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:
BREAK IN TRANSCRIPT
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.
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 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.
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.
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 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. . . .
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 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 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 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.
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.