeals from the denial

of his petition insofar as it challenged his conviction. We

conclude that the Pennsylvania Supreme Court’s decision

regarding Rompilla’s sentencing proceeding was not

contrary to and did not involve an unreasonable application

of clearly established Supreme Court precedent, and

therefore we reverse the decision of the District Court with

respect to Rompilla’s sentence. We affirm the decision of

the District Court with respect to his conviction. By

separate order, however, we have granted Rompilla’s

application to file a successive petition for a writ of habeas

corpus so that he will be able to assert his claim that,

under Atkins v. Virginia, 536 U.S. 304 (2002), he may not

be executed because of mental retardation. 

I.

In 1988, Rompilla was tried for the murder of James

Scanlon. Scanlon’s body was found lying in a pool of blood

in his bar, the Cozy Corner Café in Allentown,

2
Pennsylvania. Scanlon had been stabbed repeatedly and set

on fire. There were no eyewitnesses to the killing, but the

Commonwealth introduced substantial circumstantial

evidence of Rompilla’s guilt. In its opinion on direct appeal,

the state supreme court summarized the prosecution’s

evidence as follows:

Appellant was seen in the Cozy Corner Café on

January 14, 1988, from approximately 1:00 a.m. to

2:00 a.m. During that time, he was observed going to

the bathroom approximately ten times. A subsequent

police investigation determined that the window in the

men’s bathroom was used as the point of entry into the

bar after it had closed. 

When questioned by an investigating detective from

the Allentown Police Department, Appellant stated that

he had been in the Cozy Corner Café on the night of

the murder and left between 2:00 a.m. and 2:30 a.m.

because he had no money. He stated that he had only

$2.00 to buy breakfast at a local diner. A cab driver

testified that he picked up Appellant at the diner and

drove him to two different hotels where Appellant was

unable to rent a room. The driver then took Appellant

to the George Washington Motor Lodge where he was

able to rent a room. Appellant paid the cab fare of

$9.10. 

Appellant rented a room for two nights at the George

Washington Motor Lodge. In doing so, he paid $121.00

in cash and flashed a large amount of cash to the desk

clerks. Appellant also used a false name when he

checked in. 

The police secured a search warrant for Appellant’s

motel room and seized several items, including

Appellant’s sneakers. These sneakers matched a

footprint in blood that was discovered near the victim’s

body. In addition, the blood found on the sneakers

matched the victim’s blood type. 

The Commonwealth also presented other

circumstantial evidence that linked Appellant with the

robbery and murder of James Scanlon. First, Mr.

Scanlon’s wallet was found by a groundskeeper in the

3
bushes, six to eight feet outside the room that

Appellant had rented at the George Washington Motor

Lodge. Second, Appellant’s fingerprint was found on

one of the two knives used to commit the murder.

Finally, there were numerous inconsistencies between

what Appellant had told the police concerning his

activities on January 14 and 15, 1988, and the

testimony of other witnesses.

Commonwealth v. Rompilla, 653 A.2d 626, 629 (Pa. 1995).

The jury found Rompilla guilty of first degree murder and

other related offenses. 

At the penalty phase of the trial, the prosecution

attempted to establish three aggravating factors: (1) that

Rompilla committed the murder while perpetrating a felony,

42 Pa. C.S. § 9711(d)(6), namely, the burglary and robbery

of the bar; (2) that he committed the murder by means of

torture, 42 Pa. C.S. § 9711(d)(8); and (3) that he had a

significant history of felony convictions involving the use or

threat of violence to the person, 42 Pa. C.S. § 9711(d)(9). To

establish torture, the Commonwealth called Dr. Isidore

Mihalakis, a forensic pathologist, who testified to the

multiple wounds inflicted on Scanlon and opined that

Scanlon was conscious and alive when many of those

wounds were inflicted. App. 698-707. Based on the nature

of the wounds, Dr. Mihalakis also opined that Scanlon’s

killer had deliberately attempted to inflict pain before

Scanlon died. Id. at 707-08. To show the defendant’s prior

history of violent felonies, the Commonwealth proved that

he had been convicted in 1976 of rape, burglary, and theft.

App. 651-52. Commonwealth v. Rompilla, 378 A.2d 865 (Pa.

1977). The testimony of the rape victim, which was read

into the record, showed that Rompilla had burglarized a bar

after closing and had raped the bar owner and slashed her

with a knife. App. 662-696. 

The defense presented the testimony of five members of

the Rompilla family. Rompilla’s older brother, Nicholas, and

his wife, Darlene, testified that Rompilla had lived in their

home with their children for the three and one-half months

before the killing. Nicholas testified that he and the

defendant had grown up together, that the defendant had

worked for him as a house painter before his arrest, and

4
that the defendant had also helped out around the house.

App. 738-41. Nicholas said that he had visited his brother

frequently in prison and that they had a good relationship.

Id. at 739. Nicholas added that he did not think that his

brother had killed Scanlon, whom he had known for about

10 or 11 years, and that his heart went out to the Scanlon

family. Id. at 740. He concluded his testimony by asking

the jury to have mercy on his brother. Id. at 741. 

Darlene Scanlon testified that her children were “very

attached” to the defendant and that he “was very good in

our house.” App. 734-35. Darlene said that he helped out

in the home and that “he was a good family member” who

felt “strongly about family” and “respected the family very

well.” Id. at 735. While the defendant was in prison,

Darlene testified, he frequently wrote to her and spoke

about “[f]amily, his son, his wife, his brothers and sisters.”

Id. She stated that the defendant’s relationship with his son

was good. Id. at 736. Like her husband, Darlene testified

that she had known Scanlon, that she did not believe that

the defendant had killed him, and that she felt for the

Scanlon family “[v]ery, very much.” Id. Weeping, she

concluded her testimony by telling the jury: “We go to bed

crying, we wake up crying, it’s been very hard on my

children . . . . [W]e want Ron alive even if it’s in jail, we

want him alive.” Id. 

Another brother, Bobby, also took the stand. Bobby

testified that during the time when the defendant was out

of prison they had an “[e]xcellent relationship” and were

“[v]ery close.” App. 745. Before then, according to Bobby, he

had visited the defendant in prison and the defendant had

written him letters in which he expressed great concern for

his son and other family members. Id. 

The defendant’s sister, Sandra Whitby, testified that she

had grown up with the defendant. App. 754. Crying, she

said that she loved him very much and that she thought

that he was a “good person.” Id. at 755. Asked what things

were important for the defendant, she answered: “Family,

his son, his wife, things my children were doing, my

brothers.” Id. She testified that she was praying for the

Scanlon family and for her brother’s life. Id. at 756. She

added: “[W]e’re not God, and we can’t take people’s lives

5
(crying) . . . I love my brother. Taking one life is never going

to replace another life.” Id. 

Finally, Aaron Rompilla, the defendant’s 14-year old son

testified. He said that after his father’s release from prison

they had regular visits, which he enjoyed, that his father

was proud of him, that he loved his father, and that he

would visit him if he was sentenced to prison. Id. at 757-

59. He said that he did not think it would be “right” to

sentence his father to death, and when he was asked

whether there was anything else he wanted to tell the jury,

he simply cried. Id. at 759. 

In her closing argument, defense counsel made an

impassioned plea for Rompilla’s life. Her closing appears to

have had three major themes. First, she repeatedly stressed

that, although the jury had found the defendant guilty, they

must have had at least some lingering doubt about what

had happened, and therefore they should not sentence him

to death, which “is final, irreversible.” Id. Second, she

reminded the jury of the good qualities mentioned by

Rompilla’s family members. She argued that Rompilla was

“more than this act that you have found him to have

committed,” id. at 769, and she emphasized the love of

Rompilla’s family members. Id. at 773. She particularly

asked the jury to keep in mind the defendant’s 14 year old

son, who had come to court to ask the jury “not to kill his

father.” Id. Third, she pled for mercy and warned the jury:

“I tell you this from the bottom of my heart, if you order

death, it will take a part of your life away. Don’t stain your

hands and your souls with this man’s blood, don’t do it

please.” Id. at 772. 

After deliberating, the jury unanimously found all three

of the aggravating circumstances alleged by the

prosecution, and the jury stated that one or more members

found two mitigating factors under the “catchall” provision

of 42 Pa. C.S. § 9711(e)(8), i.e., “Rompilla’s son being

present and testifying” and the possibility of rehabilitation.

The jury found that the aggravating circumstances

outweighed the mitigating factors and sentenced Rompilla

to death. 

The Pennsylvania Supreme Court affirmed the conviction

6
and sentence. Commonwealth v. Rompilla, 653 A.2d 626

(Pa. 1995) (hereinafter “Rompilla-1”).1 In December 1995,

Rompilla filed a petition under the Pennsylvania PostConviction Relief Act (“PCRA”). After an evidentiary hearing,

the PCRA denied the petition, and the Pennsylvania

Supreme Court affirmed. Commonwealth v. Rompilla, 721

A.2d 786 (Pa. 1998) (hereinafter “Rompilla-2”). 

Rompilla then filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the United States District

Court for the Eastern District of Pennsylvania. Rompilla’s

petition raised 11 claims. Rompilla v. Horn, No. Civ.A.99-

737, 2000 WL 964750 (E.D. Pa. July 11, 2000).2 The

1. While the case was pending on direct appeal, Rompilla filed a petition

for a writ of habeas corpus in the United States District Court for the

Eastern District of Pennsylvania. The District Court dismissed the

petition without prejudice for lack of exhaustion. Rompilla v. Love, No.

94-cv-4196 (E.D. Pa.). 

2. The claims as identified by the District Court were as follows: 

(1) Trial counsel were ineffective at the capital sentencing phase for

failing to investigate, develop and present significant mitigating

evidence related to petitioner’s traumatic childhood, alcoholism,

mental retardation, cognitive impairment and organic brain damage;

(2) Petitioner is entitled to relief from his conviction and death

sentence because of the trial court’s improper instruction on

accomplice liability; 

(3) The trial court’s failure to instruct the jury that “life

imprisonment” means life without possibility of parole, even after

the jury repeatedly asked about parole eligibility; and the trial

court’s provision, instead, of inaccurate and misleading information,

violated petitioner’s Sixth, Eighth and Fourteenth Amendment

rights; 

(4) Petitioner is entitled to relief from his death sentence because

the (d)(8) aggravating circumstance was unconstitutionally obtained;

(5) Petitioner is entitled to relief from his death sentence because

the (d)(9) “significant history” of felony convictions aggravating

circumstance is unconstitutionally vague; the jury instructions did

not cure this vagueness; and the jury instructions, to the extent

they provided guidance at all, directed a finding of this aggravating

circumstance; 

7
District Court denied relief as to the guilt phase but

granted relief as to the penalty phase based on its

conclusion that counsel had been ineffective in failing to

investigate and present mitigating evidence. Id. at *14. The

District Court thus ordered that a writ of habeas corpus

would be granted unless the Commonwealth conducted a

new sentencing hearing or resentenced Rompilla to life

imprisonment. Id. at *21. The Commonwealth appealed,

and Rompilla cross-appealed. Three questions are

presented on appeal: (1) whether Rompilla’s trial counsel

was constitutionally ineffective during the penalty phase;

(2) whether the trial court committed constitutional error in

giving an accomplice liability instruction; and (3) whether

the trial court erred in failing to instruct the jury that “life

(6) Petitioner is entitled to relief from his death sentence because

of improper prosecutorial argument at the penalty phase; 

(7) Petitioner is entitled to relief from his death sentence because

the trial court improperly allowed the prosecutor to read to the jury

the inflammatory and prejudicial testimony of the victim of a prior

rape and counsel were ineffective for failing to cite controlling

authority that would have prevented the introduction of the

inflammatory and prejudicial evidence; 

(8) The seating of the juror who visited the scene of the crime ten

times, including, during the trial proceedings, who knew the victim

of the offense and the victim’s son, who knew an employee of the

prosecutor’s office and who expressed substantial doubts regarding

the presumption of innocence; and trial counsel’s failure to

challenge this juror for cause, violated petitioner’s sixth, eighth and

fourteenth amendment rights; 

(9) Petitioner’s death sentence should be vacated because the

arbitrary “proportionality review” performed by the Pennsylvania

Supreme Court violated his Eighth Amendment and Fourteenth

Amendment rights; 

(10) Petitioner is entitled to an evidentiary hearing on his claim

that the prosecution violated his due process by introducing false

and misleading evidence; and 

(11) Petitioner is entitled to relief because of cumulative prejudicial

effects of errors in this case. 

Rompilla, 2000 WL 964750. 

8
imprisonment” under Pennsylvania law meant life without

the possibility of parole.3

II.

Because the District Court did not conduct an

evidentiary hearing, our review of that Court’s decision is

plenary. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.),

cert. denied, 122 S. Ct. 269 (2001). However, our review of

the decision of the Pennsylvania Supreme Court is

circumscribed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). See Hartey v. Vaughn, 186

F.3d 367, 371 (3d Cir. 1999). Under AEDPA, a federal court

may not grant habeas relief on any claim adjudicated on

the merits in state court unless the adjudication 

(1) 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; or 

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding. 

28 U.S.C. § 2254(d). Under the “contrary to” clause of

§ 2254(d)(1), relief may be ordered if the state court arrived

at “a conclusion opposite to that reached by [the Supreme]

Court on a question of law” or if the state court decided “a

case differently than [the Supreme] Court has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 412-13 (2000). Under the “unreasonable

application” clause of § 2254(d)(1), relief may be awarded if

the state court identified the correct governing legal

principle from Supreme Court decisions but unreasonably

applied that principle to the facts of the case, id., or was

“unreasonable in refusing to extend the governing legal

3. A certificate of appealability was not required for the Commonwealth’s

appeal of the ineffective assistance of counsel claim. Fed. R. App. P.

22(b)(3). The District Court granted a certificate of appealability as to the

parole ineligibility claim, Rompilla, 2000 WL 964750, at *21, and we

granted a certificate of appealability as to the accomplice liability

instruction claim. 28 U.S.C. § 2253(c). 

9
principle to a context in which the principle should have

controlled.” Ramdass v. Angelone, 530 U.S. 156, 166

(2000). Relief may not be granted under the “unreasonable

application” clause merely because the federal court

“concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must

also be unreasonable.” Williams, 529 U.S. at 411. See also

Bell v. Cone, 122 S. Ct. 1843, 1850 (2002) (“The focus . . .

is on whether the state court’s application of clearly

established federal law is objectively unreasonable, and we

stressed in Williams that an unreasonable application is

different from an incorrect one.”). Furthermore, a federal

court “must presume that the factual findings of both state

trial and appellate courts are correct.” Everett v. Beard, 290

F.3d 500, 508 (3d Cir. 2002) (citing 28 U.S.C. § 2254(e)(1)).

This presumption may be rebutted only by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). 

III.

Rompilla claims that his trial attorneys were ineffective at

the penalty phase. First, Rompilla alleges that his attorneys

were derelict in failing to obtain school, hospital, court, and

prison records that reveal a number of IQ test results in the

mentally retarded range, low achievement scores,

placement in special education classes, childhood neglect,

problems with alcohol, and an alcoholic mother. Second, he

faults his attorneys for failing to provide such records to

the psychologist and the two psychiatrists whom they

retained to examine him and for allegedly failing to

communicate adequately with these experts. Third, he

alleges that his attorneys were negligent in interviewing

members of his family. He criticizes trial counsel because

they did not interview two sisters who did not testify at the

penalty phase, and because they did not ask sufficiently

specific questions when they interviewed other family

members. Fourth, Rompilla charges that his attorneys were

derelict in failing to investigate the possible effects on

Rompilla of childhood trauma and alcoholism.

10
A.

Rompilla was represented by two public defenders,

Frederick Charles, who was then the Chief Public Defender

for Lehigh County, and Maria Dantos, a full-time assistant

public defender. App. 1055-56, 1059. Both testified at

length at the PCRA hearing. For present purposes, two

aspects of these attorneys’ preparation for the penalty

phase are most pertinent: first, their efforts to obtain

information about Rompilla’s childhood and schooling and,

second, their communications with the three mental health

professionals whom they consulted. 

Both Charles and Dantos explained that the defense had

questioned Rompilla and numerous members of his family

about his childhood, schooling, and background and had

asked for any information that might be helpful at

sentencing. According to their testimony, however, neither

Rompilla himself nor any family member even hinted at the

problems on which Rompilla’s ineffective assistance claim is

based. Dantos testified that she had developed a good

relationship of trust with Rompilla, that she felt that she

had gotten to know him, and that she had a lot of

discussions with Rompilla “about who he was and his life.”

App. 1073, 1163. When she asked Rompilla about school,

Dantos recounted, he told her “[t]hat there was nothing

unusual about it.” Id. at 1197. Dantos also said that she

specifically asked Rompilla about drinking and that he

responded that he sometimes drank but “could handle it”

and was not an alcoholic. Id. at 100-01. On the night of the

killing, Rompilla told her, he had consumed three or four

beers over the course of the entire evening. Id. at 1101. 

Charles added that Rompilla had responded to questions

about his background by saying that nothing was wrong:

“Is there anything that happened? What was it like

growing up? Is there anything you can tell us that

could help us?” And he said, “No, there was nothing

wrong.” He was very, very, smooth about it. It wasn’t

that he was reluctant to talk about anything. He said,

“Your conversations about the possibility of the death

penalty bore me.” . . . 

11
There was no indicator from anything he told us that

would send us searching for . . . any kind of records.

He said everything was fine. He had a normal

childhood. There was nothing there. . . . 

. . . I remember [Dantos] specifically going one by one

and talking to him. ‘Is there anything you can tell me?

Tell me about yourself. Tell by about your background.’

She was, you know, meticulous to cover points.

App. 1303. Both Dantos and Charles said that nothing in

their discussions with Rompilla ever suggested that he was

mentally retarded, id. at 1181, 1393, and Charles

elaborated that Rompilla did not have difficulty in

understanding what was said to him or in expressing his

feelings. Id. at 1393. 

Dantos and Charles also testified that members of

Rompilla’s family provided no hint that Rompilla had

mental problems, had suffered child abuse, or was an

alcoholic. Dantos stated that she spoke with three of

Rompilla’s siblings, his sister-in-law Darlene Rompilla, and

his ex-wife and that she had formed a “very close”

relationship with the family. App. 1092, 1065. She said

that they had discussed the importance of mitigation

evidence but that no one had provided any useful

information about Rompilla’s background. She testified that

she had “spent hours with these family members,” that

they had “discussed the family dynamics and what

[Rompilla’s] family relationship was with his parents,” and

that there was no indication “that there was any sort of

abuse within the family.” Id. at 1097 Likewise, she stated

that “there was nothing exceptional presented to [her]

about drinking within the family.” Id. Charles added that

although the family members said that they did not know

Rompilla well because he had spent so many years behind

bars, the family was a “constant source of information.” Id.

at 1303, 1384. 

Charles was questioned repeatedly and extensively by

Rompilla’s attorneys about the failure of the defense to look

for school, prison, and medical records, and Charles

explained his strategy as follows:

12
I would investigate by asking my client, “how was your

childhood? Were there any problems that you suffered?

Any kind of abuse? . . . [I]s there anything that sticks

out? Don’t think whether it’s important or not. You just

tell us, and then we’ll determine whether or not we can

use it.” Investigate it that way. Would I send somebody

to the person’s elementary school to talk to the teacher

to see if they remember him from 25 years or 40 years

before. No. I didn’t have those resources in the office.

. . . I had two investigators and 2,000 cases. . . . I will

talk to the client, talk to the family, and see if anything

developed from there. 

Id. at 1293-94. If these inquiries provided any hint that

records would be helpful, he added, he would go anywhere

to get the records. Id. at 1307. 

With respect to the development of mitigation evidence

regarding Rompilla’s mental condition, Charles said that he

had sent Rompilla to “the best forensic psychiatrist around

here, to [another] tremendous psychiatrist and a fabulous

forensic psychologist” and that he relied on them to detect

any mental problems that might be useful to the defense

and to request that the defense provide them with any

records that they might need. App. 1307-08. He elaborated

that when he sent Rompilla to the psychologist, he expected

the psychologist to administer “a Reitan battery test to

determine if there was any brain damage,”

4

 a personality

test such as “the Minnesota Multiphasic Personality

Inventory (“MMPI”)”,5 a Rorschach test,6 and an IQ test. Id.

4. “The Reitan Battery measures organic impairment by means of a

variety of exercises testing concentration, coordination, memory, motor

control, abstract abilities and other cognitive and physical functions.”

Barker v. Secy of Health and Human Services, 882 F.2d 1474, 1476 (9th

Cir. 1989). 

5. The Minnesota Multiphasic Personality Inventory or “MMPI” is “one of

the best known and widely used personality assessment tests.” Richard

Sloane, THE SLOANE-DORLAND ANNOTATED MEDICAL-LEGAL DICTIONARY — 1992

SUPPLEMENT 522 (1992). 

6. The Rorschach test is “a projective psychological [test] in which the

subject reveals his or her attitudes, emotions, and personality by

reporting what is seen in each of 10 inkblot pictures.” STEDMAN’S MEDICAL

DICTIONARY 1808 (27th ed. 2000). 

13
at 1323. He stated that he also expected that the results of

this testing would be available to the psychiatrists. Id. If the

mental health professionals needed any records or other

information, he said, he expected them to ask for them, and

he would have tried to provide whatever they sought. Id. He

said that he also thought that the mental health

professionals would interview Rompilla and that they would

detect whether Rompilla’s denial of anything unusual in his

background seemed suspicious. Id. at 1308-09. 

All three of the mental health professionals to whom

Rompilla had been sent by the defense testified at the PCRA

hearing either in person or by deposition. All three stated

that they had examined Rompilla and had found nothing

useful to the defense, but as Rompilla now stresses, all

three also testified that, if they had been provided with

Rompilla’s school and other records, they would have done

additional testing. 

Dr. Gerald Cooke, an experienced clinical and forensic

psychologist, no longer possessed records regarding his

examination of Rompilla other than the letter that he had

sent to the public defender’s office after completing the

examination, but he was able to state with “99 percent”

certainty what he would have done in a case of that type.

App. at 1797. In a death penalty case, he testified that one

of the questions in his mind would have been whether the

defendant “showed any mental illness, emotional

disturbance, or other sorts of problems that might be a

psychological mitigating circumstance.” App. at 1808. He

would have administered an MMPI, “an Incomplete

Sentence Blank,7 the Rorschach inkblot technique, and two

or three subtests of the verbal subscale of the Wexler Adult

Intelligence WAIS Revised.”

8

Id. at 1797. Dr. Cooke testified

that he knew that the IQ test that he would have

administered to Rompilla had not produced a score in the

7. The Rotter Incomplete Sentences Blank Test tests maladjustment by

providing the beginning of sentences (e.g., “I feel . . .”, “My nerves . . .”)

that are completed by the subject. See www.cps.nova.edu/

~cpphelp/ROTTER.hrml. 

8. The Wechsler Adult Intelligence WAIS Revised is a test that measures

general intelligence in adults. STEDMAN’S MEDICAL DICTIONARY, supra, 1596.

14
mentally retarded range because, in that event, he would

have given further tests. Id. at 1810. He explained that he

had not prepared a report regarding his examination

because it was his practice to discuss the results of an

examination orally with the referring attorney and to leave

it to the attorney to decide whether he should prepare a

report. Id. at 1816. He interpreted the letter that he wrote

in this case to mean that he “didn’t have anything that [he]

felt could be helpful.” Id. 

Dr. Robert Sadoff, an experienced board-certified forensic

psychiatrist, also had no records about Rompilla but

testified that in a case of that type he would have examined

the defendant for competency to stand trial, criminal

responsibility, and mitigating circumstances. App. 1841,

1859. He would have questioned and observed the

defendant and would have requested psychological testing

if he thought it was necessary. Id. From the letter that he

sent to the Public Defender’s Office, he said, it was fair to

infer that he had found no mitigating evidence. Id. at 1859.

A second psychiatrist, Paul K. Gross, also testified that

he had examined Rompilla prior to his trial at the request

of the Public Defender’s office to determine his mental

status at the time but was not asked to look for mitigating

factors. App. 1504, 1506, 1549. Dr. Gross stated that

Rompilla “denied any abuse as a child, by either parent.”

Id. at 1517. According to Dr. Gross, Rompilla said that he

had “a good relationship with his father” and a “fairly

normal childhood except for the fact that he didn’t like

school, which he left in the ninth grade.” Id. at 1517. Dr.

Gross’s conclusion at the time was that, although there was

some evidence of antisocial behavior, “[t]here was no other

evidence for underlying psychiatric or mental disorder.” Id.

at 1540. He added that he did not see anything in the

materials shown to him by Rompilla’s attorneys at the

PCRA hearing that would have changed his opinion. Id. at

1539-40. Dr. Gross also reported that although Rompilla

denied it, there was a possibility that he could become

violent while under the influence of alcohol. 

In the PCRA proceedings, Rompilla presented testimony

of three family members: two sisters, Barbara Harris and

Randi Rompilla, who testified that they were not

15
interviewed before sentencing, and Nicholas Rompilla, who

had testified at the sentencing hearing. These family

members stated, among other things, that their parents

were alcoholics; that their mother drank while pregnant

with Rompilla; that their father was physically abusive to

the children and their mother; that Rompilla was locked in

an outdoor dog pen; and that Rompilla was told he was

stupid and would not amount to anything and was a very

nervous child who kept everything inside. Nicholas testified

that during the pre-sentencing interview he was asked only

about the three months prior to the offense and was not

asked about Rompilla’s childhood. App. 1462-63, 1467-71,

1477-78. 

Rompilla also presented evidence from two psychologists,

Carol L. Armstrong and Barry Crown, both of whom had

evaluated and tested Rompilla after he was convicted and

sentenced. These psychologists’ evaluations included

neuropsychological testing, review of Rompilla’s school,

medical, and prison records, and review of post-sentencing

declarations by Barbara Harris, Darlene Rompilla, and

Nicholas Rompilla. The psychologists stated that the low IQ

and achievement test results documented in Rompilla’s

school records, his medical history, and his abusive

background were all “red flags” indicating that further

objective evaluation was necessary. App. at 1692, 1739,

1743. 

Drs. Armstrong and Crown opined that Rompilla suffers

from organic brain damage, an extreme mental disturbance

significantly impairing several of his cognitive functions.

They expressed the view that Rompilla’s problems relate

back to his childhood and were likely caused by fetal

alcohol syndrome, and they concluded that Rompilla’s

capacity to appreciate the criminality of his conduct or to

conform his conduct to the law was substantially impaired

at the time of the offense. See Rompilla Br. at 58-61.

B.

In evaluating Rompilla’s ineffective assistance of counsel

claim, the PCRA court noted that Strickland v. Washington,

466 U.S. 668 (1984), requires proof of deficient performance

16
and prejudice. App. 2027. The court then observed that

Pennsylvania cases employ a three-pronged test: 

First, a defendant must demonstrate that his claim is

of arguable merit. In the event this threshold

requirement is satisfied, a defendant must show that

counsel had no reasonable basis for the act or

omission in question. Finally a defendant must

establish that but for counsel’s act or omission, the

outcome of the proceedings would have been different.

App. 2028 (quoting Commonwealth v. Buehl, 658 A.2d 771

(Pa. 1995). 

Applying this standard, the PCRA court concluded that

Rompilla satisfied the first prong because he was “entitled

to have relevant information of mental infirmity” presented

to the jury, but the court held that the second prong was

not met because “counsel had a reasonable basis for

proceeding as they did during the penalty phase.” App.

2028. The court made the following findings:

• Drs. Cooke and Sadoff, are “recognized experts in the

field of psychiatry and psychology.” 

• “These experts administered tests, evaluated Mr.

Rompilla, and reported back to defense counsel.”

• They found “no organic brain damage” and “nothing that

could be used in mitigation.”

• They diagnosed Rompilla as a “sociopath,” and this

evidence “would not have been of benefit to Mr.

Rompilla’s case.”

• The defense attorneys provided Drs. Cooke and Sadoff

“with whatever they asked for,” and Drs. Cooke and

Sadoff did not request the records later unearthed by

PCRA counsel.

• Trial counsel “also obtained an evaluation by Dr. Paul

Gross, a well respected Lehigh Valley psychiatrist,” and

Dr. Gross “found nothing that would have been

beneficial in the penalty phase.”

• Rompilla did not provide trial counsel with “any

indication of mental problems or alcoholic blackouts” or

anything else that was “particularly useful.”

17
• Trial counsel “spoke with members of the family in a

detailed manner,” and the family did not reveal the

family background information adduced in the PCRA

proceeding.

• The family members’ testimony at the PCRA hearing was

not credible insofar as it “attempted to contradict what

defense counsel indicated was asked of them during

numerous communications prior to trial.”

App. 2028-2029. 

Based on these findings, the PCRA concluded:

• “Given the fact that [the] three health care professionals

[retained by trial counsel], all of whom were experienced

forensic experts, had provided opinions . . . , and none

of them asked for more information, it was hardly

unreasonable or ineffective for defense counsel to have

relied upon their opinions.”

• Trial counsel was not ineffective in questioning family

members because family members were questioned “in a

detailed manner,” and contrary testimony at the PCRA

hearing was rejected. 

• “Defense counsel was reasonable in believing that the

only avenue available to them was to ask the jury to

show mercy upon Mr. Rompilla.” “Under the

circumstances of this case, this strategy was not only an

appropriate one, but the only one reasonably available to

counsel.” 

On appeal, the Pennsylvania Supreme Court also held

that Rompilla’s ineffective assistance claim lacked merit.

The Court agreed with the PCRA court “that trial counsel

was effective with respect to their investigation and

presentation of mitigating evidence.” Rompilla-2, 721 A.2d

at 790. Noting that trial counsel employed three experts to

evaluate Appellant” and that “the experts found nothing

helpful to Appellant’s case,” the Court added: “[W]e agree

with the PCRA court that under the facts of this case,

counsel reasonably relied upon their discussion with

Appellant and upon their experts to determine the records

needed to evaluate his mental health and other potential

mitigating circumstances.” Id. 

18
In the habeas proceeding, the District Court not only

disagreed with the decisions of the PCRA court and the

state supreme court on the ineffective assistance issue, but

the District Court found that those decisions were

unreasonable. Rompilla, 2000 WL 964750, at *14. However,

the Court stated that its decision was “a very close call . . .

because trial counsel performed so admirably according to

my review of the record” and further commented that its

review of the record revealed that “trial counsel were

intelligent, diligent and devoted to their task of representing

[Rompilla].” Id. at *8, *12. 

The District Court found two omissions in the opinions of

the PCRA court and the state supreme court. First, the

District Court stated, the prior opinions lacked “an in depth

analysis of what the duty to investigate consists of in a case

of this nature.” Id. at *8. In particular, the District Court

faulted the state courts for failing to “include a reference to

the ABA Standards for Criminal Justice.” Id. Second, the

District Court found the state court opinions deficient for

failing to discuss alcoholism. Id. at *8. Observing that it

appeared that trial counsel “thought they could rely on the

experts to determine [Rompilla’s] general mental ability or

capacity,” the Court opined: “[I]t seems to me on balance

that [trial counsel] were obliged to go a bit farther to fulfill

their duty to investigate.” Id. at *9, *12. Concluding that

trial counsel’s performance at the penalty phase had been

inadequate and that Rompilla had been prejudiced, the

Court held that Rompilla was entitled to habeas relief with

respect to his sentence. Id. at *14.

IV.

Strickland is the Supreme Court precedent governing

ineffective assistance of counsel claims, Williams, 529 U.S.

at 391, and in order to show ineffective assistance under

Strickland, a defendant must demonstrate (1) that counsel’s

“representation fell below an objective standard of

reasonableness,” Strickland, 466 U.S. at 688; and (2) 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. “Judicial scrutiny of a

counsel’s performance must be highly deferential,” and

19
“every effort [must] be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.” Id. at 689. “There

is a ‘strong presumption’ that counsel’s performance was

reasonable.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir.

2001). Thus, “a defendant must overcome the presumption

that, under the circumstances, the challenged action might

be considered sound trial strategy.” Bell, 122 S. Ct. at 1852

(quotations omitted). 

“The test for ineffectiveness is not whether counsel could

have done more; perfection is not required. Nor is the test

whether the best criminal defense attorneys might have

done more. Instead the test is . . . whether what [counsel]

did was within the ‘wide range of reasonable professional

assistance.’ ” Waters v. Thomas, 46 F.3d 1506, 1518 (11th

Cir. 1995) (en banc) (quoting Strickland, 466 U.S. at 689).

Ultimately, the issue is not what conduct is “prudent or

appropriate, but only what is constitutionally compelled,”

Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United

States v. Cronic, 466 U.S. 648, 665 n.38 (1984)), and the

Sixth Amendment “simply . . . ensure[s] that criminal

defendants receive a fair trial,” Strickland, 466 U.S. at 689.

See also Kokoralies v. Gilmore, 131 F.3d 692, 696 (7th Cir.

1997) (“The sixth amendment does not guarantee success

or entitle defendants to the best available counsel or the

most prudent strategies. . . . [T]he Constitution is satisfied

when the lawyer chooses a professionally competent

strategy that secures for the accused the benefit of an

adversarial trial.”) 

V.

In this appeal, the Commonwealth contends that the

state courts reasonably applied the Strickland ineffective

assistance standard to the facts of this case. According to

the Commonwealth, the District Court erred by essentially

considering the ineffective assistance issue as if it were

conducting a de novo review — that is, by making its own

independent application of the Strickland test to the facts

rather than considering only whether the state supreme

court’s application of that test was reasonable. Rompilla of

20
course disagrees, but he also goes further and argues that

we need not reach the unreasonable application issue at all

for two reasons: first, because the Pennsylvania Supreme

Court did not render a “decision” within the meaning of 28

U.S.C. § 2254(d)(1), and, second, because the state supreme

court’s decision is “contrary to” Strickland. We discuss each

of these arguments below. 

A.

Rompilla argues that the Pennsylvania Supreme Court

did not render a “decision” on his Sixth Amendment claim

because “[t]he Pennsylvania Court’s opinion lacks any real

Sixth Amendment analysis.” Rompilla Br. at 98. Rompilla

criticizes the state supreme court for applying the threepronged test set out in its own cases rather than the twopronged Strickland test. Id. He contends that the

relationship between the three-part Pennsylvania

formulation and the Strickland test is “not clear,” and he

faults that state supreme court for supposedly failing to

address either prong of the Strickland test. Id. at 98-99. He

asserts that the state supreme court mistakenly thought

that his federal claim was that trial counsel did not conduct

any investigation at all, whereas his actual claim was that

trial counsel did not conduct a sufficiently “thorough”

investigation. Id. at 100. Finally, he criticizes the state

supreme court for failing “to render a ‘decision’ at all on

critical aspects of this claim,” viz., the prejudice prong of

Strickland and his arguments regarding alcoholism and

intoxication. Id. 

In order to address these arguments, we must first

explain the critical difference under the habeas statute

between, on the one hand, the failure of a state court to

adjudicate a federal claim on the merits (something that

may occur if the state court misconstrues the federal claim)

and, on the other, the failure of a state court to hand down

an opinion that discusses every argument, sub-argument,

and legal authority offered by the habeas petitioner. For

purposes of the habeas statute, a failure to decide affects

the standard of review; a failure to discuss (either at all or

to the satisfaction of the habeas petitioner or the federal

court) is irrelevant. 

21
Under the habeas statute, as previously noted, if a claim

was “adjudicated on the merits” in a state court proceeding,

relief may not be granted “unless the adjudication of the

claim . . . resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law.” 28 U.S.C. § 2254(d)(1)(emphasis added). An

“adjudication 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.”

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

also Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2001)

(“adjudication ‘on the merits’ is a term of art that refers to

whether a court’s disposition of the case was substantive as

opposed to procedural”), cert. denied, 123 S. Ct. 963 (2003).

In Chadwick v. Janecka, 312 F.3d 597, 605-07 (3d Cir.

2002), cert. denied, 123 S.Ct. 1914 (2003), we discussed

this issue in detail and reviewed both pertinent Supreme

Court precedent and our own prior decisions in Everett v.

Baird, 290 F.3d 500, 507-08 (3d Cir. 2002), cert. denied,

537 U.S. 1107 (2003); Appel v. Horn, 250 F.3d 203, 210 (3d

Cir. 2001); and Hameen v. Delaware, 212 F.3d 226, 248

(3d Cir. 2000). We noted that under Weeks v. Angelone,

528 U.S. 225, 237 (2000), a state court may render an

adjudication or decision on the merits of a federal claim by

rejecting the claim without any discussion whatsoever.

Chadwick, 238 F.3d at 606. We explained that if an

examination of a state court opinion reveals that the state

court did not decide a federal claim on the merits, the

deferential standards of review set out in § 2254(d)(1) do not

apply. Id. at 605-07. But if the state court decided the

claim, the § 2254(d)(1) standards govern — regardless of the

length, comprehensiveness, or quality of the state court’s

discussion. Id. See also Sellan, 261 F.3d at 312 (a state

court adjudicates a claim on the merits when it “(1)

disposes of the claim ‘on the merits,’ and (2) reduces its

disposition to judgment. . . . [e]ven if the state court does

not explicitly refer to . . . relevant federal case law.”); Bell v.

Jarvis, 236 F.3d 149, 160 (4th Cir. 2000) (en banc) (section

2254(d) “does not require that a state court cite to federal

law in order for a federal court to determine whether the

state court decision is an objectively reasonable one.”), cert.

22
denied sub nom., Bell v. Beck, 122 S. Ct. 74 (2001); Aycox

v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999) (“The focus

is on the state court’s decision or resolution of the case.”);

Wright v. Secretary for Dep’t of Corrections, 278 F.3d 1245,

1255 (11th Cir. 2002) (section 2254(d)(1) “focuses on the

result, not on the reasoning that led to the result”) cert.

denied, 123 S.Ct. 1511 (2003). 

Here, it is abundantly clear that the state supreme court

adjudicated Rompilla’s Sixth Amendment claim on the

merits. Although the state supreme court referred to its

own three-pronged ineffective assistance test rather than

the two-pronged Strickland test, the Pennsylvania Supreme

Court has explicitly held that the state standard is “the

same” as Strickland’s and that Pennsylvania law does not

provide “any greater or lesser protection” than the Sixth

Amendment. Commonwealth v. Pierce, 527 A.2d 973, 976-

77 (Pa. 1987). As we put it in Werts v. Vaughn, 228 F.3d

178, 203 (3d Cir. 2000) cert. denied, 532 U.S. 980 (2001),

the Pennsylvania Supreme Court has “opined that the

Pennsylvania standard judging ineffectiveness claims [is]

identical to the ineffectiveness standard enunciated by the

United States Supreme Court in Strickland.” Since the brief

filed in the state supreme court on Rompilla’s behalf in the

PCRA appeal left no doubt that the ineffectiveness claim

asserted was based on federal law, it is perfectly clear that

the state supreme court adjudicated that federal claim on

the merits but simply chose to address the claim within the

framework of its own, familiar three-part test, which it

regards as “the same” as Strickland. 

Moreover, it is apparent that this essentially stylistic

choice on the part of the state supreme court had no effect

on its decision. The state supreme court held that the

second prong of the state formulation — requiring a

showing that “counsel had no reasonable basis for the act

or omission in question,” Rompilla-2, 721 A.2d at 789 —

had not been met because Rompilla’s trial “counsel acted

reasonably” “with respect to their investigation and

presentation of mitigation evidence.” Id. at 790. The second

prong of the state formulation is substantively

indistinguishable from the first prong of Strickland — which

requires a showing that counsel’s “representation fell below

23
an objective standard of reasonableness”. Strickland, 466

U.S. at 688. Rompilla argues that the significance of the

first Pennsylvania prong is unclear9 and that the third

Pennsylvania prong differs from Strickland’s prejudice

prong,10 Rompilla Br. at 98-99, but because the state

supreme court held that Rompilla failed the second state

prong, which is indistinguishable from the first Strickland

prong, these arguments are entirely beside the point. 

Rompilla’s remaining arguments on the question whether

the state supreme rendered an “adjudication” or “decision”

on the merits of his federal ineffectiveness claim require

little additional discussion. There is plainly no merit to

Rompilla’s argument that the state supreme court

mistakenly thought that his Sixth Amendment claim was

that counsel failed to conduct any investigation at all

regarding the matters at issue and did not appreciate that

his claim was that counsel did not conduct a sufficiently

thorough investigation. Although the state supreme court

did use the phrase “failed to investigate,” 721 A.2d at 790,

it seems clear that this was simply a shorthand way of

referring to the claim. The court’s discussion of the various

steps that counsel took and its conclusion that counsel

acted “reasonably” make it clear that the court did not

think that any investigation at all would suffice but instead

understood that the extent of the investigation had to be

“reasonabl[e].”

9. Rompilla takes exception with the first prong of the Pennsylvania

formulations — whether the underlying claim has arguable merit.

Although the question of the merit of an underlying claim is not an

explicit step under Strickland, we have held that it is a determinative

factor in the “deficient performance” prong of the Strickland analysis in

at least some contexts. See Parrish v. Fulcomer, 150 F.3d 326, 328 (3d

Cir. 1998) (counsel not ineffective for failing to raise meritless claims). 

10. Rompilla notes that the third Pennsylvania prong, as stated by the

Pennsylvania Supreme Court’s opinion, asks whether counsel’s act or

omission “would have” produced a different outcome, not whether, as

stated in Strickland, there is a reasonable probability of a different

outcome. Strickland, 466 U.S. at 694. Since neither the decision of the

state supreme court nor our decision in this appeal turns on the issue

of prejudice, we have no occasion to explore the question whether in

practice prejudice is analyzed differently under these two standards. 

24
What we have said about the relationship between the

Pennsylvania formulation of the test for ineffective

assistance and the Strickland formulation is sufficient to

dispose of Rompilla’s criticism of the state supreme court

for failing to discuss Strickland in so many words.

Rompilla’s criticism of the state supreme court for failing to

decide whether the prejudice prong of Strickland was

satisfied is further flawed because, in light of the state

supreme court’s holding that counsel’s performance was

reasonable, the court had no need to address the issue of

prejudice. See Strickland, 466 U.S. at 697 (“[T]here is no

reason for a court deciding an ineffective assistance claim

to . . . address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sistrunk

v. Vaughn, 96 F.3d 666, 673 n.8 (3d Cir. 1996) (if counsel’s

performance is objectively reasonable, there is no need to

decide prejudice). 

Finally, Rompilla’s complaint that the state supreme

court “failed to discuss any aspect” of his arguments

regarding evidence of alcoholism and intoxication goes to

the style of the state court’s opinion, not the question

whether the state court rendered an adjudication on the

merits. There are many different theories about how judicial

opinions should be written. While some opinions make a

point of specifically addressing every argument and every

significant legal authority offered by counsel, others favor

brevity and comment on only those points that the court

finds most important. Because the state supreme court in

this case rendered an “adjudication on the merits” of

Rompilla’s Sixth Amendment claim, Rompilla’s criticisms of

the state court’s opinion cannot free him from the

restrictive standards of review set out in 28 U.S.C.

§ 2254(d)(1). 

B.

There is similarly no merit in Rompilla’s contention that

the decision of the state supreme court was “contrary to”

Strickland because it did not “identify and apply actual

Sixth Amendment standards.” Rompilla Br. at 101. A

decision is “contrary to” a Supreme Court holding if the

state court “contradicts the governing law set forth in [the

25
Supreme Court’s] cases” or if it “confronts a set of facts that

are materially indistinguishable from a decision of th[e

Supreme] Court and nevertheless arrives at a [different]

result.” Williams, 529 U.S. at 405-06. 

In this case, the critical standard applied by the state

supreme court — whether trial counsel had a “reasonable

basis for the act[s] or omission[s] in question” — did not

contradict Strickland but rather, as we have explained, was

entirely consistent with Strickland. In Wertz v. Vaughn, 228

F.3d at 202-04, as noted, we compared Pennsylvania’s

ineffective-assistance test with the test enunciated in

Strickland, and we found that a state court decision that

applied the Pennsylvania test did not apply a rule of law

that contradicted Strickland and was thus not “contrary to”

established Supreme Court precedent. Id. at 204. In the

instant case, the state court applied the same state test.

Accordingly, here, as in Wertz, the state court’s application

of that test does not mean that its decision is “contrary to”

established Supreme Court precedent. 

Rompilla also argues that the state court decision is

contrary to Strickland because counsel’s failure to obtain

records, without knowing the contents of the records,

“cannot be deemed a reasonable strategy/tactic, as a matter

of Sixth Amendment law,” and because “Sixth Amendment

law does not condition [the] obligation [to obtain records] in

any way on counsel’s duties with regard to expert

evaluations.” Rompilla Br. at 106, 108 (emphasis in

original). Rompilla is essentially challenging the manner in

which the state court applied the law to the facts, and thus

this argument must be analyzed under the “unreasonable

application” clause of § 2254(d)(1). See Williams, 529 U.S.

at 406 (a “run-of-the-mill state court decision” that is “in

accord with . . . Strickland as to the legal prerequisites for

establishing an ineffective-assistance claim . . . may be

contrary to the federal court’s conception of how Strickland

ought to be applied in that particular case” but is not

contrary to Strickland itself). For these reasons, we reject

Rompilla’s arguments under the “contrary to” clause of

§ 2254(d)(1). 

26
VI.

We now turn to the ‘unreasonable application’ clause of

§ 2254(d)(1). To obtain relief under this clause, Rompilla 

must do more than show that he would have satisfied

Strickland’s test if his claim were being analyzed in the

first instance, because under § 2254(d)(1), it is not

enough to convince a federal habeas court that, in its

independent judgment, the state-court decision applied

Strickland incorrectly. Rather, he must show that the

[state court] applied Strickland to the facts of his case

in an objectively unreasonable manner.

Bell, 122 S. Ct. at 1852 (citation omitted). In other words,

Rompilla must demonstrate that “the state court decision,

evaluated objectively and on the merits, resulted in an

outcome that cannot reasonably be justified under

Strickland.” Wertz, 228 F.3d at 204. 

We hold that the Pennsylvania Supreme Court’s

conclusion that trial counsel acted reasonably and rendered

effective assistance was not an unreasonable application of

Strickland. The findings of the PCRA court and

uncontradicted testimony at the PCRA hearing establish

that trial counsel conducted an extensive investigation for

mitigating evidence. According to their testimony, trial

counsel got to know Rompilla well during the course of

their representation and established a good relationship

with him. Rompilla was questioned about his background

but provided no useful information or leads. Trial counsel

also spoke to three of Rompilla’s siblings, as well as a

sister-in-law and Rompilla’s ex-wife. Family members were

questioned “in a detailed manner,” but they did not allude

to any of the new evidence adduced at the PCRA

proceeding. 

Trial counsel retained three well-qualified mental health

experts to examine Rompilla. Dr. Cooke, a psychologist,

testified that in a case of this type he would have looked for

mitigating evidence and would have performed a battery of

tests, including an IQ test. Based on his letter to the Public

Defender’s office, he concluded that Rompilla’s IQ test must

not have shown mental retardation and that his evaluation

must not have revealed any abnormalities that would have

27
been useful in showing mitigation. Dr. Sadoff, a

psychiatrist, interviewed Rompilla and evaluated him for

the presence of mitigating factors, but Dr. Sadoff inferred

that he also found nothing useful. A second psychiatrist,

Dr. Gross, was also retained but similarly found nothing

useful. In view of this record, we cannot say that the

Pennsylvania Supreme Court unreasonably applied

Strickland in concluding that trial counsel’s investigation

regarding mitigating evidence relating to Rompilla’s family

background and mental condition did not fall below the

Sixth Amendment floor. 

Rompilla criticizes many aspects of trial counsel’s

performance at the penalty phase, but we see no ground for

relief under the habeas statute. Rompilla faults his trial

attorneys for failing to interview two sisters who testified at

the PCRA hearing — Barbara Harris, the oldest of

Rompilla’s siblings, and Randi Rompilla, the second

youngest. But trial counsel did interview three other

siblings, including two who were a few years older than

Rompilla (Nicholas Rompilla and Sandra Whitby) and one

Robert Rompilla, who was younger. At least some of the

siblings who were interviewed must have been aware of the

lurid conditions in the family home that were portrayed at

the PCRA hearing, but they never mentioned anything

about these matters to trial counsel despite being

interviewed “in a detailed manner.” It was thus not

constitutionally ineffective for trial counsel to fail to

anticipate that interviewing Barbara Harris or Randi

Rompilla would have yielded important new information

about the family home. 

Rompilla also criticizes his trial attorneys for allegedly

failing to ask sufficiently specific questions when

interviewing family members and for allegedly failing to ask

Nicholas Rompilla about any time period other than the

three and one-half months just before the murder. This

argument is defeated by findings of fact made by the state

courts. The PCRA found that trial counsel “spoke with

members of the family in a detailed manner.” App. 2028.

The PCRA court also rejected Nicholas Rompilla’s testimony

insofar as it contradicted “what defense counsel indicated

was asked . . . during numerous conversations prior to

28
trial.” Id. at 2030. Testimony at the PCRA hearing supports

these findings. See, e.g., id. at 1303 (“I remember [Dantos]

specifically going one by one and talking to him. ‘Is there

anything you can tell me? Tell me about yourself. Tell by

about your background.’ She was, you know, meticulous to

cover points.”). The state courts’ findings must be

presumed to be correct, and Rompilla has not rebutted that

presumption “by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). We accordingly reject Rompilla’s argument

regarding the interviewing of family members. 

Rompilla contends that trial counsel should have sought

out school, medical, police, and prison records, but this

argument also falls short of meeting the AEDPA standard.

With the benefit of hindsight, we know that these records

contain useful information about Rompilla’s childhood

home environment, his mental problems, and his problems

with alcohol, but trial counsel had grounds for believing

that if there was any mitigating evidence of this sort to be

found, at least a hint of its availability would be disclosed

in the interviews with Rompilla and his family members or

in the testing and evaluations performed by the three

mental health experts whom they retained. 

Charles, the lead trial attorney who had the final say on

every issue in the case, App. 1258, explained why these

records were not sought out. He testified that he would

have done whatever was needed to get records if there had

been any indication from the interviews or from the

information provided by the mental health experts that

such records would be helpful. Id. at 1307. But since these

interviews and evaluations suggested that Rompilla’s home

environment, schooling, and mental condition were not

promising avenues of investigation in the search for

mitigating evidence, he did not think that obtaining those

records would have represented a sound allocation of his

office’s resources. Id. at 1293-94. 

This explanation provides a reasonable basis for

counsel’s decision not to seek the records. Defense counsel

was permitted to rely on statements made by their client in

deciding on the extent of the investigation that should be

conducted in particular areas. See Strickland, 466 U.S. at

691 (“The reasonableness of counsel’s actions may be

29
determined or substantially influenced by the defendant’s

own statements or actions.”); id. (“[W]hen a defendant has

given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful, counsel’s

failure to pursue those investigations may not later be

challenged as unreasonable.”). As noted counsel’s

interviews with Rompilla himself and with family members

provided no indication of Rompilla’s abusive childhood or

mental problems. See Thomas, 144 F.3d at 515 (“if the

client and his family and friends throw the lawyer off the

scent . . . by denying the existence of psychological

problems that might have provided an alternative theory of

mitigation, the lawyer cannot be faulted for failing to go

down the path thus closed off ”). “The right to counsel does

not require that a criminal defense attorney leave no stone

unturned and no witness unpursued. [Although] it does

require a reasoned judgment as to the amount of

investigation the particular circumstances of a given case

require[,] [a]n attorney need not fully investigate every

potential avenue if he or she has reasonable grounds for

not doing so.” Berryman v. Morton, 100 F.3d 1089, 1101

(3d Cir. 1996). See also Thomas v. Gilmore, 144 F.3d 513,

515 (7th Cir. 1998) (“A reasonable investigation is not . . .

the investigation that the best criminal defense lawyer in

the world, blessed not only with unlimited time and

resources but also with the inestimable benefit of hindsight,

would conduct.”) cert. denied, 525 U.S. 1123 (1999). 

It was likewise not unreasonable for trial counsel to rely

on its mental health experts to detect whether there was

any basis for further pursuit of mitigating evidence relating

to their client’s mental condition. Trial counsel retained no

fewer than three highly qualified experts. Dr. Cooke and Dr.

Sadoff looked for any evidence that could be used as

mitigation but found none. A battery of tests was performed

but yielded no indication of mental retardation or anything

else that would have been useful for mitigation. Although

all three of the experts testified that the records that PCRA

counsel subsequently obtained would have caused them to

do further investigation, none of the experts asked for

records or suggested that any further testing be done. 

In view of these circumstances, it was not unreasonable

30
for the state courts to conclude that trial counsel did not

fall below the constitutionally mandated level of

representation by failing to search out the records at issue

and by failing to provide those records to their mental

health experts. This was not a case where counsel knew of

the defendant’s mental health or other problems and failed

to inform or provide the experts with the information. See

Caro v. Calderon, 165 F.3d 1223, 1228 (9th Cir. 1999) (“A

lawyer who knows of but does not inform his expert

witnesses about . . . essential pieces of information going to

the heart of the case for mitigation does not function as

‘counsel’ under the Sixth Amendment.”) cert. denied, sub

nom, Woodford v. Caro, 527 U.S. 1049 (1999). Despite

counsel’s attempts to find out otherwise, counsel had no

knowledge of Rompilla’s problems and/or childhood abuse.11

In Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990), the

court addressed an argument very similar to Rompilla’s

argument regarding trial counsel’s failure to provide records

to their mental health experts. In Card, a capital case, the

mental health expert spoke to members of the defendant’s

11. For this reason, the authority cited by Rompilla is inapposite. See

Jermyn, 266 F.3d at 275 (counsel knew that expert was willing to testify

regarding defendant’s abusive childhood and its mitigating effects on the

defendant’s adult life); Profitt v. Waldron, 831 F.2d 1245, 1246-49 (5th

Cir. 1987) (counsel knew defendant escaped from mental hospital shortly

before the crime); Beavers v. Balkcom, 636 F.2d 114, 115-16 (5th Cir.

1981) (counsel knew of defendant’s prior hospitalization in mental

institution); Glenn v. Tate, 71 F.3d 1204,1208 (6th Cir. 1995) (counsel

knew defendant had received mental health counseling) cert. denied, 519

U.S. 910 (1996); Antwine v. Delo, 54 F.3d 1357, 1365-66 (8th Cir. 1995)

(counsel knew that defendant was acting “odd” prior to the offense) cert.

denied sub nom, Bowersox v. Antwine, 516 U.S. 1067 (1996); Hill v.

Lockhart, 28 F.3d 832, 838-40, 845 (8th Cir. 1994) (counsel knew of

defendant’s prior hospitalization); Kenley, 937 F.2d at 1300, 1304-06

(counsel knew of but failed to contact a doctor who had previously

treated the defendant); Clabourne v. Lewis, 64 F.3d 1373, 1377, 1388

(9th Cir. 1995) (counsel knew defendant was mentally impaired at the

time of the offense, and had “display[ed] a broad spectrum of psychiatric

and emotional disorders”); Wallace v. Steward, 184 F.3d 1112, 1114,

1116 (9th Cir. 1999) (counsel knew from first sentencing hearing of

defendant’s “chaotic upbringing,” substance abuse, and mother’s mental

illness) cert. denied, 528 U.S. 1105 (2000). 

31
family and was provided copies of pre-trial reports

indicating that the defendant was competent to stand trial.

Id. at 1512. The expert testified at the sentencing hearing

that the defendant suffered from a sociopathic personality

disorder and that his abusive childhood was consistent

with the development of the disorder. Id. at 1508. The

defendant claimed that counsel was ineffective in failing to

provide the expert with various school, incarceration, army,

and medical records and information from family members.

Id. at 1512. This information, the defendant argued, would

have enabled the expert to diagnose the defendant as

suffering from organic brain damage and schizophrenia,

rather than merely a sociopathic personality. Id. at 1512-

13. The Eleventh Circuit rejected this argument observing

that 

[t]here is no indication that the experts felt incapable of

basing their conclusions on the information they

obtained through their own testing and examinations.

Nor is there any reason that, after receiving the

experts’ reports, counsel was obligated to track down

every record that might possibly relate to [the

defendant’s] mental health and could affect a

diagnosis. 

Id. at 1512. 

We find this reasoning persuasive. As in Card, there was

no indication in the present case that Drs. Cooke, Sadoff,

and Gross “felt incapable of basing their conclusions on the

information they obtained through their own testing and

examinations.” Card, 911 F.2d at 1512. Thus, it was not

unreasonable for counsel to rely on the expertise and

experience of the mental health professionals in

determining the need for any records. Such deference to the

legitimate role of experts is well within the wide range of

reasonable professional assistance. 

Furthermore, it was permissible for Charles to consider

his office’s limited investigative resources in determining

the extent of the investigation that should be conducted

with respect to Rompilla’s childhood, family, and mental

condition. See McWee v. Weldon, 283 F.3d 179, 188 (4th

Cir. 2002) (“the reasonableness of an investigation . . .

32
must be considered in light of the scarcity of counsel’s time

and resources in preparing for a sentencing hearing”), cert.

denied, 537 U.S. 893 (2002); Mahaffey v. Page, 151 F.3d

671, 685 (7th Cir.) (“A ‘reasonable investigation’ does not

mandate a ‘scorch-the-earth strategy,’ a requirement that

would fail to consider the limited time and resources that

defense lawyers have in preparing for a sentencing

hearing.”) (citations omitted), vacated in part on other

grounds, 162 F.3d 481 (7th Cir. 1998); Rogers v. Zant, 13

F.3d 384, 387 (11th Cir. 1994) (the focus on whether a

decision not to conduct a particular investigation was

reasonable “reflects the reality that lawyers do not enjoy the

benefit of endless time, energy or financial resources”). 

Rompilla argues that his trial attorneys were deficient

because they did not provide adequate information or

instructions to Drs. Cooke, Sadoff, and Gross. Rompilla

maintains that his attorneys should have instructed Dr.

Cooke to test for brain damage, but Charles testified that

he relied on the experts to do whatever testing was

appropriate. App. 1307-08. Dr. Cooke was aware of the

need for mitigating evidence. He testified that in a capital

case he would have looked for indications of “any mental

illness, emotional disturbance, or other sorts of problems

that might be a psychological mitigating circumstance,” and

he performed the battery of tests that he felt was called for.

Id. at 1808-09. He stated that if the results of some of

those tests had provided a reason to do a “neuropsyche

test,” he would have done so. Id. at 1809. Thus, Rompilla

is in effect faulting his trial attorneys for failing to instruct

an expert to do a test that the expert apparently did not

think was warranted under the circumstances. This

argument demands much more than the Sixth Amendment

requires. 

Rompilla criticizes his trial attorneys for allegedly failing

to educate Dr. Sadoff about the meaning of mitigating

evidence. Based on a snippet of Dr. Sadoff ’s testimony,

Rompilla suggests that Dr. Sadoff thought that “mitigating

evidence was limited to evidence about the offense itself,”

Rompilla Br. at 87 (citing App. 1874), whereas under the

law, “mitigation is anything that ‘might serve as a basis for

a sentence less than death’ and need ‘not relate specifically

33
to [the defendant’s] culpability for the crime he

committed.’ ” Rompilla Br. at 88 (quoting Skipper v. South

Carolina, 476 U.S. 1, 4-5 (1986)) (emphasis and brackets in

original). There are at least three weaknesses in this

argument. 

First, in light of Dr. Sadoff ’s background — which

included extensive experience relating to the criminal

justice system (see App. 1876-1892) — it is far from clear

that trial counsel had a constitutional obligation to brief

him on the meaning of exculpatory evidence.12 Second, it

also is not clear that Rompilla’s argument accurately

represents what Dr. Sadoff said. Asked by Rompilla’s PCRA

attorney whether he thought that evidence was mitigating

only “if it relates to the defendant’s state of mind at the

time of the commission of the offense,” Dr. Sadoff

answered: “It relates to that and the kind of person he is

. . . .” App. 1874. (emphasis added). He continued that in

the past he had not “used irrelevant material that had

nothing to do with the crime itself as a mitigating factor. It

had to be something that would have impacted on [the

defendant’s] state of mind at the time.” Id. Thus, Dr. Sadoff

did not say that he thought that mitigating evidence had to

be evidence “about the offense.” Rompilla Br. at 87

(emphasis in original removed). Rather, he said that the

mitigating evidence that he had used in the past was

evidence of something that had an impact on the

defendant’s mind at the time. App. at 1874. It is not

apparent that mental health evidence is likely to be

persuasive for mitigation purposes if it cannot have had

any impact on a murderer’s mind at the time of offense. 

12. Both Drs. Sadoff and Cooke had previously testified in criminal

proceedings. See, e.g., United States v. Green, 544 F.2d 138, 144 (3d Cir.

1976) (Sadoff and Cooke); New Jersey v. Zola, 548 A.2d 1022, 1030 (N.J.

1988) (Sadoff and Cooke); Commonwealth v. Comitz, 530 A.2d 473, 603-

04 (Pa. Super. Ct. 1987) (Sadoff); Commonwealth v. Stark, 526 A.2d 383

(Pa. Super. Ct. 1987) (Sadoff). They had also previously testified in

capital cases. See, e.g., New Jersey v. Pitts, 562 A.2d 1320, 1325-27

(N.J. 1989) (Sadoff and Cooke); Commonwealth v. Aulisio, 522 A.2d 1075,

1087 (Pa. 1987) (Cooke); Commonwealth v. Terry, 521 A.2d 398, 405,

409 (Pa. 1987) (Cooke); Commonwealth v. Whitney, 512 A.2d 1152, 1157

(Pa. 1986) (Cooke); Commonwealth v. Terry, 462 A.2d 676 (Pa. 1983)

(Sadoff and Cooke). 

34
Third and most important, even assuming for the sake of

argument that Dr. Sadoff ’s understanding of the range of

mental health evidence that can be mitigating was unduly

narrow, we see absolutely no reason to believe that Dr.

Sadoff ’s understanding contributed in any way to his

failure to detect the conditions that Rompilla now claims.

Rompilla argues that he “suffers from organic brain

damage, including damage to the frontal lobes and parietal

area” and that these impairments, among other things,

prevent him from “adequately control[ling] and guid[ing] his

behavior,” “emotions,” and “impulses.” Rompilla Br. at 58.

He argues that these conditions “substantially impair[ ] his

capacity to appreciate criminality of conduct or conform

conduct to the requirements of law.” Id. at 96. Accordingly,

these impairments surely would have “impacted” his mind

at the time of the Scanlon murder and thus fall squarely

within the scope of the sort of mitigating evidence to which

Dr. Sadoff referred. 

Rompilla argues that his trial attorneys were ineffective

because they did not ask Dr. Gross to look for mitigating

evidence. Rompilla Br. at 65 (citing App. 1535-36, 1545).

However, Drs. Cooke and Sadoff did look specifically for

mitigating evidence, and the scope of Dr. Gross’s evaluation

encompassed at least some mitigating evidence. He stated:

“I was looking to see if he knew what he was doing, whether

he was suffering from any kind of psychiatric disorder,

whether he may have been intoxicated, exactly what his

emotions and cognitive processes were.” App. 1506. In light

of what Drs. Cooke and Sadoff were asked to do and in fact

did, trial counsel’s instructions to Dr. Gross do not show

that trial counsel were ineffective. 

Finally, Rompilla argues that trial counsel were

ineffective in failing to do further investigation relating to

Rompilla’s alcohol use. Rompilla never explains exactly

what alcohol-related mitigation argument he believes his

trial attorneys should have made, but he refers to

information suggesting that there is a history of alcoholabuse in the Rompilla family, that he is an alcoholic, that

his alcoholism was caused by his traumatic childhood, that

he suffers from alcohol-induced blackouts, and that he was

intoxicated on the night of the murder. While these

35
elements can be woven into an attractive mitigation

argument, most of the elements are based on information

in the records that trial counsel was not, for the reasons we

have explained, constitutionally obligated to obtain. This

includes evidence of drinking in the Rompilla family,

Rompilla’s abusive childhood home, blackouts, and

Rompilla’s alcoholism. 

The only alcohol-related mitigation argument that trial

counsel could have made without obtaining the previously

discussed records — namely, that Rompilla was so

intoxicated at the time of the Scanlon murder that his

judgment was impaired — would not have been particularly

compelling. Moreover, while evidence to support this

argument was available,13 the argument would have to have

been made without the support of testimony from Rompilla,

who did not take the stand at either phase of the trial and

denied intoxication or alcohol problems. We cannot say that

it was objectively unreasonable for trial counsel not to put

on such a defense. 

Finally, Rompilla argues that the Supreme Court’s recent

decision in Wiggins v. Smith, 123 S.Ct. 2527 (2003), shows

that his trial attorneys conducted an unreasonably

abbreviated investigation of potential mitigating factors, but

there is a sharp contrast between the conduct of the

attorneys in Wiggins and those in this case. In Wiggins, the

trial attorneys claimed that they made a tactical decision

not to present mitigating evidence but instead to pursue

the alternative strategy of attempting to prove that someone

other than the defendant actually killed the victim. Id. at

2533. Accordingly, they made little effort to investigate the

defendant’s background although they had reason to

believe that such an investigation would have been fruitful.

The Supreme Court found that defense counsel’s

investigation of their client’s background was based entirely

on the presentence investigation report (PSI) and

documents from the Baltimore City Department of Social

Services (DSS). Id. at 2540. Although funds were available

13. As Rompilla points out, police reports on the Scanlon case indicated

that “Rompilla was drinking heavily and was intoxicated and incoherent

around the time of the offense.” Rompilla Br. at 92. 

36
for the preparation of a social history of the defendant,

counsel did not commission such a report. Id. at 2536. But

even the limited documents that counsel reviewed

contained information that should have alerted counsel

that an expanded investigation into their client’s

background was likely to yield mitigation evidence. The PSI

reported that the defendant had spent most of his

childhood in foster care and quoted the defendant as

describing his background as “disgusting.” Id. at 2536. The

DSS records disclosed that the defendant’s “mother was a

chronic alcoholic; Wiggins was shuttled from foster home to

foster home and displayed some emotional difficulties while

there; he had frequent, lengthy absences from school; and,

on at least one occasion, his mother left him and his

siblings alone for days without food.” Id. at 2537. 

Wiggins’s trial counsel nevertheless failed to follow these

leads. Counsel moved for bifurcation of the penalty phase

trial so that they could first attempt to show that their

client did not kill the victim by his own hand and then, if

that defense was rejected, offer evidence in mitigation. Id. at

2532. When bifurcation was denied, defense counsel made

a brief reference in her penalty phase opening to the

defendant’s “difficult life” but “introduced no evidence of

[his] life history.” Id. And although counsel proffered some

evidence that would have been introduced if the bifurcation

had been allowed, no evidence of the defendant’s life history

or family background was included. Id. After the defendant

was sentenced to death, new counsel commissioned the

preparation of a social history. Id. at 2532. A social worker

interviewed Wiggins and family members, obtained

additional documents, and compiled evidence of severe

physical and sexual abuse by Wiggins’s mother. Id. at

2532, 2542. 

Faced with these facts, the Supreme Court held that it

was objectively unreasonable for counsel not to conduct a

further investigation for mitigating evidence regarding

Wiggins’s background. Id. at 2541. The Court stated that

“any reasonably competent attorney” would have realized

that it was necessary to follow the leads in the PSI and DSS

documents before making a choice among potential

defenses. Id. at 2537. The Court stressed that “counsel

37
uncovered no evidence in their investigation to suggest that

. . . further investigation would have been fruitless.” Id. The

Court also emphasized that Strickland does not require

counsel to investigate every conceivable line of mitigating

evidence no matter how unlikely the effort would be to

assist the defendant at sentencing. Id. Instead, the Court

reiterated that “[a] decision not to investigate . . . ‘must be

directly assessed for reasonableness in all the

circumstances.’ ” Id. (quoting Strickland, 466 U.S. at 691).

There are critical differences between the conduct of

Wiggins’s and Rompilla’s trial attorneys. Wiggins’s attorneys

were presented with leads that “any reasonably competent

attorney” would have realized were promising. Rompilla’s

attorneys had no comparable leads. Wiggins described his

childhood as “disgusting”; Rompilla insisted that his was

“normal.” In Wiggins, postconviction interviews with

Wiggins himself and with members of his family produced

evidence of severe abuse. 123 S.Ct. at 2542. In the present

case, Rompilla’s attorneys interviewed their client and

numerous family members in detail before the penalty

proceeding but discovered no mitigating evidence. Wiggins’s

attorneys “uncovered no evidence in their investigation to

suggest that . . . further investigation would have been

fruitless.” Id. at 2537. Rompilla’s trial attorneys had a body

of evidence that suggested that a further investigation into

Rompilla’s family background would not have been

productive. Not only did Rompilla’s attorneys probe their

client for mitigating evidence, but they interviewed

numerous members of his family, including siblings who

bracketed him in age. At least one of these siblings,

Nicholas Rompilla, later revealed that he knew about the

conditions in the home on which Rompilla now relies, but

he never provided that information to trial counsel, and

although he now claims that trial counsel never asked him

about any period of time other than the months

immediately preceding the murder, the PCRA court found

that this testimony was not believable. 

In short, the attorneys in Wiggins did little to investigate

their client’s background although they possessed

information that should have prompted them to do so.

Rompilla’s attorneys conducted a much greater

38
investigation, but their interviews with their client and his

family provided a reasonable basis for concluding that

additional investigation would not have represented a wise

allocation of limited resources. In our view, Wiggins is

critically different from the present case. 

Rompilla asserts that Dr. Gross’s report “explicitly

recommend[ed] that counsel investigate alcoholism,”

Rompilla Br. at 66, but this is not exactly what Dr. Gross

wrote. Dr. Gross said that “[t]he possibility does remain . . .

that Mr. Rompilla while under the influence of alcohol, can

become prone to violent behavior although he himself

strongly denies this.” Dr. Gross added: “My

recommendation is that this area should be further

evaluated before any definitive conclusions are drawn.”

(emphasis added). Thus, Dr. Gross did not say that further

evaluation was likely to produce evidence that Rompilla

becomes violent when drunk, only that this was a

“possibility.” Nor did he recommend further evaluation as a

promising strategy for the defense. Instead, he merely said

that “no definitive conclusions” should be drawn about this

possibility unless there was a further evaluation. And

finally, it should be noted that he referred to a further

“evaluation” (a term that suggests a psychiatric

examination), not an “investigation.” Rompilla’s brief

repeatedly uses the term “investigate” in an apparent

attempt to suggest that Dr. Gross recommended that trial

counsel search for evidence such as the records discussed

above. The use of this term obscures the fact that trial

counsel did precisely what Dr. Gross recommended: they

had Rompilla “evaluated” further, i.e., examined by another

psychiatrist, Dr. Sadoff. 

In conclusion, it appears to us that Rompilla is now

arguing that his trial counsel were constitutionally derelict

in failing to take all the steps that might have been pursued

by the most resourceful defense attorneys with bountiful

investigative support. But while we may hope for the day

when every criminal defendant receives that level of

representation, that is more than the Sixth Amendment

demands. See Strickland, 466 U.S. at 689 (“the purpose of

the effective assistance guarantee of the Sixth Amendment

is not to improve the quality of legal representation,

39
although that is a goal of considerable importance to the

legal system”); Burger, 483 U.S. at 794 (“The record at the

habeas corpus hearing does suggest that [counsel] could

well have made a more thorough investigation than he did.

Nevertheless, in considering claims of ineffective assistance

of counsel, ‘[w]e address not what is prudent or

appropriate, but only what is constitutionally compelled.’ ”)

(quoting Cronic, 466 U.S. at 665 n.38) (alteration in

original). The Sixth Amendment is satisfied when “counsel’s

conduct falls within the wide range of reasonable

professional assistance,” thereby “ensur[ing] that criminal

defendants receive a fair trial.” Strickland, 466 U.S. at 689.14

14. In finding the state courts’ analysis unreasonable, the District Court

relied in part on the absence of any “in depth analysis” of the duty to

investigate, including the lack of any reference to the ABA Standards for

Criminal Justice. Rompilla, 2000 WL 964750, at *9. Three important

observations must be made about the District Court’s treatment of this

point. First, the state court’s failure to discuss these standards does not

mean that the standards themselves or the principles they embody were

not considered. Second, we see nothing in the quoted portions of the

ABA standards that dictates that records of the sort at issue here must

always be sought. Third, although the ABA standards are important

guides, they cannot be viewed as a codification of the requirements of

the Sixth Amendment. In Strickland, the Supreme Court recognized that

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

standards and the like . . . are guides to determining what is

reasonable.” Strickland, 466 U.S. at 688 (emphasis added). See also

Williams, 529 U.S. at 396. However, the Supreme Court has made it

clear that the ABA standards 

are only guides. No particular set of detailed rules for counsel’s

conduct can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range of legitimate

decisions regarding how best to represent a criminal defendant. Any

such set of rules would interfere with the constitutionally protected

independence of counsel and restrict the wide latitude counsel must

have in making tactical decisions. . . . [T]he purpose of the effective

assistance guarantee of the Sixth Amendment is not to improve the

quality of legal representation, although that is a goal of

considerable importance to the legal system. The purpose is simply

to ensure that criminal defendants receive a fair trial. 

Strickland, 466 U.S. at 688-89 (citation omitted). See also Roe v. FloresOrtega, 528 U.S. 470, 481 (2000) (the Court has “consistently declined

to impose mechanical rules on counsel — even when those rules might

lead to better representation”). 

40
See also Waters, 46 F.3d at 1512 (“The test has nothing to

do with what the best lawyers would have done. Nor is the

test even what most good lawyers would have done . . . . We

are not interested in grading lawyers’ performances; we are

interested in whether the adversarial process at trial, in

fact, worked adequately.”) (quoting White v. Singletary, 972

F.2d 1218, 1220-21 (11th Cir. 1992)). Here, the state

court’s determination that counsel acted reasonably was

not “contrary to” or an “unreasonable application” of

Strickland. 

VII.

Rompilla advances three claims related to the trial court’s

response to the jury’s questions about accomplice liability.

First, Rompilla argues that his federal constitutional right

to due process was violated because the court instructed

the jury on accomplice liability without providing “notice or

fair warning that he might be subjected to liability as an

accomplice.” Rompilla Br. at 14. Second, he contends that

his federal constitutional right to due process was abridged

because the accomplice-liability comments did not state

that “accomplice liability must be proven beyond a

reasonable doubt and that conviction for murder, even

based on accomplice liability, required proof of a specific

intent to kill.” Id. at 20. Third, he maintains that his rights

under the Sixth, Eighth, and Fourteenth Amendments were

violated because the trial judge’s remarks prevented the

jury “from considering and giving exculpatory and

mitigating effect to evidence that someone other than

Rompilla was the killer.” Id. at 22 (emphasis in original

removed). 

A.

Under 28 U.S.C. § 2254(b)(1), a state prisoner’s

application for a writ of habeas corpus “shall not be granted

unless it appears that . . . the applicant has exhausted the

remedies available in the courts of the State” or the case

falls within one of two exceptions to the exhaustion

requirement, i.e., “there is an absence of available State

corrective process” or “circumstances exist that render such

41
process ineffective to protect the rights of the applicant.”

Moreover, under 28 U.S.C. § 2254(b)(3), a state may not be

deemed to have waived exhaustion or be estopped from

relying on exhaustion “unless the State, through counsel,

expressly waives the requirement.” In order to exhaust state

remedies, a habeas petitioner must present the petitioner’s

federal claim in the state courts. See Keller v. Larkins, 251

F.3d 408, 413 (3d Cir. 2001). It is not enough for a

petitioner to advance a similar state-law claim. Duncan v.

Henry, 513 U.S. 364, 366 (1995). Rather, a petitioner must

“present a federal claim’s factual and legal substance to the

state courts in a manner that puts them on notice that a

federal claim is being asserted.” McCandless v. Vaughn, 172

F.3d 255, 261 (3d Cir. 1999). 

Three sections of Rompilla’s brief on direct appeal to the

state supreme court raised claims concerning the

accomplice liability instruction. First, Rompilla argued that

the judge erred in giving the instruction because the

defense had no prior notice that this theory of liability was

in the case and because the judge refused a defense

request that “the jury be specifically instructed that under

an accomplice theory every element must be proven beyond

a reasonable doubt.” Appellant’s Br. at 11, Commonwealth

v. Rompilla, Supreme Court of Pennsylvania, Philadelphia

District, No. 53 Capital Appeal Docket (hereinafter

“Rompilla Direct Appeal Br.”). Although this section of

Rompilla’s brief did refer to the requirement of proof beyond

a reasonable doubt — something demanded by both the

federal Constitution and Pennsylvania law15 — the brief

made no reference to the federal Constitution and did not

cite any federal authorities. Second, Rompilla argued that

the judge erred in refusing to poll the jury as to whether

the guilty verdict was based on the theory of accomplice

liability. Rompilla Direct Appeal Br. at 15-17. This

contention was based exclusively on state law. Third,

Rompilla repeated the argument that the trial judge erred

in refusing to give the requested defense instruction to the

effect that conviction as an accomplice required proof

beyond a reasonable doubt. Id. at 17-18. Only state

authorities grounded on state law were cited. 

15. See Commonwealth v. Bonomo, 151 A2d 441, 446 (Pa. 1959). 

42
Based on our examination of Rompilla’s brief to the

Pennsylvania Supreme Court, it is not clear that Rompilla

properly presented any federal constitutional claim to that

court.16 Moreover, even if Rompilla’s brief to the state

supreme court is read as having raised the federal claim

that the trial judge erred in refusing to give the requested

instruction on the requirement of proof beyond a

reasonable doubt, it seems clear that the remaining federal

constitutional claims advanced by Rompilla in this appeal

were not presented to the state supreme court. Rompilla’s

argument in the state supreme court concerning the lack of

prior notice was based solely on state authorities, and the

argument that Rompilla has made to us that the trial

judge’s instruction effectively prevented the jury from

considering exculpatory and mitigating evidence was never

made, either as a state- or federal-law claim, in Rompilla’s

direct appeal brief. 

In view of these deficiencies, if Rompilla could still return

to the state courts and present the federal constitutional

claims that he has made here, we would probably be

obligated to regard those claims as unexhausted. It is clear,

however, that Rompilla can no longer raise those claims in

state court, 42 Pa. Cons. Stat. Ann. § 9545(b), and therefore

it appears that those claims are exhausted but are probably

procedurally defaulted. See Fahy v. Horn, 240 F.3d 239,

245 (3d Cir. 2001). The Commonwealth has not raised the

defense of procedural default, but we have the discretion to

do so in appropriate circumstances. See Sweger v.

Chesney, 294 F.3d 506, 520 (3d Cir. 2002) cert. denied,

123 S.Ct. 1902 (2003). Nevertheless, we do not rely on the

doctrine of procedural default in deciding this appeal.

Assuming for the sake of argument that our consideration

of those claims on the merits is not barred, we find that the

claims do not provide a basis for habeas relief. 

16. On direct appeal, the state supreme court described Rompilla’s

argument as follows: 

by being instructed on an accomplice theory and then being told to

disregard it, the jury might have been confused and convicted

[Rompilla] as an accomplice. 

Rompilla-1, 653 A.2d at 631. 

43
B.

When language in jury instructions is challenged, the

language in question “must be considered in the context of

the instructions as a whole and the trial record.” Estelle v.

McGuire, 502 U.S. 62, 72 (1991). We then consider

“ ‘whether there is a reasonable likelihood that the jury has

applied the challenged instructions in a way’ that violates

the Constitution.” Smith v. Horn, 120 F.3d 400, 411 (3d Cir.

1997) (quoting McGuire, 502 U.S. at 72.)) Under these

standards, the trial judge’s comments about accomplice

liability did not violate Rompilla’s constitutional rights. 

1.

Since there were no eyewitnesses to the killing, the

Commonwealth’s case was based almost entirely on the

previously noted circumstantial evidence. See Rompilla-1,

653 A.2d at 629. The defense argued that someone other

than Rompilla was the actual assailant. 

During jury deliberations in the guilt phase, the jury

asked: 

If Defendant was an accomplice to the Charge of

Criminal Homicide, can he be charged with Murder in

the First Degree? 

App. at 585. In response, the trial judge began by informing

the jury that the Commonwealth had not proceeded on the

theory that Rompilla was liable for the murder as an

accomplice and that no instruction on accomplice liability

had been given. The judge stated: 

Well, preliminarily, let me say this. If you recall, the

Court, in [its] Charge, at no time referred to any theory

of accomplice in this case. It is not the Commonwealth’s

theory in this case that the Defendant was an

accomplice. I’m not quite sure what prompted the

question. If it arose because of something that was

argued by Counsel in the closing speeches, if you

recall, I indicated that you are to give — and you

should be guided by each Lawyer’s arguments to the

extent they’re supported by the evidence and in so far

as they aid you in applying your own reason and

44
common sense. However, you are not required to

accept the arguments of either Lawyer. It is for you

alone — you and you alone to decide this case based

on the evidence as it was presented from this witness

stand and in accordance with the instruction which the

Court gave you. Now, again, as I say, I’m not quite sure

what prompted the question, but you did ask the

question, and I assume you want an answer, is that

correct? 

Id. at 585-86 (emphasis added). The jury foreman nodded

in the affirmative, and the trial court then attempted to

explain when an accomplice could be held liable for a crime

committed by another. Id. at 586-87. The court concluded,

however, with the following comments: 

I can only say this to you, that you should determine

this case based on the Charge of the Court as it had

given you originally. There was no evidence in this case

with regard to the question as posed but a simple clear

answer to the question is yes, you could be charged

with, and you could be convicted of Murder in the First

Degree if, indeed, you’re an accomplice, but it requires

other proof or findings on your part that were not a part

of this case nor were they made a part of this case, all

right. 

Id. at 587-88 (emphasis added). 

On direct appeal, the state supreme court did not decide

whether the trial judge’s comments about accomplice

liability were flawed but instead held that any error was

cured by the judge’s admonition to the jury that it should

not consider that theory of liability. Id.

17 The District Court

17. In the PCRA appeal, Rompilla again attempted to challenge the trial

judge’s instruction on accomplice liability, but the state supreme court

held that relief was unavailable because the claim had already been

litigated on direct appeal. Commonwealth v. Rompilla, 721 A.2d 786, 793

(Pa. 1999). 

In the federal habeas proceeding, the District Court also found that the

instruction did not prevent consideration of exculpatory and mitigating

evidence and that Rompilla’s claim that there was evidence of an

accomplice was not supported by the record. Id. 

45
— presented with arguments notably different from those

advanced in the state supreme court — went beyond the

state supreme court in holding that the judge’s explanation

of accomplice liability was incomplete, but the District

Court agreed with the state supreme court that any flaw

was cured by the trial court’s admonition that the theory of

accomplice liability was not before the jury in this case.

Rompilla, 2000 WL 964750, at *14. Similarly, we conclude

that, even assuming arguendo that the challenged

comments were constitutionally flawed, there is no basis for

habeas relief. The state supreme court’s decision that any

defect in the challenged comments was cured by the judge’s

admonition that the jury was not to consider the theory of

accomplice liability did not “involve an unreasonable

application of Federal law,” 28 U.S.C. § 2254(d)(1), namely,

the rule that jury instructions do not violate the

Constitution unless there is a reasonable probability that

they were applied in a way that abridged constitutional

rights. Moreover, even under a standard of plenary review,

we would find no constitutional violation. 

Here, the clear thrust of the trial court’s response to the

jury’s question was that the Commonwealth was not relying

on the theory that Rompilla was liable as an accomplice

and that the jury should not consider that theory as a

possible basis for conviction. As noted, when the judge first

responded to the jury’s question, the judge began by

reminding the jury that the court’s instructions “at no time

referred to any theory of accomplice in this case. It is not

the Commonwealth’s theory in this case that the Defendant

was an accomplice.” App. 585-86. In addition, the judge

told that jury that they were required to decide the case “in

accordance with the instruction which the Court gave you.”

Id. Since “the instruction which the Court gave [the jury]”

“at no time referred to any theory of accomplice in this

case,” id. at 585-86, the judge’s comments meant that the

jury was to decide the case without relying on the theory of

accomplice liability. The judge’s final statements regarding

accomplice liability made exactly the same point. The judge

stated: “I can only say this to you, that you should

determine this case based on the Charge of the Court as it

had given you originally.” Id. at 587. Jurors are presumed

to follow the court’s instructions. Richardson v. Marsh, 481

46
U.S. 200, 211 (1987). In view of the instructions given here,

it is not reasonably likely that the jury interpreted the

judge’s comments to mean anything other than that they

were not to consider accomplice liability as a possible

ground for conviction. 

Once the meaning of the judge’s comments is

understood, it is apparent that there is no merit in

Rompilla’s argument that his right to due process was

violated because he did receive prior notice that he might

be subjected to liability as an accomplice or in his

argument that the judge’s explanation of accomplice

liability was constitutionally flawed. Since the trial judge

told the jury that it was to decide the case without relying

on the theory of accomplice liability, these arguments fail.

Rompilla contends that the trial court told the jury that

it should not consider accomplice liability because no

evidence was presented during the trial to support such a

finding. Rompilla Br. at 16. Rompilla then maintains that

the trial judge gave contradictory instructions in that, on

the one hand, he told the jury not to consider accomplice

liability because there was no evidence to support such a

finding and, on the other hand, he told the jury that it was

the sole factfinder and its recollection of the evidence

should therefore control. According to Rompilla, the jury

was left with two irreconcilable options — either to

disregard the theory of accomplice liability because the trial

court believed there was no evidence to support the theory

or to consider the theory if the jury, as sole factfinder,

believed, as suggested by its question, that there was

evidence of an accomplice. 

This elaborate argument rests on the faulty premise that

the trial judge instructed the jury that the reason why the

theory of accomplice liability was not in the case was

because there was no supporting evidence. In fact, however,

the judge never made such a statement. The trial judge did

state that “[t]here was no evidence in this case with regard

to the question as posed,” but he did not state that this

was why the theory was not in the case. Rather, as noted,

the judge twice told the jury that they were not to consider

accomplice liability because it was not in the original

charge, and the judge also noted that “[i]t [was] not the

47
Commonwealth’s theory in this case that the Defendant

was an accomplice.” 

Rompilla’s remaining argument (that the trial judge’s

statements prevented the jury from considering exculpatory

and mitigating evidence) entirely misconstrues the judge’s

words. The judge did not, as Rompilla contends, say that

there was no evidence that another person was involved.

Rather, the judge stated that “[t]here was no evidence in

this case with regard to the question as posed.” The

“question as posed” was: “If Defendant was an accomplice

to the Charge of Criminal Homicide, can he be charged with

Murder in the First Degree?” Thus, the judge essentially

said that there was no evidence to support a conviction

under an accomplice liability theory; the judge did not say

that there was no evidence that might justify reasonable

doubt, or residual doubt for purposes of sentencing

mitigation, as to whether Rompilla committed the killing

with the requisite intent. Accordingly, nothing that the

judge said foreclosed consideration of exculpatory or

mitigating evidence. 

In sum, after considering all of Rompilla’s arguments

regarding accomplice liability, we see no ground for habeas

relief. 

VIII.

Rompilla contends, finally, that his future dangerousness

was put at issue during the sentencing phase of his trial

and that therefore, under Simmons v. South Carolina, 512

U.S. 154 (1994), the trial court was required to inform the

jury that “life” imprisonment under Pennsylvania law

means “life without parole.” We agree with the District

Court, however, that the Pennsylvania Supreme Court’s

rejection of this claim cannot be disturbed under the

narrow standard of review prescribed by AEDPA.

A.

Rompilla maintains that the state supreme court’s

decision was “contrary to” and represented “an

unreasonable application” of Simmons.

18 The actual holding

in Simmons, however, as set out in Justice O’Connor’s

18. Simmons applies here because it was decided before Rompilla’s

conviction became final upon conclusion of his direct appeal in 1995. Cf.

O’Dell v. Netherland, 521 U.S. 151, 156-57 (1997). 

48
controlling opinion, is narrower than Rompilla

acknowledges. 

In Simmons, the defendant was convicted of capital

murder for the killing of an elderly woman. Simmons, 512

U.S. at 156. The defendant had a history of assaulting

elderly women, and both defense and state witnesses

agreed that the defendant posed a continuing danger to

elderly women. Id. at 157. During the penalty phase, the

state argued that the question for the jury was “what to do

with [the defendant] now that he is in our midst.” Id. The

state also urged that a death sentence would be “a

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

will be an act of self-defense.” Id. The defendant sought to

rebut the state’s argument by presenting evidence that his

dangerousness was limited to elderly women and that there

was no reason to expect acts of violence once he was in a

prison setting. Id. The trial court denied defense counsel’s

request for a parole ineligibility instruction. Id. at 158-60.

During deliberations, the jury asked if a life sentence

included the possibility of parole. Id. at 160. The trial court

instructed the jury not to consider parole or parole

eligibility and told the jury that life imprisonment and

death were to be understood in their plain and ordinary

meaning. Id. Shortly thereafter, the jury returned with a

sentence of death. Id. 

The United States Supreme Court held that, under these

circumstances, due process required the trial judge to

inform the jury that the defendant would not have been

eligible for parole if sentenced to imprisonment for life. The

plurality opinion endorsed by four Justices reasoned that 

the jury reasonably may have believed that petitioner

could be released on parole if he were not executed. To

the extent this misunderstanding pervaded the jury’s

deliberations, it had the effect of creating a false choice

between sentencing petitioner to death and sentencing

him to a limited period of incarceration. This grievous

misperception was encouraged by the trial court’s

refusal to provide the jury with accurate information

regarding petitioner’s parole ineligibility, and by the

State’s repeated suggestion that petitioner would pose a

future danger to society if he were not executed. 

49
Id. at 161-62 (plurality)(emphasis added). The plurality

found that the jury was then “left to speculate about . . .

parole eligibility when evaluating petitioner’s future

dangerousness, and was denied a straight answer . . . even

when it was requested.” Id. at 165-66. Consequently, the

plurality stated that “where the defendant’s future

dangerousness is at issue, and state law prohibits the

defendant’s release on parole, due process requires that the

sentencing jury be informed that the defendant is parole

ineligible.” 512 U.S. at 156 (plurality)(emphasis added). Id.

at 161-62.19

The controlling opinion in Simmons — Justice O’Connor’s

concurrence in the judgment, in which the Chief Justice

and Justice Kennedy joined — seemed to phrase the

holding more narrowly. Justice O’Connor stated that a

“defendant should be allowed to bring his parole ineligibility

to the jury’s attention . . . in cases in which the only

available alternative sentence to death is life imprisonment

without possibility of parole and the prosecution argues that

the defendant will pose a threat to society in the future.” Id.

at 177 (O’Connor, J., concurring in the judgement)

(emphasis added). Other passages in Justice O’Connor’s

opinion pointed in the same direction. She referred to cases

“ ‘[w]here the prosecution specifically relies on a prediction of

future dangerousness in asking for the death penalty,’ ” id.

at 175 (emphasis added)(citation omitted)(brackets in

original) and cases where “the State seeks to show the

defendant’s future dangerousness.” Id. 177. See also id. at

176 (“the State sought to show that petitioner is a vicious

predator who would pose a continuing threat to the

community”); id. at 177 (“The prosecutor in this case put

petitioner’s future dangerousness in issue”). 

In short, whereas the Simmons plurality opinion may be

read to state that the Simmons rule applies whenever a

19. Justice Souter’s concurring opinion, in which Justice Stevens joined,

was phrased in seemingly broader terms. See 512 U.S. at 172 (Souter,

J., concurring)(“at least when future dangerousness is an issue . . . .”).

The Simmons dissenters interpreted the plurality opinion as apparently

requiring admission of parole ineligibility even when the prosecution

does not argue future dangerousness. Id. at 183 (Scalia, J., joined by

Thomas, J., dissenting). 

50
defendant’s future dangerousness is “at issue” (whether or

not the prosecution makes that argument), Justice

O’Connor’s controlling opinion may be read more narrowly

to hold that the rule governs only where the prosecution

actually “argue[s]” that a defendant poses a future threat.

Neither position, of course, has perfectly clear boundaries.

There is a sense in which future dangerousness is “at

issue” at the penalty phase of virtually all capital cases. The

possibility that a first-degree murderer will kill again is

likely to be present in the jurors’ mind in all cases except

those where the defendant committed the murder for which

he or she was convicted only because of unusual

circumstances that are very unlikely to occur again even if

the defendant is released from prison. As the Chief Justice

has put it, “[i]t is difficult to envision a capital sentencing

hearing where the State presents no evidence from which a

juror might make [an inference of future dangerousness to

society].” Kelly v. South Carolina, 122 S.Ct. 726, 735

(2002)(Rehnquist, C.J., dissenting). Thus, read liberally, the

plurality’s position in Simmons would mandate that the

jury be informed about parole ineligibility in almost all

capital cases in which the only possible sentences are

death or life without parole. 

On the other hand, the fine line that Justice O’Connor’s

opinion seemed to draw — between cases in which the

prosecution “argue[s]” future dangerousness and cases in

which future dangerousness is inferred by the jury from the

evidence that is brought to its attention — is difficult to

police and arguably superficial. A prosecutor may

encourage a jury to think about future dangerousness

without expressly referring to that concept. 

Last year, in Kelly v. South Carolina, 122 S. Ct. 726

(2002),20 the Court arguably broadened the holding in

Simmons. In Kelly, the state told the jurors in its opening

at the penalty phase: “I hope you never in your lives again

20. Kelly was decided after briefing was completed and before oral

argument in this case. Rompilla submitted a Notice of Supplemental

Authority, pursuant to Fed. R. App. P. 28(j). After oral argument both

parties submitted supplemental memoranda addressing the issue of

whether Kelly was applicable to the instant matter. 

51
have to experience what you are experiencing right now.

Being some thirty feet away from such a person. Murderer.”

Kelly, 122 S. Ct. at 729. The state then presented evidence

that while in prison, Kelly had made a knife, had attempted

to escape from prison, and had planned to hold a female

guard as a hostage. Id. The state also brought out evidence

of “Kelly’s sadism at an early age, and his inclination to kill

anyone who rubbed him the wrong way.” Id. (citation

omitted). During closing arguments, the state referred to

Kelly as “the butcher of Batesburg,” “Bloody Billy,” and

“Billy the Kid.” Id. The state also told the jurors that “Kelly

doesn’t have any mental illness. He’s intelligent . . . He’s

quick-witted. Doesn’t that make somebody a little more

dangerous . . . . for this lady . . . doesn’t that make him

more unpredictable for [the victim] . . . . murderers will be

murderers. And he is the cold-blooded one right over there.”

Id. at 729-30. The trial court did not give a parole

ineligibility instruction. Id. at 730. 

The Supreme Court held that Kelly’s future

dangerousness was sufficiently put at issue that he was

entitled to a parole ineligibility instruction. Id. at 731, 733-

34. In the body of its opinion, the Court stated that

“[e]vidence of future dangerousness under Simmons is

evidence with a tendency to prove dangerousness in the

future; its relevance to that point does not disappear merely

because it might support other inferences or be described

in other terms.” Id. at 732. The Court recognized that “it

may well be that the evidence in a substantial proportion,

if not all, capital cases will show a defendant likely to be

dangerous in the future,” but the Court declined to address

the issue of whether a defendant is entitled to a parole

ineligibility instruction when the state’s evidence shows

future dangerousness but the prosecutor does not argue it.

Id. at 732 n.4. The Court concluded that “[t]he prosecutor

accentuated the clear inference of future dangerousness

raised by the evidence and placed the case within the four

corners of Simmons.” Id. at 732. 

The Kelly dissenters, including two of the Justices who

had joined Justice O’Connor’s opinion in Simmons, argued

that the Court had improperly extended Simmons’s reach.

See id. at 735 (Rehnquist, C.J., joined by Kennedy, J.,

52
dissenting) (“the test is no longer whether the State argues

future dangerousness to society[,] [as the Court found in

Simmons]; the test is now whether evidence was introduced

at trial that raises an ‘implication’ of future dangerousness

to society”) and id. at 737 (Thomas, J., joined by Scalia, J.,

dissenting) (“the Court dilutes the Simmons test, now

requiring that a parole ineligibility instruction be given

where the prosecution makes arguments that have a

‘tendency to prove dangerousness in the future.’ ”). 

Even if Kelly broadened Simmons, however, Kelly cannot

aid Rompilla here. Under 28 U.S.C. § 2254(d)(1), our review

is limited to deciding whether a state court decision is

“contrary to” or an “unreasonable application” of Supreme

Court precedent “as of the time of the relevant state-court

decision.” Williams, 529 U.S. at 412 (emphasis added). The

state court decisions in this case preceded Kelly.

Accordingly, regardless of whether Kelly expands the

circumstances when future dangerousness is at issue for

purposes of requiring a parole ineligibility instruction, the

case is not applicable to the instant matter. We are limited

to deciding whether the state court decisions in this case

were contrary to or an unreasonable application of the

holding in Simmons itself — which is to say Justice

O’Connor’s controlling concurrence. We must thus

determine whether the Pennsylvania Supreme Court was

reasonable in concluding that the prosecutor in the present

case did not “argue[ ]” that Rompilla would present a future

danger if not sentenced to death. We therefore turn to the

relevant events at the penalty phase of Rompilla’s trial. 

53
Volume 2 of 2
B.

During the penalty phase, the Commonwealth attempted

to establish the aggravating factor that Rompilla had a

“significant history of felony convictions” as specified in 423

Pa. C.S. § 9711(d)(9). In doing this, the Commonwealth read

into the record the testimony of J.M., a female bar owner

whom Rompilla had previously robbed, slashed with a

knife, and raped. During closing arguments, the

Commonwealth argued: 

[T]he woman that was raped, was raped pretty brutally.

She was raped at knife point. . . . [I]sn’t it frightening,

the similarity between that case and this case. I mean,

it is absolutely astounding. Both take place around the

bar. The Defendant gets in after closing or right before

closing. . . . On both occasions, a knife was used.

Steals money both times. Isn’t it frightening the

similarities in those crimes. Takes a taxi away from

[J.M.’s] Bar, takes a taxi the night of this crime. He

slashes [J.M.] in the breast with a knife. He uses a

knife on Jimmy Scanlon. It’s absolutely frightening to

think of the similarities in those two crimes. But there

is one difference, one major difference, [J.M.] lived

through her experience. Jimmy Scanlon didn’t. . . . I

keep wondering, why did the Defendant wait till Jimmy

Scanlon left the Bar? He knew he was closing up. Why

didn’t he just wait until he had left to break in and

steal the money, no problem, nobody gets hurt? You

have to ask yourselves, why didn’t he wait for Jimmy

Scanlon to leave? Was it his intent to kill right from the

start? Was it his intent to do serious bodily injury right

from the start? Because if he had waited maybe a half

hour, an hour later, Jimmy Scanlon would have been

gone. This wouldn’t be a homicide case. Jimmy

Scanlon would still be living. I think the Defendant

learned a lesson from [J.M.] in that case, that Rape

case. That lesson was, don’t leave any witnesses. Don’t

leave anybody behind that can testify against you. 

App. at 779-80.

During deliberations the jury asked: 

56
If a life sentence is imposed, is there any possibility of

the Defendant ever being paroled? 

Id. at 802. The trial judge answered: 

I’m sorry to say, I can’t answer that question. That’s

not before you as such. The only matter that you can

consider in the Sentencing Hearing is the evidence that

was brought out in the course of the Hearing and the

Law with respect to the Court’s Charge. That’s the only

consideration you have, I’m sorry to say. I — if there

were other alternatives that you should consider, we

would have outlined them in the Charge, all right. 

Id. at 802-03. 

Several hours later, the jury asked to see the docket

entries for Rompilla’s prior convictions for the purpose of

ascertaining Rompilla’s prior sentence. The judge denied

the request, and the following exchange took place: 

Juror No. 3: . . . we want to know if it was — the

sentence was — if he got released on

behavioral — 

Foreman: It was commuted in any way, the

original sentence. 

Court: Well, that we can’t give you. 

Prosecutor: You can’t tell them. 

Id. at 823-24. 

The next day, after two more hours of deliberation, the

jury asked: 

Was the Defendant offered any type of rehabilitation

either while in prison or after his release from prison?

Id. at 842. The following colloquy then occurred:

Court: Well, I’m sorry to say, I can’t answer

that. I can only tell you that you’re going

to have to make your decision based

upon the evidence that was presented

and in accordance with the Law with

respect to Sentencing Hearing. First of

57
all, I couldn’t even answer it if I wanted

to or if I could, I don’t know. 

Foreman: Could I change the question to the point

that is — isn’t rehabilitation available in

prison? 

Court: Well, again, I would like to even answer

that, and I can’t. You’re going to have to

rely upon your own knowledge of that

aspect if, indeed, that is a part that

troubles the area that you’re interested

in. The penology system, I’ll be quite

frank with you, is not an issue before —

before you with respect to the Law that

it’s a decision that you must make. I can

understand your interest, however, as I

say, we’re constrained to, you know,

comply with whatever evidence that was

put on in the hearing and then your

decision must be based upon whatever

the Law says and whatever you may

find. All right. 

Id. at 842-43. Three hours later the jury returned a

sentence of death. 

The PCRA court found that Simmons did not apply

because the prosecutor did not argue future

dangerousness. App. at 2025. The District Court similarly

found that a “fair reading of [the prosecutor’s summation]

leads to the conclusion that the state’s reasoning for the

death penalty was not based upon future dangerousness,”

but rather upon Rompilla’s “despicable, savage and

cowardly beating” of the victim. Rompilla, 2000 WL 964750,

at *15. The District Court concluded that although a “close

issue,” the state supreme court’s decision was not an

unreasonable application of federal law. Id.

C.

As noted, Rompilla relies on both the “contrary to” and

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

We will discuss each prong separately. 

58
1.

A result is “contrary to” a Supreme Court holding if the

state court “contradicts the governing law set forth in [the

Supreme Court’s] cases” or if it “confronts a set of facts that

are materially indistinguishable from a decision of [the]

Supreme] Court and nevertheless arrives at a [different]

result.” Id. at 405—06. Williams v. Taylor, 529 U.S. 362,

412 (2000). This prong is not met here because the

Pennsylvania Supreme Court applied the holding of

Simmons and because the facts of Simmons and the present

case are materially distinguishable. 

Rompilla argues that the state supreme court’s decision

is “contrary to” Simmons because the state supreme court

did not inquire whether there was “a ‘reasonable likelihood’

that parole and future dangerousness affected the

sentencing decision.” Rompilla Br. at 42 (citing Simmons,

512 U.S. at 170). We reject this argument. Neither the

Simmons plurality nor Justice O’Connor’s concurrence

stated that the test for entitlement to an instruction on

parole ineligibility hinges on whether there is a reasonable

likelihood that future dangerous might figure in the jury’s

verdict. Rather, the Simmons plurality opinion referred to

the concept of “reasonable likelihood” in considering a

different question — whether, once future dangerousness

was put at issue, there was a “reasonable likelihood” that

a jury instruction “directing juries that life imprisonment

should be understood in its ‘plain and ordinary’ meaning”

dispelled any misunderstanding that the jurors might have

had as to the meaning of life imprisonment. Simmons, 512

U.S. at 169-70 (citing Boyde v. California, 494 U.S. 370,

380 (1990)). 

Rompilla contends that the prosecution necessarily put

his future dangerousness at issue by presenting evidence of

his prior criminal conduct to establish the aggravating

factor that he had a significant history of felony convictions.

According to Rompilla, the state supreme court rendered a

decision that was “contrary to” Skipper v. South Carolina,

476 U.S. 1 (1986) and Ramdass v. Angelone, 530 U.S. 156

(2000), when it rejected this argument on the “formalistic”

ground that this aggravator concerns past conduct rather

than future behavior. Rompilla Br. at 42. This argument is

59
also meritless. It overlooks the scope of Justice O’Connor’s

Simmons concurrence, which, as noted, can reasonably be

read as focusing on the prosecution’s arguments, not the

inferences that arise from the facts that are proven. On this

view, proving past crimes that may cause jurors to worry

about future dangerousness is quite different from arguing

that a defendant presents a future threat. 

In addition, Skipper does not hold or even state that

proving prior felony convictions is tantamount to arguing

that a defendant presents a future threat for Simmons

purposes. In Skipper, the Court held that the capital

defendant’s right to present all relevant mitigating evidence

at the sentencing stage of the trial was violated by the state

court’s refusal to admit evidence that the defendant had

made a good adjustment to jail during the time between his

arrest and the trial. Thus, Skipper had nothing to do with

an instruction on parole ineligibility.21

Rompilla’s reliance on Ramdass is also misplaced. Not

only does Ramdass post-date the decision of the

Pennsylvania Supreme Court, but Ramdass does not

address the question of when future dangerousness is

sufficiently put in issue to require an instruction on parole

ineligibility. In Ramdass, the prosecution expressly argued

future dangerousness as an aggravating circumstance, and

thus that point was not disputed. Ramdass, 530 U.S. at

161. Instead, the issue in Ramdass was whether the

defendant was eligible for parole at the time that was

relevant for Simmons purposes. See id. at 166-68. 

21. Rompilla refers to the Skipper Court’s statement that “[c]onsideration

of a defendant’s past conduct as indicative of his probable future

behavior is an inevitable and not undesirable element of criminal

sentencing.” 476 U.S. at 5. If this dictum is true — that people will

inevitably draw inferences of probable future behavior from evidence of

past conduct — it may argue against drawing the line suggested in

Justice O’Connor’s Simmons concurrence between cases in which the

prosecution argues that a defendant presents a future danger and cases

in which the facts give rise to an inference of future dangerousness. But

that plainly does not make the decision of the Pennsylvania Supreme

Court in this case “contrary to” Skipper, which was not even a Simmons

case. 

60
Third, Rompilla argues that his case is “materially

indistinguishable” from Simmons, but we disagree. In

Simmons, as noted, the prosecution expressly argued that

the defendant posed a future threat, stating that “a verdict

for death would be ‘a response of society to someone who

is a threat. Your verdict will be an act of self-defense.’ ”

Simmons, 512 U.S. at 157. In this case, by contrast, the

Commonwealth made no specific references to any possible

future conduct by the defendant. We thus hold that the

decision of the Pennsylvania Supreme Court was not

“contrary to” Simmons.

2.

Rompilla next contends that the state supreme court’s

decision represents an “unreasonable application” of

Simmons, but while we agree with the District Court that

the application of Simmons to the present case would be

“close” if we were exercising plenary review, we are

convinced that the state supreme court’s decision was

reasonable. 

Rompilla maintains that the state supreme court’s

decision was unreasonable because its opinion did not

discuss all of evidence on which he relies in arguing that

his future dangerousness was sufficiently put at issue

during the penalty phase of his trial. Rompilla Br. at 45. As

we have already explained, however, 28 U.S.C. § 2254(d)(1)

calls upon us to decide whether the adjudication of a claim

on the merits in state court “resulted in a decision” that

“involved an unreasonable application of . . . clearly

established Federal law.” This standard applies even when

a claim is adjudicated on the merits without any discussion

at all. See Weeks, 528 U.S. at 237; Chadwick v. Janecka,

312 F.3d at 606. Accordingly, we must look to the

reasonableness of what the state supreme court decided,

not the detail included in its opinion. 

Rompilla argues that the prosecution raised the issue of

future dangerousness in its closing by stating that Rompilla

had “learned a lesson” from the prior rape, namely, that he

should not leave any witnesses and by repeatedly asking

the jury whether the similarities between the rape and his

61
murder of Scanlon were not “frightening.” Rompilla

contends that these comments painted a picture of him as

a “hardened, frightening, violent recidivist who, if ever

released, would commit additional violent crimes and would

not ‘leave any witnesses.’ ” Rompilla Br. at 34-35. 

We have given this argument careful consideration, but

in the end it does not persuade us that the difficult

standard of § 2254(d)(1) is met. Reading the

Commonwealth’s remarks in the context of the entire

sentencing proceedings, it appears to us that the

Commonwealth did not argue future dangerousness. In her

emotional closing argument at the penalty phase, defense

counsel argued over and over that, although the jury had

found the defendant guilty, they must have had some

doubts about his guilt in view of the evidence and that they

should therefore not impose a sentence of death. She

stated:

You, as a Jury, convicted him of First Degree Murder.

You convicted him, in your minds, beyond a reasonable

doubt, but you must have some doubt. There has got

to be some doubt there with no eye witness, with

circumstantial evidence . . . . 

So I know that you have to have some doubt as to

what actually happened that night. We may never

know what actually happened that night . . . . 

Don’t you want to be sure before you condemn that

man to die because don’t fool yourselves. A death

sentence is death. . . . No more questions after that.

. . . 

I saw you all struggling with this. I saw it Monday

night at 10:00 o’clock when we let you go for the

evening. You looked tired, you looked nervous, and you

looked like you’ve been struggling. . . . [I]f you’re

struggling with it, the fact that you had some doubt

should also stay in your mind, now. If there was any

doubt, and I submit to you that there has to be some

doubt. There has to be. You don’t know what

happened. You’ll never know exactly what happened.

There’s got to be some doubt here. . . . 

62
What if you’re wrong? Can you live with that? . . . .

You’ve rendered what you felt was a just verdict. I have

no quarrel with you, that was your job, you came back

with a verdict but none of you can tell me that you

have no doubts and if you have a doubt, then you

better think very, very, carefully about what you’re

going to do here. . . . 

Don’t take a chance that you may be making a wrong

decision that you can’t live with. Please, spare his life,

thanks. 

App. 767-774. 

The prosecutor’s remarks upon which Rompilla now

relies came in response to these defense comments

suggesting that the jury should still have doubts about the

defendant’s guilt. Seeking to dispel any such doubts, the

prosecutor’s obvious point in stressing the similarities

between the circumstances of the rape for which Rompilla

had previously been convicted and the Scanlon murder was

to convince the jury that the same man had committed

both crimes. Although the prosecutor at times termed the

similarities between the two crimes “frightening,” it seems

clear that he did not use this term to suggest that Rompilla

was “frightening” in the sense that he posed a future threat,

but simply that the similarities were, as he more aptly put

it at another point, “astounding.” That his argument did not

go to future dangerousness is illustrated by the fact that

many of the features of the two crimes that he highlighted

— both occurred at a bar, both took place at around closing

time, and in both instances the perpetrator used a taxi —

are not features that naturally suggest future

dangerousness. The prosecutor’s further comment that

Rompilla had learned a lesson from the rape, i.e., that he

should not leave any witnesses, came immediately after this

litany of similarities, and the comment seems to have had

two likely purposes: to explain why there was no eyewitness

to the most recent crime and to explain why the two crimes

differed in the important respect that one involved a killing

and the other did not. 

In any event, even if this interpretation of the

prosecutor’s comments is incorrect and even if they were

63
meant to imply that Rompilla would present a future

danger if he was ever released from prison, the fact remains

that the prosecutor never actually argued that Rompilla

presented a future threat. Concluding that these facts did

not bring the case within the holding of Simmons, as set

out in the controlling concurrence, is by no means

“unreasonable.” Particularly in view of the fact that the

Justices who endorsed the controlling concurrence in

Simmons apparently felt that it was important to draw the

line where they did, rather than approving the arguably

broader reach of the plurality, the state court’s failure to

extend Simmons to situations in which the prosecution

does not argue future dangerousness was not an

“unreasonable application” of Simmons.

22

Rompilla also argues that the state supreme court’s

decision is an unreasonable application of Supreme Court

law because it “flies in the face of ” the state court’s prior

decisions regarding future dangerousness and prior

criminal history and thus violates the Eighth and

Fourteenth Amendment requirements that capital

sentencing be applied consistently and with an even hand

(citing Eddings v. Oklahoma, 455 U.S. 349, 361 (1977), and

Gardner v. Florida, 430 U.S. at 349, 361 (1977). Rompilla

Br. at 44. In making this argument, Rompilla points to the

passage in the state supreme court opinion addressing his

argument that his future dangerousness was put at issue

for Simmons purposes by the prosecution’s effort to prove

as an aggravating circumstance that he had a significant

history of violent felony convictions. Rompilla-2, 721 A.2d

at 795. Rejecting this contention, the state supreme court

22. Rompilla points to the testimony regarding his parole status and the

lack of rehabilitative services as indicating that his future dangerousness

was an issue for the jury. This evidence was brought out by defense

counsel on direct examination of Rompilla’s witnesses and was not

argued by the Commonwealth. Rompilla also points to the jury’s

questions regarding parole and future dangerousness. Although the

questions may demonstrate that the jury did not know the meaning of

“life” imprisonment, see Simmons, 512 U.S. at 170 n.10; id. at 178

(O’Connor, J., concurring); Rompilla-2, 721 A.2d at 795 (Flaherty, C.J.,

dissenting), a jury’s uncertainty as to parole ineligibility is insufficient to

require an instruction under Simmons. 

64
stated that “this aggravating circumstance only addresses

Appellant’s past conduct, not his future dangerousness. Id.

Rompilla attacks this reasoning on the ground that the

underlying rationale for this aggravating circumstance is

that a history of violent felony convictions is a “barometer

of future danger.” Rompilla Br. at 44. He therefore contends

that the state supreme court’s holding in the present case

violates the principle that a state must administer its death

penalty statute evenhandedly. There is no merit in this

argument. 

The constitutional principle on which Rompilla relies

demands consistency in a state’s treatment of its capital

cases, and we have not been presented with any evidence

that Pennsylvania does not apply the Simmons standard

evenhandedly. On the contrary, it appears to us that

Pennsylvania has uniformly required a Simmons instruction

when the prosecutor specifically raised the issue of future

dangerousness, see, e.g., Commonwealth v. Trivigno, 750

A.2d 243, 252-54 (Pa. 2000) (prosecutor asked jury to use

prior convictions as a “weather vane looking into the

future” and a “determinant of where [the defendant] is

going, not just where he’s been”); Commonwealth v.

Chandler, 721 A.2d 1040, 1046-47 (Pa. 1998) (prosecutor

asked jury to “stop [the defendant] from ever killing another

woman again”), and has not required the instruction when

the prosecutor only presented evidence of prior convictions.

E.g., Commonwealth v. Robinson, 721 A.2d 344, 355 (Pa.

1999) (prosecutor only made references to defendant’s past

dangerousness); Commonwealth v. King, 721 A.2d 763, 779

(Pa. 1998) (prosecutor only made reference to defendant’s

past violent acts); May, 710 A.2d at 47 (prosecutor did not

argue future dangerousness). See also Robinson, 721 A.2d

at 355 (recognizing that the court requires a Simmons

instruction only when future dangerousness is “expressly

implicated”). 

Rompilla does not dispute the fact that Pennsylvania

applies the Simmons rule evenhandedly. Instead, his

complaint is that there is, in his view, a logical

inconsistency between the rationale for the aggravator in

question and the Pennsylvania Supreme Court’s

interpretation of Simmons. This argument, however, is

65
invalid for numerous reasons. First, the constitutional

principle on which Rompilla relies concerns consistency in

the treatment of cases, not logical consistency in all aspects

of a state’s death penalty jurisprudence. Second, Rompilla

has not identified a logical inconsistency. The Legislature

may have adopted the aggravating circumstance in question

wholly or partially for the purpose of retribution, not to

protect the public from those defendants who are likely to

pose a threat. Moreover, even if this aggravating

circumstance was intended solely to serve as a “barometer

of future danger,” there is nothing illogical about taking the

position that, while proof of a defendant’s past history of

violence may tend to suggest that the defendant may pose

a future danger if released, the jury should be instructed

about parole only in those cases in which there is a

particularly strong reason to think that concern about

future danger will decisively influence the jury’s sentence.

Informing a jury about the correctional consequences of a

verdict is an exception from usual practice, and it is not

illogical to confine this exception to narrow circumstances.

Third, if there is a logical inconsistency, it flows from the

fine line drawn by the controlling opinion in Simmons, not

from the Pennsylvania Supreme Court. For all these

reasons, Rompilla’s argument is rejected. 

IX.

For the reasons set out above, the decision of the District

Court is reversed with respect to the ineffective assistance

of counsel claim and affirmed as to the accomplice liability

instruction and parole ineligibility claims.

66
SLOVITER, Circuit Judge, dissenting. 

I respectfully dissent from the well-crafted (albeit, in my

view, flawed) decision of the Majority that, in effect,

reinstates the death penalty for appellant Ronald Rompilla.

There are two claims that I believe warrant the grant of a

writ of habeas corpus. One, which was the basis for the

District Court’s grant of the writ requiring a new sentencing

hearing, is the shocking ineffective assistance of counsel at

the sentencing phase. Rompilla’s trial counsel failed to

obtain Rompilla’s school, medical, court and prison records

as part of their investigation and, as a result, failed to

present to the jury any mitigating evidence regarding

Rompilla’s “childhood, alcoholism, mental retardation, or

possible organic brain damage.” Rompilla v. Horn, 2000 WL

964750, at *9. Counsel also failed to communicate with two

of Rompilla’s siblings who lived nearby and would have

advised counsel of evidence that Rompilla was raised by

alcoholic parents in a cold, violent, frightening and abusive

home. 

The standard for establishing ineffective assistance of

counsel was set forth in the Supreme Court’s seminal

decision in Strickland v. Washington, 466 U.S. 668 (1984).

Strickland was applied in Williams v. Taylor, 529 U.S. 362

(2000), to the issue of the investigation required of counsel

at the penalty phase. Holding, in “a straightforward

application of Strickland,” that trial counsel was ineffective

because he “failed to discover or failed to offer” certain

mitigating evidence, id. at 393, the Court held that the

Virginia Supreme Court decision denying the requested writ

of habeas corpus was both contrary to and involved an

unreasonable application of Strickland. Id. at 391. 

As I will discuss, the Pennsylvania Supreme Court’s

failure to grant relief to Rompilla because of trial counsel’s

grossly inadequate investigation also was both contrary to

and involved an unreasonable application of Strickland and

Williams. The Majority’s decision overturning the District

Court’s grant of a writ of habeas corpus and rejecting

Rompilla’s claim of ineffective assistance of counsel is

inexplicable in light of the Supreme Court’s most recent

application of Strickland in Wiggins v. Smith, 123 S. Ct.

67
2527 (2003), under circumstances remarkably similar to

those presented here. 

The second ground on which I would grant a writ of

habeas corpus is the refusal of the trial judge to advise the

jury as to the meaning of a life sentence in Pennsylvania,

notwithstanding the jury’s questions on that issue on three

different occasions during its sentencing deliberations. As a

result, the jury imposed a death sentence, rather than a life

sentence, without ever being told by the trial court in

response to the jury’s question that a life sentence in

Pennsylvania means life without parole. The Pennsylvania

courts’ rule in this respect is, in my judgment, an

unreasonable application of the Supreme Court’s decisions

in Simmons v. South Carolina, 512 U.S. 154 (1994), and

Kelly v. South Carolina, 534 U.S. 246 (2002). Because this

appeal is literally, not figuratively, a matter of life or death,

I elaborate on each of these grounds. 

I.

Ineffective Assistance of Counsel

There is no need to restate the facts of this case and its

procedural history, both of which are fully and accurately

set forth in the majority opinion. The ineffective assistance

of counsel claim is before us on the Commonwealth’s

appeal.

The applicable legal principles are not in dispute. Under

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2254(d)(1), the federal court may

grant a petition for habeas corpus only if the state’s

adjudication resulted in a decision that is “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court,” or

§ 2254(d)(2), the state decision was based on an

unreasonable determination of the facts. Both parties agree

that it is section 2254(d)(1) that is at issue here. Strickland

supplies the standard for addressing a claim of ineffective

assistance of counsel: 

A convicted defendant’s claim that counsel’s assistance

was so defective as to require reversal of a conviction or

68
death sentence has two components. First, the

defendant must show that counsel’s performance was

deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as

the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that

the deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose

result is reliable. 

466 U.S. at 687. 

In Williams, the Supreme Court held that “the rule set

forth in Strickland qualifies as clearly established federal

law, as determined by the Supreme Court.” 529 U.S. at 391

(internal quotation marks omitted). The Court further held

that a state decision is “contrary to . . . clearly established”

federal law if, inter alia, “the state court confronts a set of

facts that are materially indistinguishable from a decision

of this Court and nevertheless arrives at a result different

from our precedent.” Id. at 406. As the decision in Williams

made clear, relief should be granted under the

“unreasonable application” clause “if the state court

identifies the correct governing legal principle from [the

Supreme Court’s] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. at 413.

Williams instructs that “clearly established Federal law”

refers “to the holdings, as opposed to the dicta, of this

Court’s decisions as of the time of the relevant state-court

decision.” 529 U.S. at 412. The Court in Wiggins decided

the ineffectiveness of counsel claim before it using the

standards articulated in Strickland, noting that Williams did

not create new law, but illustrated “the proper application”

of these standards. 123 S. Ct. at 2535. Because Williams

fell squarely within Strickland, Williams, 529 U.S. at 390,

and Wiggins was decided pursuant to the same standards

of Strickland, these two later cases demonstrate how

Strickland should be applied. 

Under Strickland, a petitioner seeking to prove ineffective

assistance of counsel must show that counsel’s

performance was deficient and that the deficiency

prejudiced the defense. 466 U.S. at 687. To make the

69
requisite showing of deficiency, the petitioner must show

that counsel’s representation “fell below an objective

standard of reasonableness.” Id. at 688. Among counsel’s

responsibilities with regard to the sentencing phase is the

“obligation to conduct a thorough investigation of the

defendant’s background.” Williams, 529 U.S. at 396.

Coincidentally, in both Williams and Wiggins, two of the

principal Supreme Court cases dealing with ineffective

assistance of counsel, the Court found that a writ of habeas

corpus was appropriate because the failure of counsel to

conduct the requisite thorough investigation was objectively

unreasonable and prejudicial. 

In Williams, the Court noted that counsel “failed to

conduct an investigation that would have uncovered

extensive records graphically describing Williams’

nightmarish childhood, not because of any strategic

calculation but because they incorrectly thought that state

law barred access to such records.” Id. at 395. The Court

continued, 

Had they done so, the jury would have learned that

Williams’ parents had been imprisoned for the criminal

neglect of Williams and his siblings, that Williams had

been severely and repeatedly beaten by his father, that

he had been committed to the custody of the social

services bureau for two years during his parents’

incarceration (including one stint in an abuse foster

home), and then, after his parents were released from

prison, had been returned to his parents’ custody. 

Id. (footnotes omitted). The Court, noting that mitigating

evidence “may alter the jury’s selection of penalty, even if it

does not undermine or rebut the prosecution’s deatheligibility case,” id. at 398, concluded that “the Virginia

Supreme Court rendered a ‘decision that was contrary to,

or involved an unreasonable application of, clearly

established Federal law,’ thereby violating Williams’

constitutional right to the effective assistance of counsel as

defined in Strickland.” Id. at 399. 

Our court in Jermyn v. Horn, 266 F.3d 257 (3rd Cir.

2001), a decision following Williams, concluded that

Jermyn’s trial counsel was ineffective “because he failed to

70
conduct an investigation, failed to prepare adequately for

the penalty phase of Jermyn’s trial, and consequently,

failed to present substantial mitigating evidence that would

have directly undercut the state’s penalty-phase case.” Id.

at 306. We explained, 

Counsel failed to investigate the circumstances

surrounding Jermyn’s childhood, even though counsel

admitted at the PCRA hearing that he was aware that

Jermyn had claimed that he was abused as a child. Dr.

Phillips told counsel before the original trial that

Jermyn had been abused as a child, and told counsel

that the abuse was a critical component to

understanding Jermyn’s mental illness. Nonetheless,

counsel did not attempt to locate any fact witness who

witnessed the abuse and could testify about it

specifically. 

Id. at 306 (internal citation omitted). 

We stated that if counsel had investigated further “he

would have obtained powerful and, as the PCRA court

noted, ‘credible,’ testimony” from witnesses who presented

testimony at the PCRA hearing that 

was replete with first-hand accounts of instances of

mental and physical abuse that Jermyn suffered at the

hands of his father. . . . Counsel could have used that

testimony to provide the jury with critical insight into

the root of Jermyn’s mental illness. The [witnesses’]

testimony also offered valuable insight into Jermyn’s

mother’s role in the household, and how she failed to

intervene on Jermyn’s behalf. 

Id. at 306-07. Counsel in Jermyn “also did not seek to

obtain records from the school which corroborate the fact

that Jermyn was abused as a child, and that his mother

did not intervene on his behalf.” Id. at 307. Based on the

ineffective assistance of counsel for this and other reasons

set forth in that opinion, we affirmed the District Court’s

grant of a writ of habeas corpus. 

With these cases as a background, we turn to the

conduct of Rompilla’s trial counsel, informed by the

Supreme Court’s recent decision in Wiggins. 

71
Counsel in this case were two public defenders. Frederick

Charles, the senior of the two, was a veteran attorney with

significant criminal trial experience as a defense lawyer,

who never before tried a capital case. His role here was as

the principal counsel for Rompilla at the guilt phase. His

colleague, Maria Dantos, who was two and a half years out

of law school at the time of the trial, App. at 1060-61,

1065-67, was given the responsibility of handling the

penalty phase. She had the role of making the arguments

and presenting witnesses at the penalty phase, under

Charles’ supervision. This was her first capital case and

first homicide trial. Counsel’s devotion to Rompilla’s cause

has not been challenged. They impressed the District Court

as “intelligent, diligent and devoted to their task of

representing [Rompilla].” 2000 WL 964750, at *9. It is their

competence and effectiveness that are at issue. 

The PCRA court determined that “counsel had a

reasonable basis for proceeding as they did during the

penalty phase,” Maj. Op. at 17 (quoting App. at 2028),

because counsel retained three health professionals, two of

whom, Drs. Cooke and Sadoff, are “recognized experts in

the fields of psychiatry and psychology,” id., who

administered tests, evaluated Rompilla and reported back

to defense counsel that they found that nothing could be

used in mitigation. Counsel also obtained an evaluation by

a local psychiatrist, Dr. Paul Gross, who found nothing that

would have been beneficial in the penalty phase. 

In affirming the PCRA court’s determination rejecting,

inter alia, Rompilla’s claim of ineffective assistance of

counsel, the Supreme Court of Pennsylvania concluded that

counsel “reasonably relied upon their discussions with

[Rompilla] and upon their experts to determine the records

needed to evaluate mental health and other potential

mitigating circumstances.” Commonwealth v. Rompilla, 721

A.2d 786, 790 (Pa. 1998). 

In accepting the Pennsylvania courts’ conclusions, the

Majority also concludes that “trial counsel conducted an

extensive investigation for mitigation evidence,” Maj. Op. at

27, because trial counsel retained three well-qualified

mental health experts to examine Rompilla. The Majority

recognizes that counsel failed to seek out school, medical,

72
police, and prison records, which they recognize “contain

useful information about Rompilla’s childhood home

environment, his mental problems, and his problems with

alcohol,” Maj. Op. at 29. Nevertheless, the Majority

characterizes counsel’s decision as “reasonable” because

Charles, who “had the final say on every issue in the case,”

Maj. Op. at 29, “did not think that obtaining those records

would have represented a sound allocation of his office’s

resources.” Maj. Op. at 29. The question before us is not

whether we believe counsel’s explanation for his failure to

obtain the relevant records, some of which were available

across the street from the trial and others in the same

building as the trial, was “reasonable” but whether his

failure to take such action to save money was objectively

reasonable and consistent with his obligation to conduct a

thorough investigation. 

A comparison of counsel’s actions in this case with those

of counsel in Wiggins, where the Supreme Court concluded

that counsel was ineffective, is instructive. 

Wiggins, who was represented by two public defenders,

was convicted of capital murder in 1989 by a Maryland

judge, and the jury sentenced him to death the same

afternoon. A divided Maryland Court of Appeals affirmed.

He filed a motion for post-conviction relief in which he

challenged the adequacy of his representation at

sentencing, “arguing that his attorneys had rendered

constitutionally defective assistance by failing to investigate

and present mitigating evidence of his dysfunctional

background.” Wiggins, 123 S. Ct. at 2532. At the PCRA

hearing, a licensed social worker testified regarding an

elaborate social history in which he chronicled Wiggins’

“bleak life history” based on state social services, medical

and school records and interviews with Wiggins and

numerous family members. Id. at 2533. His mother, a

chronic alcoholic, frequently left him and his siblings alone

for days, forcing them to beg for food and to eat paint chips

and garbage. Her abusive behavior included beating the

children and having the children present while she engaged

in her active sexual life. Wiggins suffered severe physical

and sexual abuse at the hands of his mother and father

and while in the care of a series of foster parents. The

73
father in his second foster home repeatedly molested and

raped him. In one foster home, he was gang raped on more

than one occasion and was sexually abused by his

supervisor on a job corps program. Id.

Wiggins’ counsel decided to focus their request for postconviction relief on retrying the factual case and disputing

Wiggins’ direct responsibility for the murder.

Notwithstanding that counsel, as a practical matter, did not

compile a social history of Wiggins, the state postconviction court concluded that when the decision not to

investigate is a matter of trial tactics, there is no ineffective

assistance of counsel. Wiggins, 123 S. Ct. at 2533. The

Maryland Court of Appeals affirmed the denial of relief on

the ground that trial counsel, although they knew of

Wiggins’ unfortunate childhood and had available both the

presentence investigation report and the more detailed

social service records, “made a reasoned choice to proceed

with what they thought was their best defense.” Id. at

2533-34. 

In holding that Wiggins’ trial counsel provided

constitutionally ineffective assistance of counsel and that

the Maryland Court of Appeals unreasonably applied

Strickland in failing to so conclude, the Supreme Court

specified why counsel’s conduct was defective. The Court

noted that trial counsel had limited their investigation to

two sources. One was the presentence investigation report

(PSI) prepared by the Division of Parole and Probation,

“which included a one-page account of Wiggins’ ‘personal

history’ noting his ‘misery as a youth,’ quoting his

description of his own background as ‘disgusting,’ and

observing that he spent most of his life in foster care,”123

S. Ct. at 2536 (quoting PSI). The other source counsel

examined was the records kept by the Baltimore City

Department of Social Services (DSS) documenting Wiggins’

various placements in the state foster care system. The

Supreme Court noted that counsel chose not to expand

their investigation beyond those records even though the

Public Defender’s Office made funds available for the

retention of a forensic social worker. Id. The Supreme Court

thus concluded that, “counsel abandoned their

investigation of [Wiggins’] background after having acquired

74
only rudimentary knowledge of his history from a narrow

set of sources.” Id. at 2537. 

The Supreme Court characterized the Maryland Court of

Appeals’ application of Strickland’s governing legal

principles as “objectively unreasonable.” Id. at 2538. That

court merely assumed that counsel’s investigation was

adequate and failed to focus on counsel’s failure to engage

in further investigation, despite the information in the DSS

records with respect to Wiggins’ mother’s alcoholism, his

shuttling from foster home to foster home, and his lengthy

absences from school. Further investigation would have

discovered the sexual abuse that was later revealed during

state post-conviction proceedings. Id.

The investigation by Rompilla’s lawyers, albeit different

from that conducted by Wiggins’ lawyers, was similarly

defective. They did not present at the penalty phase

evidence that was available, had they investigated

thoroughly, and which was presented for the first time at

Rompilla’s PCRA hearing. Rompilla’s parents were both

severe alcoholics who drank constantly. His mother drank

during her pregnancy with Rompilla, and he and his

brothers eventually developed serious drinking problems.

His father, who had a vicious temper, frequently beat

Rompilla’s mother, leaving her bruised and black-eyed, and

bragged about his cheating on her. His parents fought

violently, and on at least one occasion his mother stabbed

his father. App. at 1408, 1416-17, 1450, 1460, 1487, 1492,

1495-96. He was abused by his father who beat him when

he was young with his hands, fists, leather straps, belts

and sticks. All of the children lived in terror. There were no

expressions of parental love, affection or approval. Instead,

he was subjected to yelling and verbal abuse. His father

locked Rompilla and his brother Richard in a small wire

mesh dog pen that was filthy and excrement filled. He had

an isolated background, and was not allowed to visit other

children or to speak to anyone on the phone. They had no

indoor plumbing in the house, he slept in the attic with no

heat, and the children were not given clothes and attended

school in rags. These facts were not presented at the

sentencing hearing because counsel did not know them

and, more important for our purposes, failed to make the

reasonable investigation that would have uncovered them.

75
Rompilla’s counsel presented the testimony of three of

Rompilla’s siblings at the sentencing hearing but did not

interview two of Rompilla’s sisters, Barbara Harris and

Randi Rompilla, both of whom lived nearby, prior to

sentencing, App. at 1422, 1436-37, 1489-90, and did not

present their testimony. Further, Rompilla’s brother,

Nicholas Rompilla, Jr., who had briefly testified at the

sentencing hearing, claimed at the post-conviction hearing

that Rompilla’s counsel only asked him about the three

months prior to the offense and did not ask him about

Rompilla’s childhood. App. at 1462-63. We must then ask

whether it was unreasonable for counsel not to have

interviewed all of Rompilla’s siblings. It was these family

members who testified at the PCRA hearing that, among

other things, their parents were alcoholics and their mother

drank while pregnant with Rompilla. They detailed the

physical abuse referred to above. Rompilla was told he was

stupid and would not amount to anything; they also

testified that Rompilla was a “very nervous child,” who kept

everything inside. App. at 1407-13, 1424, 1451, 1480-84,

1487-88. 

It was Rompilla’s PCRA counsel, not trial counsel, who

presented evidence from two mental health experts, Drs.

Armstrong and Crown, both of whom evaluated and tested

Rompilla post-conviction. Their evaluations included

neuropsychological testing, review of Rompilla’s school,

medical, and prison records (none of which had been

examined by trial counsel), and review of declarations by

Barbara Harris, Darlene Rompilla, and Nicholas Rompilla,

Jr., App. at 1562-64, 1567, 1704, 1736, 1741, 1743, 1745;

Commonwealth Response to Habeas Pet., Exh. B, C, & Pet.,

Exh. B, C, & D. The doctors stated that Rompilla’s low IQ

and achievement test results documented in his school

records, his medical history, and his abusive background

were all “red flags” indicating that further objective

evaluation was necessary. App. at 1614, 1686, 1692-93,

1739, 1743, 1745-46. 

These doctors determined that Rompilla suffers from

organic brain damage, an extreme mental disturbance

significantly impairing several of his cognitive functions:

impulsivity, reasoning and judgment, ability to make sense

76
out of experience, ability to draw conclusions, ability to

accept long-term consequences of immediate behavior,

emotional liability, concentration, mental flexibility,

recalling and integrating information, controlling behavior,

and controlling motor movements (hands). App. at 1572-74,

1577-79, 1581-84, 1617-18, 1707, 1717-18, 1721-22,

1726, 1728-33. The doctors believe Rompilla’s problems

relate back to his childhood, and were likely caused by fetal

alcohol syndrome. App. at 1601-02, 1606, 1615. They

concluded that Rompilla’s capacity to appreciate the

criminality of his conduct or to conform his conduct to the

law was substantially impaired at the time of the offense.

App. at 1616, 1687-88, 1735-36. 

The PCRA court, applying Pennsylvania’s three-prong

standard for ineffective assistance of counsel claims, stated

that although Rompilla’s claim arguably had merit because

he was “entitled to have relevant information of mental

infirmity” presented to the jury, App. at 2028, “[g]iven the

fact that three health care professionals, all of whom were

experienced forensic experts, had provided opinions to

defense counsel, and none of them asked for more

information, it was hardly unreasonable or ineffective for

defense counsel to have relied upon their opinions.” App. at

2030. 

The PCRA court accepted Rompilla’s trial counsel’s

testimony that they had spoken to family members in detail

and that the family had not revealed the information that

was claimed in the PCRA hearing. App. at 2029-30. The

court also noted that Rompilla “made contradictory

statements” to counsel during their representation, and

that he had not indicated he had any mental problems or

alcoholic blackouts. App. at 2029. The PCRA court

concluded that counsel was reasonable in believing that

seeking mercy was the only available strategy, and found

that there was a reasonable basis for counsel’s actions.

App. at 2029-30. 

The Pennsylvania Supreme Court, also citing the state’s

three-prong test for ineffective assistance of counsel claims,

agreed with the PCRA court’s conclusion that counsel was

effective, concluding without discussion that counsel acted

reasonably. Rompilla, 721 A.2d at 789-90. The Court,

77
relying on the conclusions of the PCRA court, noted that

counsel had investigated Rompilla’s mental health by

retaining three experts and reasonably relied on the experts

and on their own discussions with Rompilla to determine

the records needed to evaluate Rompilla, and it effectively

adopted the PCRA court’s credibility determination of trial

counsel’s conversations with family members, leading it to

conclude that counsel had not failed to investigate. The

Court rejected Rompilla’s argument that the experts

received inadequate information because of counsel’s

failure to investigate his background. Id.

An examination of the record shows that Rompilla’s

lawyers did less investigation into mitigating evidence than

did counsel for Wiggins. The Pennsylvania Supreme Court,

in affirming the decision of the PCRA court denying postconviction relief, stated that there was no “arguable merit”

in Rompilla’s claim that trial counsel failed to investigate

Rompilla’s family background, Rompilla, 721 A.2d at 790.

The Court never referred to counsel’s failure to speak to two

of Rompilla’s siblings, Randi Rompilla and Barbara Harris,

who lived nearby and who attended the trial. Dantos, when

questioned at the post-conviction hearing, said that she

didn’t remember whether she spoke to those sisters or not,

App. at 1099-1100, but those sisters testified at the PCRA

hearing that they would have testified at the penalty phase,

if asked, and would have told counsel about Rompilla’s

dysfunctional background, if they had been asked. 

Counsel certainly had reason to inquire further as to the

availability of other family members. Counsel was aware

that the family members whom she interviewed did not

know a great deal about Rompilla. Charles testified that the

family said “they hardly know him.” One said, “He was in

a reformatory. He’s been away the whole time. We didn’t

know him well.” Even Dantos testified that “[T]he

overwhelming response from the family was that they didn’t

really feel as though they knew him all that well since he

had spent the majority of his adult years and some of his

childhood years in custody. . . ,” App. at 1094, and that the

family had “limited knowledge of their brother.” App. at

1098. Dantos stated that “it seemed pretty clear that [the

family members she interviewed] didn’t feel as though they

78
knew Ron very well,” App. at 1166. It is thus apparent that

trial counsel had sufficient leads, as in Wiggins, to

investigate further to find family members who did know

more about Rompilla’s youth. Counsel never explained why

she did not interview the other sisters. 

The Pennsylvania Supreme Court, in rejecting Rompilla’s

PCRA claim that counsel did not obtain records that would

have aided the mental health experts who evaluated him,

agreed with the PCRA court that counsel reasonably relied

on their experts to determine the record needed to evaluate

his mental health. Rompilla, 721 A.2d at 790. Counsel

cannot so easily shed their constitutional obligations.

Moreover, it appears that counsel directed the experts to

the guilt phase, giving no or little attention to the penalty

phase. 

Rompilla’s lawyers sought opinions from the mental

health experts they hired primarily about Rompilla’s

“mental infirmity or mental insanity for the guilt phase.”

App. at 1069-71. Although Dantos stated that she also

instructed the experts to see if there was any issue “to

possibly use in mitigation any mental infirmity,” id. at

1067, Dr. Gross’ report says that counsel’s instruction as to

the evaluation was “to determine Mr. Rompilla’s mental

state during the time of the alleged charges.” Id. at 1069.

That is supported by Dantos’ own testimony that the

mental health professionals employed by the defense were

asked to look into Rompilla’s “mental state at the time of

the commission of the offense.” App. at 1071. Counsel did

not themselves investigate Rompilla’s medical history, drug

use, birth trauma or developmental delays; did not request

or instruct the medical experts they retained to investigate

those issues, and the medical experts did not make any

such investigation. Counsel did not provide Drs. Sadoff and

Cooke, who saw Rompilla, with any of the records that

would have shown Rompilla’s long history of alcoholism

and never themselves investigated the records that would

have shown that history. 

Rompilla’s counsel did not seek or obtain any of

Rompilla’s school records and therefore did not learn that

Rompilla was in special education, left school in the 9th

grade, and that his abilities had not advanced beyond the

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third grade, suggesting mental retardation because of a

possible organic brain disorder. Rompilla, 2000 WL 964750,

at *4-*7. Because they did not obtain these records, they

did not provide them to the health experts they retained. 

The PCRA court, on which the Pennsylvania Supreme

Court relied, did not explain its finding that the school

records were “not entirely helpful” beyond noting that

Rompilla’s IQ can “simply be part of the Bell Curve and a

learning disability is not necessarily caused by an organic

defect,”a statement made by Dr. Cooke, one of the experts

retained by Rompilla’s trial counsel. App. at 2029. Trial

counsel failed to investigate further into Rompilla’s retarded

level IQ scores. Indeed, Dr. Cooke further testified at the

PCRA hearing that had he been provided with Rompilla’s IQ

scores at trial he would have done testing for brain damage,

looked for evidence of prenatal damage to Rompilla’s brain,

and looked at the family situation, whether it was an

abusive situation, or dysfunctional situation. App. at 1800-

01. 

Counsel did not investigate records from the

Pennsylvania Department of Corrections where Rompilla

was incarcerated for 14 years and therefore did not learn

that his adult scores on achievement tests were very low,

his spelling and arithmetic achievement scores were below

96% of the population, App. at 1009, and that

psychological tests performed showed serious abnormalities

on the schizophrenia, paranoia, neurosis and

obsessive/compulsive scales. See App. at 1595-99. The

court records, which counsel did not investigate, were used

by the Commonwealth as an aggravating circumstance and

were in the same courthouse where Rompilla’s case was

tried. Because counsel failed to investigate into Rompilla’s

prior correctional experience, they did not provide that

information to the health experts they retained. 

In Wiggins, the Supreme Court quoted from the American

Bar Association’s Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases 11.4.1(C),

p. 93 (1989), which provide that investigations into

mitigating evidence “ ‘should comprise efforts to discover all

reasonably available mitigating evidence and evidence to

rebut any aggravating evidence that may be introduced by

80
the prosecutor.’ ” 123 S. Ct. at 2537 (emphasis in original).

Because Wiggins’ counsel abandoned the investigation of

his background by failing to pursue evidentiary leads

provided in the DSS records, they fell short of these “welldefined norms.” Id.

As shown by the above, the investigations by Rompilla’s

counsel were no more thorough, perhaps less, than those

found inadequate by the Supreme Court in Wiggins. The

Majority’s attempt to reconcile its conclusion that

Rompilla’s counsel provided effective assistance of counsel

with the conclusion in Wiggins that defendant’s counsel

were ineffective is nothing short of astonishing. The

Majority states that “[t]here are critical differences between

the conduct of Wiggins’s and Rompilla’s trial attorneys.”

Maj. Op. at 38. It continues, “Wiggins’s attorneys were

presented with leads that ‘any reasonably competent

attorney’ would have realized were promising. Rompilla’s

attorneys had no comparable leads.” Id.

With due respect to my colleagues on the Majority, the

distinction entirely misses the point. If it was ineffective for

Wiggins’ counsel to fail to follow up the leads they had, was

it not even more ineffective, indeed inexcusable, for

Rompilla’s attorneys to fail to investigate to find the leads

that could have been used by the experts they retained or

to retain experts to testify at the penalty phase and present

a viable case for mitigation? At the brief sentencing hearing,

trial counsel called only five witnesses, Rompilla’s sister

Darlene, older brother Nicholas, Jr., younger brother

Robert, sister Sandy Whitby and Aaron, Rompilla’s

fourteen-year old son. The total examination covered about

26 pages of notes of testimony. The witnesses testified in

general that Rompilla was a good family member and never

had a problem. As described by the District Court, the

“testimony was apparently presented to engender sympathy

for [Rompilla].” 2000 WL 964750, at *4. “It seemed to be

designed primarily as an emotional appeal to the jury to

show mercy to [Rompilla] — he wasn’t as bad as he seemed

and his family loved him.” Id. In lieu of the case trial

counsel presented in mitigation, a case that the District

Court described as “unreasonably brief and lacking in real

substance,” 2000 WL 964750, at *4, had they investigated

81
they could have presented a case such as that presented by

the PCRA counsel. Rompilla’s counsel shifted the

responsibility for finding leads to the medical experts, and

never even told their experts that they had the

responsibility for uncovering that information. 

In Wiggins, trial counsel made the tactical decision to

forego mitigating evidence of Wiggins’ dysfunctional

background and mental health problems because they

believed that Wiggins’ “best hope of escaping the death

penalty was for one or more jurors to entertain a

reasonable doubt as to his criminal agency.” Wiggins v.

State, 724 A.2d 1, 15 (Md. 1999), a decision the Maryland

Supreme Court termed a “deliberate, tactical decision”

which, under Strickland, should not be second guessed. Id.

at 15, 17-18. When the United States Supreme Court

reviewed that decision under § 2254(d), it held that because

counsel’s investigation was inadequate, the state court’s

“subsequent deference to counsel’s strategic decision . . .

despite the fact that counsel based this alleged choice on

what we have made clear was an unreasonable

investigation, was also objectively unreasonable.” Wiggins,

123 S. Ct. at 2538. 

The PCRA court found that Rompilla’s counsel “had a

reasonable basis for proceeding as they did,” App. at 2028,

because they employed two experts and obtained an

evaluation by another psychiatrist, who also advised

counsel that he found nothing that would be beneficial in

the penalty phase. The Pennsylvania Supreme Court agreed

that “trial counsel was effective with respect to their

investigation and presentation of mitigation evidence.”

Rompilla, 721 A.2d at 790. Notwithstanding the decision in

Wiggins, the Majority, applying § 2254(d)(1), holds that “the

state court’s determination that counsel acted reasonably

was not ‘contrary to’ or an ‘unreasonable application’ of

Strickland.” Maj. Op. at 41. 

As noted above, I believe the Majority seriously errs. It is

clearly established by both Williams and Wiggins that

counsel or counsel’s experts cannot make a reasonable

decision at the penalty phase if they do not investigate the

relevant facts that could be used in mitigation. In holding

that the Maryland Court of Appeals’ application of

82
Strickland’s governing legal principles was objectively

unreasonable, Justice O’Connor, in Wiggins, stated that

counsel’s failure to thoroughly investigate made “a fully

informed decision with respect to sentencing strategy

impossible.” Wiggins, 123 S. Ct at 2538. Therefore the state

Supreme Court’s holding “reflected an unreasonable

application of Strickland.” Id. What was true in Wiggins and

before that in Williams is equally applicable here. It follows

that the District Court properly determined that Rompilla’s

trial counsel did not meet the performance standards

required under Strickland. 

I believe that under the circumstances in which counsel

presented an inadequate case for mitigation at the penalty

phase of a capital sentencing hearing, the prejudice prong

of constitutionally ineffective assistance of counsel is clearly

met. The Pennsylvania Supreme Court did not reach this

issue and therefore we may consider it de novo. A

reasonable attorney, if aware of the evidence presented at

the PCRA hearing following a thorough investigation, would

have done more at sentencing than plead for mercy. As the

Court stated in Wiggins, “had the jury been confronted with

[the] considerable mitigating evidence, there is a reasonable

probability that it would have returned with a different

sentence.” 123 S. Ct. at 2543. Quoting from Williams, the

Court stated, “we must evaluate the totality of the evidence,

both that adduced at trial, and the evidence adduced in the

habeas proceeding.” Wiggins, 123 S. Ct. at 2543, citing

Williams, 529 U.S. at 397-98. In Williams, the Court

recognized that the graphic description of the defendant’s

childhood “filled with abuse and privation, or the reality

that he was ‘borderline mentally retarded’ might well have

influenced the jury’s appraisal of his morale culpability.”

529 U.S. at 398 (citation omitted). The Court further stated

that “[m]itigating evidence unrelated to dangerousness may

alter the jury’s selection of penalty, even if it does not

undermine or rebut the prosecution’s death-eligibility case.”

Id.

In considering prejudice to Rompilla from his trial

counsel’s performance, we should look at the totality of

evidence adduced at trial as well as that adduced at the

state post-conviction hearing where counsel, after a

83
thorough investigation, found the evidence of Rompilla’s

abusive background, his disfunctional family situation, his

low IQ, his meager reading and understanding ability found

in the prison records, and the medical evidence of brain

disfunction. The jury could certainly have considered this

matter as sufficiently mitigating to warrant a different

sentence. Therefore, I believe that the Supreme Court of

Pennsylvania failed to reasonably apply the Strickland

standard when it held that Rompilla had not shown

ineffective assistance of counsel. 

I therefore disagree with the majority and would affirm

the District Court’s grant of a writ of habeas corpus

because of trial counsel’s ineffective assistance of counsel.

II.

Failure to Give a Simmons Instruction

Rompilla has cross-appealed from the District Court’s

denial of a writ of habeas corpus on Rompilla’s claim that

his right to due process was violated by the state trial

court’s refusal to inform the jury in response to the jury’s

inquiries that Rompilla was parole ineligible if sentenced to

life imprisonment. 

While the jury was deliberating Rompilla’s penalty, life

imprisonment or death, the jury asked in succession, “If a

life sentence is imposed, is there any possibility of the

Defendant ever being paroled?” App. at 802. The trial court

responded: 

I’m sorry to say, I can’t answer that question. That’s

not before you as such. The only matter that you can

consider in the Sentencing Hearing is the evidence that

was brought out in the course of the Hearing and the

Law with respect to the Court’s Charge. That’s the only

consideration you have, I’m sorry to say. I—if there

were other alternatives that you should consider, we

would have outlined them in the Charge, all right. Are

there any other questions? 

App. at 802-03. 

84
The jury later requested to examine information with

respect to Rompilla’s prior sentence. The trial court refused

because it was not entered into evidence. The jury foreman

clarified that the jury wanted to know the sentence from

Rompilla’s prior conviction. The trial court stated that he

cannot give that. A juror then asked “if he got released on

behavioral . . .” and the foreman added, “It was commuted

in any way, the original sentence.” App. at 823. As before,

the trial court refused to give the requested information.

App. at 824. 

Finally, the next day, after more deliberation the jury

asked, “Was the Defendant offered any type of

rehabilitation either while in prison or after his release from

prison?” App. at 842. Once again the trial court declined to

answer, even after the foreman changed the question to ask

“isn’t rehabilitation available in prison?” App. at 842. The

trial court again refused to provide the information sought

by the jury. It was only after the trial court declined to

provide the information requested by the jury time after

time that the jury returned a sentence of death. 

On Rompilla’s appeal from the denial of his PCRA

petition, the Supreme Court of Pennsylvania rejected

Rompilla’s contention that due process required that the

jury be instructed that in Pennsylvania “life imprisonment

means life,” ruling as follows: 

Under the current state of the law in Pennsylvania,

the jury must be told that life means life without parole

only when the defendant’s future dangerousness is at

issue. Commonwealth v. Clark, 551 Pa. 258, 710 A.2d

31, 35-36 (Pa. 1998). Appellant argues that his future

dangerousness was at issue because the

Commonwealth argued the aggravating circumstance

that he has a significant history of felony convictions

involving the use or threat of violence. The Court

rejected this argument in Commonwealth v. May, 551

Pa. 286, 710 A.2d 44, 47 (Pa. 1998). As stated in that

case, this aggravating circumstance only addresses

Appellant’s past conduct, not his future

dangerousness. See id. Thus, no relief is due.10

10This author [Justice Nigro] agrees with the dissent’s

position that a Simmons instruction should be given in

85
all cases and has previously so stated. See Clark, 710

A.2d at 43-44 (Nigro, J., concurring, joined by Flaherty,

J. and joined in relevant part by Zappala, J.); May, 710

A.2d at 49 (Nigro, J., concurring, joined by Zappala,

J.). Under the current state of the law, however,

Appellant’s argument that he was entitled to the

instruction because the Commonwealth argued the

aggravating circumstance identified above, is without

merit. See May, 710 A.2d at 47.

Commonwealth v. Rompilla, 721 A.2d 786, 795 (Pa. 1998).

In his dissent, Chief Justice Flaherty wrote: 

I believe the majority is in error in its treatment of the

issue pertaining to the jury’s question about the

defendant’s parole eligibility. Under Simmons v. South

Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d

133 (1994) and Commonwealth v. Clark, 551 Pa. 258,

710 A.2d 31, 35-36 (Pa. 1998), the court must tell a

jury that a life sentence means life without parole, if

the defendant requests the instruction and his future

dangerousness is at issue. Here, during deliberations

in the penalty phase, the jury asked, “If a life sentence

is imposed, is there any possibility of the Defendant

ever being paroled?” I view this question as a clear

expression of the jury’s concern about the defendant’s

future dangerousness. I would therefore hold that the

trial court’s refusal to explain the meaning of life

without parole constituted error under Commonwealth

v. Clark, supra. I would therefore reverse the order of

the court of common pleas and remand for proceedings

consistent with this opinion.

I would go further and require an explanation of the

meaning of a life sentence in all capital cases. There

can be no harm in instructing juries that in

Pennsylvania appellant would be statutorily ineligible

for parole if sentenced to life in prison, but that a life

sentence might nonetheless be commuted by the

governor. On the other hand, if we do not so instruct,

a jury, erroneously believing that a prisoner sentenced

to life may be paroled within a period of years, may

impose the death penalty for reasons which are not

based in law. 

86
Id. at 795-96 (Flaherty, C.J., dissenting).1

I believe that the Pennsylvania Supreme Court’s analysis

of Rompilla’s Simmons claim was an “unreasonable

application” of Supreme Court precedent, specifically

Simmons v. South Carolina, 512 U.S. 154 (1994), and Kelly

v. South Carolina, 534 U.S. 246 (2002), and therefore that

it must be reversed under the standards of AEDPA. 

In Simmons, the Supreme Court held that the defendant’s

due process right to answer an allegation against him

requires the trial court to instruct the jury that the

alternative to the death penalty is life without parole (in

states where that is the alternative) if the prosecutor argues

that the defendant will pose a danger to others. As Justice

Blackmun, who authored the plurality opinion, wrote: “The

State may not create a false dilemma by advancing

generalized arguments regarding the defendant’s future

dangerousness while, at the same time, preventing the jury

from learning that the defendant never will be released on

parole.” Simmons, 512 U.S. at 171. In Shafer v. South

Carolina, 532 U.S. 36 (2001), the Supreme Court described

Simmons as holding that when “a capital defendant’s future

dangerousness is at issue, and the only sentencing

alternative to death available to the jury is life

imprisonment without possibility of parole, due process

entitles the defendant ‘to inform the jury of [his] parole

ineligibility, either by a jury instruction or in arguments by

counsel.’ ” Id. at 39 (quoting Ramdass v. Angelone, 530 U.S.

156, 165 (2000) (plurality opinion)). 

1. I find it difficult to glean much enlightenment from the two cases cited

by the Pennsylvania Supreme Court. In Commonwealth v. Clark, 710

A.2d 31 (Pa. 1998), the Court did not define what it meant to put future

dangerousness “at issue” because the question did not arise. (In Clark it

was not the Commonwealth that argued future dangerousness; rather,

the defense argued the opposite, noting that chances of a commuted

sentence in Pennsylvania were close to zero; the court gave an

instruction defining life imprisonment.) As for Commonwealth v. May,

710 A.2d 44 (Pa. 1998), its proposition that “[t]he aggravating

circumstance of appellant’s prior record for violent felonies addressed

only appellant’s past conduct, not his future dangerousness,” is a mere

unsupported assertion. Id. at 47. 

87
The Simmons plurality and Justice O’Connor, concurring,

believed there was no question that the prosecutor had

made an issue of Simmons’s future dangerousness. As a

result, the Court had no occasion to define what

constitutes making an issue of future dangerousness. That

issue was directly addressed eight years later in Kelly, an

opinion of the Court authored by Justice Souter. 

In Kelly, the prosecutor stated that he would not argue

future dangerousness and “that takes it out of Simmons

anyhow.” Kelly, 534 U.S. at 249. The trial court then denied

Kelly’s counsel’s request for a Simmons instruction, saying

that the State’s evidence went to Kelly’s character and

characteristics, not to future dangerousness. The South

Carolina Supreme Court affirmed the conviction and death

sentence, holding that the Simmons instruction was not

required because future dangerousness was not at issue. 

In reversing, Justice Souter stated that the South

Carolina Supreme Court’s statement that Kelly’s future

dangerousness was not at issue “is unsupportable on the

record before us.” Id. at 252. He continued, “It is not that

the state court failed to pose the legal issue accurately, for

in considering the applicability of Simmons it asked

whether Kelly’s future dangerousness was ‘a logical

inference from the evidence,’ or was ‘injected into the case

through the State’s closing argument.’ ” Id. at 252 (internal

citations omitted). In support of the appropriateness of this

statement of the legal issue, Justice Souter included the

following citations and explanatory parentheses: “Shafer,

[532 U.S.] at 54-55 (whether prosecutor’s evidence or

argument placed future dangerousness in issue) [and]

Simmons, 512 U.S. at 165, 171, (plurality opinion) (future

dangerousness in issue because ‘State raised the specter of

. . . future dangerousness generally’ and ‘advanc[ed]

generalized arguments regarding the [same]’).” Kelly, 534

U.S. at 252. 

In addressing the trial court’s interpretation of the

evidence, the Kelly Court explained why the trial court

erred: 

To the extent that it thought that “[e]vidence that Kelly

took part in escape attempts and carried a shank . . .

88
is not the type of future dangerousness evidence

contemplated by Simmons,” . . . it overlooked that

evidence of violent behavior in prison can raise a

strong implication of “generalized . . . future

dangerousness.” Simmons, [512 U.S.] at 171. (And, of

course, the state court’s reasoning says nothing about

the evidence of the crime, or of Kelly’s sadism

generally, and his mercurial thirst for vengeance.) A

jury hearing evidence of a defendant’s demonstrated

propensity for violence reasonably will conclude that he

presents a risk of violent behavior, whether locked up

or free, and whether free as a fugitive or as a parolee.

Id. at 253-54 (emphasis added). 

In language particularly relevant to this case, the Kelly

Court stated, “The fallacy of the State Supreme Court’s

attempt to portray the thrust of the evidence as so

unrealistically limited harks back to a comparable mistake

by the trial judge, who spoke of the evidence as going, not

to future dangerousness, but ‘to [Kelly’s] character and

characteristics.’ ” Id. at 254. The Court continued, 

The error in trying to distinguish Simmons this way lies

in failing to recognize that evidence of dangerous

“character” may show “characteristic” future

dangerousness, as it did here. This, indeed, is the fault

of the State’s more general argument before us, that

evidence of future dangerousness counts under

Simmons only when the State “introduc[es] evidence for

which there is no other possible inference but future

dangerousness to society.” . . . Evidence of future

dangerousness under Simmons is evidence with a

tendency to prove dangerousness in the future; its

relevance to that point does not disappear merely

because it might support other inferences or be

described in other terms. 

Id. (emphasis in original). 

The Kelly Court thus made explicit what was implicit in

Simmons: the prosecutor need not expressly and separately

argue future dangerousness; rather, future dangerousness

can be made an issue through implication by or inference

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from arguments addressing such independent matters as

the defendant’s character. 

At Rompilla’s sentencing hearing, the prosecutor, who

was seeking the death penalty, focused on Rompilla’s

“significant history of felony convictions,” as that is one of

the statutory factors that can serve as “aggravators” in the

balancing between mitigating factors and aggravating

factors required under Pennsylvania’s death penalty law. 42

Pa. Cons. Stat. Ann. § 9711(d)(9). During his closing

argument the prosecutor referred to Rompilla’s prior

offense, which involved the robbery, rape and slashing with

a knife of a female bar owner, in the following terms: 

Joe Macrenna, the woman that was raped, was raped

pretty brutally. She was raped at knife point. . . . [I]sn’t

it frightening, the similarity between that case and this

case. I mean, it is absolutely astounding. Both take

place around the bar. The Defendant gets in after

closing or right before closing. . . . On both occasions,

a knife was used. Steals money both times. Isn’t it

frightening the similarities in those crimes. Takes a taxi

away from Joe’s Bar, takes a taxi the night of this

crime. He slashes Joe in the breast with a knife. He

uses a knife on Jimmy Scanlon. It’s absolutely

frightening to think of the similarities in those two

crimes. But there is one difference, one major

difference, Joe Macrenna lived through her experience.

Jimmy Scanlon didn’t. . . . I think the Defendant

learned a lesson from Joe Macrenna in that case, that

Rape case. That lesson was, don’t leave any witnesses.

Don’t leave anybody behind that can testify against

you. 

App. at 779-80 (emphasis added). 

At sentencing the jury also learned via testimony elicited

by both parties that the instant crime occurred shortly after

Rompilla had been released from prison, that there is a lack

of rehabilitation services for prisoners, that Rompilla’s

children were initially frightened of him when he was

released on parole, and that he had been paroled from his

previous sentence only three weeks before the instant

crime. 

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Rompilla argues that because the prosecutor placed

Rompilla’s future dangerousness at issue, the trial court

was required under Simmons to inform the jury that

Rompilla is parole ineligible. The PCRA court disagreed,

reasoning that Simmons does not apply because the

prosecutor did not argue future dangerousness. The court

stated, “The prosecution merely argued that Mr. Rompilla

had a significant history of felony convictions which was

proper argument as an aggravating factor under

Pennsylvania law.” App. at 2025. The court did not find the

jury’s question concerning whether he had received

rehabilitation supportive of Rompilla’s argument: “This

question . . . relates more to the issues raised by the

defense witnesses during the penalty phase who

complained that Mr. Rompilla had not received

rehabilitation while in prison and while on parole after his

1974 rape and burglary convictions. In fact, that was a

mitigating factor found by the jury rather than an

aggravating factor.” App. at 2026. The court did not

address, perhaps did not recognize, the relevance of the

jury’s question concerning whether rehabilitation is

available in prison to Rompilla’s request for a Simmons

instruction. 

On appeal, the Pennsylvania Supreme Court summarized

the facts and issue, and analyzed Rompilla’s Simmons claim

in one paragraph which I quoted in full near the beginning

of this dissent. The Pennsylvania Supreme Court

interpreted Pennsylvania law as requiring a Simmons

instruction “only when the defendant’s future

dangerousness is at issue,” and expressly rejected

Rompilla’s argument that in presenting Rompilla’s extensive

criminal history the prosecutor ipso facto made future

dangerousness an issue. The Pennsylvania Supreme Court

thus appears to have determined that future

dangerousness must be argued expressly and separately

and may not be implied by or inferred from other

arguments; consequently, the prosecutor’s recitation of

defendant’s past criminal conduct cannot, without more,

also amount to making an issue of future dangerousness.

It is unclear whether the Pennsylvania Supreme Court

believes this principle to be consistent with or required by

Simmons. 

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When the Simmons issue was before the District Court on

Rompilla’s habeas petition, that court also gave the issue

only brief analysis and concluded: 

The prosecutor’s summation in this case covers 16

pages of the notes of testimony2 and a fair reading of it

leads to the conclusion that the state’s reasoning for

the death penalty was not based upon future

dangerousness but on the despicable, savage and

cowardly beating the Petitioner inflicted upon his

victim. This is a close issue, however, but the Supreme

Court of Pennsylvania’s decision in the PCRA case was

not an unreasonable application of federal law. 

Rompilla v. Horn, 2000 WL 964750, at *15 (E.D. Pa. July

11, 2000). The District Court appears to have agreed with

the Pennsylvania Supreme Court that if the prosecutor

“based his argument on” the despicable nature of the

defendant’s actions, he could not at the same time have

made an issue of Rompilla’s future dangerousness for

Simmons purposes without providing a separate, express

argument to that effect. The Majority appears to agree, as

its opinion states: “even if [the prosecutor’s comments] were

meant to imply that Rompilla would present a future

danger if he was ever released from prison, the fact remains

that the prosecutor never expressly argued that Rompilla

presented a future threat.” Maj. Op. at 63-64. 

I do not read Simmons as requiring an express argument

of future dangerousness. In Simmons, the prosecutor put

future dangerousness “at issue” in a few brief comments in

his closing argument. As the Simmons plurality opinion

describes it: 

In its closing argument the prosecution argued that

petitioner’s future dangerousness was a factor for the

jury to consider when fixing the appropriate

punishment. The question for the jury, said the

prosecution, was “what to do with [petitioner] now that

he is in our midst.” . . . The prosecution further urged

that a verdict for death would be “a response of society

to someone who is a threat. Your verdict will be an act

of self-defense.” 

2. That is not accurate: it covers eight pages. See App. at 774-782. 

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512 U.S. at 157. 

In his dissent, Justice Scalia takes issue with the

conclusion of those Justices who formed the majority that

the above statements constituted an argument for future

dangerousness.3 The language used in the various opinions

3. The dissent states: 

Both Justice Blackmun and Justice O’Connor focus on two portions

of the prosecutor’s final argument to the jury in the sentencing

phase. First, they stress that the prosecutor asked the jury to

answer the question of “what to do with [petitioner] now that he is

in our midst.” That statement, however, was not made (as they

imply) in the course of an argument about future dangerousness,

but was a response to petitioner’s mitigating evidence. Read in

context, the statement is not even relevant to the issue in this case:

“The defense in this case as to sentence . . . [is] a diversion. It’s

putting the blame on society, on his father, on his grandmother,

on whoever else he can, spreading it out to avoid that personal

responsibility. That he came from a deprived background. That he

didn’t have all of the breaks in life and certainly that helps shape

someone. But we are not concerned about how he got shaped. We

are concerned about what to do with him now that he is in our

midst.”. . . . 

Both opinions also seize upon the prosecutor’s comment that the

jury’s verdict would be “an act of self-defense.” That statement came

at the end of admonition of the jury to avoid emotional responses

and enter a rational verdict: 

“Your verdict shouldn’t be returned in anger. Your verdict

shouldn’t be an emotional catharsis. Your verdict shouldn’t be . . .

a response to that eight-year-old kid [testifying in mitigation] and

really shouldn’t be a response to the gruesome grotesque

handiwork of [petitioner]. Your verdict should be a response of

society to someone who is a threat. Your verdict will be an act of

self-defense.” . . . . 

This reference to “self-defense” obviously alluded, neither to defense

of the jurors’ own persons, nor specifically to defense of persons

outside the prison walls, but to defense of all members of society

against this individual, wherever he or they might be. Thus, as I

read the record (and bear in mind that the trial judge was on the

lookout with respect to this point), the prosecutor did not invite the

jury to believe that petitioner would be eligible for parole — he did

not mislead the jury. 

Simmons, 512 U.S. at 181-182 (Scalia, J., dissenting) (emphasis in

original). 

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of the Justices who formed the Simmons majority does not

suggest that the prosecutor must expressly argue that

defendant will be a serious threat if not sentenced to death

before the Court will hold that future dangerousness has

been placed before the jury. For example, Justice

Blackmun’s opinion uses the following phrases (emphases

added, passim): “where the defendant’s future

dangerousness is at issue,” id. at 156; “[t]he Due Process

Clause does not allow the execution of a person ‘on the

basis of information which he had no opportunity to deny or

explain.’ ” Id. at 161; “the State’s repeated suggestion that

petitioner would pose a future danger to society if he were

not executed,” id. at 162; “[t]he State raised the specter of

petitioner’s future dangerousness generally . . . ,” id. at

165; “if the State rests its case for imposing the death

penalty at least in part on the premise that the defendant

will be dangerous in the future . . . ,” id. at 168-69; “[t]he

State may not create a false dilemma by advancing

generalized arguments regarding the defendant’s future

dangerousness . . . ,” id. at 171. 

In his concurring opinion, Justice Souter writes, “when

future dangerousness is an issue in a capital sentencing

determination . . . .” Id. at 172 (emphasis added). Similarly,

Justice O’Connor states, “When the State seeks to show the

defendant’s future dangerousness,” and “a means of

responding to the State’s showing of future dangerousness.”

Id. at 177. “Moreover, the prosecutor, by referring to a

verdict of death as an act of ‘self-defense,’ strongly implied

that petitioner would be let out eventually if the jury did

not recommend a death sentence.” Id. at 178 (emphasis

added).

There are indeed some statements that can be read to

refer to arguments expressly made by the State as to

Simmons’s future dangerousness, particularly in the

concurring opinion of Justice O’Connor, but even she uses

the phrase “strongly implied.” I therefore repeat my

observation that neither Justice O’Connor nor the other

Justices forming the majority suggest that the instruction

must be given only if the prosecutor makes express,

explicit, exclusive arguments for future dangerousness.

Rather, the Court was willing to infer a future

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dangerousness argument from what was, on Justice

Scalia’s account, an argument about a different topic

entirely (the merit of one of Simmons’s mitigating factors).

Nothing in the Justices’ language supports the premise on

which the Pennsylvania Supreme Court’s decision turns.

Any doubts on the matter were dispelled by the Supreme

Court’s subsequent decision in Kelly where the prosecutor

did not expressly argue future dangerousness. 

The Majority concedes that Kelly “arguably broadened the

holding in Simmons,” Maj. Op. at 51, and notes that two of

the Justices who joined Justice O’Connor’s concurring

opinion in Simmons dissented in Kelly because “the test is

no longer whether the State argues future dangerousness

to society . . . [but] whether evidence was introduced at trial

that raises an ‘implication’ of future dangerousness to

society.” Kelly, 534 U.S. at 261 (Rehnquist, C.J., joined by

Kennedy, J., dissenting). 

The Majority declines to apply Kelly in Rompilla’s favor,

stating, “Even if Kelly broadened Simmons . . . Kelly cannot

aid Rompilla here” because Kelly was decided after the

Pennsylvania Supreme Court’s decision in Rompilla’s case.

Maj. Op. at 53. The Majority notes that under Williams v.

Taylor, 529 U.S. 362 (2000), federal review pursuant to

section 2254(d)(1) is limited to the state court’s application

of federal law “as of the time of the relevant state-court

decision.” Id. at 412. 

The Supreme Court does not interpret the unreasonable

application of Supreme Court precedent prong of

§ 2254(d)(1) as narrowly as does the Majority. In Wiggins,

the Court viewed its opinion in Williams as “illustrative of

the proper application” of the Strickland standard,

notwithstanding that “Williams had not yet been decided at

the time the Maryland Court of Appeals rendered the

decision at issue in this case.” Wiggins, 123 S. Ct. at 2535.

Just as the Williams opinion noted that “the merits of

[Williams’s] claim are squarely governed by our holding in

Strickland v. Washington,” Williams, 529 U.S. at 390, so

also the Court’s opinion in Kelly represented an application

of Simmons and did not make new law. There is no

indication anywhere in the opinion that the Kelly majority

thought that they were doing anything other than applying

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Simmons. Rather, at every step of the way the Kelly

majority cites Simmons. At one point, the Kelly majority

states that the prosecutor “accentuated the clear

implication of future dangerousness raised by the evidence

and [thereby] placed the case within the four corners of

Simmons.” Kelly, 534 U.S. at 255. Therefore, even if Kelly

“arguably” broadened Simmons, it is dispositive for present

purposes that the majority of the Supreme Court believed

otherwise. 

To recapitulate, the Pennsylvania Supreme Court applied

an unjustifiedly narrow test for determining whether the

prosecutor made an issue of Rompilla’s future

dangerousness. That test represented an unreasonable

application of Simmons, especially as Simmons was applied

in Kelly. 

In any event, I believe that the record shows that the

prosecutor did make an issue of Rompilla’s future

dangerousness. It is noteworthy that the prosecutor

referred to the similarities between this crime and

Rompilla’s previous crime as “frightening” no less than

three times. The similarities can be “frightening” only if the

prosecutor was sending the message that there is a

possibility that Rompilla will repeat the crime. Similarly,

the prosecutor’s emphasis on the one major difference

between this crime and his previous crime — the murder of

the victim — and his statement to the jury that Rompilla

had learned not to leave any witnesses were tantamount to

a warning about what would happen if Rompilla were

allowed to commit another crime, i.e., that Rompilla would

be dangerous. Moreover, as the Supreme Court has

recognized, evidence of past criminal conduct may be

indicative of future dangerousness. See Skipper v. South

Carolina, 476 U.S. 1, 5 (1986). 

The Majority urges us to consider the prosecutor’s

comments in context, claiming he was merely responding to

counsel’s argument that the jury must have some doubt

concerning Rompilla’s guilt and that his comments were a

rebuttal of that argument, not an argument for future

dangerousness. The Majority states, “Seeking to dispel any

such doubts, the prosecutor’s obvious point in stressing the

similarities between the circumstances of the rape for

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which Rompilla had previously been convicted and the

Scanlon murder was to convince the jury that the same

man had committed both crimes.” Maj. Op. at 63. 

The Majority’s attempt to explain the remark is sheer

conjecture. The prosecutor made his remarks in the course

of outlining why three aggravating factors apply against

Rompilla. After addressing the first two — torture and

murder while committing other crimes — the prosecutor

said: 

Commonwealth has more. Commonwealth submits to

you that the Defendant has a significant history of

felony convictions involving violence to the . . . person

or the threat of violence to the person. 

App. at 779. The prosecutor then described the previous

rape with his above-quoted use of “frightening” and gave

the State’s explanation that Rompilla did not wait at the

bar until Scanlon closed up before breaking in to steal

because Rompilla did not want to leave any witnesses. App.

at 780. This suggests dangerousness, not rebuttal. 

It is plain from Simmons and Kelly that the reasons for

the prosecutor’s statements are not dispositive of whether

they put future dangerousness at issue for the jury. They

could have done so even if their principal thrust were to

dispel doubt raised by the defense. After all, in Simmons

the prosecutor’s remarks were made in response to defense

counsel’s mitigating evidence (see Justice Scalia’s

dissenting opinion, quoted above). Thus, even if the

prosecutor in Rompilla’s case did not make an express

argument, Simmons is still applicable because, as explained

above, Simmons does not require “express arguments.” 

The Majority also asserts that the prosecutor merely used

the word “frightening” as a synonym for “astounding,” a

word that the prosecutor also used (“more aptly,” as the

Majority puts it). Maj. Op. at 63. Accepting arguendo the

Majority’s hypothesis, it does not negate the implication of

future dangerousness. The meaning of a word or phrase

depends in part on the reasonable understanding of the

listener, not merely the intent of the speaker. 

The Majority also attempts to discount any future

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dangerousness implications in the prosecutor’s statement

that by the time of this crime Rompilla had learned to kill

any eyewitnesses by explaining that “the comment seems to

have had two likely purposes: to explain why there was no

eyewitness to the most recent crime and to explain why the

two crimes differed in the important respect that one

involved a killing and the other did not.” Maj. Op. at 63.

Again, even if those were the prosecutor’s purposes, it does

not follow that he did not also thereby inject future

dangerousness into the proceedings. The more immediate

message learned by the jury was surely that if they put

Rompilla in a position from which he could commit another

crime, the jurors had better not be among the witnesses.

Their repeated questions to the judge concerning parole

and rehabilitation suggests that they had learned that

lesson.4

4. This court is limited to reviewing the Pennsylvania Supreme Court’s

opinion for its consistency with federal law, and has no role in its

application of state law. It is of interest, however, that there is

disagreement among the Pennsylvania Supreme Court justices

themselves as to whether the jury need be instructed that in

Pennsylvania the jury may not be informed that life imprisonment means

life without parole. Pennsylvania is one of only two states out of the 50

United States where life imprisonment means life without parole that

hold that the jury may not be so informed. South Carolina, the state that

was the subject of the Supreme Court decisions in Simmons, Kelly, and

Skipper, is the other such state. 

The Pennsylvania rule was enunciated in Commonwealth v. Mills, 39

A.2d 572 (Pa. 1944), where the Pennsylvania Supreme Court stated that

in a capital case the jury’s only function was to decide whether the

penalty should be life imprisonment or the death penalty. More recently,

the Pennsylvania Supreme Court, in addressing the effect of Simmons on

the rule announced in Mills, stated that “the per se rule announced in

Mills [that any reference to the possibility of parole was an improper

consideration for the jury in their deliberation of the defendant’s guilt]

has been superseded [by Simmons].” Clark, 710 A.2d at 36. The

Pennsylvania Court then stated “that due process requires the court to

instruct the jury on the law as it relates to the possibility of parole where

that issue [the defendant’s future dangerousness] clearly arises from the

arguments of either counsel in the penalty phase.” Id. Justice Nigro

concurred, suggesting “that the better practice and policy is to require

trial courts to give a Simmons instruction in all death penalty

proceedings, regardless of whether counsel raises the issue of a

defendant’s potential future dangerousness during the penalty phase.”

Id. at 43. Justice Zappala concurred separately, agreeing with Justice

Nigro that a Simmons charge should be mandated. Id.

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Justice Souter, in his concurring opinion in Simmons,

joined by Justice Stevens, wrote: 

The Eighth Amendment entitles a defendant to a jury

capable of a reasoned moral judgment about whether

death, rather than some lesser sentence, ought to be

imposed. The Court has explained that the Amendment

imposes a heightened standard “for reliability in the

determination that death is the appropriate

punishment in a specific case,” Woodson v. North

Carolina, 428 U.S. 280, 305 (1976) (plurality opinion of

Stewart, Powell, and Stevens, JJ.); see also, e.g.,

Godfrey v. Georgia, 446 U.S. 420, 427-428 (1980); Mills

v. Maryland, 486 U.S. 367, 383-384 (1988). Thus, it

requires provision of “accurate sentencing information

[as] an indispensable prerequisite to a reasoned

determination of whether a defendant shall live or die,”

Gregg v. Georgia, 428 U.S. 153, 190 (1976) (joint

opinion of Stewart, Powell, and Stevens, JJ.), and

invalidates “procedural rules that ten[d] to diminish the

reliability of the sentencing determination,” Beck v.

Alabama, 447 U.S. 625, 638 (1980). 

That same need for heightened reliability also

mandates recognition of a capital defendant’s right to

require instructions on the meaning of the legal terms

used to describe the sentences (or sentencing

recommendations) a jury is required to consider, in

making the reasoned moral choice between sentencing

alternatives. Thus, whenever there is a reasonable

likelihood that a juror will misunderstand a sentencing

term, a defendant may demand instruction on its

meaning, and a death sentence following the refusal of

such a request should be vacated as having been

“arbitrarily or discriminatorily” and “wantonly and . . .

freakishly imposed.” Furman v. Georgia, 408 U.S. 238,

249 (1972) (Douglas, J., concurring) (internal quotation

marks omitted); id., at 310 (Stewart, J., concurring). 

Simmons, 512 U.S. at 172-73 (Souter, J., concurring). 

In this case, the repeated questions by the jury as to the

effect of a sentence by them of life imprisonment

demonstrate unequivocally that the jury did not understand

99
that under Pennsylvania law a life prison term means life

without parole. I believe the rationale for requiring that the

jury be instructed about parole ineligibility when the

prosecutor puts future dangerousness in issue — i.e., to

ensure that the jurors have accurate information as to the

effect of their sentence — is similarly applicable in a case,

such as this one, where the jurors have requested accurate

information. I do not understand the State to be arguing

that the requested instruction was not legally accurate. The

Majority has provided no rationale why the jury should not

be informed of the applicable Pennsylvania law. Truth in

advertising is now the byword of this generation. Truth in

instructing the jury as to the effect of the sentence in a

capital case is at least as important. 

I would grant a writ of habeas corpus on this issue as

well as on the ineffective assistance of counsel issue.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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