Thursday, July 09, 2009

In Habeas Appeal, Third Circuit Addresses Standard of Review and Other Legal Issues

The Third Circuit addressed several legal issues in the context of a habeas appeal in Thomas v. Horn et al, Nos. 05-9006 & 9008 (3d Cir. July1, 2009).

The petitioner, Brian Thomas, was convicted in the Philadelphia Court of Common Pleas in 1986, of murder in the first degree, rape, and other crimes, and the jury sentenced him to death. Thomas was unsuccessful on state court direct appeal and in his state court petition for post-conviction relief. He then petitioned the District Court for habeas relief under 28 U.S.C. § 2254, raising a total of 23 issues, as to both the guilt-phase of his trial and his sentencing.

The District Court vacated Thomas’s sentence on the grounds that trial counsel was ineffective for failing to investigate and present mitigating evidence, and that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently. As to the guilt-phase claims, the District Court denied all, but did issue a certificate of appealability as to three issues: 1) that the trial court’s "reasonable doubt" instruction was unconstitutional; 2) that the Commonwealth’s closing argument at sentencing was unconstitutional; and 3) that Thomas’s counsel was ineffective for failing to life-qualify the jury.

Thomas appealed the District Court’s denial of those three guilt-phase claims; the Commonwealth cross-appealed the sentencing relief on three grounds: 1) that the District Court applied the wrong standard of review; 2) that there was insufficient evidence that Thomas’s trial counsel failed to investigate mitigating evidence; and 3) that any deficiency by trial counsel did not prejudice Thomas. The Third Circuit affirmed the District Court’s denial of the guilt-phase claims, but vacated the District Court’s order granting sentencing relief, remanding for an evidentiary hearing on the extent of trial counsel’s investigative efforts to obtain mitigation evidence.

As a threshold matter, the Court addressed whether the AEDPA deferential standard of review applied to Thomas’s three claims, when they were "adjudicated on the merits" in the lower state court, but the appellate state court dismissed those claims entirely on procedural grounds, as waived. The Court held that in the § 2254 context, AEDPA deference is due only when the state court resolution of petitioner’s claim has preclusive effect, and here, the Pennsylvania Supreme Court’s dismissal on purely procedural grounds "stripped the PCRA court’s substantive determination of Thomas’s claims of preclusive effect." Therefore, because Thomas’s claims were not "adjudicated on the merits" in state court, the Court did not need to apply AEDPA deference, but rather, could review legal and mixed questions of law and fact de novo.

On the merits, first, the Court addressed Thomas’s argument that a trial court instruction on the definition of reasonable doubt that used the phrase "restrain from acting" rather than "hesitate to act" violated due process. The Court held that even though the trial court’s "restrain from acting" verbiage lessened "to some extent" the prosecution's burden of proof, it was "not enough to render its entire instruction unconstitutional."

Second, the Court addressed Thomas’s argument that the Commonwealth’s closing argument at trial improperly invited the jury to consider Thomas’s future dangerousness, and created an unacceptable risk that the jury erroneously believed that Thomas could be released on parole if not sentenced to death. After examining the record, the Court ruled that the Commonwealth’s closing argument was not improper.

Third, the Court addressed Thomas’s argument that trial counsel was ineffective for failing to life-qualify the jury. Noting that the Supreme Court has never imposed on trial counsel the obligation to life-qualify a jury, and that no relevant "prevailing norms of practice" required life-qualifying a jury, the Court found in reviewing the record no indication of a need to life-qualify the entire jury, and no evidence suggesting any probability that trial counsel’s life-qualifying the entire jury would have resulted in at least one juror voting to sentence Thomas to life imprisonment.

With respect to the Commonwealth’s cross-appeal, the Court, first, rejected the Commonwealth’s claim that the District Court improperly reviewed Thomas’s claims de novo, because the Court had found that there had been no state court "adjudication on the merits".

Second, the Court addressed the District Court’s conclusions that: 1) trial counsel was ineffective for failing to investigate and present mitigating evidence, and 2) that Thomas’s purported waiver of his right to present mitigating evidence was not made knowingly and intelligently and therefore did not cure the prejudice resulting from trial counsel’s ineffectiveness in failing to investigate and present mitigating evidence.

In light of the presumption of effectiveness, the Court found that, as to trial counsel’s lack of mitigation investigation, the current state of the record – which it characterized as "sparse" – did not permit affirming the District Court’s conclusion that trial counsel was ineffective. But recognizing that further record development could establish trial counsel’s ineffectiveness in failing to investigate mitigation evidence, and that it was reasonably probable that such evidence could have persuaded at least one juror to vote against the death penalty, the Court remanded the case for a hearing on counsel’s investigative efforts.

Finally, the Court rejected the Commonwealth’s argument that a hearing was unnecessary because even if trial counsel was ineffective, Thomas was not prejudiced, as he waived his right to present mitigating evidence. The Court found that the record did not establish that Thomas knowingly and intelligently waived his right to present all mitigating evidence, and that he would have prevented trial counsel from doing so.

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