Banks v. Horn

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

1-14-2003

Banks v. Horn

Precedential or Non-Precedential: Precedential

Docket 99-9005

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PRECEDENTIAL

Filed January 14, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-9005

GEORGE E. BANKS,

Appellant

v.

MARTIN HORN, Commissioner, PA Dept of Corrections;

JAMES PRICE, Superintendent of State Correctional

Institute Greene; RAYMOND J. COLLERAN,

Superintendent State Correctional Institute Waymart;

COMMONWEALTH OF PENNSYLVANIA

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 99-cv-00438)

District Judge: Honorable James F. McClure, Jr.

Argued April 2, 2001 and

On Remand from the United States Supreme Court

by Order of June 17, 2002

Before: SLOVITER, ROTH and RENDELL, Circuit Ju dges

(Filed: January 14, 2003)

Albert J. Flora, Jr., Esq. [ARGUED]

33 West South Street

Wilkes-Barre, PA 18701

William Ruzzo, Esq.

400 Third Avenue, Suite 109

Kingston, PA 18704

Counsel for Appellant

George E. Banks

Scott C. Gartley, Esq. [ARGUED]

David W. Lupas, Esq.

Office of District Attorney

200 North River Street

Luzerne County Courthouse

Wilkes-Barre, PA 18711

Counsel for Appellee

Commonwealth of PA

Peter Goldberger, Esq.

Law Office of Peter Goldberger

50 Rittenhouse Place

Ardmore, PA 19003-2276

Counsel for Amicus-Appellant

PA Association of Criminal Defense

Lawyers

Louis M. Natali, Esq. [ARGUED]

Turner & McDonald

1725 Spruce Street

Philadelphia, PA 19103

Counsel for Amicus-Appellants

PA Association of Criminal Defense

Lawyers and Louis M. Natali

OPINION OF THE COURT

RENDELL, Circuit Judge:

In Horn v. Banks, 122 S. Ct. 2147 (2002), the United

States Supreme Court directed us to analyze whether Mills

v. Maryland, 486 U.S. 367 (1988), could be retroactively

applied under the principles articulated in Teague v. Lane,

489 U.S. 288 (1989), for purposes of our collateral review of

2

George Banks’s conviction and sentence. As a result, the

Court reversed that portion of our opinion in Banks v.

Horn, 271 F.3d 527 (3d Cir. 2001), dealing with Teague. We

now conclude that Mills did not announce a new rule of

constitutional law for retroactivity purposes, and thus that

our analysis and resolution of Banks’s Mills claims was

proper. Accordingly, we will endorse the reasoning set forth

in the remainder of our prior opinion.

I.

George Banks was sentenced to death for the murder of

thirteen people in Wilkes-Barre, Pennsylvania, in 1982. His

conviction and sentence were upheld by the Supreme Court

of Pennsylvania on direct appeal, Commonwealth v. Banks,

521 A.2d 1 (Pa. 1987), and on appeal for state post-

conviction relief. Commonwealth v. Banks, 656 A.2d 467

(Pa. 1995). Banks then sought a writ of habeas corpus in

the Middle District of Pennsylvania, which was denied in

August of 1999. Banks v. Horn, 63 F. Supp. 2d 525 (M.D.

Pa. 1999).

On October 31, 2001, we reversed the District Court and

granted Banks a provisional writ of habeas corpus, finding

meritorious Banks’s argument that his death sentence was

unconstitutional. Banks v. Horn, 271 F.3d 527 (3d Cir.

2001) ("Banks I"). Specifically, we found that the sentencing

phase instructions and forms violated Mills v. Maryland,

486 U.S. 367 (1988). In Mills, the United States Supreme

Court reversed a death sentence where there was a

substantial probability that a reasonable jury could have

understood the sentencing instructions and forms to

disallow the consideration of mitigating factors not

unanimously found to exist. Id. at 384. In Banks I, we

concluded that based on the language of the instructions

and verdict slip employed in Banks’s penalty phase, a

reasonable possibility existed that the jurors believed they

were precluded from considering mitigating evidence they

had not found unanimously. Banks I, 271 F.3d at 547-551.

In reaching that conclusion, we were presented with the

question of whether Mills was applicable for purposes of our

collateral review of Banks’s conviction and sentence under

3

Teague v. Lane, 489 U.S. 288 (1989). In Teague, the

Supreme Court revolutionized the structure for analyzing

the retroactivity of criminal procedure decisions, holding

that, with rare exception, prisoners may not rely on"new

rules" -- essentially, rules not settled by pre-existing

precedent -- for purposes of federal habeas corpus review.

Id. at 299-301. Teague thus directed that new decisions of

constitutional criminal procedure that are favorable to a

prisoner are usually inapplicable once the prisoner has

fully exhausted her direct appeals, including the filing of a

writ of certiorari to the United States Supreme Court. Id.

Teague’s new rule of nonretroactivity was premised at

least in part on a respect for the workings of state courts

and state judges appropriate to our federal system. In

particular, the Supreme Court has noted that by validating

"reasonable, good-faith interpretations of existing

precedents made by state courts," the principles of

nonretroactivity established in Teague "effectuate[ ] the

States’ interest in the finality of criminal convictions and

foster[ ] comity between federal and state courts." Gilmore v.

Taylor, 508 U.S. 333, 340 (1993); see also Teague, 489 U.S.

at 308.

Because Banks’s conviction became final in October of

1987,1 eight months before the Supreme Court issued its

decision in Mills, one of the Commonwealth’s primary

arguments before us in Banks I was that Mills was not

applicable to Banks’s petition for habeas relief. We

disagreed. We reasoned that, although Teague"retroactivity

is a ‘threshold question,’ " Banks I , 271 F.3d at 541

(quoting Teague, 489 U.S. at 300), because the

Pennsylvania Supreme Court decision itself applied Mills

(albeit doing so unreasonably), neither Teague , nor its

underlying purposes, required us to perform a retroactivity

analysis of Mills. Banks I, 271 F.3d at 541-43. Instead, we

_________________________________________________________________

1. A conviction becomes final for Teague purposes "when the availability

of direct appeal to the state courts has been exhausted and the time for

filing a petition for a writ of certiorari has elapsed or a timely filed

petition has been finally denied." Caspari v. Bohlen, 510 U.S. 383, 390

(1994). Banks’s conviction was therefore final when the Supreme Court

denied certiorari on October 5, 1987. Banks v. Pennsylvania, 484 U.S.

873 (1987).

4

found it necessary only to review the merits of the

Pennsylvania Supreme Court’s decision, concluding:

Teague teaches that the federal courts in habeas

corpus proceedings should be reluctant to apply new

rules of federal jurisprudence in state court cases

decided before such new rules were handed down.

Principles of comity and finality counsel that we

maintain a circumscribed scope of habeas review. Here,

however, . . . the Pennsylvania Supreme Court applied

Mills. We are examining the application of Mills, not

because we wish to impose a new rule not considered

by the Pennsylvania Supreme Court, but as the court

in fact did consider and apply it. In such a situation,

Teague is not implicated. Accordingly, we need ask

only whether the Pennsylvania Supreme Court’s

application of Mills should be disturbed under [the

appropriate standard of review].

Id. at 543 (citations omitted). Accordingly, we held that

resolution of the retroactivity of Mills under Teague was

unnecessary, and proceeded directly to our examination of

the merits of the Pennsylvania Supreme Court’s application

of Mills to the facts presented in Banks’s appeal. As noted

above, we resolved that question in Banks’s favor, holding

that the sentencing phase jury instructions and forms were

clearly unconstitutional, and therefore that the

Pennsylvania Supreme Court’s decision finding otherwise

involved an unreasonable application of established

Supreme Court precedent. Id. at 551.

In Horn v. Banks, 122 S. Ct. 2147, 2148 (2002) ("Banks

II"), the Supreme Court concluded otherwise, explicitly and

emphatically holding that "federal courts must address the

Teague question when it is properly argued by the

government." In doing so, the Court focused on its

statements in Caspari v. Bohlen, 510 U.S. 383 (1994), that

Teague’s "nonretroactivity principle prevents a federal court

from granting habeas corpus relief to a state prisoner based

on a" new rule, and thus that "if the State . . . argue[s] that

the defendant seeks the benefit of a new rule of

constitutional law, the court must apply Teague before

considering the merits of the claim." Id. at 389 (emphasis in

original). Applying these principles, the Supreme Court

5

found that it was "incumbent upon" us to "perform a

Teague analysis before granting respondent relief under

Mills," and that we "erred in concluding that [we] did ‘not

need to focus on anything other than the reasoning and

determination of the Pennsylvania Supreme Court.’ " Banks

II, 122 S. Ct. at 2150 (quoting Banks I, 271 F.3d at 541).

Accordingly, the Supreme Court "reverse[d][our] holding

that ‘Teague is not implicated’ by this case, and remand[ed]

for further proceedings consistent with" its decision. Banks

II, 122 S. Ct. at 2151 (quoting Banks I, 271 F.3d at 543).2

II.

We note at the outset that our determination as to the

merits of Banks’s Mills claim was not reviewed by the

Supreme Court. The Court thus did not vacate our previous

decision but only reversed that portion of our opinion that

concluded that a Teague analysis was unnecessary for our

review of Banks’s habeas petition. Accordingly, the sole

issue presently before us is whether our application of Mills

on habeas review of Banks’s sentence was improper under

the Supreme Court’s nonretroactivity jurisprudence. 3 To

provide background for the analysis, we first briefly discuss

the Court’s decision in Mills itself, then turn to an

examination of the Supreme Court’s retroactivity

framework.

A.

In Mills, the Court considered the constitutionality of a

set of jury instructions, as well as the implementing verdict

forms, that could be understood to prevent the

_________________________________________________________________

2. On July 12, 2002, Banks filed a Petition for Rehearing. The Supreme

Court recalled its issuance of judgment on July 17, but on August 26,

the Court denied rehearing and reissued judgment.

3. This is not the first time we have been presented with the issue of the

retroactivity of Mills. In Zettlemoyer v. Fulcomer, 923 F.2d 284, 306 n.19

(3d Cir. 1991), we "decided to reach the merits of the Mills claim . . .

[but] did not expressly hold whether Mills falls outside the Teague bar."

Frey v. Fulcomer, 132 F.3d 916, 920 n.4 (3d Cir. 1997). In Frey, we

noted the issue but did not reach it because the Commonwealth failed

to raise it, and we deemed it waived. Id.

6

consideration of mitigating circumstances if the jury was

not unanimous in finding the existence of such

circumstances. Mills, 486 U.S. at 371. That is, "even if

some or all of the jurors were to believe some mitigating

circumstance or circumstances were present, unless they

could unanimously agree on the existence of the same

mitigating factor, the sentence necessarily would be death."4

Id. (emphasis in original). The Court cited the following two

possibilities as constitutionally problematic:

If eleven jurors agree that there are six mitigating

circumstances, the result is that no mitigating

circumstance is found. Consequently, there is nothing

to weigh against any aggravating circumstance found

and the judgment is death even though eleven jurors

think the death penalty wholly inappropriate. . . .

[In] a situation just as intuitively disturbing: All 12

jurors might agree that some mitigating circumstances

were present, and even that those mitigating

circumstances were significant enough to outweigh any

aggravating circumstance found to exist. But unless all

12 could agree that the same mitigating circumstance

was present, they would never be permitted to engage

in the weighing process or any deliberation on the

appropriateness of the death penalty.

Id. at 373-74 (citations omitted). Noting that imposition of

the death penalty under such circumstances would"be the

height of arbitrariness," id. at 374, it went on to state:

It is beyond dispute that in a capital case the sentencer

may not be precluded from considering, as a mitigating

factor, any aspect of a defendant’s character or record

and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than

death. The corollary that the sentencer may not refuse

_________________________________________________________________

4. The Maryland Court of Appeals upheld the sentence of death. See Mills

v. State, 527 A.2d 3 (1987). Although it agreed that "if the statute and

form were read as petitioner suggested, jurors would be improperly

prevented from giving due consideration to mitigating evidence," see

Mills, 486 U.S. at 372 (emphasis in original), the Court of Appeals

adopted a construction of the statute exonerating it from the potential

constitutional issue. See Mills, 527 A.2d at 12-17.

7

to consider or be precluded from considering any

relevant mitigating evidence is equally well established.

Id. at 374-75 (first and third emphasis added) (quotations

and citations omitted). The Court then reiterated the

constitutional problem at hand: "[I]f petitioner is correct, a

jury that does not unanimously agree on the existence of

any mitigating circumstance may not give mitigating

evidence any effect whatsoever, and must impose the

sentence of death." Id. at 375. The Court stated that its

existing jurisprudence prohibited any "barrier to the

sentencer’s consideration of all mitigating evidence. . . .

[w]hatever [its] cause." Id. As the Court found a "substantial

probability" that reasonable jurors would have understood

themselves as being precluded from considering mitigating

evidence not found unanimously, the Court reversed Mills’s

sentence of death, concluding: "Under our cases, the

sentencer must be permitted to consider all mitigating

evidence. The possibility that a single juror could block

such consideration, and consequently require the jury to

impose the death penalty, is one we dare not risk." Id. at

384.

B.

Again, the sole issue before us is whether the rule

enunciated in Mills is retroactively applicable to Banks’s

appeal. Retroactivity analysis is governed by the principles

first articulated in Teague v. Lane, in which the Supreme

Court held that "[u]nless they fall within an exception to the

general rule, new constitutional rules of criminal procedure

will not be applicable to those cases which have become

final before the new rules are announced." Teague, 489

U.S. at 310. Application of this principle of retroactivity

proceeds in three steps. See, e.g., Caspari, 510 U.S. at 390.

First, we must determine when the defendant’s conviction

became final. Id. Second, we must survey the legal

landscape to determine whether or not the case in question

announced a new rule of constitutional law. Id. Finally, if

we determine that the case did announce a new rule, we

must consider whether it fits into one of the two exceptions

to nonretroactivity. Id. Those exceptions are reserved for (1)

rules that "place[ ] a class of private conduct beyond the

8

power of the State to proscribe, . . . or address[ ] a

substantive categorical guarantee accorded by the

Constitution, such as a rule prohibiting a certain category

of punishment for a class of defendants because of their

status or offense," or (2) "watershed rules of criminal

procedure implicating the fundamental fairness and

accuracy of the criminal proceeding." Saffle v. Parks, 494

U.S. 484, 494-95 (1990) (citations and internal quotations

omitted). Because the exceptions find rather narrow

applicability, however, the typically dispositive step in the

Teague retroactivity analysis is the determination of

whether the implicated constitutional principle qualifies as

a "new rule."

In Teague itself, the Court admitted that it is "often

difficult to determine" whether a case announces a new

rule, and explicitly avoided any "attempt to define the

spectrum of what may or may not constitute a new rule for

retroactivity purposes." Teague, 489 U.S. at 301. The

Supreme Court has further recognized that the inquiry is

particularly difficult where the decision in question merely

extended the reasoning of prior cases. See, e.g., Saffle, 494

U.S. at 488; Graham v. Collins, 506 U.S. 461, 467 (1993);

Butler v. McKellar, 494 U.S. 407, 412-13 (1990); see also

Mackey v. United States, 401 U.S. 667, 695 (1971) (Harlan,

J., concurring in judgments in part and dissenting in part)

(noting the "inevitable difficulties" in distinguishing new

rules from the application of old rules in analogous cases).

Perhaps as a result of the inevitable difficulty in

articulating one test to govern all possible retroactivity

scenarios, the Supreme Court has "stated variously the

formula for determining when a rule is new." O’Dell v.

Netherland, 521 U.S. 151, 156 (1997). Under the Court’s

original explication in Teague, "a case announces a new

rule when it breaks new ground or imposes a new

obligation on the States or the Federal Government."

Teague, 489 U.S. at 301 (emphasis added). "To put it

differently," the Teague Court explained,"a case announces

a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became

final." Id. (emphasis in original); see also, e.g., Graham, 506

U.S. at 467 ("A holding constitutes a new rule within the

9

meaning of Teague if it breaks new ground, imposes a new

obligation on the States or the Federal Government, or was

not dictated by precedent existing at the time the

defendant’s conviction became final." (quotations omitted)

(emphasis in original)). Similarly, the Court has stated that

previous precedents must not simply "inform, or even

control or govern" the analysis, but instead must"compel

the rule" sought by the defendant. Saffle, 494 U.S. at 491;

see also Butler, 494 U.S. at 415 (noting that it is

insufficient that a decision was considered to be controlled

or governed by prior opinions).

At the same time, the Court has focused on the decision-

making process confronting state court judges. See, e.g.,

O’Dell, 521 U.S. at 156 ("At bottom, . . . the Teague

doctrine ‘validates reasonable, good-faith interpretations of

existing precedents made by state courts even though they

are shown to be contrary to later decisions.’ " (quoting

Butler, 494 U.S. at 414)); Graham, 506 U.S. at 467; Teague,

489 U.S. at 308. And, in recent decisions, the Court has

approached the inquiry from the standpoint of a

"reasonable jurist." In Lambrix v. Singletary, 520 U.S. 518

(1997), for instance, the Court asked whether the

"unlawfulness of [the defendant’s] conviction was apparent

to all reasonable jurists." Id. at 527-28; see also id. at 531

(examining whether a "reasonable jurist . . . could have

reached a conclusion different from" the one ultimately

reached by the Supreme Court); id. at 526 (stating that our

inquiry is to "determine whether a state court considering

the defendant’s claim at the time his conviction became

final would have felt compelled by existing precedent to

conclude that the rule he seeks was required by the

Constitution" (quotations omitted)); O’Dell , 521 U.S. at 166

("Teague asks state court judges to judge reasonably, not

presciently."). In sum, "unless reasonable jurists hearing

petitioner’s claim at the time his conviction became final

‘would have felt compelled by existing precedent’ to rule in

his favor, we are barred from doing so now." Graham, 506

U.S. at 467 (quoting Saffle, 494 U.S. at 488).

10

III.

We hold that Mills did not announce a new rule of

constitutional law for retroactivity purposes, and

accordingly that our application of Mills on our habeas

review of Banks’s sentence was completely proper. 5 There

are four aspects to our reasoning: (1) the legal landscape at

the time of Banks’s conviction, (2) the Supreme Court’s

decision in Mills itself, (3) the relevant post-Mills decisions

of the Supreme Court, and (4) the opinions of our sister

Courts of Appeals who have addressed whether Teague

bars retroactive application of Mills.

Our "first and principal task" under Teague is to survey

the legal landscape to determine whether Mills "was

dictated by then existing precedent . . . that is,[whether]

the unlawfulness [of the situation in Mills ] was apparent to

all reasonable jurists." Lambrix, 520 U.S. at 527-28. As

discussed above, in Mills the Supreme Court reversed a

sentence of death where there was "a substantial

probability that reasonable jurors, upon receiving the

judge’s instructions in th[e] case, and in attempting to

complete the verdict form as instructed, . . . thought they

were precluded from considering any mitigating evidence

unless all 12 jurors agreed on the existence of " any

particular circumstance. Mills, 486 U.S. at 384. We find

highly persuasive Banks’s argument that, given the legal

landscape, Mills represented merely an application of the

_________________________________________________________________

5. Because we conclude that Mills did not announce a new rule under

Teague, we need not address Banks’s arguments regarding whether Mills

falls within one of the two exceptions to nonretroactivity. We note,

however, that in Williams v. Dixon, 961 F.2d 448, 454-56 (4th Cir. 1992),

the Court of Appeals for the Fourth Circuit held that Teague does not

bar application of Mills (and McKoy v. North Carolina, 494 U.S. 433

(1990)) on habeas because they are "watershed rules of criminal

procedure implicating the fundamental fairness and accuracy of the

criminal proceeding." Graham, 506 U.S. at 478 (quotations omitted); see

also Gall v. Parker, 231 F.3d 265, 323 (6th Cir. 2000) (holding that Mills

did not announce a new rule under Teague but also finding that, even

if Mills did announce a new rule, it falls within the second Teague

exception); Jermyn v. Horn, No. 97-634, 1998 WL 754567, at *36-39

(M.D. Pa. Oct. 27, 1998) (holding that Mills is a new rule but falls within

the second Teague exception).

11

well established constitutional rule that the Eighth

Amendment prohibits all barriers to the sentencer’s

consideration of any and all mitigation evidence in the

penalty phase of a capital trial.

By the time Banks’s conviction became final in 1987, the

legal landscape was primarily defined by Supreme Court

case law spanning nearly a dozen years.6 We begin our

examination of this precedent with the Supreme Court’s

decision in Woodson v. North Carolina, 428 U.S. 280 (1976),

which struck down North Carolina’s mandatory death

penalty statute. Of the many constitutional flaws the

plurality found in North Carolina’s capital sentencing

structure,7 one particularly notable defect was its "failure to

allow the particularized consideration of relevant aspects of

the character and record of each convicted defendant before

the imposition upon him of a sentence of death." Woodson,

428 U.S. at 303; see also Roberts (Stanislaus) v. Louisiana,

428 U.S. 325 (1977) (striking down Louisiana’s mandatory

death penalty statute). The plurality reiterated that death

as a penalty is distinguishable in kind from all other

penalties, and held that "the fundamental respect for

humanity underlying the Eighth Amendment requires

consideration of the character and record of the individual

offender and the circumstances of the particular offense as

a constitutionally indispensable part of the process of

inflicting the penalty of death." Woodson, 428 U.S. at 304

(citations omitted); see also Roberts, 428 U.S. at 333-34

(plurality opinion) (noting that the Constitution requires a

"focus on the circumstances of the particular offense and

the character and propensities of the offender"); Jurek v.

_________________________________________________________________

6. It is worth noting that although the Supreme Court has instructed

that "the reasonable views of state courts are entitled to consideration"

as part of the legal landscape, Caspari v. Bohlen, 510 U.S. 383, 395

(1994), both parties have focused exclusively on Supreme Court

precedent. At any rate, we believe that here the Supreme Court’s case

law adequately depicts the legal landscape at the time of Banks’s

conviction.

7. The Court’s opinion in Woodson was a plurality of three -- Justices

Powell, Stevens, and Stewart. Justices Brennan and Marshall both

concurred in the judgment given their opinion that capital punishment

inherently violates the Eighth and Fourteenth Amendments.

12

Texas, 428 U.S. 262, 271 (1976) (plurality opinion) (stating

that the Eighth and Fourteenth Amendments require that

the sentencer be allowed to consider mitigating

circumstances).

The Court articulated the full import of Woodson ’s

constitutional directive more clearly in Lockett v. Ohio, 438

U.S. 586 (1978), in which it struck down a statute that

restricted the range of mitigating factors that could be

considered by a jury.8 Whereas Woodson involved a statute

precluding any consideration of mitigating evidence, Lockett

involved somewhat more complex questions: "which facets

of an offender or his offense [are] relevant in capital

sentencing," and "what degree of consideration of relevant

facets" does the Constitution require. Id. at 604. The Court

responded, in expansive language, that:

[T]he Eighth and Fourteenth Amendments require that

the sentencer . . . not be precluded from considering,

as a mitigating factor, any aspect of a defendant’s

character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a

sentence less than death.

Id. (first emphasis added). The Court explained that:

Given that the imposition of death by public authority

is so profoundly different from all other penalties, we

cannot avoid the conclusion that an individualized

decision is essential in capital cases. The need for

treating each defendant in a capital case with that

degree of respect due the uniqueness of the individual

is far more important than in noncapital cases. . . . .

There is no perfect procedure for deciding in which

cases governmental authority should be used to impose

death. But a statute that prevents the sentencer in all

capital cases from giving independent mitigating weight

to aspects of the defendant’s character and record and

to circumstances of the offense proffered in mitigation

_________________________________________________________________

8. Lockett’s plurality opinion was written by Chief Justice Burger and

joined by Justices Powell, Stevens, and Stewart. Justice Brennan took

no part in the case, and Justice Marshall again concurred on the ground

that capital punishment is always unconstitutional.

13

creates the risk that the death penalty will be imposed

in spite of factors which may call for a less severe

penalty. When the choice is between life and death,

that risk is unacceptable and incompatible with the

commands of the Eighth and Fourteenth Amendments.

Id. at 605 (emphasis added). In Lockett , the Court stated in

unequivocal terms that to "meet constitutional

requirements, a death penalty statute must not preclude

consideration of relevant mitigating factors." Id. at 608.

Four years later, in Eddings v. Oklahoma, 455 U.S. 104

(1982), the constitutional rule articulated in Lockett was

first adopted and applied by a majority of the Court. In

Eddings, the statute in question allowed defendants to

present evidence of any mitigating circumstance-- unlike

the statute at issue in Lockett -- but the trial judge found

that he was unable to consider certain mitigating evidence

as a matter of law. Id. at 113. The Supreme Court reversed,

describing Lockett as requiring that "the sentencer in

capital cases must be permitted to consider any relevant

mitigating factor," id. at 112, and holding that:

The limitations placed by these courts upon the

mitigating evidence they would consider violated the

rule in Lockett. Just as the State may not by statute

preclude the sentencer from considering any mitigating

factor, neither may the sentencer refuse to consider, as

a matter of law, any relevant mitigating evidence . In

this instance, it was as if the trial judge had instructed

the jury to disregard the mitigating evidence proffered

on his behalf. The sentencer . . . may determine the

weight to be given relevant mitigating evidence. But

they may not give it no weight by excluding such

evidence from their consideration.

Id. at 113-115 (emphasis added). Thus, in Eddings, the

Lockett plurality’s constitutional rule was solidified as a

settled and prominent feature of the Supreme Court’s death

penalty jurisprudence; indeed, the Court thereafter

characterized the rule as one of the two prerequisites to a

valid death sentence imposed by the Eighth Amendment.

See California v. Brown, 479 U.S. 538, 541 (1987); see also

Penry v. Lynaugh, 492 U.S. 302, 318 (1989) (stating that by

14

early 1986 "it was clear from Lockett and Eddings" that the

Constitution prohibited a State from "prevent[ing] the

sentencer from considering and giving effect to evidence

relevant to the defendant’s background or character or to

the circumstances of the offense that mitigate against

imposing the death penalty"). The legal landscape at the

time of Banks’s conviction, however, was further shaped by

three additional cases in which the Court had occasion to

apply the Lockett/Eddings rule.

First, in Skipper v. South Carolina, 476 U.S. 1 (1986), the

Supreme Court relied on Lockett and Eddings to reverse the

defendant’s death sentence after the trial judge ruled that

certain mitigating evidence was inadmissible and prohibited

the sentencing jury from considering it. The Court began by

reiterating its "well established" Lockett /Eddings rule,

stating:

There is no disputing that . . . in capital cases the

sentencer may not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s character

or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence

less than death. Equally clear is the corollary rule that

the sentencer may not refuse to consider or be

precluded from considering any mitigating evidence.

Id. at 4 (quotations and citations omitted). The Court then

addressed the sole question before it: "whether the

exclusion from the sentencing hearing of the testimony

petitioner proffered . . . deprived petitioner of his right to

place before the sentencer relevant evidence in mitigation of

punishment." Id. Noting that it could"hardly be disputed"

that the exclusion did have that effect, id., the Court

concluded that "[t]he exclusion by the state trial court of

relevant mitigating evidence impeded the sentencing jury’s

ability to carry out its task of considering all relevant facets

of the character and record of the individual offender." Id.

at 8.

A year later, in California v. Brown, 479 U.S. 538 (1987),

the Court again affirmed the constitutional principles

established in Lockett and Eddings, but this time upheld

the underlying death sentence.9 In Brown, the defendant

_________________________________________________________________

9. The Supreme Court has made clear that Brown was not dictated by

Lockett and Eddings. See Saffle, 494 U.S. at 494. Nonetheless, the

15

challenged the constitutionality of "an instruction informing

jurors that they ‘must not be swayed by mere sentiment,

conjecture, sympathy, passion, prejudice, public opinion or

public feeling.’ " Brown, 479 U.S. at 540. The Court began

by reiterating that the Eighth Amendment requires that

capital defendants be allowed to introduce any relevant

mitigating evidence, and further that consideration of such

evidence is a " ‘constitutionally indispensable part of the

process of inflicting the penalty of death.’ " Brown, 479 U.S.

at 541 (quoting Woodson, 428 U.S. at 304). Applying these

principles to the instruction before them, however, the

Court found that it merely "prohibit[ed] juries from basing

their sentencing decisions on factors not presented at the

trial, and irrelevant to the issues at the trial," limitations

fully consistent with the Constitution’s requirement that

the jury be allowed to consider any mitigating evidence.

Brown, 479 U.S. at 543; see also Saffle, 494 U.S. at 488-95

(holding that Teague precluded the defendant’s

constitutional challenge to a jury instruction requiring

jurors to avoid the influence of sympathy in sentencing).

Finally, in Hitchcock v. Dugger, 481 U.S. 393 (1987), the

Supreme Court unanimously reversed the defendant’s

death sentence where an "advisory jury was instructed not

to consider, and the sentencing judge refused to consider,

evidence of nonstatutory mitigating circumstances." Id. at

398-99. The Court held that such a circumstance"did not

comport with the requirements of Skipper, Eddings, and

Lockett," id. at 399 (citations omitted), which established

that "the sentencer may not refuse to consider or be

precluded from considering any relevant mitigating

evidence." Id. at 394 (quotations omitted). The Court

concluded, "[O]ur cases hold that the exclusion of

mitigating evidence of the sort at issue here renders the

death sentence invalid." Id. at 399; see also Burger v.

Kemp, 483 U.S. 776, 790 n.7 (1987) (affirming, in dicta, the

constitutional principles established in Lockett and

Eddings); Sumner v. Shuman, 483 U.S. 66, 75-76 (1987)

(same).

_________________________________________________________________

decision constitutes part of the legal landscape prior to Banks’s

conviction becoming final.

16

Although Banks relies primarily on the Lockett /Eddings

line of cases, we mention another Supreme Court case,

Andres v. United States, 333 U.S. 740 (1948), that was

cited in Mills and relied on by another Court of Appeals in

deciding this issue. See Mills, 486 U.S. at 377 & n.9; Gall

v. Parker, 231 F.3d 265, 323 (6th Cir. 2001). Andres

involved an assessment and interpretation of a federal

death penalty statute, and the question of whether a trial

court’s unanimity instructions pursuant to that statute

were erroneous. Id. at 746. The statutory scheme was

structured such that the finding of guilt meant the

automatic imposition of the death penalty unless the

verdict was qualified by the phrase "without capital

punishment." Id. The government argued that the jury’s

determination as to guilt was conclusive as to the death

penalty unless the jury then unanimously decided to

qualify the verdict. Id. The Supreme Court opined, however,

that the proper construction required that the "jury’s

decision upon both guilt and whether the punishment of

death should be imposed must be unanimous." Id. at 749.

That is, the Court required that the jury consider and be

unanimous that death should be the penalty imposed.

Although it recognized that "the interpretation .. . urged by

the Government cannot be proven erroneous with

certainty," the Court found its construction"more

consonant with the general humanitarian purpose of the

statute and the history of the Anglo-American jury system."

Id. at 748-49. The Court then held that the instruction

given to the jury by the District Court conveyed the

erroneous interpretation of the statute. Id. at 749-52.

Under the instructions given, the Court concluded, the jury

might have erroneously but "reasonably conclude[d] that, if

they [could not] all agree to grant mercy, the verdict of guilt

must stand unqualified." Id. at 752. Accordingly, the Court

overturned the sentence and ordered a new trial. Id.

Clearly, the Andres decision took place within a different

statutory context and, in our view, is not a model of clarity.

However, because it, like Mills, involved jury instructions on

unanimity in a capital case, Andres certainly plays some

role in the relevant legal landscape -- a conclusion

reinforced by the Court’s citation to it in Mills itself. See

Mills, 486 U.S. at 377 & n.9. At the very least, Andres

17

invokes a number of themes that, significantly, are

consistent with and complimentary to the Court’s later

constitutional death penalty jurisprudence. For instance,

Andres indicates a concern for particular clarity in capital

jury instructions, noting that doubts "should be resolved in

favor of the accused." Andres, 333 U.S. at 752; see also

Mills, 486 U.S. at 377. Further, it is particularly noteworthy

that the upshot of the Court’s decision was that the statute

and jury instructions were interpreted to avoid a situation

in which a juror could be prevented -- by operation of a

requirement for unanimity to avoid the death penalty, and,

accordingly, by the views of other jurors -- from giving

effect to his or her belief that death was an inappropriate

sentence under particular circumstances. Andres , 333 U.S.

at 748-52.

We agree with Banks that this legal landscape -- as

exemplified by Lockett and Eddings, but also including at

least Andres, Woodson, Skipper , Brown, and Hitchcock --

strongly supports Banks’s position that the Court in Mills

did not develop any new principle of law, but instead

merely relied upon clear and well established constitutional

rules, such that Mills was compelled and dictated by the

legal landscape, and no reasonable jurist could have

reached a different result. Insofar as the landscape

evidenced the Supreme Court’s unwavering recognition and

insistence that the Eighth Amendment prohibits any barrier

to the sentencer’s consideration of mitigating evidence, it

provided a clear indication that a jury instruction that

could work to prevent a juror from considering any and all

mitigating evidence, whether because of unanimity

requirements or otherwise, would be constitutionally infirm.

In reaching this conclusion, we are not unmindful of the

difficulty of employing Teague’s mandates to divine whether

the legal landscape supports a finding that a rule is or is

not new, given the Court’s various formulations of the

measuring stick for determining whether a particular case

does or does not announce a new rule. It is not precisely

clear just how short the "step" must be between existing

precedent and the current announcement, or how strong

the pull of precedent must be in a certain direction. There

certainly must be some gradation or difference, or the rule

18

in question would not be even arguably new. Thus, a

decision that does extend reasoning may nonetheless be

viewed as not "new" under Teague. The Supreme Court has

acknowledged as much when it has noted the difficulty of

determining whether a new rule was announced where"a

decision extends the reasoning of our prior cases." Saffle,

494 U.S. 488; see also Graham, 506 U.S. at 467; Butler,

494 U.S. at 412-13. To read certain of the operative terms

the Court has employed, such as "dictated" and

"commanded," narrowly, such that they would require

express direction from the existing precedent, would be to

unrealistically require courts to have anticipated all future

scenarios in order for later cases to not announce a new

rule. Another term the Court has used, "compel," has been

defined as to "force, drive, [or] impel." Webster’s Third New

Int’l Dictionary 463 (1993). This seems not only to be a

more functional description of the test, but it also fits nicely

with the concept of the "reasonable jurist" that is

referenced in many of the Court’s recent cases in this area.

That is, we ask whether the existing precedent set forth a

rule that all reasonable jurists would agree impels or drives

the result in the new situation presented. Here, the existing

case law clearly provided that sentencers could not be

prevented from considering any and all mitigating evidence.

In Mills, the Court merely recognized that the perceived

need for unanimity could constitute one such

unconstitutional barrier. Even if one were to question

whether the result was "dictated" or "commanded" by the

constitutional rule itself, it surely was compelled in the

sense that previous pronouncements would constrain all

reasonable jurists to conclude the situation in Mills to be

unconstitutional. It is perhaps this shading that

distinguishes our view of Mills from that of our concurring

colleague.10

The Supreme Court’s reasoning and rhetoric in Mills itself

follows form from the legal landscape, and bolsters the view

that it was not announcing a new constitutional rule.

Initially, we note that "[i]t is significant" that Mills did

_________________________________________________________________

10. In her concurrence, Judge Sloviter focuses on whether Mills was

"commanded" or "dictated" by the legal landscape in concluding that it

announced a new rule.

19

explicitly and heavily rely on controlling precedent. Lambrix,

520 U.S. at 528. Unlike the situation in Lambrix , in which

the Supreme Court found a "new rule" in part because the

underlying decision cited only a single case -- and with a

"cf." signal at that, see id. at 528-29 -- Mills is replete with

references to controlling precedent; the Court frequently

cited to and quoted from Lockett, Eddings, Skipper, and

Hitchcock. See Mills, 486 U.S. at 374-76. Moreover, the

Court used language in its analysis that does not merely

state, but indeed exhorts, the rich precedent compelling its

reasoning and result. The Court’s precise wording bears

repeating here:

It would certainly be the height of arbitrariness to allow

or require the imposition of the death penalty under

the circumstances . . . postulated by petitioner . .. . It

is beyond dispute that in a capital case " ‘the sentencer

[may] not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s character

or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence

less than death.’ " Eddings v. Oklahoma , 455 U.S. 104,

110, 102 S. Ct. 869, 874, 71 L.Ed.2d 1 (1982), quoting

Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954,

2964-2965, 57 L.Ed.2d 973 (1978) (plurality opinion)

(emphasis in original). See Skipper v. South Carolina,

476 U.S. 1, 4, 106 S. Ct. 1669, 1670-1671, 90 L.Ed.2d

1 (1986). The corollary that "the sentencer may not

refuse to consider or be precluded from considering

‘any relevant mitigating evidence’ " is equally "well

established." Ibid. (emphasis added), quoting Eddings,

455 U.S., at 114, 102 S. Ct., at 877.

. . . .

Under our decisions, it is not relevant whether the

barrier to the sentencer’s consideration of all mitigating

evidence is interposed by statute, Lockett v. Ohio,

supra; Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct.

1821, 95 L.Ed.2d 347 (1987); by the sentencing court,

Eddings v. Oklahoma, supra; or by an evidentiary

ruling, Skipper v. South Carolina, supra. The same

must be true with respect to a single juror’s holdout

vote against finding the presence of a mitigating

20

circumstance. Whatever the cause, if petitioner’s

interpretation of the sentencing process is correct, the

conclusion would necessarily be the same: "Because

the [sentencer’s] failure to consider all of the mitigating

evidence risks erroneous imposition of the death

sentence, in plain violation of Lockett, it is our duty to

remand this case for resentencing." Eddings v.

Oklahoma, 455 U.S., at 117, n., 102 S. Ct., at 878, n.

(O’Connor, J., concurring).

The critical question, then, is whether petitioner’s

interpretation of the sentencing process is one a

reasonable jury could have drawn from the

instructions given by the trial judge and from the

verdict form employed in this case.

Mills, 486 U.S. at 374-76. Given this language, it can

hardly be disputed that Mills did not announce a new rule.11

As the Court recognized, it was well established by the

Lockett/Eddings line of cases that the Constitution

prohibited any barrier to the jury’s consideration of

mitigating evidence, "[w]hatever the cause." Id. at 375. The

relevant cases had never indicated that the source or form

some particular barrier took would be relevant to its

constitutionality; instead they had consistently and

repeatedly prohibited, in clear language, any barrier. See,

e.g., Hitchcock, 481 U.S. at 394 ("[I]n capital cases, the

sentencer may not refuse to consider or be precluded from

considering any relevant mitigating evidence." (quotations

omitted)); Skipper, 476 U.S. at 4 (same); see also, e.g.,

Saffle, 494 U.S. at 491 ("Lockett and Eddings command

that the State must allow the jury to give effect to

mitigating evidence in making the sentencing decision.").

The extent of the relevant holding in Mills, then, was merely

its acknowledgment of a conclusion already required by the

governing constitutional rules: that if a jury instruction and

verdict form, because of its unanimity requirements,

_________________________________________________________________

11. Although it has been noted that for Teague purposes an opinion’s

language is not always "conclusive," see, e.g., Butler, 494 U.S. at 415,we

nonetheless find the Court’s rhetoric and reasoning in Mills to be unique

-- providing extensive "evidence tending to prove" that Mills did not

announce a new rule. O’Dell, 521 U.S. at 161 n.2.

21

precluded juror consideration of any and all mitigation

evidence, the resulting death sentence would be

unconstitutional. See McKoy v. North Carolina , 494 U.S.

433, 438 (1990) ("[A]llowing a ‘holdout’ juror to prevent the

other jurors from considering mitigating evidence violated

the principle established in Lockett v. Ohio, that a sentencer

may not be precluded from giving effect to all mitigating

evidence." (citation omitted)). That these constitutional

principles were settled before Mills is further evidenced by

the Maryland Court of Appeals decision reversed by the

Supreme Court in Mills itself, as the disagreement between

the Court of Appeals’ majority and dissenting opinions was

unrelated to the underlying constitutional rules that govern

capital sentencing. See Mills, 527 A.2d at 13; id. at 33

(McAuliffe, J., dissenting) ("[T]he majority and I are in

essential agreement as to the basic principles of law that

control in a capital sentencing proceeding. . . . A mitigating

circumstance . . . must be considered by each juror who

believes it to have been proven to exist, irrespective of

whether all jurors agree that it exists."); Mills, 486 U.S. at

372 ("The [Maryland Court of Appeals] did not dispute that

if the statute and form were read as petitioner suggested,

jurors would be improperly prevented from giving due

consideration to mitigating evidence."(emphasis in original));

see also Butler, 494 U.S. at 415 (indicating that actual

disagreement on a constitutional rule provides some

evidence that it is "new" under Teague).

Moreover, we note that recent Supreme Court references

to the Teague test have indicated that the"determinative

question" under Teague is whether reasonable jurists,

reading the case law in existence at the time the conviction

became final, could have concluded that Banks’s

sentencing "was not constitutionally infirm." Graham, 506

U.S. at 477 (emphasis in original); see also id. at 476 ("The

result in a given case is not dictated by precedent if it is

susceptible to debate among reasonable minds, or, put

differently, if reasonable jurists may disagree." (quoting

Stringer v. Black, 503 U.S. 222, 238 (1992) (Souter, J.,

dissenting)). Given the Supreme Court’s reliance on the

Lockett/Eddings rule as an established requirement of the

Eighth Amendment by the time Banks’s conviction became

final, we are persuaded that the relevant rule in Mills was

22

"apparent," and that no "reasonable jurist" could have

reached a different conclusion. Lambrix, 520 U.S. at 528;

see also, e.g., Butler, 494 U.S. at 415 (asking whether the

relevant outcome was "susceptible to debate among

reasonable minds"). Indeed, as the settled Lockett/Eddings

rule was a blanket prohibition on barriers to the jury’s

consideration of mitigating circumstances, we find

ourselves unable to construct any analytic framework,

consistent with the legal landscape, under which Mills

could have come out differently. Cf. Lambrix, 520 U.S. at

532 ("There were at least three different . . . approaches

that would have suggested a different outcome."). A failure

to decide Mills as the Court in fact decided it would not just

have taken an "illogical" or "grudging" application of the

Lockett/Eddings rule, Butler, 494 U.S. at 415, it would have

taken a completely untenable one. Any reasonable jurist

"would have felt compelled" to decide Mills accordingly.

O’Dell, 521 U.S. at 156 (quoting Lambrix, 520 U.S. at 527).

While the Commonwealth and our concurring colleague

seize on the fact that there were four dissenting justices in

Mills in arguing that "reasonable jurists" could have differed

on the outcome at the time of that case, a careful reading

of the Mills dissent makes clear that the dissenting justices

did not take issue with the principle that jurors must be

able to consider all mitigating factors without the

requirement of unanimity. The dissenters never questioned

the strong statements by the majority to the effect that the

result in Mills was mandated by the Lockett/Eddings line of

cases. Rather, they viewed the majority as having applied

the wrong test as to the probability that jurors

misunderstood the instructions in the factual setting

presented. See Mills, 486 U.S. at 394 (Rehnquist, J.,

dissenting) ("[T]he question is whether a reasonable juror

operating under the trial court’s instructions would have

considered evidence of mitigating circumstances in a

constitutional manner.").

Our conclusion finds support in the Supreme Court’s

decision in Penry v. Lynaugh, 492 U.S. 302 (1989). In

Penry, the Court considered a challenge to the Texas death

penalty scheme, which limited the jury’s consideration of

the appropriate sentence during a capital trial to resolving

23

three "special issues." Id. at 311-12. The precise question

before the Court was whether the defendant’s sentence was

unconstitutional "because the jury was not adequately

instructed to take into consideration all of his mitigating

evidence and because the terms in the Texas special issues

were not defined in such a way that the jury could consider

and give effect to his mitigating evidence in answering

them." Id. at 313. Despite Teague, the Court reversed the

death sentence, finding that the jury instructions and

special issues structure did not adequately allow the jury to

consider the defendant’s mitigating evidence of mental

retardation and an abused childhood. The Court stated that

Lockett and Eddings, along with Jurek v. Texas, 428 U.S.

262 (1976), "dictated" the rule that "Texas juries must,

upon request, be given jury instructions that make it

possible for them to give effect to th[e] mitigating evidence

in determining whether the death penalty should be

imposed." Penry, 492 U.S. at 318-19; see also Graham, 506

U.S. at 475 (indicating that the Lockett/ Eddings line of

cases prohibit situations in which "relevant mitigating

evidence [is] placed beyond the effective reach of the

sentencer," and require that the jury must have a"reliable

means of giving mitigating effect to" the mitigating evidence);12

Saffle, 494 U.S. at 491 (same).

In arguing for the nonretroactivity of Mills, the

Commonwealth invokes two other Supreme Court decisions

handed down after Mills. First, the Commonwealth relies on

the dissenting opinion and one of the concurring opinions

in McKoy v. North Carolina, 494 U.S. 433 (1990), to argue

that reasonable minds could have disagreed on the

_________________________________________________________________

12. Unlike our concurring colleague, we do not view Graham v. Collins as

adding anything of significance to the legal landscape. In Graham, the

Supreme Court decided that, unlike Penry-- in which the Court held

that the "special issues" structure did not give the jury a genuine

opportunity for consideration of diminished capacity attributes such as

mental retardation and an abused childhood -- the"special issues"

structure did place certain mitigating evidence such as youth, family

background and positive character traits within the sentencer’s "effective

reach." Graham, 506 U.S. at 475. Thus, a result in Graham’s favor was

not dictated by Penry and the Penry rule could not be given retroactive

effect.

24

outcome in Mills. See also Caspari, 510 U.S. at 395 (noting

that conflicting holdings of state and federal courts

indicates disagreement among reasonable minds); Sawyer v

Smith, 497 U.S. 227, 236-37 (1990) (noting that the fact

that three justices dissented in a prior case casts doubt on

the argument that the holding in that case was compelled

by prior precedent); Miller v. Lockhart, 65 F.3d 676, 686

(8th Cir. 1995) (citing opinions in McKoy). In McKoy, the

Supreme Court affirmed Mills unconditionally and applied it

to North Carolina’s sentencing scheme, holding that the

unanimity scheme there, precisely like the one in Mills,

unconstitutionally precluded jurors from giving effect to

evidence they might believe called for a sentence less than

death. McKoy, 494 U.S. at 439-440. In the dissenting

opinion and one of the concurring opinions, however, four

justices in McKoy expressed some level of disagreement

with the proposition that Mills was merely an application of

the Lockett/Eddings rule. See id. at 452-457 (Kennedy, J.,

concurring in the judgment); id. at 457-471 (Scalia, J.,

dissenting). But see id. at 445-452 (Blackmun, J.,

concurring) (stating that in Mills "[t]he Court concluded that

a rule mandating unanimous agreement before any juror

could consider a particular mitigating factor was forbidden

by [its] decisions in Lockett and Eddings" (citations

omitted)). Despite the Commonwealth’s suggestion

otherwise, we are unconvinced that McKoy evidences

anything but the correctness of our conclusion. The

concurring and dissenting opinions in McKoy are not

controlling authority, and our opinion today is in accord

with the Court’s majority opinions in both Mills and McKoy,

each of which independently makes clear that Mills was

premised on a straight-forward application of settled

constitutional precedent.13

_________________________________________________________________

13. Moreover, to the extent the Commonwealth relies on the McKoy

minority’s view that Mills was not actually decided on Lockett/Eddings

grounds, we are unpersuaded that their argument is particularly

relevant. Asking whether Mills is retroactive in this case is shorthand for

asking whether the rule Banks seeks to have applied on habeas -- that

the Constitution prohibits unanimity instructions that preclude jurors

from giving proper consideration to proffered mitigating evidence -- was

a new rule under Teague given the date his conviction became final. It

is for similar reasons that, as we discuss below, our decision here is not

25

Secondly, the Commonwealth places great reliance on the

Supreme Court’s reasoning in Saffle v. Parks, 494 U.S. 484

(1990). In Saffle, the Supreme Court upheld a jury

instruction that required the jury to "avoid any influence of

sympathy" in sentencing, finding that the rule sought by

Saffle, which was grounded in the principles established in

Lockett and Eddings, was a new rule under Teague. Id. at

487. According to the Court, "Lockett and Eddings [did] not

speak directly, if at all, to the issue presented" in Saffle,

"whether the State may instruct the sentencer to render its

decision on the evidence without sympathy." Id. at 490. In

so concluding, the Court noted a distinction between rules

relating "to what mitigating evidence the jury must be

permitted to consider in making its sentencing decision,"

and those relating "to how it must consider the mitigating

evidence." Id. (emphasis in original)."There is a simple and

logical difference," the Court stated, "between rules that

govern what factors the jury must be permitted to consider

in making its sentencing decision and rules that govern

how the State may guide the jury in considering and

weighing those factors in reaching a decision." Id. at 490.

An anti-sympathy instruction does not preclude the jury

from considering any mitigating evidence; it merely

instructs them to consider that evidence without recourse

to sympathy. See id. at 493 ("The State must not cut off full

and fair consideration of mitigating evidence; but it need

not grant the jury the choice to make the sentencing

decision according to its own whims or caprice.").

Accordingly, the Court concluded that Lockett and Eddings

do not prohibit such an anti-sympathy instruction. Id. at

490-94; see also Brown, 479 U.S. at 543 (affirming

constitutionality of an anti-sympathy instruction).

_________________________________________________________________

formally inconsistent with, for instance, the Eighth Circuit’s decision in

Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995), that Mills was a new rule.

Our conclusion that Mills may be retroactively applied on habeas is

essentially an acknowledgment that what Banks seeks (and what Mills

sought) is a clear application of the Lockett /Eddings rule, a

constitutional principle well settled prior to his conviction becoming

final. Thus, it could be argued that it is essentially irrelevant whether or

not the rule under inquiry was actually decided in Mills.

26

The Commonwealth, as well as our concurring colleague,

seizes on Saffle’s "what" versus "how" distinction as

supporting its view that Mills was a new rule; in effect, it

argues that jury unanimity requirements made

unconstitutional by Mills are nothing but a rule regarding

how the jury must consider mitigating evidence, i.e., the

jury must consider it unanimously. While perhaps

viscerally appealing, upon reflection this linguistic

shorthand does not withstand scrutiny. Indeed, we believe

that, if anything, Saffle supports the conclusion that Mills

did not announce a new rule. As discussed above, the harm

identified in Mills by the Supreme Court-- as well as the

dissenting opinion in the Maryland Court of Appeals-- was

the potential that jurors were precluded from considering

any and all mitigating evidence. See Mills, 486 U.S. at 375.

Quite unlike the anti-sympathy instruction considered in

Saffle, Mills does concern the precise harm addressed by

the Court in Lockett and Eddings: Its focus was on what --

i.e., any and all -- evidence jurors could consider. Although

"unanimously" is clearly an adverb, the meaning of the

term "unanimously" as used here does not actually relate to

"how" the jury is to view the evidence (as does sympathy).

Rather, here unanimity presents a barrier, potentially

preventing jurors from considering any and all mitigating

evidence. To the extent that Saffle suggests that such rules

are clearly prohibited by Lockett and Eddings, it lends

support to our conclusion here. See Saffle, 494 US. at 491

(stating that preventing a jury from "considering, weighing,

and giving effect to all of the mitigating evidence . . . .

come[s] under the rule of Lockett and Eddings").

Finally, we note that our conclusion finds additional

support in a recent ruling by the Court of Appeals for the

Sixth Circuit. In Gall v. Parker, 231 F.3d 265 (6th Cir.

2001), the Sixth Circuit held that application of Mills on

habeas was not prohibited by Teague, both because Mills

did not announce a new rule and because Mills falls within

the second of Teague’s exceptions to nonretroactivity. With

regard to the former conclusion, which is more relevant

here, the Sixth Circuit found that Mills was"dictated by the

Lockett rule," and emphasized the language in Mills quoted

above, in which the Supreme Court made "clear[that] it did

nothing more than apply Lockett to a new factual situation."

27

Id. at 323. The Sixth Circuit also noted the Supreme

Court’s citation in Mills to Andres v. United States, 333 U.S.

740 (1948), which the court characterized as "a half-

century old death penalty reversal" in which"the Court

granted a new trial after finding fault in instructions that

‘probab[ly]’ induced a ‘reasonable’ juror to conclude that

unanimity was needed to ‘qualify’ a verdict of guilty in order

to preclude a death sentence." Gall, 231 F.3d at 323

(quoting Andres, 333 U.S. at 752). "Given Lockett, Andres,

and the Court’s clear language in Mills," the Sixth Circuit

concluded that Mills did not impose a new constitutional

obligation. Gall, 231 F.3d at 323.14

It is worth emphasizing here that Banks’s case is far

stronger than the one presented to the Sixth Circuit in Gall.

Whereas Gall’s conviction became final in 1981, limiting the

legal landscape to primarily the plurality opinion in Lockett,

Banks’ conviction was not final until late in 1987, only

months before Mills and after the Supreme Court’s

decisions in Eddings, Skipper, and Hitchcock, in all of which

a clear majority of the Court applied the Lockett rule and

reversed a sentence of death.

In contrast to the Sixth Circuit’s decision in Gall, two

Courts of Appeals have held that Teague bars the

application of Mills on habeas. In Miller v. Lockhart, 65 F.3d

676 (8th Cir. 1995), the Eighth Circuit Court of Appeals

held that Mills announced a new rule, but did so in a case

_________________________________________________________________

14. Similarly, in an opinion we have previously referred to as "brief but

thoughtful," Frey v. Fulcomer, 132 F.3d 916, 920 n.4 (3d Cir. 1997), the

District of Delaware concluded in 1993 that the"requirement that juries

in capital cases be permitted to consider all mitigating factors and

aspects of a defendant’s character and to give effect to that evidence was

firmly established" in Lockett and Eddings. Deshields v. Snyder, 829 F.

Supp. 676, 688 (D. Del. 1993) (quoting Byrd v. Delo, 733 F. Supp. 1334

(E.D. Mo. 1990). Accordingly, the court found that Mills was "nothing

more than a mere extension of then existing precedent to a new factual

scenario." Id.; see also, e.g., Hopkinson v. Shillinger, 781 F. Supp. 737,

742 (D. Wy. 1991) ("The Eighth Amendment [under Lockett and Eddings]

prohibits barriers to consideration of mitigating evidence whether they

result from evidentiary rulings, statute, or jury instructions. Thus, Mills

and McKoy are simply different factual applications of that established

principle and are applicable [on habeas].").

28

in which, like Gall, only Lockett had been decided prior to

the defendant’s conviction becoming final. Id. at 685. The

question of whether Mills was dictated by the plurality

opinion in Lockett alone may be a close one-- as

demonstrated by the contradictory opinions of the Sixth

and Eighth Circuits -- but the answer to the question

before us is clear. When considering Lockett in conjunction

with Eddings, in which a majority of the Court adopted the

rule announced by the Lockett plurality, the result in Mills

was obvious, especially given the Court’s continued reliance

on and application of the Lockett rule, prior to Mills, in

cases such as Skipper and Hitchcock.

The Court of Appeals for the Fifth Circuit has also

repeatedly stated that Mills announced a new rule under

Teague. See Woods v. Johnson, 75 F.3d 1017, 1036 (5th

Cir. 1996); Nethery v. Collins, 993 F.2d 1154, 1161-62 (5th

Cir. 1993); Wilcher v. Hargett, 978 F.2d 872, 877-78 (5th

Cir. 1992); Cordova v. Collins, 953 F.2d 167, 173 (5th Cir.

1992). However, as we previously noted in Banks I, the

court has not analyzed or explained its conclusions. Banks

I, 271 F.3d at 542 n.16. Accordingly, we find little in the

Fifth Circuit’s decisions to persuade us that our application

of Mills is prohibited by Teague. 15

IV.

Our previous ruling in this case was reversed by the

Supreme Court only insofar as we held it unnecessary to

decide whether Mills had retroactive application. Because

we now hold that our application of Mills on habeas review

of Banks’s sentence was not prohibited by Teague , we do

not disturb the remainder of our previous opinion,

including its discussion and holding with regard to the

merits of Banks’s Mills claim. We merely augment that

opinion by essentially replacing its discussion of the Teague

_________________________________________________________________

15. We also note that in McDougall v. Dixon , 921 F.2d 518, 539 (4th Cir.

1990), the Court of Appeals for the Fourth Circuit indicated in dicta that

Mills and McKoy were new rules under Teague. In Williams v. Dixon, 961

F.2d 448, 453 n.3 (4th Cir. 1992), however, the court found it

unnecessary to consider whether Mills and McKoy were in fact new rules

because it held that they fell within the second Teague exception.

29

issue with the analysis here. Accordingly, our judgment

requiring a new penalty phase for Banks will remain

unchanged.

30

SLOVITER, Circuit Judge, concurring.

I continue to adhere to the judgment of the court

instructing the District Court to grant a provisional writ of

habeas corpus directed to the petitioner’s penalty phase.

However, my response to the issue on which the United

States Supreme Court remanded this case to us differs

from that of the majority.

I.

In its per curiam opinion remanding this case, Horn v.

Banks, 536 U.S. 266, 122 S. Ct. 2147 (2002), the Supreme

Court directed that we perform an analysis under Teague v.

Lane, 489 U.S. 288 (1989), as to the retroactive application

of Mills v. Maryland, 486 U.S. 367 (1988). The Court

believed that we had contravened Caspari v. Bohlen, 510

U.S. 383 (1994), "in which [the Court] held that federal

courts must address the Teague question when it is

properly argued by the government." Horn, 536 U.S. at ___,

122 S. Ct. at 2148. We must therefore, as a threshold

issue, address Teague which, although a plurality opinion,

has since been accepted by the Court as setting forth the

standard for retroactivity analysis.

The petitioner in Teague sought to challenge the

composition of his jury, as the prosecutor had used all 10

of his peremptory challenges to exclude blacks. Teague had

argued throughout, without success, that the jury was not

a fair cross section. His habeas petition in the Supreme

Court sought the benefit of its decision in Batson v.

Kentucky, 476 U.S. 79 (1986) (holding that under the Equal

Protection Clause the prosecutor had the burden to give a

race-neutral explanation for its use of peremptory

challenges to exclude black persons from the petit jury).

The Court had previously held in Allen v. Hardy , 478 U.S.

255 (1986) (per curiam), that Batson, which overruled a

portion of Swain v. Alabama, 380 U.S. 202 (1965), could

not be applied to a case on collateral review because Batson

constituted an " ‘explicit and substantial break with prior

precedent.’ " Teague at 295 (quoting Allen, 478 U.S. at 258).

Teague’s second contention in the Supreme Court, that he

established a violation of the Equal Protection Clause under

31

Swain, was procedurally barred because Teague never

presented that claim to the state courts.

Thus, the Court turned to Teague’s fair cross section

claim, where he relied on the holding in Taylor v. Louisiana,

419 U.S. 522 (1975), that the Sixth Amendment required

that the jury venire be drawn from a fair cross section of

the community. Teague sought to apply the holding in

Taylor to the composition of the petit jury. In holding that

acceptance of Teague’s claim would constitute a new rule

that it would not apply retroactively to cases on collateral

review, the Supreme Court reformulated the standard

previously enunciated in Linkletter v. Walker , 381 U.S. 618

(1965), and enunciated the principle that "[u]nless they fall

within an exception to the general rule, new constitutional

rules of criminal procedure will not be applicable to those

cases which have become final before the new rules are

announced." Teague, 489 U.S. at 310. The Court explained

that "[a]pplication of constitutional rules not in existence at

the time a conviction became final seriously undermines

the principle of finality which is essential to the operation

of our criminal justice system." Id. at 309.

As to the definition of a "new rule," the Supreme Court

explained in Teague that "[i]n general . . . a case announces

a new rule when it breaks new ground or imposes a new

obligation on the States or the Federal Government." Id. at

301. It continued, "a case announces a new rule if the

result was not dictated by precedent existing at the time the

defendant’s conviction became final." Id. The Court

recognized two exceptions to its rule of non-retroactivity,

both derived from Justice Harlan’s opinion in Mackey v.

United States, 401 U.S. 667, 675 (1971) (opinion concurring

in judgments in part and dissenting in part). The first is for

a rule that places " ‘certain kinds of primary, private

individual conduct beyond the power of the criminal law-

making authority to proscribe.’ " Id. at 311 (quoting

Mackey, 401 U.S. at 692). The second exception is for

"watershed rules of criminal procedure." Id.

In the Supreme Court’s opinion in Caspari, the Court

elaborated on the responsibility of a federal court faced with

a habeas petition seeking relief based on a rule announced

after the defendant’s conviction became final. Caspari, 510

32

U.S. at 390. The court must survey "the legal landscape" as

it existed on the date the defendant’s conviction became

final and then determine if "a state court considering [the

defendant’s] claim at the time his conviction became final

would have felt compelled by existing precedent to conclude

that the rule [he] seeks was required by the Constitution."

Id. (citations omitted). If the court determines that the

defendant seeks the benefit of a new rule, the court must

decide whether that rule falls within one of the two narrow

exceptions to the non-retroactivity principle. Id.

The rule on which Banks relies is that enunciated in

Mills. In Mills, the Supreme Court vacated a death sentence

where the sentencing court’s instruction left a substantial

probability that the jurors may have believed they had to be

unanimous on the existence of a particular mitigating

factor before it could be weighed against an aggravating

factor in determining whether the death sentence should be

imposed. 486 U.S. at 375-76, 384.

Banks contends that in 1987, at the conclusion of his

direct review in state court, the Supreme Court had decided

numerous cases creating the framework upon which Mills

was predicated, and that therefore Mills should not be

regarded as a new rule for purposes of non-retroactivity

under Teague. Banks argues that by the time his sentences

became final as defined under Teague and Caspari, the

Supreme Court had decided ten cases before Mills that

"embody the Eighth Amendment prohibition against a state

mandated process that creates a barrier to juror

consideration of indispensable evidence of the character

and record of an offender in a death penalty proceeding."

Appellant’s Supp. Br. at 3. He counts among those cases

Furman v. Georgia, 408 U.S. 238 (1972) (invalidating

procedures that created a substantial risk that death

penalty would be imposed in an arbitrary and capricious

manner), and, surprisingly, the three cases after Furman

that sustained the imposition of death sentences, Jurek v.

Texas, 428 U.S. 262 (1976); Gregg v. Georgia , 428 U.S. 153

(1976); and Proffitt v. Florida, 428 U.S. 242 (1976). Banks’

argument is that although the death sentencing schemes

were held constitutional in all three cases, the respective

schemes allowed the sentencer to consider the defendant’s

evidence of mitigating circumstances.

33

Banks states that in Woodson v. North Carolina , 428 U.S.

280 (1976), where sentences of death were overturned

because the jurors were prevented from considering all

mitigating circumstances, the Supreme Court "recognized

the constitutional requirement of an ‘individualized

sentencing’ in capital cases." Appellant’s Supp. Br. at 4.

The Woodson plurality gave three reasons for its holding:

the state statute at issue imposed a mandatory death

sentence for certain offenses; it provided no standards to

guide the jury in determining which offenders should be

sentenced to death; and it did not allow the sentencer to

consider the character and record of an offender and the

circumstances of the offense as part of the process of

inflicting the death penalty. 428 U.S. at 301-04.

Banks next notes the decision in Roberts v. Louisiana,

428 U.S. 325, 333-34 (1976), decided the same day as

Gregg, Proffitt, Jurek, and Woodson, which also struck

down the death penalty statute because, like that in

Woodson, it failed to provide for any meaningful

opportunity for consideration of the character and record of

the defendant or the circumstances of the crime. Banks

then emphasizes the decision in Lockett v. Ohio , 438 U.S.

586, 608 (1978), where the Supreme Court found

unconstitutional a state statute that allowed consideration

of only a limited number of mitigating factors. Continuing

along this line, Banks lists Eddings v. Oklahoma , 455 U.S.

104, 113-15 (1982), where the Supreme Court ruled that a

sentencing judge improperly decided, as a matter of law,

that he could not consider evidence of a defendant’s

troubled family history and emotional disturbance as

mitigating evidence.

He next references Skipper v. South Carolina, 476 U.S. 1,

4 (1986), holding that the trial judge improperly ruled that

the jury could not consider a defendant’s good conduct in

prison as mitigating evidence, California v. Brown, 479 U.S.

538, 541 (1987), upholding the sentence of death by

interpreting the jury instruction to be consistent with the

Eddings line of cases, and the opinion in Hitchcock v.

Dugger, 481 U.S. 393, 398-99 (1987), decided shortly

thereafter, where the Supreme Court held that a new

sentencing hearing was required because the advisory jury

34

and judge should have considered evidence of non-

statutory mitigating circumstances.

Banks argues that this line of cases, embodying the rule

that a jury in a capital case must be permitted to consider

all mitigating factors, compelled the holding in Mills that

"prohibited a state from requiring a jury to be unanimous

before they could find the existence of a particular

mitigating circumstance." Appellant’s Supp. Br. at 9. He

continues, "The Woodson-Lockett-Eddings-Dugger lines of

cases dictate such a result." Id. He relies on the following

language in Mills:

Under our decisions, it is not relevant whether the

barrier to the sentencer’s consideration of all mitigating

evidence is interposed by statute, Lockett v. Ohio,

supra; [citation omitted]; by the sentencing court,

Eddings v. Oklahoma, supra, or by an evidentiary

ruling, Skipper v. South Carolina, supra . The same

must be true with respect to a single juror’s holdout

vote against finding the presence of a mitigating

circumstance. Whatever the cause . . . the conclusion

would necessarily be the same: ‘Because the

[sentencer’s] failure to consider all of the mitigating

evidence risks erroneous imposition of the death

sentence, in plain violation of Lockett, it is our duty to

remand this case for resentencing.’ Eddings v.

Oklahoma, 455 U.S., at 117, n. (O’Connor, J.,

concurring).

Mills, 486 U.S. at 375, quoted in Appellant’s Supp. Br. at 9.

Banks finds further support in Penry v. Lynaugh , 492

U.S. 302 (1989),1 the only case in the series to consider the

retroactivity issue. The petitioner in Penry claimed, inter

alia, that he was sentenced to death in violation of the

Eighth Amendment because the jury was not adequately

instructed to take into consideration the mitigating

evidence of his mental retardation and abused background.

Under the state sentencing scheme, if the jury answered in

_________________________________________________________________

1. The holding in Penry rejecting the claim that the Eighth Amendment

prohibits the execution of a retarded person was abrogated in Atkins v.

Virginia, 122 S. Ct. 2242 (2002).

35

the affirmative all of the three "special issues" questions

required by the statute, the sentencing court was required

to impose the death sentence.2 The same statute had been

challenged previously in Jurek where the Court rejected the

challenge, holding that the state court would interpret the

second question to allow the jury to consider mitigating

evidence. The Penry petitioner argued that the jury would

not have been aware that the evidence on which he relied,

mental retardation and childhood abuse, could be

considered as mitigating circumstances unless it was so

instructed by the trial court. The Supreme Court agreed

that Penry had a right to resentencing, and remanded so

that a new sentencing hearing could be held with

instructions informing the jury that it could give effect to

the mitigating evidence of Penry’s mental retardation and

abused background in considering whether to impose a

death sentence. Id. at 328.

Before reaching its decision, the Court considered

whether granting Penry the relief he sought would create a

"new rule" under Teague. The Court concluded that it was

not applying a new rule under Teague because, at the time

the petitioner’s conviction became final, it had already been

decided in Lockett and Eddings that a state could not

prevent the sentencer from considering and giving effect to

mitigating evidence from the defendant’s background,

character or circumstances of the offense. Id. at 318.

The Commonwealth reads the pre-Mills cases differently

than does Banks, leading it to conclude that Mills

announced a new rule. It reads the decisions on which

Banks relies, Lockett, Eddings, Skipper, and Hitchcock,

which represent where the law stood at the time Banks’

conviction became final, as reversing the death sentences

imposed because the sentencer "had been entirely

precluded from considering a category of appropriate

_________________________________________________________________

2. The special issues were (1) whether the defendant’s conduct was

deliberate and with the reasonable expectation that death would result;

(2) whether there is a probability that the defendant would commit

criminal acts of violence that would be a continuing threat to society;

and (3) if raised by the evidence, whether the conduct of the defendant

in killing the deceased was unreasonable in response to the provocation,

if any, by the deceased. Penry, 392 U.S. at 310.

36

mitigating evidence." Appellees’ Supp. Br. at 4. It points out

that in contrast to those cases, the Mills jury could hear

and consider any evidence of mitigation that the defendant

presented. The Commonwealth states that the Mills rule

(which declared unconstitutional the requirement that

jurors agree unanimously on a mitigating factor to be used

in the weighing step) went beyond the previously

enunciated principle that the jury must be allowed to

consider mitigating evidence. The Commonwealth argues

that Mills enunciated a new rule when it rejected, for the

first time, the requirement of unanimity on a particular

mitigating factor.

The Commonwealth also contends that the result in Mills,

a 5-4 decision, was not a foregone conclusion and"marked

a significant leap from prior precedent." Appellees’ Supp.

Br. at 4. It notes that four present Supreme Court justices

dispute that the Mills decision was " ‘controlled or governed’

by Lockett and Eddings, let alone dictated by those earlier

decisions." Id. at 9, citing McKoy v. North Carolina, 494 U.S.

433, 452-56 (1990) (Kennedy, J., concurring opinion); id. at

471 (Scalia, J., dissenting opinion, with Rehnquist, C.J.,

and O’Connor, J.).

The courts of appeals that have considered whether Mills

announced a new rule have divided on their view. In Gall v.

Parker, 231 F.3d 265, 322 (6th Cir. 2000), cert. denied, 533

U.S. 941 (2001), the Court of Appeals for the Sixth Circuit

held that the rule in Mills was not new. The court explained

that Lockett was firmly in place in 1981 when petitioner’s

conviction became final, and stated that a state court facing

the petitioner’s claim at that time would have felt compelled

to apply Lockett as Mills ultimately did in 1988. Id. at 323.

It further stated that Mills did not break new ground or

impose a new obligation on the states or federal

government. Id. See also DeShields v. Snyder, 829 F. Supp.

676, 687-88 (D.Del. 1993) (concluding Mills did not

announce a new rule for Teague purposes).

Unlike the Sixth Circuit, the Court of Appeals for the

Eighth Circuit concluded that Mills announced a new rule

that does not apply retroactively on collateral review. In

Miller v. Lockhart, 65 F.3d 676, 685-86 (8th Cir. 1995), the

court held that the result in Mills was not dictated by prior

37

cases and while Lockett may inform, control or govern Mills,

Lockett did not compel the further holding that a unanimity

requirement for mitigating circumstances is

unconstitutional. The Court of Appeals for the Fifth Circuit

reached the same conclusion in Cordova v. Collins, 953

F.2d 167, 173 (5th Cir. 1992), where the court stated that

it was precluded by Teague from applying Mills

retroactively.

I previously expressed my view that under the Teague

analysis the Supreme Court would likely view Mills as

announcing a new rule, and that it would not apply

retroactively. See Zettlemoyer v. Fulcomer, 923 F.2d 284,

316-17 n.3 (3d Cir. 1991) (Sloviter, J., dissenting).

Although I find the result reached by the majority

attractive, and I agree that Mills followed logically from

earlier cases, I regretfully cannot join the majority’s view

that Mills may be applied retroactively to Banks’ case

because Mills did not create a new rule for purposes of a

Teague analysis.

My view is informed in large part by several decisions of

the Supreme Court which, after analyzing Teague ,

characterized the rules at issue in those cases as new ones.

In Saffle v. Parks, 494 U.S. 484 (1990), Parks, a habeas

petitioner, claimed that a penalty phase jury instruction

telling the jury to avoid any influence of sympathy violated

his Eighth Amendment rights. Parks argued that jurors

must be allowed to base their sentencing decision upon

sympathy after hearing the mitigating evidence.

In concluding that the principle Parks advanced created

a new rule under Teague, the Supreme Court held that

Lockett and Eddings did not dictate such a result. Id. at

490. The Court explained that although the decisions in

Lockett and Eddings limit the ability of a state to define the

factual bases upon which the capital sentencing decision

must be made, they do not speak to whether the state may

instruct the sentencer to render its decision on the evidence

without sympathy. Id. As the Saffle Court explained,

"[t]here is a simple and logical difference between rules that

govern what factors the jury must be permitted to consider

in making its sentencing decision and rules that govern

how the State may guide the jury in considering and

38

weighing those factors in reaching a decision." Id. Because

it deemed the rule sought by Parks to be a new one, the

Court did not consider the merits of Parks’ proposed rule.

The Commonwealth relies on the distinction made by the

Supreme Court in Saffle between what mitigating evidence

the jury must be allowed to consider as opposed to how it

must consider the mitigating evidence. Appellees’ Supp. Br.

at 6.

Another application of the Teague new rule/existing rule

distinction is found in Butler v. McKellar, 494 U.S. 407

(1990). In that case, a habeas petitioner sought the benefit

of the holding in Arizona v. Roberson, 486 U.S. 675 (1988),

that the police may not initiate questioning after the

accused invokes his right to counsel in the context of a

separate investigation. Butler argued that Roberson should

be applied to his case because it did not establish a new

rule under Teague but merely followed the rule established

in Edwards v. Arizona, 451 U.S. 477 (1981), where the

Court held the police must refrain from further questioning

after the accused had invoked his right to counsel.

Butler noted that the Supreme Court had stated in

Roberson that the case was directly controlled by Edwards.

Nonetheless, the Court in Butler decided, in an approach

consistent with that it took in Saffle, that Roberson

announced a new rule because its result was not"dictated"

by the Edwards precedent. 494 U.S. at 409. The Court

explained that its outcome in Roberson was susceptible to

debate among reasonable minds, as evidenced by the

differing positions taken by judges of other courts. Id. at

415.

Thereafter, in Graham v. Collins, 506 U.S. 461 (1993), the

Court once again focused on the meaning of the statement

in Teague that a new rule is one that was not "dictated by

precedent existing at the time the defendant’s conviction

became final." Teague, 489 U.S. at 301. Graham, the

habeas petitioner, contended that the sentencing jury was

unable to give effect to mitigating evidence of his age,

background and character within the confines of the three

special issues questions in the same Texas sentencing

statute at issue in Penry. Although the Court in Penry had

required instructions that the jury should consider mental

39

retardation and childhood abuse as mitigating evidence, in

Graham the Court held that the relief Graham sought,

instructions that the jury consider age, background and

character as mitigating, would require announcement of a

new rule. Id. at 476-77. It stated that"the determinative

question [under Teague] is whether reasonable jurists

reading the case law that existed in 1984 could have

concluded that Graham’s sentencing was not

constitutionally infirm." Id. Because it could not say, even

with the benefit of the Court’s decision in Penry, that

reasonable jurists would be of one mind on Graham’s

claim, the ruling sought would be a new rule. The Court

noted the limited issue before it in Penry and stated that it

did not read Penry "as effecting a sea change in [the]

Court’s view of the constitutionality of the former Texas

death penalty statute; it does not broadly suggest the

invalidity of the special issues framework." Id. at 474. Thus,

it rejected Graham’s reliance on Penry. The language used

in the Graham opinion reiterates the need to show the

result was "commanded" by the earlier cases if it is not to

be viewed as a new rule. See id. at 475; see also Lambrix

v. Singletary, 520 U.S. 518, 528 n.3 (1997) (finding

Espinosa v. Florida, 505 U.S. 1079 (1992) (per curiam),

announced a new rule that was not dictated by precedent

where earlier cases did not compel the outcome because

they did not answer the definitive question before the

Court).

Although Mills can be viewed as establishing an

incremental step in the series of cases beginning with

Furman, I believe it is not commanded by the earlier cases

in the sense the Court approached that issue in Saffle,

Butler and Graham. Hence, I conclude that Mills established

a new rule within the Teague inquiry that does not apply

retroactively, unless it falls within one of the two exceptions

to Teague.

Those exceptions are narrow. The first exception, that for

new rules that place " ‘certain kinds of primary, private

individual conduct beyond the power of the criminal law-

making authority to proscribe,’ " Caspari , 510 U.S. at 396

(quoting Teague, 489 U.S. at 307), is plainly not applicable.

The manner in which the jury must consider mitigating

40

evidence does not relate to the "primary, private, individual

conduct" underlying the offense at issue.

Banks contends that if Mills created a new rule, the

second exception, that for " ‘watershed rules of criminal

procedure’ implicating the fundamental fairness and

accuracy of the criminal proceeding," id. (quoting Saffle,

494 U.S. at 495), applies but I cannot agree. The exception

is meant to apply only to a small core of rules requiring

observance of those procedures that are implicit in the

concept of ordered liberty. Graham, 506 U.S. at 478

(citations omitted). The Saffle Court gave as an example of

the type of rule falling within the second exception the rule

enunciated in Gideon v. Wainwright, 372 U.S. 335 (1963),

that a defendant has the right to be represented by counsel

in all criminal trials for serious offenses. See 494 U.S. at

495. In Teague, itself, the Court gave as illustrations for the

second exception the classic grounds for the issuance of a

writ of habeas corpus -- that the proceeding was

dominated by mob violence, that the prosecutor knowingly

used perjured testimony or that a conviction was based

upon a confession obtained by brutal methods. See Teague,

489 U.S. at 313 (citations omitted).

No Supreme Court case since Teague has held the

second exception applicable. For example, in Sawyer v.

Smith, 497 U.S. 227, 245 (1990), the Supreme Court found

that the rule in Caldwell v. Mississippi, 472 U.S. 320

(1985), which held that the Eighth Amendment prohibits

the imposition of a death sentence by a sentencer that has

been led to the false belief that the responsibility for

determining the appropriateness of the defendant’s capital

sentence rests elsewhere, does not satisfy the exception.

The Court stated that the second exception would apply

only to a new rule that, in addition to improving the

accuracy of trial, " ‘alter[s] our understanding of the

bedrock procedural elements’ " essential to the fairness of a

proceeding. 497 U.S. at 242 (citing Teague, 489 U.S. at 311

(citation omitted)). It further stated that it is" ‘unlikely that

many such components of basic due process have yet to

emerge.’ " Id. at 243 (quoting Teague, 489 U.S. at 313).

Although I believe that the rule in Mills is aimed at

improving the reliability of capital sentencing, in light of the

41

Supreme Court’s decisions in Saffle, Butler, and Graham I

cannot conclude that Mills alters our understanding of the

bedrock procedural elements essential to the fairness of a

proceeding. Therefore, I reject Banks’ argument that Mills

falls within the second Teague exception.

II.

Notwithstanding my view that Mills created a new rule

under Teague that does not fall within either of the Teague

exceptions, I believe that Teague does not apply in the

special circumstances under which the Pennsylvania

Supreme Court reviewed Banks’ post-conviction petition. I

note initially that in its opinion remanding to this court, the

Supreme Court focused only on our failure to analyze the

Teague issue and did not reach the merits of our holding in

Banks I "that the Pennsylvania Supreme Court ruling

involved an unreasonable application of Mills ." Banks v.

Horn, 271 F.3d 527, 545 (3d Cir. 2001). There would be no

basis therefore to assume that the Court rejected that

holding. But in light of my conclusion that Mills established

a new rule, it is incumbent on me to explain why I believe

we are free to apply Mills retroactively to Banks’ case. The

explanation lies in Pennsylvania’s unique relaxed waiver

rule in effect at the time of Banks’ state post-conviction

proceedings.

Banks’ 1983 conviction of first degree murder and related

crimes was affirmed by the Pennsylvania Supreme Court on

direct appeal in 1987. Commonwealth v. Banks, 521 A.2d 1

(Pa.), cert. denied, 484 U.S. 873 (1987). When Banks

appealed the trial court’s 1993 denial of his petition for

post-conviction relief to the Pennsylvania Supreme Court,

he asserted, among other claims, that the jury instructions,

jury poll and verdict slip violated Mills (decided after Banks’

direct appeal was completed) by suggesting that the jury’s

findings as to mitigating circumstances must be

unanimous. The Commonwealth argued that all of the

issues raised in the post-conviction petition were waived

because Banks failed to raise them on direct appeal. The

Pennsylvania Supreme Court agreed that some of the

issues could have been raised on direct appeal and thus

could be deemed waived under the Post Conviction Relief

42

Act, 42 Pa. Cons. Stat. SS 9541-46 ("PCRA"), but stated that

it would "address all of Appellant’s claims since the trial

court addressed all of those claims and since it is this

Court’s practice to address all issues arising in a death

penalty case irrespective of a finding of waiver."

Commonwealth v. Banks, 656 A.2d 467, 470 n.7 (Pa. 1995).

The first issue it addressed was Banks’ claim that the jury

instruction, jury poll and the verdict slip violated the

Supreme Court’s mandate in Mills.

The Pennsylvania Supreme Court considered the Mills

claim on the merits. This was the first time it did so. It

reviewed the jury instruction and found that it had

determined in another case that the instruction,"which

mirrors the language found in the death penalty statute of

[the Pennsylvania] Sentencing Code," did not violate Mills.

Id. at 470. It similarly held that the form of the verdict slip

did not violate Mills, and that the answers provided by the

jurors during the poll did not suggest that they believed

unanimity was required in finding mitigating

circumstances. Id.

A state conviction and sentence become final for

purposes of retroactivity analysis when the availability of

direct appeal to the state courts has been exhausted and

the time for filing a petition for a writ of certiorari has

elapsed or a timely filed petition has been finally denied.

Caspari, 510 U.S. at 390; Kapral v. United States, 166 F.3d

565, 572 (3d Cir. 1999). Although Banks’ direct appeal

technically had been exhausted, the Pennsylvania Supreme

Court treated his petition for collateral relief like a direct

appeal by considering his Mills claim on the merits.

Because the Pennsylvania Supreme Court applied the

relaxed waiver doctrine, Banks’ conviction was not final

within the meaning of Teague until the Pennsylvania

Supreme Court affirmed the denial of his PCRA petition and

his petition for a writ of certiorari was denied.

The Teague rule stems in large part from the desire to

accord comity to decisions of the state courts, which, in

their review of the case, did not have the opportunity to

analyze the effect of a subsequent Supreme Court decision.

The rationale for the comity principle has been articulated

most forcefully in the cases dealing with the exhaustion

43

doctrine. More than a century ago, in Ex parte Royall, 117

U.S. 241, 251 (1886), the Supreme Court wrote that as a

matter of comity, federal courts should not consider a claim

in a habeas corpus petition until after the state courts have

had an opportunity to act.

After Congress’ 1948 codification of the exhaustion

doctrine at 28 U.S.C. S 2254, the Supreme Court in Rose v.

Lundy, 455 U.S. 509 (1982), analyzed the policies

underlying the statute as follows:

The exhaustion doctrine is principally designed to

protect the state courts’ role in the enforcement of

federal law and prevent disruption of state judicial

proceedings. [citation omitted]. Under our federal

system, the federal and state ‘courts [are] equally

bound to guard and protect rights secured by the

Constitution.’ [citation omitted]. Because‘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,’ federal courts apply the

doctrine of comity, which ‘teaches that one court

should defer action on causes properly within its

jurisdiction until the courts of another sovereignty with

concurrent powers, and already cognizant of the

litigation, have had an opportunity to pass upon the

matter.’ [citations omitted].

Id. at 518 (emphasis added).

More recently, in O’Sullivan v. Boerckel, 526 U.S. 838,

845 (1999), where the Court held that a state prisoner

must present his claims to a state supreme court in a

petition for discretionary review in order to satisfy the

exhaustion requirement, the Court explained that the

exhaustion doctrine is designed to give the state courts a

full and fair opportunity to resolve federal constitutional

claims before those claims are presented to the federal

courts. It further stated, citing Rose,

State courts, like federal courts, are obliged to enforce

federal law. Comity thus dictates that when a prisoner

alleges that his continued confinement for a state court

conviction violates federal law, the state courts should

44

have the first opportunity to review this claim and

provide any necessary relief. [citations omitted]. This

rule of comity reduces friction between the state and

federal court systems by avoiding the ‘unseem[liness]’

of a federal district court’s overturning a state court

conviction without the state courts having had an

opportunity to correct the constitutional violation in

the first instance. [citations omitted].

Id. at 844-45. See also Duncan v. Walker , 533 U.S. 167,

178-79 (2001) (recognizing principle of comity set forth in

O’Sullivan and Rose). We also have recognized the same

rationale. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.

2000), cert. denied, 532 U.S. 980 (2001).

In this case, because of the application of Pennsylvania’s

unique relaxed waiver doctrine in capital cases, the

Pennsylvania Supreme Court not only had the first

opportunity to review Banks’ jury instructions, verdict slip,

and jury poll in light of Mills, but exercised that

opportunity. It thus treated that claim as on direct appeal

and there is no reason why, even though Mills announced

a new rule, the Pennsylvania Supreme Court’s resolution of

that issue should not be cognizable on federal habeas

review. I adhere to the majority’s judgment in our decision

filed October 31, 2001 that the Pennsylvania Supreme

Court’s ruling denying Banks’ claim under Mills was

unreasonable. Therefore, I concur in its judgment today.3

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3. The unique circumstances presented by this case are unlikely to recur

because the Pennsylvania Supreme Court now strictly construes the

state’s Post Conviction Relief Act. In Commonwealth v. Albrecht, 720 A.2d

693, 700 (Pa. 1998), the Pennsylvania Supreme Court abandoned its

application of a relaxed waiver doctrine in capital cases in PCRA appeals

because the "ever-widening application of the doctrine has, in effect,

virtually eliminated any semblance of finality in capital cases, and

frustrated the efficient use of the resources of the court." Since Albrecht,

the Pennsylvania Supreme Court has ruled that claims of trial court

error, like the Mills claim in the present case, are not reviewable on

collateral review. See, e.g., Commonwealth v. Wallace, 724 A.2d 916, 921

n.5 (Pa. 1999) (finding claims of trial court error that could have been

raised on direct review waived). It has also rejected the argument that

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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the abrogation of the relaxed waiver rule should not apply retroactively

to PCRA petitions filed before Albrecht was issued. See Commonwealth v.

Bracey, 795 A.2d 935, 941 (Pa. 2001) (because Albrecht merely clarified

the court’s practice of relaxing its waiver rules in death penalty cases,

the defendant suffered no constitutional violation by its retroactive

application).

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