Szuchon v. Lehman

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

11-20-2001

Szuchon v. Lehman

Precedential or Non-Precedential:

Docket 00-9000

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Filed November 20, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 00-9000 and 00-9001

JOSEPH SZUCHON,

Appellee/Cross-Appellant

v.

JOSEPH LEHMAN, Commissioner; ANDREW DOMOVICH,

Warden, State Correction Institution at Pittsburgh;

PENNSYLVANIA DEPARTMENT OF CORRECTIONS,

Appellants/Cross-Appellees

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 94-cv-00195E)

District Judge: Honorable William L. Standish

Argued May 24, 2001

Before: RENDELL, GREENBERG and COWEN,

Circuit Judges.

(Filed: November 20, 2001)

Amy Zapp, Esq. [ARGUED]

Office of Attorney General of

Pennsylvania

Department of Justice

Strawberry Square, 15th Floor

Harrisburg, PA 17120

Counsel for Appellants/Cross

Appellees

Caroline M. Roberto, Esq. [ARGUED]

1600 Law & Finance Building,

5th Floor

Pittsburgh, PA 15219

-and-

Lynn A. Ellenberger, Esq.

1330 West Huron Street, Suite 2

Chicago, IL 60622

Counsel for Appellee/Cross-

Appellant

OPINION OF THE COURT

RENDELL, Circuit Judge.

We are asked to review the District Court's order granting

in part and denying in part Joseph Szuchon's petition for a

writ of habeas corpus pursuant to 28 U.S.C. S 2254. A

Pennsylvania jury convicted Szuchon of first-degree murder

of his former girlfriend, Judy Snyder, during a nighttime

rampage which we describe in detail below. The jury then

sentenced him to death. Szuchon asserted numerous

claims of error in his habeas petition in connection with

both the trial and sentencing.

The District Court denied relief on all trial phase claims,

and Szuchon cross-appeals from that judgment. For the

reasons set forth below, we will grant Szuchon a certificate

of appealability for his claims regarding the admission of

certain psychiatric evidence in violation of Estelle v. Smith,

451 U.S. 454 (1981), but we will affirm the District Court's

denial of relief. A certificate of appealability will be denied

on the remaining trial phase claims.

As to the sentencing phase, the District Court held that

the jury instructions regarding the mitigating

circumstances violated the holding of Mills v. Maryland,

486 U.S. 367 (1988), and it granted the writ on the

condition that the state court conduct a new sentencing

proceeding or impose a term of life imprisonment. The

Commonwealth appeals, arguing, inter alia, that the Mills

2

claim is procedurally defaulted because Szuchon failed to

exhaust his Mills claim in state court, and state remedies

are now foreclosed. Although we conclude that the

Commonwealth may have waived this defense by failing to

raise it in its answer to the habeas petition, we will address

the question of whether the claim is procedurally defaulted.

We conclude that the Mills claim is defaulted and barred

from review on the merits given Szuchon's inability to show

cause or a fundamental miscarriage of justice.

Consequently, Szuchon cannot pursue habeas relief based

on Mills. Szuchon, however, also cross-appeals from the

denial of his remaining sentencing claims, one of which was

that the state court improperly permitted the exclusion at

voir dire of six prospective jurors who merely voiced

opposition to the death penalty. We hold that the exclusion

of the prospective jurors violated Szuchon's Sixth and

Fourteenth Amendments rights under Witherspoon v.

Illinois, 391 U.S. 510 (1968), and Wainwright v. Witt, 469

U.S. 412 (1985), and thus a new sentencing is required.

Accordingly, we will affirm, on other grounds, the District

Court's decision to grant the writ in connection with

Szuchon's sentencing.

I. BACKGROUND

We borrow the factual recitation from one of the

Pennsylvania Supreme Court's opinions in this matter:

The events culminating in an evening of terror on

April 14, 1981 for three young people in Erie County

began with the breakdown of [Szuchon]'s relationship

with Judy Lynn Snyder and his inability to deal with

that breakdown. [Szuchon] and Ms. Snyder had been

involved in a stormy relationship over a period of

several years, including periods of time in which they

lived together in California and in Philadelphia. Toward

the end of 1980, Ms. Snyder left [Szuchon] in

Philadelphia and returned to her parents' home in Erie.

Refusing to accept that the relationship was over,

[Szuchon] began to harass Ms. Snyder with telephone

calls at her parents' home. [Szuchon]'s love for Judy

Snyder progressively transformed to hatred and he

3

began to tell various people how he was going to kill

her with a Winchester rifle or cut her from ear to ear

-- if he could not have her, no one would. Eventually,

[Szuchon] returned to Erie to pursue Ms. Snyder.

In Erie, [Szuchon] continued to harass Judy Snyder at

her parents' home, with Erie police being dispatched to

the home on two occasions to remove [Szuchon] from

the premises. [Szuchon] also continued to tell others

that he intended to kill Ms. Snyder as well as her

"boyfriend." Finally, on April 14, 1981, [Szuchon]

purchased a Winchester rifle from Gorenflo's Gunsmith

in Erie, purchased bullets from the Erie Sport Store,

loaded the rifle and drove to the Bottom Line, a

restaurant/tavern where Judy Snyder was working.

[Szuchon] parked in the lot of the Bottom Line and

read a newspaper while he waited for Ms. Snyder to get

off work. When her shift was finished, she and two

friends, Aldo DeSanto and Mary Sadowski, left the

Bottom Line to go to Judy's car, whereupon the three

were confronted by [Szuchon], holding the Winchester

and stating "If you all don't get into the car, I'll blow

your fucking heads off.". . . All four then got in Ms.

Snyder's car with Judy driving, Mary in the front

passenger seat, and Aldo in the back seat with

[Szuchon].

[Szuchon] then directed Ms. Snyder to drive to an

isolated area, the state game lands. As they drove,

[Szuchon] kept the gun pointed at them and, at one

point, told the three to "make your act of contrition or

say your confessions if you want to go to heaven

because at the end of this night I'm surely going to

hell." . . . Mary Sadowski, certain she was going to die

at [Szuchon]'s hands, jumped from the moving car (at

50 m.p.h.) and escaped. . . . Somehow she avoided

serious injury, ran to a house and called the police.

[Szuchon] ordered Ms. Snyder to continue to drive to

the game lands. Upon arrival there (the drive took

approximately 15-20 minutes), he ordered her and Mr.

DeSanto to walk into a corn field. The latter took

several steps into the field, but Ms. Snyder refused.

4

When she persisted in refusing to go on, [Szuchon]

aimed the gun at Ms. Snyder, she turned, and

[Szuchon] shot her in the back. Mr. DeSanto jumped to

the ground, rolled, then got up and ran. While running,

he heard two more shots. He finally reached a

farmhouse and the owners called the police.

Shortly thereafter, Pennsylvania State Troopers arrived

at the scene and discovered Ms. Snyder's abandoned

car, and then located her body. She had been killed by

two bullets that had pierced her back from different

angles. [Szuchon] was nowhere to be found, and a

police manhunt was initiated.

Later that evening, Frederick Pusch was driving his

vehicle on an isolated road south of Erie when he

encountered [Szuchon] who informed Mr. Pusch that

his car had broken down and that he needed to use a

phone. Mr. Pusch drove [Szuchon] to Pusch's cottage at

Canadohta Lake. While at the cottage, [Szuchon]

informed Mr. Pusch that he had just killed his

girlfriend and that another girl and a guy had gotten

away. The next morning (April 15th), [Szuchon] placed

a message with the Erie Police Department requesting

that an officer with whom he was acquainted, Detective

Richard Runstedler, come to Canadohta Lake so that

he could turn himself in. Detective Runstedler and

another officer drove to Canadohta Lake and took

[Szuchon] into their custody at approximately 12:15

p.m. on April 15, 1981.

. . . [Szuchon] was taken to the state police barracks

where he was given his Miranda warnings, which he

waived. [Szuchon] then confessed to kidnaping the

three victims at gunpoint, intending to take them to

the country to kill them. [Szuchon] stated that he

intended to kill them because Judy would not return to

him as his girlfriend, and because he perceived Aldo as

"cutting in on him" and felt that Mary was meddling

and interfering with his relationship with Judy.

[Szuchon]'s version of the events was essentially

consistent with the testimony of the two kidnap

victims. [Szuchon] told Trooper Povlick that he told Ms.

Snyder "how much he loved her, and at this point she

5

laughed and turned her back and he shot her." . ..

[Szuchon] also informed Trooper Povlick that he had,

the day of the homicide/kidnaping, ingested a "couple

lines" of cocaine and "five to six quaalude tablets."

. . . No evidence of drugs or paraphernalia were found

on [Szuchon].

Commonwealth v. Szuchon, 484 A.2d 1365, 1368-69 (Pa.

1984).

In October 1981, a jury in the Court of Common Pleas for

Erie County convicted Szuchon of first-degree murder,

three counts of kidnaping, two counts of terroristic threats,

and two counts of reckless endangerment. The jury

acquitted Szuchon on a charge of attempted murder of Aldo

DeSanto. A sentencing proceeding was conducted before

the same jury shortly after the verdict. Neither the

Commonwealth nor Szuchon introduced new evidence at

sentencing. The Commonwealth argued the existence of two

statutory aggravating circumstances: Szuchon committed

the killing while in perpetration of a felony (kidnaping), and

he knowingly created a grave risk of death to individuals

(DeSanto and Sadowski) other than the murder victim. See

42 Pa. Cons. Stat. SS 9711(d)(6) and (7). Szuchon argued

four mitigating circumstances: although he pled guilty to a

robbery charge in 1974, he had no "significant history" of

prior convictions; he was under the influence of extreme

mental or emotional disturbance; his capacity to appreciate

the criminality of his conduct or to conform his conduct to

the requirements of law was substantially impaired; and

"other evidence of mitigation"-- namely, that he "was

substantially involved in the usage and abuse of drugs and

alcohol for a long period of time." Appendix ("App.") 3156;

see SS 9711(e)(1), (2), (3), and (8). The jury found both of the

aggravating circumstances and certain of the mitigating

circumstances to exist, and it concluded that the mitigating

circumstances were outweighed. Consequently, it imposed

a sentence of death on the first-degree murder conviction.1

See S 9711(c)(iv). The trial court denied Szuchon's motion

for a new trial, and the Pennsylvania Supreme Court

_________________________________________________________________

1. Szuchon received consecutive terms of incarceration on the other

convictions.

6

affirmed the convictions and sentences on direct appeal.

Commonwealth v. Szuchon, 484 A.2d 1365 (Pa. 1984).

At trial, Szuchon had not denied that he committed the

murder but presented a diminished-capacity defense,

"which entails the assertion that the defendant's mental

condition at the time of the offense was such that he was

incapable of forming the specific intent to kill."

Commonwealth v. Williams, 732 A.2d 1167, 1190 (Pa. 1999)

(citing Commonwealth v. Zettlemoyer, 454 A.2d 937, 943

(Pa. 1982)).2 Szuchon tried to show, through testimony from

the prosecution's witnesses, that he had ingested cocaine

and sedatives on the date of the murder, resulting in a

diminished capacity. The Pennsylvania Supreme Court

aptly rendered the following assessment of Szuchon's

defense:

The only evidence as to [Szuchon]'s diminished

capacity and his drugged or intoxicated condition came

from [Szuchon] himself, through statements he had

made to various people subsequent to the

murder/kidnaping. This evidence was vague and

equivocal and was overwhelmingly countered by the

testimony of Aldo DeSanto, Mary Sadowski, Frederick

Pusch (who was a teacher of the emotionally

disturbed), the salesmen who sold [Szuchon] the rifle

and bullets, the arresting officers and others, that on

April 14 and 15, 1981, [Szuchon] was calm, deliberate

and coherent and exhibited no signs of intoxication or

drugged condition. Moreover, the Commonwealth

introduced Dr. Walter Finken, a psychiatrist at Warren

State Hospital who had examined [Szuchon], discussed

his participation in the crimes with him and testified

that in his opinion, at the time of the incident

[Szuchon] was able to comprehend the nature and the

quality of his acts, knew right from wrong, and was

capable of forming the specific intent to commit

murder.

_________________________________________________________________

2. By negating the element of specific intent, a successful diminished-

capacity defense reduces the charge from first to third-degree murder.

Commonwealth v. Travaglia, 661 A.2d 352, 359 (Pa. 1995).

7

Szuchon, 484 A.2d at 1369.

In 1986, Szuchon filed a pro se petition for state

collateral review under the Post-Conviction Hearing Act

("PCHA"). The trial court appointed counsel, who filed an

amended petition raising claims of trial court error and of

ineffective assistance of trial and appellate counsel. The

trial court denied the petition without an evidentiary

hearing, ruling that the claims were either meritless or

procedurally barred because they had been litigated on

direct appeal. The Superior Court affirmed, and the

Pennsylvania Supreme Court denied allowance to appeal.

In 1992, Szuchon filed a second counseled collateral-

review petition, this time under the amended and renamed

Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat.

S 9541 et seq. Szuchon again raised claims of ineffective

assistance of trial and appellate counsel. The trial court

ruled that the claims were waived either because they were

previously litigated or because Szuchon failed to raise them

in a prior proceeding. The Pennsylvania Supreme Court

affirmed. Commonwealth v. Szuchon, 633 A.2d 1098 (Pa.

1993).

In April 1994, the Governor of Pennsylvania signed a

warrant for Szuchon's execution. On July 1, 1994, Szuchon

moved for a stay and filed a counseled habeas petition

pursuant to 28 U.S.C. S 2254 in the District Court for the

Western District of Pennsylvania.3 After the District Court

granted the stay, but before the Commonwealth filed an

answer to the habeas petition, Szuchon moved to hold the

proceeding in abeyance and to continue the stay while he

exhausted state remedies on three claims that he had yet

to present to the state courts.4 The District Court granted

_________________________________________________________________

3. Szuchon had filed two previous habeas petitions, in 1985 and 1990,

both of which were dismissed without prejudice.

4. The three claims were (1) failure to instruct the jury that a life

sentence means no parole, Simmons v. South Carolina, 512 U.S. 154

(1994); (2) a Fifth Amendment violation in the admission of Dr. Walter

Finken's testimony and his report, Estelle v. Smith, 451 U.S. 454 (1981);

and (3) a double jeopardy violation in permitting the jury to consider the

aggravating circumstance of creating a grave risk of death to Aldo

DeSanto after it had acquitted Szuchon of the attempted murder of

DeSanto. Szuchon conceded that the Simmons claim had not been

presented to the state courts, and he noted that the Estelle and double-

jeopardy claims "appear not to have been exhausted." App. 184-85.

8

Szuchon's motion, held the proceeding in abeyance, and

ordered the stay continued.

In January 1996, Szuchon returned to state court and

filed a third post-conviction petition (his second petition

under the PCRA). The trial court ruled that the claims were

either previously litigated or waived for failure to raise them

in a prior proceeding. The Pennsylvania Supreme Court

affirmed. Commonwealth v. Szuchon, 693 A.2d 959 (Pa.),

cert. denied, 522 U.S. 889 (1997).

In March 1998, Szuchon filed in the District Court an

amended habeas petition in which he raised a total of 16

claims of error at trial and sentencing. The Commonwealth

filed an answer in which it expressly waived nonexhaustion

as to all claims. App. 284-85 ("To the extent that Petitioner

may have failed to exhaust available state remedies as to

any claim presented in the instant Petition, the

Commonwealth formally waives any non-exhaustion

defense it may have available."). As to the numerous claims

that Szuchon had presented to the state courts in his

second and third post-conviction petitions, the

Commonwealth argued that those claims were procedurally

defaulted, and it argued that the claim under Mills was

either barred by Teague v. Lane, 489 U.S. 288 (1989), or

without substantive merit. The Commonwealth did not

assert a procedural-default defense in its answer to the

Mills claim.

The matter was referred to a Magistrate Judge, who

concluded that all claims were exhausted and not

defaulted. Applying pre-AEDPA law because Szuchon's

initial habeas petition was filed prior to AEDPA's

enactment, the Magistrate Judge recommended that all

claims but one be denied, agreeing with Szuchon that the

jury instructions at sentencing violated the Eighth

Amendment under Mills. The Magistrate Judge

recommended that the writ be granted on the condition

that the Commonwealth either conduct a new sentencing

hearing within 120 days or impose life imprisonment.

The Commonwealth objected to the recommendation by

arguing for the first time that the Mills claim should be

denied as procedurally defaulted given Szuchon's failure to

9

exhaust the claim and the present unavailability of state

remedies. The District Court summarily overruled the

objections, adopted the Report and Recommendation,

granted the writ in accordance with the Magistrate Judge's

recommendation, and denied Szuchon's remaining claims.

The District Court also issued a certificate of appealability

but failed to specify the issues on which Szuchon had made

a substantial showing of the denial of a constitutional right.

See 28 U.S.C. S 2253(c)(3) ("The certificate of appealability

. . . shall indicate which specific issue or issues satisfy the

showing required . . . ."). The Commonwealth timely

appealed (C.A. No. 00-9000), and Szuchon timely cross-

appealed (C.A. No. 00-9001).

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.

S 2254(a). We have jurisdiction over the Commonwealth's

appeal pursuant to 28 U.S.C. S 1291. As to Szuchon's

cross-appeal, we have jurisdiction pursuant to 28 U.S.C.

SS 2253 and 1291 over the issues that satisfy the certificate

of appealability standard. See United States v. Cepero, 224

F.3d 256, 261-62 (3d Cir. 2000) (en banc) (holding that

issuance of a certificate of appealability is a jurisdictional

requirement). Because the District Court failed to specify

the issues for appeal, we will undertake that analysis here.5

_________________________________________________________________

5. Ordinarily, when a District Court grants a certificate of appealability

but fails to specify the issues for appeal, we would remand the matter for

a clarification of the order granting the certificate. See, e.g., United

States

v. Weaver, 195 F.3d 52, 53 (D.C. Cir. 1999). We have elected not to

follow that course here, as the parties had fully briefed this matter by

the time it was brought to our attention that the certificate of

appealability was inadequate. See Williams v. United States, 150 F.3d

639, 641 (7th Cir. 1998) (holding that remand for specification of the

issues was unnecessary where appeal was fully briefed); Tiedeman v.

Benson, 122 F.3d 518, 522 (8th Cir. 1997) (same). Moreover, given that

20 years have now passed since Szuchon's trial, we are reluctant to

delay the resolution of this matter with a remand. We, therefore, will

view the District Court's certificate as a nullity given its nonconformity

to S 2253(c)(3), and we construe Szuchon's timely filed notice of appeal

as a request for this Court to issue a certificate of appealability. See

Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001) ("Because Coady

filed a timely notice of appeal, we construe this notice as a request for

a certificate of appealability pursuant to Section 2253(c)(1) and Fed. R.

App. Proc. 22(b).").

10

A certificate of appealability may issue only upon"a

substantial showing of the denial of a constitutional right."

28 U.S.C. S 2253(c)(2). If "a district court has rejected the

constitutional claims on the merits, the showing required to

satisfy S 2253(c) is straightforward: The petitioner must

demonstrate that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or

wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Our

review is plenary on the merits of the claims over which we

have jurisdiction, as the District Court relied exclusively on

the state court record in deciding the petition and did not

hold an evidentiary hearing. Hartey v. Vaughn , 186 F.3d

367, 371 (3d Cir. 1999). In addition, Szuchon filed his

initial petition prior to AEDPA's enactment, and the parties

do not dispute that pre-AEDPA law governs Szuchon's

claims. See Lindh v. Murphy, 521 U.S. 320, 326 (1997).6

Before AEDPA, state court factual findings were presumed

correct unless, inter alia, they were not" `fairly supported

by the record.' " Pemberthy v. Beyer, 19 F.3d 857, 864 (3d

Cir. 1994) (quoting the former 28 U.S.C. S 2254(d)(8)). State

court legal conclusions were reviewed de novo, as were

mixed questions of law and fact. McCandless v. Vaughn,

172 F.3d 255, 260 (3d Cir. 1999).

III. TRIAL CLAIMS

We first address Szuchon's cross-appeal from the denial

of his claims of error in connection with the trial. His

claims involve his right to due process, and his contention

that psychiatric evidence was not properly obtained and

was improperly used at trial. The District Court properly

reached the merits of these claims.

A. Due Process Claims

Szuchon contends that he was denied a fair trial because

the jury was prejudiced by comments it overheard; the jury

engaged in premature deliberations; the court ordered him

_________________________________________________________________

6. Although this action was commenced in the District Court pre-AEDPA,

this appeal was filed post-AEDPA, and thus we must apply the AEDPA

certificate of appealability requirement. Slack , 529 U.S. at 482.

11

shackled during the proceedings; and he was provided

insufficient notice that he faced the death penalty. We will

deny a certificate of appealability on each claim.

1. Prejudicial Comments

Szuchon's jury was sequestered throughout the trial, and

while out for dinner one weekend, a patron at a local

restaurant commented "hang the bastard" as three jurors

were entering the establishment. On a separate occasion

during that weekend, a patron at a different restaurant

remarked "he is guilty" within earshot of three different

jurors. The court's tipstaff promptly reported these

incidents the following Monday. Before resuming trial that

morning, the court conducted an individual voir dire with

each of the six jurors who were exposed to the remarks.

Each juror stated that the remarks would have no adverse

affect on their ability to remain impartial and to decide the

case solely on the evidence.

It is settled that "due process does not require a new trial

every time a juror has been placed in a potentially

compromising situation." Smith v. Phillips , 455 U.S. 209,

217 (1982). Instead, "[d]ue process means a jury capable

and willing to decide the case solely on the evidence before

it, and a trial judge ever watchful to prevent prejudicial

occurrences and to determine the effect of such

occurrences when they happen." Id. Here, after learning of

the restaurant incidents, the judge promptly questioned the

jurors, each of whom separately and unequivocally stated

that the remarks would not affect their ability to decide the

case based on the evidence. After assessing the jurors'

credibility and observing their demeanor, the court found

that they would remain impartial and could continue to

serve. The record amply supports this finding, and we defer

to its correctness on federal habeas review. Patton v. Yount,

467 U.S. 1025, 1038 (1984). In addition, we reject

Szuchon's suggestion that the court was required to

question the jury as a whole; the judge was plainly within

his discretion in choosing to limit the questioning to the six

jurors who were exposed to the remarks. The record before

us provides no basis for second-guessing the trial judge's

handling of the situation.

12

Szuchon also contends that he was denied due process

by another alleged instance of improper jury contact. He

claims that, after he physically assaulted a state trooper

who was leaving the witness stand (an incident that

resulted in his shackling, which will be discussed below),

the jury was escorted from the courtroom, at which time

the court's tipstaff allegedly remarked that Szuchon's

behavior was the "worst . . . he had seen in his many years

of service at the courthouse." This incident was not brought

to the trial judge's attention. We are satisfied, nevertheless,

that the tipstaff's remark was not of the sort that could

have posed a threat to the jury's impartiality in its

consideration of the rather overwhelming evidence of

Szuchon's guilt of first-degree murder. The remark, while

inappropriate, did not deprive Szuchon of a fair trial.

2. Premature Deliberations

Szuchon alleges that the jury voted to convict him of

first-degree murder by the third day of the prosecution's

case, and that it decided to impose a death sentence by the

fourth or fifth day. He has submitted a declaration to this

effect from one member of the jury. These alleged

premature deliberations were not brought to the trial

court's attention. Although these allegations are certainly

troubling in the abstract, we discern no due process

violation on the record before us. "[W]hen there are

premature deliberations among jurors with no allegations of

external influence on the jury, the proper process for jury

decisionmaking has been violated, but there is no reason to

doubt that the jury based its ultimate decision only on

evidence formally presented at trial." United States v.

Resko, 3 F.3d 684, 690 (3d Cir. 1993) (emphasis in

original). Given the extensive evidence of Szuchon's guilt of

first-degree murder and the relative weakness of the

evidence regarding his diminished-capacity, we have no

reason to doubt that the jury's decision was based on the

evidence. Szuchon has made no showing that he was

prejudiced by the alleged premature deliberations. Cf.

Anderson v. Calderon, 232 F.3d 1053, 1098-99 (9th Cir.

2000) ("Anderson's claim [of premature deliberations] must

fail because there is absolutely no evidence that the alleged

13

misconduct has prejudiced Anderson in any way, much

less `to the extent that he has not received a fair trial.' ")

(citation omitted). Furthermore, the jury acquitted Szuchon

on the charge of attempted murder of Aldo DeSanto, which

suggests that it in fact gave due regard to the court's

instructions and deliberated the evidence at the close of the

trial. "When the jury is instructed to base its verdict solely

on the evidence and it acquits the defendant of certain

counts, such factors indicate that the jury was not biased."

United States v. DiSalvo, 34 F.3d 1204, 1226 (3d Cir. 1994)

(citing United States v. Thornton, 1 F.3d 149, 156 (3d Cir.

1993)). In short, the record indicates that the alleged

premature deliberations did not deprive Szuchon of his

right to a fair trial before an impartial jury.

3. Shackling

Szuchon contends that his trial was unfair because the

court ordered his legs and right hand shackled after he

assaulted a Commonwealth witness. Szuchon leapt from

his chair during the course of the trial and grabbed and

kicked a state trooper who was leaving the witnesses stand.

The assault occurred in full view of the jury, and court

security subdued Szuchon on the floor in front of the jury

box. As a result of the incident, and after hearing from

counsel, the trial court ordered Szuchon shackled to his

chair and counsel table for the remainder of the trial and

sentencing. Szuchon's left hand remained unshackled so

that he could take notes and assist counsel, and Szuchon

was not gagged.

In Illinois v. Allen, 397 U.S. 337 (1970), the Court

recognized that a defendant is prejudiced when he appears

before a jury in shackles: "Not only is it possible that the

sight of shackles and gags might have a significant effect on

the jury's feelings about the defendant, but the use of this

technique is itself something of an affront to the very

dignity and decorum of judicial proceedings that the judge

is seeking to uphold." Id. at 344. The Court added,

however, that sometimes "binding and gagging might

possibly be the fairest and most reasonable way to handle"

a disruptive defendant. Id.

14

The record here supports the decision to shackle

Szuchon given his violent and disruptive behavior,

particularly in light of the trial court's determination that

certain jurors were palpably frightened of Szuchon following

the assault. In addition to his assault upon the trooper,

Szuchon had been verbally disruptive on two prior

occasions during the trial. Szuchon had also become

noticeably upset after hearing the testimony of an earlier

prosecution witness, when he "attempted to get up from his

seat . . ., and said either I can't take this shit[or] I don't

have to tolerate this shit." App. 2920. After that earlier

incident, the court allowed defense counsel to remove

Szuchon from the courtroom for several minutes to calm

himself down. Szuchon had thus displayed a pattern of

disruptive conduct prior to the assault upon the trooper.

The trial court carefully weighed but rejected alternatives

to shackling, such as barring Szuchon from the courtroom

or issuing a contempt citation. The court also considered

but rejected the possibility of attempting to conceal the

shackles from the jury, explaining as follows:

It's my opinion that a couple of jurors were so

frightened last night that it would be more productive

for them to know that he is in some fashion shackled

to his chair, and it is my belief that the possibilities of

the prejudicial effect of knowing that he is unable to

leave his chair are far less than the productive, if you

will, effect of them knowing that they can pay attention

to the evidence without having to worry about the

Defendant.

App. 2921-2922. Szuchon's counsel stated that they had no

objection to revealing the shackles to the jury, and counsel

raised no objection to the court's cautionary instructions

regarding the shackling.7 The record fully supports the trial

court's decision.

Szuchon contends that the shackling must have been

unduly prejudicial. He cites to the declarations that he has

_________________________________________________________________

7. Szuchon contends that counsel were ineffective in failing to object,

but

because the shackling was an appropriate sanction, the failure to object

was not unreasonable.

15

obtained from two members of the jury, both of whom note

that they "could not set aside the fact that Szuchon was

shackled," and they add that another juror "was utterly

terrified of Szuchon and believed that he would kill her and

her family." Based on these statements, Szuchon contends

that the shackling must have had a "substantial and

injurious effect or influence in determining the jury's

verdict." Br. of Cross-Appellant at 86. We find this

argument unpersuasive. It seems unlikely that any juror

could have ignored that Szuchon was shackled, and the

trial court took that fact into consideration, noting its view

that it would be better to reveal that Szuchon was shackled

than to have the jury sit in fear that he would again spring

forth and assault someone. And the jury certainly had

reason to fear Szuchon because he had aggressively

attacked a state trooper right in front of them. The trial

court reasonably concluded that the shackling was

warranted and that Szuchon's right to a fair trial would be

better served by revealing the constraints. The court also

carefully instructed the jury to remain focused solely on the

evidence. The declarations from the two jurors cast no

doubt upon the validity of the trial court's decision -- in

fact, the declarations seem to verify the court's assessment

that certain jurors were truly frightened and that shackling

would help them to focus on the evidence rather than on

Szuchon. We find no violation of due process.

4. Notice of the Death Penalty

Szuchon contends that he was provided inadequate

notice that he faced the death penalty. He relies exclusively

on Lankford v. Idaho, 500 U.S. 110 (1991). In that case, the

prosecution advised the defendant in a presentencing order

that it would not seek the death penalty. At sentencing,

there was no discussion of death as a possible sentence,

and the defendant argued only the merits of various terms

of imprisonment. The trial court sua sponte sentenced the

defendant to death. The United States Supreme Court

reversed, holding that the defendant was denied due

process because he did not have "adequate notice of the

critical issue that the judge was actually debating." Id. at

120. The Court explained that "[n]otice of issues to be

16

resolved by the adversary process is a fundamental

characteristic of fair procedure." Id. at 126.

Szuchon's case is readily distinguishable from Lankford.

The trial court formally notified Szuchon on the record at

least a week before jury selection that he faced the death

penalty. The notice was given at the same time that

Szuchon's trial counsel were appointed (as will be

discussed in more detail below), and thus Szuchon's

counsel went to trial with as much notice of the death

penalty as they possibly could have had under the

circumstances. Moreover, Szuchon insisted on proceeding

to trial with only one week for his counsel to prepare, as he

refused to waive the 180-day speedy-trial rule. We would be

hard-pressed, at the least, to distinguish the self-inflicted

harm that Szuchon caused by refusing to continue the trial

from any prejudice that might have resulted from his not

having had more notice that this was a death penalty case.

Szuchon has also made no showing that he was

prejudiced by the alleged failure to have earlier notice: there

is no evidence that either pre-trial counsel or trial counsel

were hindered in their preparations due to the allegedly

inadequate notice. Moreover, Szuchon makes no claim that

he was unaware of the evidence and witnesses that were

presented against him at trial and sentencing. Cf. Duvall v.

Reynolds, 139 F.3d 768, 797-98 (10th Cir. 1998) (finding

no due process violation even though state failed to afford

defendant notice of evidence it intended to produce to

establish its aggravating circumstance); Hale v. Gibson, 227

F.3d 1298, 1236 (10th Cir. 2000) (holding that there was

no due process violation where state amended bill of

particulars on first day of trial to add an aggravating

circumstance that it had not previously noted). Nothing in

this record suggests that the notice Szuchon received

violated his right to due process.

In sum, Szuchon has not made a substantial showing of

the denial of a constitutional right on his due process

claims, and we will deny a certificate of appealability.

B. Psychiatric Evidence Claims

Szuchon contends that he was denied his right under

Ake v. Oklahoma, 470 U.S. 68 (1985), to the assistance of

17

a forensic psychiatrist at state expense. He also contends

that, as to the psychiatric examination that was conducted,

he was denied his right under Estelle v. Smith , 451 U.S.

454 (1981), to be advised that his statements could be used

against him at trial. Our analysis of these claims requires

that we first summarize the relevant pre-trial events.

After his preliminary arraignment, Szuchon privately

retained his own counsel, who promptly filed a "Motion for

Mental Health Examination." Counsel requested"an

examination to determine [Szuchon's] present mental

health status, and his present status as to competency."

App. 331. He also asked that the court order "a

determination as to [Szuchon's] criminal responsibility, as

provided within the Mental Health Act." Id. The trial court

granted the motion and ordered that "any reports of any

examination shall be supplied to the attorney for the

Defendant and the Commonwealth." App. 333.

Szuchon was transferred to Warren State Hospital, where

he was examined by Dr. Walter Finken. The examination

covered Szuchon's mental health, his competency to stand

trial, and his "criminal responsibility." It is undisputed that

Szuchon was not advised that his statements could be used

against him at trial and sentencing. Doctor Finken's

findings were reported to the trial court in a letter signed by

Dr. Harold J. Reinhardt, also of Warren State Hospital.

Copies of the letter (which we will refer to as the"Finken

Report") were forwarded to the Commonwealth and to

Szuchon's counsel. Doctor Reinhardt (who it is clear merely

signed the letter, the letter actually contained the findings

of Dr. Finken) advised the court as follows: Szuchon was

competent to stand trial; he was not insane within the

meaning of the M'Naughten test; although Szuchon

indicated that he was on various drugs at the time of the

offenses, there was no indication that he suffered from "a

serious toxic confusion or psychotic state at the time"; and

"[i]n interviewing the patient, one did not get the impression

that he planned or obtained the gun with the specific

purpose of shooting Judy." Supplemental Appendix 5.

Thereafter, Szuchon filed a "Motion for Appointment of a

Forensic Psychiatrist," noting that he was exploring an

insanity defense but that he lacked sufficient funds to

18

retain a psychiatrist "who could examine the Defendant,

and testify as to the Defendant's mental state and capacity

at the time of the incident at Defendant's trial." Szuchon

then filed a "Notice of Insanity or Infirmity Defense" and

advised that he would provide the name of any expert he

would call after he received funds from the court to hire a

psychiatrist. On September 3, 1981, after oral argument,

the trial court denied without prejudice Szuchon's motion

for appointment of a psychiatrist. The reasons for the

court's ruling are not apparent in the record before us.

On September 28, 1981, Szuchon's counsel moved to

withdraw because Szuchon was refusing to cooperate in his

defense and their relationship had deteriorated. The trial

court granted the motion and advised Szuchon of the need

to promptly retain new counsel. Although incarcerated,

Szuchon was afforded numerous opportunities to contact

his family by telephone to arrange for the hiring of a new

attorney. Szuchon neglected to do so. On October 5, the

trial court appointed two attorneys as Szuchon's counsel in

the event Szuchon failed to hire his own. Szuchon

consented to the court's appointment of counsel, App. 375-

76, and he never privately retained counsel. At a hearing

the next day, counsel lodged a motion to have Szuchon

examined by Dr. David Paul, a local forensic psychiatrist.

App. 1583. The trial court granted the motion. App. 377. In

the days that followed, however, Szuchon refused to be

examined because he claimed that Dr. Paul would be

biased given his past work as a consultant for the Erie

County Jail.

Jury selection commenced on October 12, which was less

than a week after Szuchon's counsel were appointed.

Szuchon, however, insisted on proceeding to trial on that

date, and he repeatedly refused a continuance. Szuchon

claimed that his right to a speedy trial would be violated by

any continuance, and thus he forced the trial to commence

even after the court made it clear to him that his counsel

would likely benefit from additional time to prepare.

As noted, Szuchon presented a diminished-capacity

defense, but he presented no expert mental-health

evidence. The prosecution, in contrast, presented the

testimony of Dr. Finken and introduced the Finken Report,

19

which contained numerous statements that Szuchon had

made about his role in the murder and his mental status.

The record is clear that the main purpose for which the

prosecution used Dr. Finken's testimony and the Finken

Report at trial was to establish that Szuchon acted with a

specific intent, which, in the end, was the only disputed

issue at trial given that Szuchon's defense was diminished

capacity and he made no attempt to deny that he murdered

Judy Snyder.

With this background, we turn to the claims under Ake

and Estelle. Szuchon contends that the trial court violated

Ake insofar as Dr. Finken was the expert appointed to

evaluate him, as Dr. Finken was not appointed to assist the

defense. The Supreme Court held in Ake that,"when a

defendant demonstrates to the trial judge that his sanity at

the time of the offense is to be a significant factor at trial,

the State must, at a minimum, assure the defendant access

to a competent psychiatrist who will conduct an

appropriate examination and assist in evaluation,

preparation, and presentation of the defense." 470 U.S. at

83. Had Dr. Finken been the only psychiatrist appointed in

this case, we would agree that Ake was not satisfied. The

record reflects that the trial court never ordered Dr. Finken

to assist the defense; Szuchon's counsel apparently had no

contact and did not discuss possible defenses with Dr.

Finken; and the Finken Report was addressed to, and

clearly prepared for the benefit of, the court. Under Ake,

"evaluation by a `neutral' court psychiatrist does not satisfy

due process." Smith v. McCormick, 914 F.2d 1153, 1158

(9th Cir. 1990).

But Dr. Finken was not the only psychiatrist appointed,

as the trial court granted Szuchon's request before trial to

be examined by Dr. Paul. Szuchon simply refused to be

examined by Dr. Paul and insisted on proceeding to trial

with no expert evidence. Ake, however, requires only that a

court provide "access" to an independent psychiatrist. Ake,

470 U.S. at 83. Szuchon maintained that Dr. Paul would be

biased, but Szuchon presented no evidence to substantiate

that allegation. Moreover, we certainly could not infer that

a bias might have existed given that it was Szuchon's

counsel who expressly requested that Dr. Paul be

20

appointed. Counsel obviously had no objection to Dr. Paul's

affiliation with the Erie County Jail, and there is absolutely

no evidence that Dr. Paul would have been unable to assist

the defense. On this record, the trial court satisfied Ake by

granting Szuchon's request to be examined by Dr. Paul, an

independent psychiatrist who was made available to the

defense at state expense. We will deny a certificate of

appealability on the Ake claim.8

Szuchon next claims that he was denied his Fifth

Amendment right under Estelle to be advised before his

examination with Dr. Finken that his statements could be

used against him. In Estelle, a state trial court ordered an

evaluation to determine the defendant's competency to

stand trial for capital murder. The defendant was not

informed of his Miranda rights before the evaluation, was

adjudged competent, and convicted. The defendant did not

raise a mental-status defense, and he offered no psychiatric

evidence. At the capital sentencing proceeding, the trial

court allowed the state to present the psychiatrist's

testimony concerning "future dangerousness." The

psychiatrist testified based not only upon his observations

of the defendant but also gave detailed descriptions of the

defendant's statements about the crime. The Supreme

Court vacated the death sentence, holding that "[a] criminal

defendant who neither initiates a psychiatric evaluation nor

attempts to introduce any psychiatric evidence may not be

compelled to respond to a psychiatrist if his statements can

be used against him at a capital sentencing proceeding."

451 U.S. at 468.

Szuchon argues that admission of Dr. Finken's testimony

and the Finken Report violated his privilege against self-

incrimination. He further claims that counsel were

ineffective in failing to object to admission of this evidence.9

_________________________________________________________________

8. The District Court denied relief on the ground that Ake could not

apply retroactively to Szuchon's case. Szuchon's conviction, however,

became final after Ake was decided, and thus Szuchon was entitled to

the benefit of that decision. Nevertheless, just as we can affirm a

judgment on the merits on an alternative basis, see, e.g., Felix v. Virgin

Islands Gov't, 702 F.2d 54, 57 (3d Cir. 1983), we can deny a certificate

of appealability on any ground with support in the record.

9. The Commonwealth argues that the Pennsylvania Supreme Court

rejected these claims in the third post-conviction proceeding as waived,

21

We will grant a certificate of appealability because Szuchon

has shown that it is at least debatable whether admission

of the Finken evidence was inconsistent with the holding in

Estelle. On the merits, however, we need not decide

whether the admission was in fact an Estelle violation, as

any error, even assuming there was one, was undoubtedly

harmless and insufficient to warrant habeas relief. Cf.

Penry v. Johnson, 121 S. Ct. 1910, 1919-20 (2001) ("Even

if our precedent were to establish squarely that the

prosecution's use of the Peebles report violated Penry's Fifth

Amendment privilege against self-incrimination, that error

would justify overturning Penry's sentence only if Penry

could establish that the error [was not harmless]").

A writ of habeas corpus may issue only if the reviewing

court finds that the constitutional error "had a substantial

and injurious effect or influence in determining the jury's

verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

Even absent Dr. Finken's testimony and the Finken Report,

the Commonwealth presented overwhelming evidence of

Szuchon's specific intent to kill. The Commonwealth

established that Szuchon told numerous individuals before

the murder that he planned to kill Judy Snyder. After the

murder, Szuchon confessed to the police that he intended

to kill Snyder because she would not return to being his

girlfriend. The Commonwealth further established the

deliberate manner in which Szuchon purchased the bullets

and rifle the morning of the killing and later drove to the

restaurant where Judy Snyder worked, waiting patiently for

her in the parking lot while reading a newspaper. 10 Szuchon

_________________________________________________________________

and that Szuchon therefore committed a procedural default. We disagree.

The Pennsylvania Supreme Court denied these claims solely on the

merits, ruling that, "[s]ince appellant argued diminished capacity

throughout the guilt and penalty phases. . ., his Fifth Amendment

privilege against self-incrimination was not violated by Dr. Finken's

psychiatric examination and subsequent testimony." 693 A.2d at 963.

Thus, the merits are properly before us.

10. The Finken Report actually benefitted Szuchon on this front, as the

jury learned of Dr. Finken's opinion that, "[i]n interviewing the patient,

one did not get the impression that he planned or obtained the gun with

the specific purpose of shooting Judy."

22

kidnaped Snyder, DeSanto, and Sadowski at gunpoint,

telling them, "If you all don't get into the car, I'll blow your

fucking heads off." Szuchon, 484 A.2d at 1368. He kept the

rifle trained on the three victims as he forced them to drive

to a remote area, telling them to "make your act of

contrition or say your confessions if you want to go to

heaven because at the end of this night I'm surely going to

hell." Id. He ordered Snyder to walk into a corn field, and

when she refused, he shot her twice in the back. This

evidence unequivocally established that Szuchon acted with

a specific intent to kill Judy Snyder.

Szuchon's evidence of diminished capacity, by contrast,

was weak. Szuchon called three lay witnesses in his

defense, none of whom testified to a diminished capacity on

the date of the murder. The only evidence presented of a

diminished capacity was the statements Szuchon had made

to the police and to Dr. Finken. Szuchon told the police the

day after the murder that he had ingested a "couple lines"

of cocaine and "five to six [Q]uaalude tablets." He told Dr.

Finken that he had taken "six to eight" Quaaludes and

"some cocaine." (Of course, had the Finken evidence been

excluded, the jury would only have had Szuchon's

statements to the police.) There was no evidence that

Szuchon consumed any alcohol or other drugs on the day

of the murder.

In Pennsylvania, a defendant who relies on evidence of

drug consumption must show that he was "overwhelmed by

an intoxicant to the point of losing his rationality, faculties,

or sensibilities so as to negate or lower the specific intent

to kill." Commonwealth v. Edmiston, 634 A.2d 1078, 1085

(Pa. 1993) (citing Commonwealth v. Breakiron, 571 A.2d

1035 (Pa. 1990)). Szuchon's evidence fell far short of that

standard. At best, he showed that he ingested a small

quantity of cocaine and several sedatives, but by no means

could the jury have inferred from that limited evidence that

Szuchon was overwhelmed to the point of losing his

rationality. Moreover, the remainder of the trial evidence

(excluding Dr. Finken) firmly established that Szuchon was

well in control of his faculties. Every witness who had

contact with Szuchon around the time of the murder--

including the rifle and bullet salesmen, DeSanto, Sadowski,

23

Pusch, and the arresting officers -- testified that Szuchon

had seemed rational and showed no signs of intoxication or

a drugged condition. Furthermore, the manner in which

Szuchon carried out the murder strongly indicated that he

knew what he was doing.

Thus, while the jury might have found the Finken

evidence compelling, the overwhelming remaining evidence

of Szuchon's specific intent and the paucity of his

diminished-capacity defense convince us that the outcome

of this trial would have been exactly the same without Dr.

Finken's testimony and the Finken Report. Similarly,

Szuchon cannot show prejudice under Strickland v.

Washington, 466 U.S. 668 (1984), to support his claim that

counsel were ineffective in failing to object to its admission.

Accordingly, we will affirm the District Court's denial of

relief on these claims.11

IV. SENTENCING CLAIMS

A. Mills

We turn next to the sentencing phase and address first

the Commonwealth's appeal of the District Court's issuance

of the writ based on Mills v. Maryland, 486 U.S. 367 (1988).

The Supreme Court held in Mills that a death sentence

should be vacated as violative of the Eighth Amendment if

there is a substantial probability that reasonable jurors,

upon receiving the trial judge's instructions and attempting

to complete the verdict form based on those instructions,

may have thought that they could only consider those

mitigating factors which they unanimously found to exist.

_________________________________________________________________

11. Szuchon also claims that Estelle was violated by admission of the

psychiatric evidence at sentencing. We do not reach that claim given our

disposition of this appeal, although we note that we discern no error in

that regard. The Commonwealth used Dr. Finken's testimony and the

Finken Report at sentencing solely in rebuttal to Szuchon's claims of

mitigation based on his alleged mental deficiencies. Admission of the

evidence for that purpose was not inconsistent with Buchanan v.

Kentucky, 483 U.S. 402, 424 (1987) (holding that no Estelle violation

occurs when the state uses a psychiatric report in rebuttal after the

defendant places his mental status in issue).

24

486 U.S. at 376. The District Court concluded that the

instructions at Szuchon's sentencing violated this principle.

The Commonwealth argues that the Mills claim is

procedurally defaulted because Szuchon never raised the

claim in state court, his state remedies are now foreclosed,

and he cannot show cause and prejudice or a fundamental

miscarriage of justice. We agree that the claim is defaulted

and barred from review on the merits.12

Preliminarily, Szuchon argues that the procedural-default

defense was waived because the Commonwealth failed to

assert that defense in its answer to the amended petition.

A state ordinarily is required to assert a procedural default

in its answer if it intends to rely on that defense. See

Esslinger v. Davis, 44 F.3d 1515, 1524 n.32 (11th Cir.

1995) ("The state can waive a procedural bar to relief by

explicitly waiving, or by merely failing to assert the bar in

its answer to the habeas petition."); Reese v. Nix, 942 F.2d

1276, 1280 (8th Cir. 1991) ("The district court properly held

that Nix waived his procedural default defense by failing to

affirmatively assert it in his answer to Reese's petition for

habeas relief."); Delap v. Dugger, 890 F.2d 285, 302 n.20

(9th Cir. 1989) ("The state did not raise the issue of

procedural default in its response to Delap's habeas

petition, and thus has waived procedural default."); see also

Trest v. Cain, 522 U.S. 87 (1997) (noting that"procedural

default is normally a defense that the State is obligated to

raise and preserve if it is not to lose the right to assert the

defense thereafter").

On the record here, we see no reason to excuse the

Commonwealth's failure to assert the default in its answer.

We find, however, that the more troubling aspect of this

case is Szuchon's failure to raise his Mills claim, or any sort

of challenge to the jury instructions regarding unanimity in

finding the mitigating circumstances, in any of his

numerous state court proceedings. Thus, while the

Commonwealth may well have waived its procedural-default

_________________________________________________________________

12. The Commonwealth argues in the alternative that the Mills claim is

barred by Teague v. Lane, 489 U.S. 288 (1989), or without merit. Given

our disposition on the procedural default, we do not reach those

arguments.

25

defense, the fact remains that Szuchon deprived the state

courts of the opportunity even to examine the Mills issue.

We cannot ignore this fact and the resulting procedural

default. We conclude, therefore, that the District Court

should not have reached the merits of the Mills claim. We

reach this conclusion sua sponte given the substantial

concerns of comity and federalism that are implicated by

Szuchon's decision to bypass state court review altogether.13

_________________________________________________________________

13. A court of appeals can raise a procedural default sua sponte. Smith

v. Horn, 120 F.3d 400, 408 (3d Cir. 1997); see also Windham v. Merkle,

163 F.3d 1092 (9th Cir. 1998); Ortiz v. Dubois , 19 F.3d 708 (1st Cir.

1994); Washington v. James, 996 F.2d 1442 (2d Cir. 1993); Hardiman v.

Reynolds, 971 F.2d 500 (10th Cir. 1992). We retain this discretion

because the doctrine of procedural default, while not a jurisdictional

rule, "is grounded upon concerns of comity between sovereigns and often

upon considerations of judicial efficiency." Hardiman, 971 F.2d at 503

(citations omitted). "Because these concerns substantially implicate

important interests beyond those of the parties, it is not exclusively

within the parties' control to decide whether such a defense should be

raised or waived." Id. In Smith, we explained that our discretion to

address a default should be guided by the factors discussed in Granberry

v. Greer, 481 U.S. 129 (1987), with respect to the sua sponte

consideration of nonexhaustion. 120 F.3d at 408. Thus, we held that the

values of comity, federalism, judicial efficiency, and the "ends of

justice"

must be weighed in determining whether to consider the default. Id. We

noted that it might be inappropriate to raise a default where "it is

evident

that a miscarriage of justice has occurred," id., explaining that a

miscarriage of justice in this context " `should include cases where the

record is well developed and the merits strongly support the petitioner's

claim.' " Id. (quoting Washington v. James, 996 F.2d 1442 (2d Cir. 1993)

(Oakes, J., dissenting)).

Smith was a capital case in which the petitioner claimed that the trial

court issued erroneous jury instructions on the elements of first-degree

murder. Although the petitioner might have waived that claim in state

court, the Commonwealth in Smith did not argue a default at any stage

of the habeas proceeding: "not in the district court, not in its briefing

before this Court, and not at oral argument." 120 F.3d at 407. We

declined to raise the matter sua sponte, noting that, "not only do the

merits support Smith's claim, . . . but the record as it relates to the

merits is as well-developed as it can be," whereas the record as to the

default was "sparse" and would have required"not simply supplemental

briefing but a remand to the district court for supplemental fact

finding."

120 F.3d at 409. Here, the Mills claim is similarly one of erroneous jury

instructions and the record is fully developed, but unlike Smith, the

26

Szuchon's blatant default of his Mills claim essentially

compels us to raise the issue sua sponte. The requirement

that a prisoner afford the state courts a chance to correct

an alleged constitutional violation before invoking federal

jurisdiction is central to our federal system. As the

Supreme Court has frequently explained, the exhaustion

requirement " `is principally designed to protect the state

courts' role in the enforcement of federal law[.]' " Duncan v.

Walker, 121 S. Ct. 2120, 2128 (2001) (quoting Rose v.

Lundy, 455 U.S. 509, 518 (1982)). "Comity thus dictates

that when a prisoner alleges that his continued

confinement for a state court conviction violates federal law,

the state courts should have the first opportunity to review

this claim and provide any necessary relief." O'Sullivan v.

Boerckel, 526 U.S. 838, 844 (1999). Moreover,"[t]he

exhaustion rule promotes comity in that it would be

unseemly in our dual system of government for a federal

district court to upset a state court conviction without an

opportunity to the state courts to correct a constitutional

violation." Duncan, 121 S. Ct. at 2128 (quotation marks

and citations omitted).

That "unseemly" result, however, is precisely what would

happen here, as we are asked to enforce the District Court's

decision to overturn Szuchon's sentence even though

Szuchon never afforded the state courts any chance to

correct the alleged error. Significantly, we find no indication

_________________________________________________________________

record as to the default is also fully developed, and the parties briefed

the default in both the District Court and in this Court. Our

consideration of the default therefore would not require supplemental

briefing or a remand. Moreover, we observed in Smith that "when the

state has never raised an issue in either the district court or this Court

we should be even less inclined to raise it sua sponte than when the

state either has raised the issue here only belatedly or has raised it in

the district court but has not pursued that line of attack in the court of

appeals." 120 F.3d at 409. The Commonwealth never mentioned a

default in Smith, but here it asserted the defense in its Objections to

the

Report and Recommendation and it has vigorously pursued it on appeal.

Thus, aside from failing to assert the defense in its answer, the

Commonwealth has done all it could do to raise the default. For these

reasons, and for the reasons set forth in the text, we will address

Szuchon's procedural default of the Mills claim.

27

that Szuchon made any effort to present a Mills claim

during his numerous state court proceedings, and it

appears that Szuchon merely decided to skip the process of

state court review, perhaps in the belief that he might

obtain a more favorable result in federal court. We simply

cannot overlook this attempt to nullify the state courts' vital

role in preserving the constitutional rights of state

prisoners. Cf. Windham, 163 F.3d at 1101 (reaching default

sua sponte because "[i]t would be violative of comity and

`our federalism' for this court to hold that the State of

California violated the Equal Protection Clause by

purposefully discriminating against women because of their

gender when that issue was never presented to the trial

court").

We reject Szuchon's suggestion that he exhausted a Mills

claim. Szuchon argues that he presented the claim on

direct appeal, but the record reflects that he merely

challenged the trial court's alleged error in failing to

elaborate on the meaning of the aggravating and mitigating

circumstances, and in failing to read the language of every

circumstance set forth in the statute. App. 431-33, 458-60.

These claims, which were raised as matters of state law, did

not put the state courts on notice that Szuchon wished to

raise an Eighth Amendment challenge to the instructions

regarding unanimity in the jury's finding of mitigating

circumstances. Indeed, nowhere in his state appellate brief

did Szuchon even mention, much less challenge, the trial

court's use of the word "unanimous" in the instructions.

Szuchon also contends that he exhausted a Mills claim in

the first post-conviction proceeding, but the claim he

presented there, see App. 564, was merely an ineffective-

assistance-of-counsel version of the claim from the direct

appeal. Moreover, the claim was raised in a pro se petition

that was superceded by a counseled petition, and counsel

did not raise a Mills argument.

Significantly, Szuchon offers no argument that he even

attempted to raise a Mills claim in his second or third post-

conviction proceedings, which is most troubling given that

both of those proceedings were commenced long after Mills

was decided. Indeed, the third proceeding was commenced

in 1996 after this habeas proceeding was held in abeyance

28

at Szuchon's request so that he could pursue state

remedies on three claims that he believed were

unexhausted. See note 4, supra. Szuchon had raised a Mills

claim in his habeas petition in 1994 and thus he knew of

the claim at that time, see App. 176-77, yet he elected not

to present the claim to the state courts even though he had

as much reason to believe the Mills claim was unexhausted

as he had for his other claims. On this record, the failure

to exhaust the Mills claim is difficult to fathom.

It would now be futile for Szuchon to return to state

court to exhaust the Mills claim, and, further, review on the

merits in federal court of this defaulted claim is barred

because Szuchon cannot show cause or a fundamental

miscarriage of justice to overcome the default. 14

_________________________________________________________________

14. Exhaustion will be excused as "futile" if "the state court would

refuse

on procedural grounds to hear the merits of the claims." Doctor v.

Walters, 96 F.3d 675, 681 (3d Cir. 1996). State law must "clearly

foreclose state court review of [the] unexhausted claims." Toulson v.

Beyer, 987 F.2d 984, 987 (3d Cir. 1993). The only means of review for

Szuchon's Mills claim would be through another PCRA petition, see

Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999), but any such

petition would be untimely and barred from consideration on the merits

under the PCRA's one-year limitations period. See 42 Pa. Cons. Stat.

S 9545(b)(1); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (holding

that untimely petition raising Mills claim was properly dismissed for

want of jurisdiction); see also Keller v. Larkins, 251 F.3d 408, 415 (3d

Cir. 2001) ("Keller is barred from seeking further relief in state court

because the statute of limitations for filing another PCRA petition has

expired."). None of the three statutory exceptions to the PCRA time-bar

even arguably apply to Szuchon's Mills claim. See 42 Pa. Cons. Stat.

S 9545(b)(1)(i)-(iii).

Szuchon relies on Commonwealth v. Cross, 726 A.2d 333 (Pa. 1999),

and argues that state remedies are not clearly foreclosed. While the

Pennsylvania Supreme Court did reach the merits in Cross of an

otherwise seemingly time-barred Mills claim that was raised for the first

time on the PCRA appeal, id. at 336-38, Szuchon's reliance on Cross is

misplaced. The Pennsylvania Supreme Court has decided a line of cases

since Cross, starting with Commonwealth v. Banks, 726 A.2d 374, 376

(Pa. 1999), in which it has held that the one-year period for filing under

the PCRA is jurisdictional, and the only cognizable exceptions are those

enumerated in the statute. We noted this development in Fahy v. Horn,

240 F.3d 239 (3d Cir. 2001), where we observed that"the Pennsylvania

29

Consequently, we will not affirm the District Court's ruling

that a new sentencing hearing is required based on Mills.

B. Witherspoon

Szuchon raises several sentencing claims on cross-

appeal, but we need go no further than his claims under

Witherspoon v. Illinois, 391 U.S. 510 (1968). 15 Szuchon

_________________________________________________________________

Supreme Court did not clarify that the state PCRA statute was

jurisdictional and not waivable until 1999 in [ Banks]." Id. at 244; see

also Lines v. Larkins, 208 F.3d 153, 164 n.17 (3d Cir. 2000) ("Prior to

Banks there was some doubt as to the proper scope and application of

the one year limitations period under the amended PCRA."). Given these

more recent developments, we do not read Cross to suggest that the

state courts would reach the merits of Szuchon's Mills claim in an

untimely filed PCRA petition. In fact, Szuchon has cited no case in which

a court has relied on Cross to address the merits of a Mills claim despite

the untimeliness of the petition. Cf. Pursell , supra. Thus, Cross

notwithstanding, Szuchon's state remedies are clearly foreclosed.

Exhaustion, therefore, can be excused as futile, but the Mills claim is

defaulted because Szuchon failed to exhaust it despite ample

opportunities to do so. See Coleman v. Thompson , 501 U.S. 722, 735 n.1

(1991). A federal court can reach the merits of a defaulted claim only if

the petitioner shows cause and prejudice or a fundamental miscarriage

of justice. Lines, 208 F.3d at 166. Szuchon has offered no showing of

cause or any adequate explanation for his failure to exhaust. To show a

miscarriage of justice on a capital sentencing claim, the petitioner must

demonstrate "actual innocence of the death penalty," which requires a

showing "by clear and convincing evidence that, but for constitutional

error, no reasonable juror would have found the petitioner eligible for

the

death penalty under the applicable state law." Sawyer v. Whitley, 505

U.S. 333, 336 (1992). This standard focuses on actual innocence of the

minimum prerequisites that rendered the petitioner eligible for the death

penalty (which in Pennsylvania are a conviction for first-degree murder

and the finding of at least one aggravating circumstance, see 42 Pa.

Cons. Stat. S 9711(c)(iv)), "and not on additional mitigating evidence

that

was prevented from being introduced as a result of a claimed

constitutional error." Sawyer, 505 U.S. at 347. A Mills violation would

have affected the jury only in its consideration of the mitigating

evidence.

Furthermore, Szuchon has made no claim of innocence on the

underlying offense. Thus, Szuchon cannot show that a failure to address

the Mills claim would result in a fundamental miscarriage of justice.

15. While ordinarily an appellee need not file a cross-appeal in order to

rely upon any matter appearing in the record in support of the judgment

30

contends that the trial court improperly allowed the

exclusion for cause of six prospective jurors who voiced

opposition to the death penalty but who never expressed

that their views would impair their ability to serve. The

Commonwealth contends that the Witherspoon claims are

defaulted, and thus we must address that argument first.

1. Procedural Default

Szuchon presented the Witherspoon claims on direct

appeal, but the Commonwealth contends that the

Pennsylvania Supreme Court refused to reach the merits

because Szuchon's counsel did not object to the exclusions

at voir dire and did not raise the issue in post-verdict

motions. Because the Pennsylvania Supreme Court rejected

the claims on state procedural grounds, the Commonwealth

contends that the claims are defaulted. Szuchon counters

that the Pennsylvania Supreme Court reached the merits in

accordance with its "relaxed waiver rule" in capital cases. In

the alternative, he argues that the state procedural rules

_________________________________________________________________

below, see Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982), this rule has a

somewhat uncertain application when a habeas petitioner seeks

affirmance on the basis of a constitutional claim post-AEDPA. Here,

Szuchon has raised the Witherspoon issue by way of a cross-appeal,

giving rise to the additional question as to whether a certificate of

appealability is necessary. There is pre AEDPA caselaw to the effect that

a certificate of probable cause was necessary in such a circumstance.

See Roman v. Abrams, 790 F.2d 244, 245 (2d Cir. 1986) (per curiam).

Post-AEDPA caselaw and commentary similarly points in that direction.

See Scott v. Mitchell, 209 F.3d 854, 862-63 (6th Cir. 2000) (petitioner in

capital case granted certificate of appealability to raise trial and

sentencing phase claims on cross-appeal from issuance of the writ on a

Mills claim); Fretwell v. Norris, 133 F.3d 621, 623 (8th Cir. 1998)

(dismissing cross-appeal where certificate of appealability denied);

Williams v. Cain, 125 F.3d 269, 273 (5th Cir. 1997) (petitioner granted

certificate of appealability on trial and sentencing phase claims on

cross-

appeal from grant of writ on capital sentencing claim); see also 16 Fed.

Proc., L. Ed. S 41:528 (1999). The parties have not raised or briefed

these

issues. We need not, and do not, decide these issues, however, but will

treat the cross-appeal as a request for certificate of appealability, and

grant it, in view of the clear constitutional implications of the

Witherspoon challenge.

31

were not consistently applied at the time of his 1981 trial,

and thus there can be no procedural default for purposes

of federal habeas review.

The Commonwealth is correct that the state court

rejected the Witherspoon claims on procedural grounds. The

Pennsylvania Supreme Court expressly held that, as to the

six veniremen at issue, "the issue of whether[those]

prospective jurors were improperly excluded under

Witherspoon has been waived and cannot now be addressed

for the first time on appeal." 484 A.2d at 1379. The court

cited several of its prior (noncapital) cases and noted that

it had "consistently found errors of constitutional

dimension to have been waived." Id. It thus declined to

reach the merits due to counsels' failure to raise the issue

at the trial level.

A habeas court "will not review a question of federal law

decided by a state court if the decision of that court rests

on a state law ground that is independent of the federal

question and adequate to support the judgment." Coleman,

501 U.S. at 729. The Pennsylvania Supreme Court's

procedural rules were independent of the Witherspoon

claims, and thus we turn to whether the rules were

"adequate to support the judgment." A procedural rule is

adequate only if it is firmly established, readily

ascertainable, and regularly followed. Ford v. Georgia, 498

U.S. 411, 423-24 (1991); Harris v. Reed, 489 U.S. 255, 262

(1989). In Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996), we

explained that a rule is adequate only under the following

conditions: "(1) the state procedural rule speaks in

unmistakable terms; (2) all appellate courts refused to

review the petitioner's claims on the merits; and (3) the

state courts' refusal in this instance is consistent with

other decisions." Id. at 683-684; see also Dugger v. Adams,

489 U.S. 401, 410 n.6 (1989) (explaining that a state must

demonstrate that in the "vast majority of cases" the rule is

applied in a "consistent and regular" manner); Hathorn v.

Lovorn, 457 U.S. 255, 263 (1982) (explaining that a state

rule should be applied "evenhandedly to all similar claims").

"[T]hese conditions must have existed at the time of the

state court procedural default." Cabrera v. Barbo, 175 F.3d

307, 313 (3d Cir. 1999). "The reason for these requirements

32

is that a petitioner should be on notice of how to present

his claims in the state courts if his failure to present them

is to bar him from advancing them in a federal court." Id.

Szuchon allegedly defaulted the Witherspoon claims at

trial in 1981. At that time, and indeed to this day, the

Pennsylvania Supreme Court has employed a doctrine of

"relaxed waiver" whereby it will reach the merits of a claim

on a direct appeal in a capital case even if the claim would

otherwise be waived by the failure to raise it at the trial

level. See, e.g., Commonwealth v. Rivera, 773 A.2d 131, 139

n.7 (Pa. 2001) ("Technically, this claim is waived because

counsel failed to make a timely objection to the jury

instruction. See Pa.R.Crim.P. 1119(b). However, because

this is a capital case on direct appeal, we will nonetheless

review the merits of this claim pursuant to the relaxed

waiver rule.") (citations omitted). As the court explained in

Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998),

"[r]elaxed waiver, as an operating principle, was created to

prevent this court from being instrumental in an

unconstitutional execution. Due to the unique severity and

finality of the death penalty, this court has relaxed its

waiver rules as to any claim raised on direct appeal for

which the record permits review." Id. at 700 (citing

Commonwealth v. McKenna, 383 A.2d 174 (Pa. 1978);

Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982)).

McKenna, which was decided before Szuchon's trial, was

the seminal case on relaxed waiver. There, the Pennsylvania

Supreme Court noted its longstanding general rule that a

claim is waived on appeal when not preserved, but the

court decided to "make a particular limited exception to the

general rule requiring that an issue first be considered in

the court of common pleas," noting "the public interest in

assuring that the death sentence is imposed only in a

constitutionally permitted manner. . . ." 383 A.2d at 180

n.11. The court observed that, "because imposition of the

death penalty is irrevocable in its finality, it is imperative

that the standards by which that sentence is fixed be

constitutionally beyond reproach." Id. at 181. The court

explained that it had "a duty to transcend procedural rules

which are not, in spirit, applicable, to the end that the

public interest may be vindicated." Applying these relaxed

33

waiver principles, the court vacated a death sentence on

the ground that the statute under which the defendant was

sentenced was unconstitutional, even though the defendant

had failed to preserve that issue. Id. at 179; see also

Zettlemoyer, 454 A.2d at 942 n.3 (reaching the merits of

claims that otherwise would have been waived and

reaffirming the principle that " `imposition of the death

penalty is irrevocable in its finality' and warrants, therefore,

the relaxation of our waiver rules") (quoting McKenna, 383

A.2d at 181).

Here, the holding that Szuchon waived his Witherspoon

claims by failing to raise them in the trial court is difficult

to square with the Pennsylvania Supreme Court's relaxed

waiver rule.16 Indeed, the state court's opinion on Szuchon's

direct appeal is notable for its failure to offer any

discussion of relaxed waiver or even to cite McKenna, which

rather firmly established that a claim of constitutional error

in a capital case would not be waived by a failure to

preserve it. Moreover, not one of the cases that the

Pennsylvania Supreme Court cited to support the waiver

was a capital case, see Szuchon, 484 A.2d at 1379-80, even

though the court had held in McKenna that it would relax

its waiver rules for capital defendants. Szuchon , in fact,

appears to be the first reported decision in which the

Pennsylvania Supreme Court held that a Witherspoon claim

was waived by counsel's failure to preserve it, and

subsequent decisions have relied on Szuchon as the case

that established that precedent. E.g., Commonwealth v.

Lewis, 567 A.2d 1376, 1381 (Pa. 1989) ("Although waiver of

any claim in a capital case appears to be contradictory to

the relaxed waiver rules afforded these appellants through

Zettlemoyer, the case law of this Commonwealth is clear.

This Court has repeatedly held that Witherspoon claims are

waivable.") (citing Commonwealth v. Peterkin , 513 A.2d 373

(Pa. 1986), and Szuchon). But such a precedent setting use

of a procedural bar indicates that the bar was not firmly

established, readily ascertainable, and regularly followed at

_________________________________________________________________

16. Of course, the Mills claim, in contrast, was not waived at trial and

later presented to the state supreme court; it was simply never raised at

any level in the state courts. The relaxed waiver rule, therefore, has no

application to the Mills claim.

34

the time of the purported default. See Reynolds v.

Ellingsworth, 843 F.2d 712, 722 (3d Cir. 1988); see also

Granviel v. Estelle, 655 F.2d 673, 679 (5th Cir. 1981) ("We

cannot enforce against Granviel a contemporaneous

[Witherspoon] objection rule that apparently did not even

exist at the time of his trial.").

In short, the holding of a waiver on Szuchon's direct

appeal was not "adequate to support the judgment" for

purposes of a procedural default under federal habeas law.

Accordingly, we will address the merits of the Witherspoon

claims.

2. Exclusion of Prospective Jurors

The Court held in Witherspoon that "a sentence of death

cannot be carried out if the jury that imposed or

recommended it was chosen by excluding veniremen for

cause simply because they voiced general objections to the

death penalty or expressed conscientious or religious

scruples against its infliction. No defendant can

constitutionally be put to death at the hands of a tribunal

so selected." 391 U.S. at 522-23. Witherspoon 's holding is

grounded in the right to a fair and impartial jury

guaranteed to state criminal defendants by the Sixth and

Fourteenth Amendments, and thus veniremen can be

excluded based on their views on capital punishment only

if they would be biased and lack impartiality in hearing the

case. In Wainwright v. Witt, 469 U.S. 412 (1985), the Court

held that "the proper standard for determining when a

prospective juror may be excluded for cause because of his

or her views on capital punishment . . . is whether the

juror's views would `prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.' " Id. at 424 (quoting Adams v.

Texas, 448 U.S. 38, 45 (1980)).17 The Court explained that:

_________________________________________________________________

17. In Adams, the Supreme Court had applied the same standard and

held that it violated Witherspoon to "exclude jurors who stated that they

would be `affected' by the possibility of the death penalty, but who

apparently meant only that the potentially lethal consequences of their

decision would invest their deliberations with greater seriousness and

gravity or would involve them emotionally," 448 U.S. at 49, and that it

also violated Witherspoon to exclude jurors"only because they were

unable positively to state whether or not their deliberations would in any

way be `affected.' " Id. at 50.

35

this standard . . . does not require that a juror's bias

be proved with "unmistakable clarity" . . . because

determinations of juror bias cannot be reduced to

question-and-answer sessions which obtain results in

the manner of a catechism. What common sense

should have realized experience has proved: many

veniremen simply cannot be asked enough questions to

reach the point where their bias has been made

"unmistakably clear"; these veniremen may not know

how they will react when faced with imposing the death

sentence, or may be unable to articulate, or may wish

to hide their true feelings. Despite this lack of clarity in

the printed record, however, there will be situations

where the trial judge is left with the definite impression

that a prospective juror would be unable to faithfully

and impartially apply the law.

Id. at 424-26 (footnote omitted).

The Court explained in Witt that "[a]s with any other trial

situation where an adversary wishes to exclude a juror

because of bias, . . . it is the adversary seeking exclusion

who must demonstrate, through questioning, that the

potential juror lacks impartiality." 469 U.S. at 423. Thus,

when the state wishes to exclude a prospective juror for

cause because of his or her views on the death penalty, it

must question that juror to make a record of the bias. See

Gray v. Mississippi, 481 U.S. 648, 652 n.3 (1987) ("A

motion to excuse a venire member for cause of course must

be supported by specified causes or reasons that

demonstrate that, as a matter of law, the venire member is

not qualified to serve.") (citation omitted).

After the state offers its challenge for cause,"[i]t is then

the trial judge's duty to determine whether the challenge is

proper." Witt, 469 U.S. at 423. Thus, before it can sustain

the exclusion, the judge must make a factual determination

that the prospective juror would be biased. On federal

habeas review, that determination of bias is entitled to the

presumption of correctness. Id. at 428. As the Court

emphasized in Witt, a trial judge's "predominant function in

determining juror bias involves credibility findings whose

basis cannot be easily discerned from an appellate record."

Id. at 429; see also Deputy v. Taylor, 19 F.3d 1485, 1499

36

(3d Cir. 1994) ("The trial court is in the best position to

observe the demeanor of the prospective jurors.").

The following colloquy was at issue in Witt:

[Q. Prosecutor:] Now, let me ask you a question,

ma'am. Do you have any religious beliefs or personal

beliefs against the death penalty?

[A:] I am afraid personally but not--

[Q]: Speak up, please.

[A]: I am afraid of being a little personal, but definitely

not religious.

[Q]: Now, would that interfere with you sitting as a

juror in this case?

[A]: I am afraid it would.

[Q]: You are afraid it would?

[A]: Yes, Sir.

[Q]: Would it interfere with judging the guilt or

innocence of the Defendant in this case?

[A]: I think so.

[Q]: You think it would.

[A]: I think it would.

[Q]: Your honor, I would move for cause at this point.

[COURT:] All right. Step down.

469 U.S. at 415-16. Based on this exchange, the Supreme

Court held that the judge's finding of bias, although not

free of ambiguity, was fairly supported and therefore

presumptively correct. The Court explained that the judge

was not required "to announce for the record that[the

prospective juror] was biased, or his reasoning," id. at 430,

and added that, "[i]n this regard it is noteworthy that in

this case the court was given no reason to think that

elaboration was necessary; defense counsel did not see fit

to object to [the] recusal, or attempt rehabilitation." Id. at

430-31. The Court noted that counsel's failure to speak was

a circumstance that it would consider when assessing

37

respondent's belated claims that the situation was"so rife

with ambiguity . . . as to constitute constitutional error." Id.

at 431 n.11.

Under Witt, therefore, the proper inquiry on pre-AEDPA

habeas review of a Witherspoon claim is whether there is

fair support in the record for the judge's finding that the

prospective juror's views on the death penalty would have

prevented or substantially impaired the performance of his

or her duties as a juror in accordance with the instructions

and oath. We must factor the decision of Szuchon's counsel

to state "no objection" to the exclusions into our

assessment of the transcript.18 As noted, Szuchon takes

issue with the exclusion of six prospective jurors, but we

conclude that there is no need to address all six, as the

improper exclusion of even one veniremen in violation of

Witherspoon warrants relief. See Gray, 481 U.S. at 657-68

(holding that erroneous exclusion of one potential juror

based on her views on the death penalty was reversible

constitutional error); see also United States v. Chanthadara,

230 F.3d 1237, 1268 (10th Cir. 2000) ("Because the

erroneous exclusion of even one potential juror mandates

reversal of a death sentence, our analysis takes us no

further than potential juror Joy Phillips."); Fuller v.

Johnson, 114 F.3d 491, 500 (5th Cir. 1997) ("Where the

court finds that even one juror was improperly excluded,

the defendant is entitled to a new sentencing, because the

right to an impartial adjudication is `so basic to a fair trial

that [its] infraction can never be treated as harmless

error.' ") (quoting Gray, 481 U.S. at 668). We will focus,

therefore, solely on the exclusion of Floyd Rexford. The

relevant portion of Rexford's voir dire is as follows:

[Prosecutor]: If the evidence were to establish, sir, a

case of first degree murder, in other words, the type of

case that would show that Mr. Szuchon shot and killed

that woman intentionally, that he did it with malice

and that he did it with premeditation and those are the

_________________________________________________________________

18. Szuchon also raises a claim that counsel were ineffective in failing

to

object to each prospective juror's exclusion or to attempt rehabilitation.

Because we find a violation of Witherspoon per se, we need not reach the

ineffectiveness claim.

38

elements of first degree murder, would you have any

conscientious scruple or any hesitation to find him

guilty of first degree murder?

[A]: I do not believe in capital punishment.

[Q]: You do not believe in capital punishment?

[A]: No.

[Q]: I challenge for cause, your Honor.

[Defense Counsel]: No objection.

[Prosecutor]: Thank you, Mr. Rexford.

[Court]: Thank you Mr. Rexford . . . .

App. 2116.

This limited questioning provided no evidence that

Rexford's lack of belief in capital punishment would have

prevented or substantially impaired his ability to apply the

law. As the Court emphasized in Adams v. Texas , "it is

clear beyond peradventure that Witherspoon is not a

ground for challenging any prospective juror. It is rather a

limitation on the State's power to exclude: if prospective

jurors are barred from jury service because of their views

about capital punishment on `any broader basis' than

inability to follow the law or abide by their oaths, the death

sentence cannot be carried out." 448 U.S. at 47-48.

Rexford's mere lack of a belief in capital punishment was a

"broader basis" for exclusion than inability to follow the

law. Indeed, "those who firmly believe that the death

penalty is unjust may nevertheless serve as jurors in

capital cases so long as they state clearly that they are

willing to temporarily set aside their own beliefs in

deference to the rule of law." Lockhart v. McCree, 476 U.S.

162, 176 (1986). Neither the Commonwealth nor the trial

court, however, questioned Rexford about his ability to set

aside his beliefs or otherwise perform his duty as a juror.

As a result, there was no evidence or even a suggestion that

Rexford would act in a biased fashion due to his lack of

belief in capital punishment, and the trial court, therefore,

failed in its duty to determine that there was a proper basis

for the exclusion. Cf. Gall v. Parker, 231 F.3d 265, 330-32

(6th Cir. 2001) (holding that exclusion violated Witherspoon

39

because "[n]otwithstanding the deference owed to the trial

judge, we find that the factual record does not fairly

support [the prospective juror's] exclusion under the

standards of Adams and Witt";"[the prospective juror] not

once stated that his beliefs would deter him from serving as

an impartial juror"). Thus, while we begin with the

presumption that the trial court's determination of bias is

correct, that presumption cannot adhere in the absence of

record support for the exclusions.

Our precedents are not to the contrary. In Lesko v.

Lehman, 925 F.2d 1527 (3d Cir. 1991), for example, the

prospective juror "initially stated to the prosecutor that she

would be willing to vote for the death penalty in a proper

case," id. at 1548, but "provided an ambiguous response to

defense counsel's query about whether `irrespective of the

evidence' she would `vote automatically for the death

penalty' for a defendant convicted of murdering a police

officer." Id. The judge then queried the prospective juror,

and she "responded affirmatively to the court's inquiry

about whether `under all circumstances' and `irrespective of

[the] evidence' her opposition to capital punishment would

prevent her from participating in a decision to impose the

death penalty." Id. Under those circumstances, we held that

the judge did not err in excluding the prospective juror

because the "statements on voir dire establish[ed] a

likelihood that her opposition to capital punishment would

have substantially impaired her ability to comply with the

trial court's sentencing instructions." Id. Here, in contrast,

no reasonable inference can be drawn that Rexford's lack of

belief in capital punishment would have prevented or

impaired his ability to follow the court's sentencing

instructions. Even affording the trial court the deference it

is owed in its assessment of Rexford's credibility and

demeanor, and even accepting that juror bias need not be

proved with "unmistakable clarity," the determination of

bias in this case is unsupported.

The District Court concluded that the six exclusions

(including Rexford's) were proper under Witt because "in

each instance, the prospective juror was unable to look

past the possible imposition of the death penalty to answer

the specific question posed and each of the prospective

40

jurors expressed unwillingness to sentence this defendant

to die for the crime of first degree murder." We find no

support in the record for this conclusion. The question

posed did not probe willingness to vote in a certain way,

but, rather, sought out any scruples or hesitation. Rexford

apparently interpreted the question as seeking his views

and, in responsive fashion, he noted his lack of belief.19 At

that point, Rexford's views on the death penalty became the

_________________________________________________________________

19. The five other veniremen at issue -- Chalupczynski, Buczek, Howard,

Dobruk, and Settino -- likewise seemed to believe the question sought

their views on the death penalty. Katherine Buczek's voir dire, for

example, was as follows:

[Prosecutor]: If the evidence were to establish a case of first

degree

murder, . . . if you found that and the evidence justified that

finding, would you have any conscientious scruple, any moral belief

or any hesitation against finding him guilty of first degree

murder?

[A]: I have to ask a question.

[Q]: Go ahead.

[A]: Does that involve capital punishment?

[Q]: Yes, that is my next question.

[A]: Because I so indicated on the questionnaire that I received

concerning jury duty that I was opposed to capital punishment.

[Q]: Okay. I believe that I knew that also, and that is where I was

headed for with that question. You are opposed to capital

punishment, ma'am?

[A]: Yes, and I have been actively opposed to it in circulating

petitions.

[Q]: Okay.

[A]: And things of that nature.

[Q]: In connection with the NAACP Legal Defense Fund?

[A]: Right.

[Q]: I challenge for cause, your Honor.

[Defense counsel]: No objection.

[Court]: Thank you, ma'am.

App. 1892-93 (emphasis added).

41

issue, and the prosecutor asked, "You do not believe in the

death penalty?" Rexford simply replied "no," and the

prosecutor moved to exclude him. The prosecutor failed,

however, to meet his burden under Witt of asking even a

limited number of follow-up questions to show that

Rexford's views would render him biased. Thus, the only

supportable inference on this record is that Rexford was

excluded because he voiced opposition to the death penalty.

Rexford also did not "express unwillingness" to impose the

death penalty. He merely stated that he did not"believe" in

capital punishment, which is by no means the equivalent of

being unwilling to impose it. Again, even those firmly

opposed to the death penalty can serve as jurors if they are

"willing to temporarily set aside their own beliefs in

deference to the rule of law." Lockhart, 476 U.S. at 176.

In short, Rexford's exclusion violated Szuchon's rights

under Witherspoon. It is settled that a Witherspoon violation

is not subject to harmless error analysis. Gray , 481 U.S. at

668; Davis v. Georgia, 429 U.S. 122, 123 (1976). It is of no

moment, therefore, that the Commonwealth had seven

unused peremptory challenges with which it could have

struck the six prospective jurors. See Gray, 481 U.S. at 664

(rejecting the argument that "a Witherspoon violation

constitutes harmless error when the prosecutor has an

unexercised peremptory challenge that he states he would

have used to excuse the juror"). The relief that must be

afforded is a new sentencing proceeding. Witherspoon, 391

U.S. at 523 n.21; see Fuller, 114 F.3d at 500. Accordingly,

we will affirm, on alternative grounds, the District Court's

decision to grant the writ.

V. CONCLUSION

To summarize, we will DENY a certificate of appealability

on all claims of trial error other than the Estelle claims; we

will AFFIRM the District Court's denial of relief on the

Estelle claims; the Mills claim is procedurally defaulted, but

we will AFFIRM, on the basis of Witherspoon, the District

Court's issuance of the writ conditioned upon the

Commonwealth's right to conduct a new sentencing

42

proceeding within 120 days or impose a sentence of life

imprisonment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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