MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS
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)
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.
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, 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 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 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 (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 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 Post-Conviction 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 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 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 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).
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.
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." . . .
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:
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.
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 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 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.
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 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."
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.
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.
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 "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.")
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 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.
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.
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. 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 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]."
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).