Taylor v. Horn

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

9-20-2007

Taylor v. Horn

Precedential or Non-Precedential: Precedential

Docket No. 04-9016

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-9016

PAUL GAMBOA TAYLOR,

Appellant

v.

MARTIN HORN, Commissioner,

Pennsylvania Department of Corrections;

GREGORY R. WHITE, Superintendent

of SCI Pittsburgh; JOSEPH MAZURKIEWICZ,

Superintendent of SCI Rockview

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 04-cv-00553)

District Judge: Hon. James F. McClure, Jr.

Argued October 18, 2006

BEFORE: BARRY, FUENTES, and ROTH, Circuit Judges

(Filed September 20, 2007)

Matthew C. Lawry, Esq. (Argued)

Michael Wiseman

Defender Association of Philadelphia

Federal Capital Habeas Corpus Unit

The Curtis Center, Suite 545 West

1

Independence Square West

Philadelphia, PA 19106

Counsel for Paul Gamboa Taylor

Stuart Suss, Esq. (Argued)

Office of the Pennsylvania Attorney General

Appeals and Legal Services Section

2490 Boulevard of the Generals

Norristown, PA 19403

Counsel for Martin Horn, Commissioner,

Pennsylvania Department of Corrections;

Gregory White, Superintendent, State

Correctional Institution at Pittsburgh; and

Joseph P. Mazurkiewicz, Superintendent,

State Correctional Institution at Rockview

OPINION

FUENTES, Circuit Judge.

Paul Gamboa-Taylor (“Taylor”) is a Pennsylvania inmate

sentenced to death by a Pennsylvania state court for murdering his

wife, Valerie, their two children, and his mother-in-law’s child. He

is also serving a life sentence for murdering his mother-in-law,

Donna Barshinger. On federal habeas review, pursuant to 28

U.S.C. § 2254, the District Court concluded that none of Taylor’s

guilt or penalty-phase claims merited a writ of habeas corpus.1 We

agree with the District Court, and will affirm.

I. Background And Procedural History

1

The Court granted a certificate of appealability as to all

procedural and merits issues.

2

Taylor pleaded guilty to five murders on December 19,

1991. A hearing was conducted on January 10, 1992 to determine

Taylor’s degree of guilt and penalty. At this hearing, Taylor was

found guilty of five counts of murder in the first degree by the

Honorable John H. Chronister, Judge of the Court of Common

Pleas of York County, Pennsylvania. Judge Chronister also

determined the sentence, without objection from Taylor, which was

imposed on January 23, 1992.

A.

The murders took place on the evening of May 18, 1991.

Under the influence of alcohol and cocaine, Taylor, who had no

apparent prior history of domestic violence, hammered the skull of

his mother-in-law and slit her throat with a knife. He then

hammered the skulls of her two-year-old son Lance, and his own

children, four-year-old Paul and two-year-old Jasmine. When his

wife Valerie returned home twelve hours later, he also hammered

her skull until she died. Taylor did not harm his five-month-old

daughter, Rachelle, who was present during the killings. After

killing his wife, Taylor attempted suicide by slashing his wrists

with a hacksaw and stabbing himself in the abdomen. He then

called 911 (because he was worried about Rachelle) before trying

to electrocute himself in the bathtub with a hair dryer. When the

police arrived, they found him alive in the bathtub and took him to

York Hospital.

At the hospital Taylor made incriminating statements after

the police questioned him about the killings without advising him

of his right to counsel or to remain silent. Doctors stabilized

Taylor physically and on May 22, 1991, transferred him to York

Hospital’s psychiatric inpatient unit. There, Mohamed I. Elyan,

M.D., Taylor’s treating physician, recorded Taylor’s account of

what happened the night of the murders in his hospital records.

When Dr. Elyan concluded that Taylor was psychiatrically

stabilized, on May 24, 1991, he discharged Taylor to the state’s

custody.

Attorney Robert Bruce Evanick, Chief Public Defender, was

appointed to represent Taylor. Evanick prepared a suppression

3

motion, seeking to exclude the statements that Taylor made to

police at the hospital. Taylor, however, wrote a letter of confession

to the police, dated June 15, 1991, which states the following:

On May 18, 1991, I, Paul G. Taylor, came home,

went to the third floor, and to check on the kids.

Jasmine was sleeping with Donna. I picked her up

and put her in my bed, and no voice made me do it.

I did it. Paul G. Taylor, on my own. I was so mad or

bad about me to turn back to drugs, and my wife

didn’t care no more that I wasn’t going to leave my

family for no one. If I couldn’t have my kids, no one

will. So I went downstairs and got the ball-peen

hammer and killed Donna, Lance, Jasmine and Paul

with it. After I dropped the hammer, I ran

downstairs and washed my hands and went outside

and walked around and cried. And I knew what I

had done. It was my turn and my wife’s turn to die.

I came back, went to the third floor, and covered

them up. The baby was asleep. Rachelle and I went

downstairs. And I called about 5:00 or 6:00 a.m. I

called Tina Markle to see if she was there. The

phone rang and Tina picked it up and I said, is Val

there. She said, yes. But she never got on the

phone, and the phone went dead. I called back, but

I got a busy sound, and tried a half hour later, and

got the same thing. Val called back around 11:30

and said she be home around 12, or 12:30, and she

hung up. When she got home she did not look or say

anything but went to the dining room, and said, I’m

going out tonight. And I killed her with the hammer,

too, and went outside and said to Tina, she’ll see you

tonight, and she went. I carried my wife up the stairs

and laid her in bed with my daughter, and went

downstairs and got a hacksaw and a knife, and went

back upstairs to kill myself. That’s what happened

to my family. I don’t want mercy from the Court. I

want the maximum sentence. God said that this was

the truth. Amen. P.S., I’m not a sick man. I’m a

man that went over and came back. P.S. It was out

4

of love that no one was going to take them away, my

wife and my kids. Truly sorry, Mr. Paul G. Taylor.

(App. at 238-39.)

Before Taylor’s plea hearing, two experts—Edward J.

Briercheck, M.S., a licensed psychologist, and Robert L. Sadoff,

M.D., a psychiatrist—evaluated Taylor and opined that he was

competent to participate in legal proceedings. Moreover, Mr.

Briercheck concluded that Taylor “was capable of formulating

intent” at the time of the murders and Dr. Sadoff found that Taylor

would not be able to prove an insanity defense. (App. at 317.)

At Taylor’s guilty-plea hearing on December 19, 1991,

about seven months after the murders, defense counsel reported to

the trial judge that Taylor had directed him “not to contact any

witnesses or to call any medical personnel who have interviewed

and talked with him. He understands that there are statutory

aggravating circumstances and that the likely result will be

imposition of the death penalty.” (App. at 137.) Taylor agreed

with counsel’s statement in a colloquy on the record, after which

the court accepted his plea.

Twenty-two days later, at Taylor’s degree-of-guilt and

penalty hearing, the trial judge granted Taylor’s suppression

motion, ruling that the hospital statements were unlawfully

obtained. The court next asked Taylor if he wished to let his guilty

plea stand, and Taylor answered affirmatively.

The Commonwealth presented several witnesses’ testimony,

including police and pathologists. Defense counsel presented no

evidence, and made no argument on Taylor’s behalf. The trial

judge concluded that all five murders were intentional and thus in

the first degree.

The penalty phase commenced immediately, and the court

asked Taylor whether he wanted to present any mitigating

evidence. Taylor declined. Nevertheless, the District Attorney, H.

Stanley Rebert, stated that, as an officer of the court, he felt obliged

to mention that Taylor could claim the mitigating circumstance set

5

forth in 42 Pa. Cons. Stat. Ann. § 9711(e)(1) because he had no

significant history of prior criminal convictions.2

The trial judge next heard argument on the aggravating

circumstances, and the Commonwealth conceded that none applied

to the murder of Taylor’s mother-in-law. Taylor murdered the

three children and Valerie after his mother-in-law, however, which

satisfied 42 Pa. Cons. Stat. Ann. § 9711(d)(11) (requiring that a

defendant be convicted of another murder committed either before

or at the time of the offense at issue). And the three children were

under the age of twelve, which satisfied 42 Pa. Cons. Stat. Ann. §

9711(d)(16) (requiring that the victim be a child under the age of

twelve).

As the hearing came to an end, Taylor’s counsel added:

Your Honor, just so we’re clear for the record, the

only other additional mitigating factor is the

Defendant’s remorse. That has been passed on by

the Supreme Court and found to be a legitimate

mitigating factor. Whether or not you conclude from

his letter [of June 15, 1991] that he is genuinely

sorry for what occurred, of course, is your decision,

but there is certainly evidence to support it of record.

(App. at 247-48.)

The judge sentenced Taylor to life in prison for his mother-

in-law’s murder, after finding that there were no aggravating

circumstances and at least one mitigating circumstance (no prior

criminal record). With respect to the three children, the court

found that both aggravating circumstances had been proved beyond

a reasonable doubt, and that there were two mitigating

circumstances: no prior criminal record and genuine remorse. The

court concluded that the aggravating circumstances outweighed the

mitigating ones, and imposed three death sentences for the

childrens’ murders. For Valerie’s murder, only one aggravating

2

Taylor’s only prior conviction was for disorderly conduct.

6

circumstance had been proven since she was an adult, and there

were two mitigating circumstances: no prior record and remorse.

Nevertheless, the judge found that the single aggravating

circumstance outweighed the two mitigating circumstances and

imposed a death sentence. The court explained:

The Court draws this conclusion on the fact that

there were multiple homicides which occurred. Also

in the fact that a substantial period of time passed

after the first four victims were killed, and the wife,

Valerie Taylor came home, so that this lying in wait,

and this further opportunity to plan and premeditate

the situation creates an additional weight to the

aggravating circumstance in the Court’s mind.

(App. at 285.)

The court advised Taylor that post-trial motions were due on

January 23, 1992, the date of formal sentencing, and advised him

of his automatic right to appeal. At formal sentencing, on January

23, 1992, defense counsel explained: “I spoke with Paul last week.

He indicated that he did not want any motions filed in his behalf

and I’m not sure there are any that could have been filed. So he’s

essentially forfeited that potential area of review.” (App. at 288.)

The court then asked Taylor whether he had anything to say before

sentencing. He did not, and the court imposed four death sentences

and one life sentence.

B.

Death sentences are subject to automatic review by the

Supreme Court of Pennsylvania. 42 Pa. Cons. Stat. Ann. §

9711(h). On May 4, 1993, Taylor’s counsel told the Court that

Taylor wished no action to be taken on his behalf. The Court

instructed counsel to obtain an affidavit from Taylor confirming

this intention, and counsel supplied Taylor with an affidavit for his

signature. Taylor declined to sign the affidavit in a handwritten

note to counsel, dated May 6, 1993. The note said:

The affidavit you send me on May 6, 1993 to sign

7

and get notary is a suicide form to say I Paul

Gamboa Taylor give them the right to kill me; they

the court found me guilt[y] now they or you want me

to commit suicide in writing too. I do not understand

the law, but by the Grace of God I will not sign over

my life in a affidavit you have send.

(App. at 340.) Thereafter, Taylor executed an affidavit authorizing

counsel to withdraw his guilty plea, and on May 20, 1993, counsel

filed a petition with the Court requesting a remand to afford Taylor

the opportunity to do so. The Court denied the petition for remand,

without explanation, on July 21, 1993.

On December 9, 1993, the Court sustained Taylor’s murder

convictions and affirmed the judgment of sentence.

Commonwealth v. Gamboa-Taylor, 634 A.2d 1106 (Pa. 1993)

(hereinafter “Taylor I”). Because no issues had been preserved for

review, the Court reviewed only those issues required by statute,

and held: the evidence was sufficient to support convictions for

first degree murder;3 there was no evidence that the sentences of

death were the product of passion, prejudice or any other arbitrary

factor; and the sentences of death were not excessive or

3

With respect to whether the evidence was sufficient, the

court stated:

At the degree of guilt hearing, the autopsy reports

were admitted into evidence to establish that the

victims’ deaths were homicides. Valerie’s friend,

Tina Smith, was able to place Appellant at the

murder scene, and the court accepted into evidence

the hammer and Appellant’s confession as evidence

to establish that the murders were intentional

killings. From this wealth of evidence, there is no

doubt in our minds that the five first degree murder

convictions were sustainable and that overwhelming

evidence can support them.

Id. at 1108.

8

disproportionate. Id. at 1108-09. The Court did not mention

Taylor’s desire to withdraw his guilty plea.

C.

On January 13, 1997, Taylor filed a timely pro se petition

for post-conviction relief under Pennsylvania’s Post Conviction

Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-46.

Attorney J. Richard Robinson, who was appointed as post-

conviction counsel, filed a supplemental petition (the “first PCRA

petition”), including the following pertinent claims:

1. Trial counsel was ineffective in failing to

introduce evidence of Petitioner’s drug use for

purposes of mitigating circumstances at the penalty

phase.

2. Trial counsel was ineffective in failing to

interview witnesses identified in discovery who may

have provided exculpatory evidence for Petitioner.

3. Trial counsel was ineffective in failing to raise or

pursue the defense of diminished capacity.

...

6. Trial counsel was ineffective in failing to call

family members and friends as character witnesses at

trial.

(App. at 351-52.) The first PCRA petition also contained a list of

twenty-two potential witnesses, including family members and

friends. The petition was assigned to Judge Chronister, who had

been Taylor’s trial judge. The judge held a hearing on June 24,

1997, at which Taylor presented no evidence besides his own

testimony. Trial counsel, then working in New Orleans, gave

testimony via telephone.

Judge Chronister denied the post-conviction petition,

finding that Taylor had instructed counsel “not to present

testimony, that [Taylor] had discussed the possibility of having

testimony by various friends, associates, employers, coworkers

9

with Mr. Evanick and elected not to call them and, in fact, [Taylor]

made the phone calls to tell those witnesses not to come in.” (App.

at 277-78.) Taylor appealed the denial of post-conviction relief,

but on August 20, 1998, Judge Chronister’s decision was affirmed

in Commonwealth. v. Taylor, 718 A.2d 743 (Pa. 1998) (hereinafter

“Taylor II”).

D.

On September 3, 1998, Taylor, represented by current

counsel, the Defender Association of Philadelphia, initiated

proceedings in the United States District Court for the Middle

District of Pennsylvania by filing motions to stay the execution,

appoint counsel, and proceed in forma pauperis. After receiving

extensions of time, Taylor filed a petition for writ of habeas corpus

on January 5, 1999 raising numerous claims—some of them plainly

new, some of them more comprehensive versions of what had been

raised in his first PCRA petition. Among other things, Taylor

claimed that trial counsel’s performance was constitutionally

deficient because he failed to adequately investigate Taylor’s

family background and mental health issues, and failed to present

a defense to first-degree murder or, at the penalty phase, evidence

of mitigating circumstances.

On February 5, 1999, Taylor filed a second PCRA petition

in the York County Court of Common Pleas in order to exhaust the

claims in his federal petition that were new. Taylor’s second

PCRA petition was also assigned to Judge Chronister. Taylor

alleged ineffective assistance of post-conviction counsel (counsel

for his first PCRA petition) and submitted new evidence, including

affidavits from his siblings and family friends, and affidavits from

two new experts, Richard G. Dudley, Jr., M.D., and Gillian Blair,

Ph.D. The petition also included updated affidavits from Mr.

Briercheck and Dr. Sadoff.

On March 9, 1999, the District Court dismissed the “mixed”

habeas petition without prejudice, for failure to exhaust state

remedies. See Rose v. Lundy, 455 U.S. 509, 510, 522 (1982).

And, in the meantime, Judge Chronister denied Taylor’s second

PCRA petition as untimely.

10

Taylor appealed to the Supreme Court of Pennsylvania

contending that the after-discovered evidence exception to the

state’s post-conviction one-year limitation period, 42 Pa. Cons.

Stat. Ann. § 9545(b)(1)(ii), applied. He included affidavits from

Drs. Dudley, Blair, Sadoff, and Mr. Briercheck, and he argued that

the first post-conviction counsel provided ineffective assistance by

failing to appreciate the significance of his diminished mental state,

as revealed in this after-acquired evidence. On June 19, 2000, the

Court affirmed the untimeliness ruling. Commonwealth. v.

Gamboa-Taylor, 753 A.2d 780 (Pa. 2000) (hereinafter “Taylor

III”). The Court reasoned that an allegation of ineffective

assistance of post-conviction counsel does not excuse a failure to

comply with the PCRA’s time limitation, id. at 785, and that all of

the facts regarding Taylor’s mental state, if not known, were

discoverable by the exercise of due diligence before his

proceedings, id. at 787.

On August 11, 2000, proceedings in the District Court

resumed when Taylor re-filed his habeas petition. On July 22,

2004, the District Court denied the habeas petition on the merits.4

Taylor appealed.5 Taylor’s habeas petition is governed by the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 110 Stat. 1214.

Taylor pursued seventeen claims before the District Court,

and has consolidated them for the purposes of this appeal

essentially as follows:

Claim 1: The trial court failed to hold a competency

hearing despite indicia that Taylor was

incompetent.

Claim 2: Taylor’s due process rights were denied when

he was tried while incompetent, and the

4

The District Court had jurisdiction under 28 U.S.C. §

2254.

5

We have appellate jurisdiction under 28 U.S.C. §§ 1291

and 2253.

11

District Court erred when it refused to hold

an evidentiary hearing to consider his

after-acquired evidence that he was not

actually competent at the time of his

proceedings.

Claim 3: Trial counsel was ineffective for failing to

investigate, prepare, and present evidence of

Taylor’s incompetence.

Claim 4: Taylor’s guilty plea and waivers of other

rights were not knowing, intelligent, and

voluntary.

Claim 5: Trial counsel was ineffective for failing to

ensure that any waiver by Taylor was

knowing, intelligent, and voluntary.

Claim 6: Taylor never waived his right to have his

sentence determined by a jury, and counsel

was ineffective for failing to object to the

invalid waiver.

Claim 7: Trial counsel failed to investigate, present,

and argue mitigating evidence, and his

deficient performance prejudiced the defense.

Claim 8: Taylor did not waive his right to present

mitigating evidence and any purported waiver

was invalid because he was not adequately

informed of his rights.

Claim 9: Trial counsel was ineffective for failing to

investigate, develop, and present the defense

of diminished capacity.

Claim 10: Trial counsel was ineffective for failing to

investigate, develop and present the defense

of voluntary intoxication.

12

Claim 11: Taylor was denied effective assistance of

counsel on direct appeal to the state supreme

court.

Before reaching the merits of Taylor’s claims we first address the

threshold issues of timeliness, exhaustion, and procedural default.

II. Timeliness, Exhaustion, and Procedural Default

A. Timeliness

The Commonwealth argues that the set of claims Taylor

raised for the first time in his August 2000 federal habeas petition

is barred by the statute of limitations set forth in 28 U.S.C. §

2244(d)(1), which provides:

A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.

The limitation period shall run from the latest of-

(A) the date on which the judgment became

final by the conclusion of direct review or the

expiration of the time for seeking such

review;

(B) the date on which the impediment to

filing an application created by State action in

violation of the Constitution or laws of the

United States is removed, if the applicant was

prevented from filing by such State action;

(C) the date on which the constitutional right

asserted was initially recognized by the

Supreme Court, if the right has been newly

recognized by the Supreme Court and made

retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of

13

the claim or claims presented could have been

discovered through the exercise of due

diligence.

Because Taylor’s conviction became final before AEDPA was

passed, the one-year limitation period began to run on its passage

date, April 24, 1996. Burns v. Morton, 134 F.3d 109, 111 (3d Cir.

1998); Miller v. N.J. State Dep’t of Corrs., 145 F.3d 616, 617 (3d

Cir. 1998).

On January 13, 1997, about eight months after the statute of

limitations began to run, Taylor filed his first PCRA petition. We

toll the limitations period while that petition was pending, pursuant

to 28 U.S.C. § 2244(d)(2); thus it did not begin to run again until

the Supreme Court of Pennsylvania affirmed the denial of the

petition, on August 20, 1998.

An additional two weeks elapsed before Taylor filed his

motions for a stay of execution, appointment of counsel, and in

forma pauperis status in federal court, on September 3, 1998.

Then, on January 5, 1999, he filed his first, timely habeas petition.

However, on March 9, 1999, the District Court dismissed the

“mixed” petition, without prejudice, for failure to exhaust state

remedies. See Rose, 455 U.S. 509. The Court declined to stay the

matter pending exhaustion, but noted that Taylor’s filing of an

exhausted petition would likely relate back to his January 1999

petition, under Federal Rule of Civil Procedure 15(c).

By the time Taylor filed his second petition before the

District Court, on August 11, 2000, his time to file had run out.

The Court had to reconsider its prediction that the revised petition

would relate back because the law changed while Taylor had been

pursuing his second PCRA petition. In the interim, we issued

Jones v. Morton, 195 F.3d 153 (3d Cir. 1999), which held that once

a petition is dismissed for failure to exhaust, a new petition cannot

relate back to the dismissed petition. In light of Jones, the District

Court correctly determined that Taylor’s August 2000 petition

could not relate back to his January 1999 petition. However, the

Court decided to equitably toll the statute because it would have

granted his request for a stay initially, had it the benefit of our

14

subsequent decisions in Jones and Crews v. Horn, 360 F.3d 146,

154 (3d Cir. 2004), in which we permitted a stay when a dismissal

would jeopardize timeliness. The Court also found that Taylor had

pursued his claims diligently.

The Commonwealth argues that the District Court erred

because § 2244(d)(1)’s one-year requirement is not subject to

equitable tolling. In Miller, however, we explained that §

2244(d)(1) is a statute of limitations, subject to equitable tolling,

not a jurisdictional rule. 145 F.3d at 617; see also Day v.

McDonough, 547 U.S. 198, 205 (2006) (holding that § 2244’s one-

year time limitation is not jurisdictional).

Section 2244(d)’s one-year limitation may be tolled, among

other reasons, if “the plaintiff has in some extraordinary way been

prevented from asserting his rights.” Fahy v. Horn, 240 F.3d 239,

244 (3d Cir. 2001). The Commonwealth concedes that if §

2244(d)(1)’s time limitation may be tolled, then the factual

circumstances in this case warrant tolling. Commonwealth Br. at

21. Our review confirms that Taylor has pursued his claims

diligently, and that the District Court had assured Taylor “that the

claims presented in [his timely] petition could later be reasserted in

an ‘amended’ petition” that would “relat[e] back” to his timely

petition.6 See Dist. Ct. Op. at 9. Thus, in these circumstances, we

agree with the Commonwealth, Taylor, and the District Court that

equitable tolling is warranted. We will therefore affirm the District

Court’s decision to toll the statute of limitations. Taylor’s claim is

therefore timely.

B. Exhaustion and Procedural Default

The Commonwealth concedes that the claims Taylor raised

in his first PCRA petition have been exhausted under 28 U.S.C. §

6

“[W]here, as here, the relevant facts are not disputed, a

District Court’s decision on the question whether a case is

sufficiently extraordinary to justify equitable tolling should be

reviewed de novo.” Brinson v. Vaughn, 398 F.3d 225, 231 (3d Cir.

2005) (internal quotation marks omitted).

15

2254(b)(1)(A). It argues, however, that the claims Taylor raised

for the first time in his second PCRA petition have not been

exhausted and are procedurally defaulted because the state courts

dismissed his petition as untimely.

Section 2254(b)(1)(A) provides that an application for a writ

of habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless it appears that

“the applicant has exhausted the remedies available in the courts of

the State.” “To satisfy the exhaustion requirement, the petitioner

must fairly present all federal claims to the highest state court

before bringing them in federal court.” Stevens v. Del. Corr. Ctr.,

295 F.3d 361, 369 (3d Cir. 2002) (internal quotation marks

omitted). Here, because we will deny all of Taylor’s claims on the

merits, we need not address exhaustion. See 28 U.S.C. §

2254(b)(2) (“An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the applicant

to exhaust the remedies available in the courts of the State.”).

We will address procedural default, however, even with

respect to the claims we will deny. A habeas claim has been

procedurally defaulted when “a state court declined to address a

prisoner’s federal claims because the prisoner had failed to meet a

state procedural requirement.” Coleman v. Thompson, 501 U.S.

722, 730 (1991). For a federal habeas claim to be barred by

procedural default, however, the state rule must have been

announced prior to its application in the petitioner’s case and must

have been “firmly established and regularly followed.” Ford v.

Georgia, 498 U.S. 411, 423-24 (1991). Whether the rule was

firmly established and regularly followed is determined as of the

date the default occurred, not the date the state court relied on it,

Doctor v. Walters, 96 F.3d 675, 684 (3d Cir. 1996), because a

petitioner is entitled to notice of how to present a claim in state

court, Ford, 498 U.S. at 423-424.

Here, the state courts dismissed Taylor’s second PCRA

petition as untimely pursuant to Pennsylvania’s one-year PCRA

16

statute of limitations, 42 Pa. Cons. Stat. Ann. § 9545(b)(1). 7 We

agree with the District Court that Taylor’s default occurred on

March 9, 1995, when Taylor’s time to file a second petition

expired, and we have held that § 9545(b)(1) was not firmly

established or regularly applied until November 23, 1998, at the

earliest, when the Supreme Court of Pennsylvania decided

Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998). See

Bronshtein v. Horn 404 F.3d 700, 708-09 (3d Cir. 2005)

(recognizing that petitioner, whose second PCRA petition was

untimely under § 9545(b)(1), had not defaulted federal review

because Pennsylvania previously applied a “relaxed waiver” rule,

under which a claim of constitutional error in a capital case would

not be waived by a failure to preserve it).8 Thus, we agree with the

District Court’s determination that Taylor’s claims raised for the

first time in his second PCRA petition are not barred by procedural

default.

III. Applicable Legal Principles

The parties agree that AEDPA governs federal court review

of Taylor’s habeas action. We review de novo whether the District

Court appropriately applied AEDPA’s standards of review.

Johnson v. Carroll, 369 F.3d 253, 257 (3d Cir. 2004). The District

Court’s denial of an evidentiary hearing is reviewed for abuse of

discretion. See Schriro v. Landrigan, 127 S. Ct. 1933, 1940, 1944

(2007); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993).

7

The grace period afforded first state petitions by the 1995

amendments to the PCRA, which permitted petitions to be filed by

January 16, 1997, did not apply to Taylor’s second petition. See

Taylor III, 753 A.2d at 782 n.2.

8

On December 21, 1998, the Supreme Court of

Pennsylvania held in Commonwealth v. Peterkin, 722 A.2d 638

(Pa. 1998), that the time bar applies to capital cases and is not

superseded by the relaxed waiver rule. In Commonwealth v.

Banks, 726 A.2d 374 (Pa. 1999) the Court held that the time bar is

jurisdictional. The Commonwealth’s only argument in support of

its procedural default claim is that we should overrule Bronshtein

en banc.

17

A. Standards of Review Under AEDPA

AEDPA requires federal courts collaterally reviewing state

proceedings to afford considerable deference to state courts’ legal

and factual determinations on the merits. Specifically, 28 U.S.C.

§ 2254(d) provides:

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the

claim—

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

A state court decision is “contrary to” Supreme Court

precedent if the state court “arrives at a conclusion opposite to that

reached” by the Court on a question of law, or “confronts facts that

are materially indistinguishable from a relevant Supreme Court

precedent and arrives at a result opposite to” that of the Court.

Williams v. Taylor, 529 U.S. 362, 405 (2000). An “unreasonable

application” of Supreme Court precedent occurs: (1) “if the state

court identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case;” or (2) if it “either unreasonably

extends a legal principle from [Supreme Court] precedent to a new

context where it should not apply or unreasonably refuses to extend

that principle to a new context where it should apply.” Id. at 407.

If, on the other hand, “the state court has not reached the

18

merits of a claim thereafter presented to a federal habeas court, the

deferential standards provided by AEDPA and explained in

Williams do not apply.” Appel v. Horn, 250 F.3d 203, 210 (3d Cir.

2001). “In such an instance, the federal habeas court must conduct

a de novo review over pure legal questions and mixed questions of

law and fact, as a court would have done prior to the enactment of

AEDPA.” Id.

Whether or not the state courts reached the merits of a

claim, § 2254(e)(1) requires that “a determination of a factual issue

made by a State court shall be presumed to be correct” unless the

petitioner rebuts “the presumption of correctness by clear and

convincing evidence.” See id. Although it would appear that there

is “little material difference between a reasonableness

determination and a presumption of correctness as they express the

same fundamental principle of deference to state court findings,”

we have explained that, in fact,

the language of § 2254(d)(2) and § 2254(e)(1)

implies an important distinction: § 2254(d)(2)’s

reasonableness determination turns on a

consideration of the totality of the “evidence

presented in the state-court proceeding,” while §

2254(e)(1) contemplates a challenge to the state

court’s individual factual determinations, including

a challenge based wholly or in part on evidence

outside the state trial record.

Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).

In addition, AEDPA prohibits district courts, except in

certain limited circumstances, from holding an evidentiary hearing

on a federal habeas claim “[i]f the applicant has failed to develop

the factual basis of [the] claim in State court proceedings.” §

2254(e)(2). However, even if an evidentiary hearing is not

prohibited under § 2254(e)(2), a petitioner is not necessarily

entitled to one: “In deciding whether to grant an evidentiary

hearing, a federal court must consider whether such a hearing could

enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.”

19

Landrigan, 127 S. Ct. at 1940. Furthermore, to the extent that “the

deferential standards prescribed by § 2254 control whether to grant

habeas relief, a federal court must take into account those standards

in deciding whether an evidentiary hearing is appropriate.” Id. at

1940.

B. Ineffective Assistance of Counsel

Sixth Amendment claims of ineffective assistance of

counsel are governed by Strickland v. Washington, 466 U.S. 668

(1984), which “qualifies as clearly established Federal law, as

determined by the Supreme Court of the United States.’” 9

Williams, 529 U.S. at 391 (internal quotation marks omitted). To

prevail, a defendant must show that counsel’s performance was

deficient, and that this prejudiced the defense. Strickland, 466 U.S.

at 687. Trial counsel’s representation must fail to satisfy an

objective standard of reasonableness, considering all the

circumstances. Id. at 688. Courts must assess the reasonableness

of counsel’s conduct on the facts of the particular case, and as of

the time of counsel’s conduct. Id. at 690. Counsel’s strategic

choices made after full investigation are “virtually

unchallengeable,” but choices made after limited investigation are

reasonable only to the extent that the limited investigation itself

was reasonable. Id. at 690-91. Moreover, courts may look to the

defendant’s statements or actions in determining the reasonableness

of counsel’s conduct. Id. at 691. Strickland’s prejudice prong

requires a defendant to show “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

IV. Competency Claims (Claims 1, 2, and 3)

9

We note that the District Court properly determined that

there was no constructive denial of counsel in Taylor’s case, and

thus no basis for a presumption of prejudice under Cronic v. United

States, 466 U.S. 648, 659 (1984). See Bell v. Cone, 535 U.S. 685,

696-98 (2002) (rejecting broad application of Cronic). We reject

Taylor’s arguments to the contrary.

20

Taylor argues that the proceedings leading to his conviction

and death sentence violated three of his constitutional rights

relating to his competency to stand trial: (Claim 1) his due process

right to a competency hearing; (Claim 2) his due process right not

be tried while incompetent; and (Claim 3) his Sixth Amendment

right to effective assistance of counsel with respect to competency

issues. He also seeks an evidentiary hearing before the District

Court to present newly-acquired evidence that he was not

competent at the time of his proceedings.

A. Federal Competency Standards

The foundation of these competency claims is the well-

established due process right to not to be tried, or plead guilty,

while incompetent. See Drope v. Missouri, 420 U.S. 162, 171-72

(1975); Pate v. Robinson, 383 U.S. 375, 385 (1966); Godinez v.

Moran, 509 U.S. 389, 399-400 (1993) (holding that standards for

competency to plead guilty and to stand trial are the same).

The Supreme Court set the basic standard for competency

in Dusky v. United States, 362 U.S. 402 (1960): To be competent

to plead guilty or stand trial, a defendant must have a “sufficient

present ability to consult with his lawyer with a reasonable degree

of rational understanding” and must possess “a rational as well as

factual understanding of the proceedings against him.” Id. at 402

(internal quotation marks omitted); see also Drope, 420 U.S. at 171

(“[A] person whose mental condition is such that he lacks the

capacity to understand the nature and object of the proceedings

against him, to consult with counsel, and to assist in preparing his

defense may not be subjected to a trial.”).

B. State Court Proceedings and Standards of Review

1.

At the outset, the state trial court “accept[ed] [Taylor’s]

21

guilty plea finding it to be knowingly and voluntarily given.” 10

(App. at 152.) In Godinez, the Supreme Court explained:

The focus of a competency inquiry is the defendant’s

mental capacity; the question is whether he has the

ability to understand the proceedings. The purpose

of the “knowing and voluntary” inquiry, by contrast,

is to determine whether the defendant actually does

understand the significance and consequences of a

particular decision and whether the decision is

uncoerced.

509 U.S. at 401 n.12 (citations omitted). If a defendant does not

have the “ability” to understand the proceedings, it is impossible

that he “actually does” understand them. It follows, then, that a

finding of competence is a prerequisite to a determination that a

plea is knowing and voluntary. Thus, the state trial court’s

determination that Taylor’s plea was knowing and voluntary,

included an implied finding that he was competent.11

10

Taylor contends that his plea was not in fact “knowingly

and voluntarily” given, see Taylor Br. at 46-56, but that argument

is not relevant to our determination of whether there was a state

court determination of competency on the merits. Taylor’s

argument is, however, appropriate in rebuttal to the presumption of

correctness of the competency determination, and we address it in

that context.

11

See, e.g., United States v. Pressley, 602 F.2d 709, 711

(5th Cir. 1979) (“The court’s finding that Pressley was competent

to understand the proceedings at the time of his original plea,

although a prerequisite to validity of the plea, does not end the

inquiry. Such factors as whether . . . the original plea was knowing

and voluntary . . . should be considered.”); White v. Horn, 54 F.

Supp. 2d 457, 466 (E.D. Pa. 1999) (“Even in the absence of an

express finding of competence by the state courts, a defendant who

alleges insanity in his habeas corpus petition may be presumed to

be competent, since the trial court judge would not have otherwise

allowed the trial to proceed.”); cf. Whitmore v. Arkansas, 495 U.S.

149, 165 (1990) (suggesting that a litigant has not demonstrated

22

Sitting as the first PCRA court, Judge Chronister held an

evidentiary hearing and made factual findings on (1) Taylor’s

competency during his proceedings and (2) effective assistance of

counsel with respect to competence. Judge Chronister explicitly

reaffirmed his implicit finding at the guilty plea hearing that Taylor

was competent. The Judge also determined for the second time

that Taylor had been competent to make decisions about his case,

albeit affected by his remorse, and that counsel was not ineffective

for entrusting Taylor with decisions about his case:

There’s nothing in the testimony today which would

show that the Defendant was not capable of making

those decisions or that there was any legal

impediment which would have forced counsel not to

submit the decision to the Defendant.

We recognize that perhaps the Defendant’s

thinking at that time was colored by remorse. I don’t

think there’s any question about that. His very

actions of having counsel file for suppression,

having the Court grant a suppression of a confession,

and then the Defendant turning right around and

sending a letter to the D.A. giving another

confession to make sure that the conviction would

occur makes it clear that the Defendant was acting

out of remorse. But the Court does not find that to

be a legal impediment.

That remorse is a natural result and feeling of

the circumstances of this particular death given the

fact that it was the Defendant’s family and his

children who were involved, and the fact that the

Defendant’s mind may have been affected by the

remorse is not an impediment to—legally to his

mental incapacity for purposes of “next friend” standing “where an

evidentiary hearing shows that the defendant has given a knowing,

intelligent, and voluntary waiver of his right to proceed”).

23

making the decisions as to what—how the trial will

proceed unless his mind is so clouded that he

becomes confused or subject to a mental status that

would make him unable to participate in the trial.

The Court was very careful to make sure that

that was not the case, insisted upon the psychiatric

evaluation prior to proceeding. The evaluation

showed that the Defendant was capable of

cooperating with counsel and making rational

decisions, albeit affected by his remorse, and the

Court finds that there’s no legal impediment because

of that.

(App. at 279-80.)

The Supreme Court of Pennsylvania affirmed this decision

in Taylor II, recognizing that “[w]oven into Taylor’s claim of

ineffectiveness [of counsel] is the assertion that his mental state

after the killings prevented him from making rational decisions,

essentially rendering him incompetent. . . . In this case, Taylor’s

claim of incompetency is completely unsupported in fact.” 718

A.2d at 745 (emphasis added). The Court reasoned, further:

[T]he PCRA court’s determination that Taylor was

competent in all matters of decision and strategy is

supported by substantial evidence of record,

including Taylor’s own testimony, the testimony of

his trial counsel, and the report of the

court-appointed psychiatrist. Taylor’s suggestion

that stress and remorse associated with a capital case

are such that he (and, by implication, others in his

situation) are per se incompetent to make decisions

of strategy does not comport with the

well-established standard for determining mental

competency . . . .

Id. at 745-46.

2.

24

Based on this record it is clear that the state courts addressed

the merits of Taylor’s claim that he was tried while incompetent

(Claim 2), and received ineffective assistance of counsel in this

regard (Claim 3); we will therefore review both claims under §

2254(d).12 We will, however, review the trial court’s decision not

to hold a competency hearing (Claim 1) de novo because that claim

was not addressed on the merits.

Moreover, regardless of whether a given claim was reached

on the merits, competency is a state court factual finding that, if

supported by the record, is presumed correct. See Thompson v.

Keohane, 516 U.S. 99, 111 (1995) (citing Maggio v. Fulford, 462

U.S. 111, 118 (1983)); Demosthenes v. Baal, 495 U.S. 731, 735

(1990) (per curiam). Implicit factual findings are presumed correct

under § 2254(e)(1) to the same extent as express factual findings.

Campbell, 209 F.3d at 285-86. Thus, here, the state courts’

implicit and explicit factual findings that Taylor was competent are

presumed correct, unless Taylor can rebut “the presumption of

correctness by clear and convincing evidence.” See § 2254(e)(1);

Appel, 250 F.3d at 210.

C. The Merits of the Competency Claims

12

Taylor correctly notes that the state trial court never

conducted a formal competency hearing. But this does not mean

that his competency was not addressed on the merits. See Jermyn

v. Horn, 266 F.3d 257, 281 n.8 (3d Cir. 2001) (citing PCRA court’s

review of trial court’s decision not to hold a competency hearing as

an adjudication on the “merits”). We appreciate that if a

competency hearing was not held when it ought to have been, in

accordance with minimal federal standards of procedural due

process, then no deference is due to a state court’s competency

determination. See Panetti v. Quarterman, 127 S. Ct. 2842, 2855-

59 (2007). However, the corollary is also true: if due process did

not require the trial court to convene a competency hearing, and the

issue was otherwise addressed on the merits, then we afford the

competency determination due deference under § 2254(d). See,

e.g., Jermyn, 266 F.3d at 290-91.

25

1.The Trial Court’s Failure To Hold A Competency Hearing

(Claim 1)

Taylor argues that the trial court’s failure to hold a

competency hearing despite indicia of his incompetence violated

his procedural due process rights under Drope, 420 U.S. at 171-72

and Pate, 383 U.S. at 385. A trial court’s failure to inquire into

competency, sua sponte, where there is reason to doubt a

defendant’s competency, violates due process because it deprives

the defendant of his right to a fair trial. Drope, 420 U.S. at 172;

Pate, 383 U.S. at 385-86. But barring indicia of incompetence, due

process does not require that a competency hearing be held.

Godinez, 509 U.S. at 402 n.13.

The Supreme Court has not “prescribe[d] a general standard

with respect to the nature or quantum of evidence necessary to

require resort to an adequate procedure” but it has explained:

a defendant’s irrational behavior, his demeanor at

trial, and any prior medical opinion on competence

to stand trial are all relevant in determining whether

further inquiry is required, but that even one of these

factors standing alone may, in some circumstances,

be sufficient. There are, of course, no fixed or

immutable signs which invariably indicate the need

for further inquiry to determine fitness to proceed;

the question is often a difficult one in which a wide

range of manifestations and subtle nuances are

implicated. That they are difficult to evaluate is

suggested by the varying opinions trained

psychiatrists can entertain on the same facts.

Drope, 420 U.S. at 172, 180.

Taylor argues, first, that rather than hold a hearing the trial

court erroneously relied wholly on Dr. Sadoff’s conclusion that

Taylor was competent to proceed. See Taylor Br. at 29-33.

Although it would have been insufficient for the trial court to rest

his entire competency determination on just one psychiatric report,

see Pate, 383 U.S. at 383, that is not what happened here.

26

In addition to the Sadoff report, which concluded that

Taylor was “mentally competent to proceed in that he does know

the nature and consequences of his current legal situation and can

work with counsel in preparing his defense,” App at 326, the trial

court had the benefit of its own observations and interactions with

Taylor, as well as reports of counsel’s observations and interactions

with him. None of these indicated incompetency. The record

shows that throughout the proceedings Taylor was able to engage

with counsel and respond to the trial court’s inquiries, and that trial

counsel never expressed concern over Taylor’s competency.13 See

Jermyn v. Horn, 266 F.3d 257, 294-97 (3d Cir. 2001);

Demosthenes, 495 U.S. at 736-37.

The trial court also granted a continuance of the

proceeedings when Taylor’s counsel sought a psychological

evaluation from Mr. Briercheck, to supplement the Sadoff report,

prior to the guilty plea. After having received Mr. Briercheck’s

evaluation, which concluded that Taylor was “mentally competent

to proceed with the legal aspects of his case,” 14 App. at 317, trial

counsel did not seek a hearing on competency. The record does not

disclose whether the court ever saw the Briercheck report, but we

know that the court was aware counsel considered the issue of

competence, had reviewed an expert opinion in addition to Dr.

Sadoff’s, and still did not raise the issue. See Jermyn, 266 F.3d at

13

By contrast, the defendant in Drope “had difficulty in

participating well,” “had a difficult time relating,” and “was

markedly circumstantial and irrelevant in his speech.” 420 U.S. at

165 n.1.

14

Briercheck also wrote that Taylor was in complete

contact with reality by September 1991, three months before he

pleaded guilty, and Dr. Sadoff wrote in September 1991 that Taylor

was without current evidence of a psychotic thought disorder,

hallucinations or delusions, and was well-oriented, with unimpaired

memory. Dr. Elyan, who treated Taylor immediately after the

murders, concluded in his report that any cocaine-induced

psychosis that Taylor may have experienced during the murders

had remitted by the time he was discharged to the jail, which was

less than a week later and seven months before he pleaded guilty.

27

292 (noting, in denying petitioner’s competency-hearing claim, that

counsel did not give any indication to the trial court that he doubted

petitioner’s competence).

Second, Taylor argues that the court erroneously focused on

Dr. Sadoff’s conclusion of competency, while ignoring portions of

the report that indicated incompetency. He also argues that both

Mr. Briercheck’s and Dr. Sadoff’s competency conclusions must

be read in the context of their other observations of Taylor’s poor

mental health. For example, both experts reported Taylor’s drug

use, suicidal thoughts, acute grief reaction to the killings, and

severe depression. It is plain from the face of these reports,

however, that both took full account of these issues in reaching

their respective conclusions that Taylor was competent. Indeed, as

the District Court correctly observed, the Briercheck and Sadoff

reports stand in stark contrast to the reports in Drope, which

indicated that the defendant would have difficulty assisting in his

case and reached no conclusion about whether the defendant was

competent to stand trial. 420 U.S. at 164 n.1, 175-76.

Third, notwithstanding the experts’ conclusions, we cannot

agree with Taylor that his history of drug abuse or suicidal thoughts

indicated that he was incompetent to participate in the proceedings.

There is no evidence that Taylor was abusing drugs immediately

prior to or during the proceedings. See United States v. Renfroe,

825 F.2d 763, 767 (3d Cir. 1987). And his suicide attempt

occurred long before the plea and penalty proceedings.15 Compare

15

In his most recent declaration, Dr. Sadoff states that

Taylor’s actively suicidal phase persisted for “at least one month,”

after his discharge from York Hospital. (App. at 378.) This is not

inconsistent with Dr. Sadoff’s statement in his original declaration

that, by September 1991, Taylor was not actively suicidal. Dr.

Sadoff noted specifically, before Taylor pleaded guilty, that

“[Taylor] was actively suicidal after this happened, and since June

17, when he reached his conversion [he became a Born Again

Christian], he has not been suicidal. He talks about having his life

in God’s hands, and whether or not he gets the death penalty will

be up to God.” (App. at 322.) Dr. Elyan reached a similar

28

Jermyn, 266 F.3d at 293 (early suicide attempt did not implicate

competency vel non to stand trial) with Drope, 420 U.S. at 178-80

(mid-trial suicide attempt raised doubt as to competency); United

States v. Loyola-Dominguez, 125 F.3d 1315, 1319 (9th Cir. 1997)

(suicide attempt on eve of trial raised doubt as to competency); and

Tiller v. Esposito, 911 F.2d 575, 578 (11th Cir. 1990) (two suicide

attempts while in pre-trial incarceration raised doubt as to

competency). Finally, Taylor’s desire to confess and receive the

death penalty as punishment, and refusal to allow witnesses during

the penalty phase, are not indications that he was incompetent.

These actions are consistent with Taylor’s repeatedly expressed

desire to plead guilty and accept the consequences.

Ultimately, the record reveals no indicia that compelled the

trial court to hold a competency hearing. As the District Court

aptly observed: “Taylor’s lucid and remorseful desire to plead

guilty simply cannot, out of hand, be colored as utterly bizarre

behavior indicative of incompetency.” App. at 35 (citing Jermyn,

266 F.3d at 288). We agree with the District Court’s analysis in

this regard, and are satisfied that the state trial court’s decision to

forego a competency hearing—before accepting Taylor’s guilty

plea and through the end of the penalty phase—comported with

federal standards of due process.

2. Competence To Stand Trial (Claim 2)

Taylor also argues that he was incompetent during his

proceedings, in violation of his due process rights. See Drope, 420

conclusion in Taylor’s hospital Discharge Summary, in which he

stated that by June 28, 1991, Taylor “was not expressing any

immediate suicidal plans even though he thought he should have

joined his with his family . . . [he] add[ed] that if he was spared

then God must have different plans for him, and he seemed to be

willing to accept that.” (App. at 295.) Mr. Briercheck, too, noted

that in 1991Taylor “den[ied] suicidal ideation, but at the same time

[was] asking for the death penalty as punishment for his crimes.”

(App. at 313.)

29

U.S. at 171-72; Pate, 383 U.S. at 385. As mentioned previously, to

be competent a defendant must have “a sufficient present ability to

consult with his lawyer with a reasonable degree of rational

understanding” and must possess “a rational as well as factual

understanding of the proceedings against him.” Dusky, 362 U.S.

at 402. We will presume that the state courts’ finding that Taylor

was competent were correct, unless Taylor can rebut “the

presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1); Appel, 250 F.3d at 210.

i. Taylor’s After-Acquired Evidence of Incompetence

To rebut the presumption of competence, Taylor seeks an

evidentiary hearing before the District Court, in order to present the

testimony of four experts: Mr. Briercheck, and Drs. Sadoff, Blair,

and Dudley. As indicated in their affidavits, these experts would

testify that, contrary to the state courts’ competency findings,

Taylor was incompetent to plead guilty or to waive his rights. This

evidence was not presented to the first PCRA court, which held an

evidentiary hearing on Taylor’s competency. It was first presented

to the state courts in Taylor’s second PCRA petition, which the

Supreme Court of Pennsylvania dismissed as untimely.

The limits on evidentiary hearings set out in 28 U.S.C. §

2254(e)(2) are relevant here:

If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court

shall not hold an evidentiary hearing on the claim

unless the applicant shows that–

(A) the claim relies on—

...

(ii) a factual predicate that could not

have been previously discovered

through the exercise of due diligence

...

Id. (emphasis added). We have explained the meaning of “failed

to develop” under § 2254(e)(2) as follows:

30

The “failure” inquiry does not end once it is

determined that the factual basis of a claim had not

been developed in state court. Because “[i]n its

customary and preferred sense, ‘fail’ connotes some

omission, fault, or negligence on the part of the

person who has failed to do something,” “a person is

not at fault when his diligent efforts to perform an

act are thwarted, for example, by the conduct of

another or by happenstance.” Williams, 529 U.S. at

431-32, 120 S. Ct. 1479. Accordingly, “[u]nder the

opening clause of § 2254(e)(2), a failure to develop

the factual basis of a claim is not established unless

there is lack of diligence, or some greater fault,

attributable to the prisoner or the prisoner’s

counsel.” Id. at 432, 120 S. Ct. 1479.

Thomas, 428 F.3d at 498 (emphasis added). Thus, if the state

courts had failed to resolve the competency issue for some reason

unrelated to Taylor’s diligence, § 2254(e)(2) would not apply and

a new evidentiary hearing would be permitted. See Campbell, 209

F.3d at 286-87.

As the Supreme Court of Pennsylvania explained in Taylor

III, however, Taylor had every opportunity to present this evidence

of his incompetency at the time of his proceedings, and again at his

first PCRA hearing on the issue, nearly six years after the trial:

“The issue to which this purportedly newly discovered evidence

speaks is whether Appellant was mentally fit at the time of trial.

All the facts regarding Appellant’s mental state, if not known,

surely were ascertainable by the exercise of due diligence before

Appellant’s trial.” 753 A.2d at 786-87. The Court also noted that

“regardless of Appellant’s [after-acquired evidence] argument, the

issue of whether Appellant was competent at trial has been

litigated.” Id. at 787 n.8.

Taylor argues, nonetheless, that because the second PCRA

court declined to hear this evidence based on an inadequate state

procedural default rule, it is not his fault that he failed to develop

these facts in the state courts. See Wilson v. Beard, 426 F.3d 653,

31

665 (3d Cir. 2005) (“If a petitioner requests a hearing to develop

the record on a claim in state court, and if the state courts . . . deny

that request on the basis of an inadequate state ground, the

petitioner has not failed to develop the factual basis of [the] claim

in State court proceedings for purposes of § 2254(e)(2).”) (internal

quotation marks omitted). But the problem with an argument based

on Wilson is that Taylor’s competency claim had been fully

litigated well before he sought to have the second PCRA court

consider his new evidence. To the extent that the state procedural

default of Taylor’s claims was inadequate, it only bears on the

claims that were new to his second PCRA petition.16 Unlike the

petitioner in Wilson, Taylor’s competency claim was raised in his

first PCRA petition and addressed on the merits. His resurrection

of the claim in his second PCRA petition does not put it under

Wilson’s rule.

“Federal courts sitting in habeas are not an alternative

forum for trying facts and issues which a prisoner made insufficient

effort to pursue in state proceedings.” Williams, 529 U.S. at 437.

The only thing that prevented Taylor from presenting his new

evidence of incompetency before the first PCRA court was a lack

of diligence.17 Therefore, under § 2254(e)(2), we must affirm the

16

Taylor, in this regard, references the second PCRA

court’s comment that “if the Defendant’s legal arguments were

accepted . . . the factual basis that is offered would be sufficient to

at least raise a question which would require the testimony [of the

new experts] to be heard even though it may not be in the final

decision on the merits convincing and may not prevail.” (App. at

361.) It is clear from Taylor III, however, that the Supreme Court

considered the issue of competency precluded, based on its general

observation, independent from the untimeliness of the second

PCRA petition, that “the issue of whether Appellant was competent

at trial has been litigated.” 753 A.2d at 787 n.8. Even if that were

not the Supreme Court’s view, the fact that there may be a triable

issue of fact under state law does not absolve us of our statutory

obligation under § 2254(e)(2).

17

We have doubts about the effectiveness of Taylor’s post-

conviction counsel, who failed to obtain this evidence—or indeed,

32

District Court’s decision to deny an evidentiary hearing on this

claim.

ii. Taylor Has Failed Rebut the Presumption that the State

Courts’ Competency Determinations Were Correct

As we have explained, both the trial court and the first

PCRA court determined as a factual matter that Taylor was

competent throughout his proceedings. The Supreme Court of

Pennsylvania affirmed these determinations, and they are presumed

correct under § 2254(e)(1). Because § 2254(e)(2) bars an

evidentiary hearing on Taylor’s new evidence of incompetence, he

must rely on the present record to rebut the presumption of

correctness by clear and convincing evidence. See Lambert, 387

F.3d at 235. In our discussion about the trial court’s decision not

to hold a competency hearing, however, we explained why the state

court record shows no indication that Taylor was incompetent.

Taylor therefore cannot rebut the presumption that the state courts’

competency determinations were correct.

Moreover, under § 2254(d)’s deferential standard of review,

Taylor’s claim lacks merit. His competency is amply supported by

the state court record—based on, among other things, the original

Sadoff and Briercheck reports and the trial court’s and trial

counsel’s interactions with Taylor—and thus the state courts’

competency findings constituted a reasonable determination of the

facts. See id. (“Section 2254(d)(2) mandates the federal habeas

court to assess whether the state court’s determination was

reasonable or unreasonable given that evidence.”).

any evidence other than his client’s testimony—but ineffectiveness

of postconviction counsel is not an exception to § 2254(e)(2)’s

requirements. See 28 U.S.C. § 2254(i) (mandating that ineffective

assistance of post-conviction counsel is not a ground for habeas

relief); Thomas, 428 F.3d at 498 (“[F]ailure to develop the factual

basis of a claim is not established unless there is lack of diligence,

or some greater fault, attributable to the prisoner or the prisoner’s

counsel.”) (emphasis added); Coleman, 501 U.S. at 752 (noting no

federal constitutional right to post-conviction counsel).

33

Morever, nothing in the record suggests that the competency

determinations were “contrary to” the teachings of Drope, Pate, or

Dusky. See § 2254(d)(1). Ultimately, “[r]equiring that a criminal

defendant be competent has a modest aim: It seeks to ensure that

he has the capacity to understand the proceedings and to assist

counsel.” Godinez, 509 U.S. at 402. Based on our review of the

record, we are confident that aim was achieved in Taylor’s case.

We will therefore affirm the District Court’s dismissal of Taylor’s

claim that he was tried while incompetent.

3. Ineffective Assistance with Respect to Competency (Claim

3)

Taylor argues that trial counsel was ineffective for not

requesting a competency hearing. We have explained that

Counsel’s failure to request the trial court to order a

hearing or evaluation on the issue of the defendant’s

competency . . . could violate the defendant’s right to

effective assistance of counsel provided there are

sufficient indicia of incompetence to give objectively

reasonable counsel reason to doubt the defendant’s

competency, and there is a reasonable probability

that the defendant would have been found

incompetent to stand trial had the issue been raised

and fully considered.

Jermyn, 266 F.3d at 283.

Here, trial counsel testified before the PCRA court, in detail,

about his observations of Taylor at the time of the proceedings:

I did not see anything that [indicated] Paul did not

understand the course of conduct that he chose. . . .

In what he said or how he behaved or how he acted

that would indicate that he didn’t understand what

was going on. . . . I talked frequently with Pat

[Gallagher] at the jail . . . Paul frequently talked to

Pat Gallagher, and I received no indication from Pat

34

Gallagher that Paul Taylor did not understand what

was happening. He appeared—everything I saw,

Paul was competent to make decisions.

(App. at 270-71.) Consistent with the legal standard for

competency, counsel’s interactions with Taylor—paired with both

the Briercheck and Sadoff reports concluding that Taylor was

competent—were sufficient for counsel to reasonably forego a

competency hearing.

Nor do we agree with Taylor that counsel unreasonably

failed to provide Mr. Briercheck and Dr. Sadoff with enough

information for them to make well-informed competency

determinations. Mr. Briercheck and Dr. Sadoff state in their new

affidavits that they would have benefitted from reading one

another’s reports,18 but this retrospective observation does not

suggest that it was unreasonable of trial counsel, at the time, to

seek two independent evaluations. In Jacobs v. Horn, 395 F.3d 92

(3d Cir. 2005), we disapproved of counsel’s failure to provide

experts with any background information concerning the

defendant’s history, the alleged crimes, or the Commonwealth’s

pursuit of the death penalty. Id. at 103. But, in contrast to Jacobs,

Taylor’s background and crimes are detailed in both Briercheck’s

and Sadoff’s reports. These experts knew a great deal about

Taylor’s history and the crime, and it is evident from their reports

that Taylor discussed the possibility of the death penalty with both

of them.

In sum, Taylor’s competency-related, ineffective assistance

of counsel claim fails on the first prong of Strickland because

counsel’s decision not to pursue a competency hearing was

objectively reasonable, considering all the circumstances. See 466

U.S. at 688. As with the trial court’s decision not to convene a

competency hearing, there were insufficient indicia of

incompetence to deem counsel’s decision unreasonable.

18

Sadoff did, however, review Dr. Elyan’s report before

making his competency determination.

35

Taylor has also failed to show prejudice under Strickland’s

second prong. Because we have found that the state courts

correctly determined, based on all of the evidence available, that

Taylor was competent, there is no “reasonable probability” that

Taylor was incompetent, and therefore no prejudice caused by

counsel’s failure to request a competency hearing.19 Id. at 694.

We will therefore affirm the District Court’s dismissal of this

claim.

V. Validity of Taylor’s Guilty Plea and Waiver of Specific

Defenses (Claim 4); Ineffective Assistance of Counsel

Regarding Waivers (Claim 5)

Taylor next argues that his guilty plea, waivers of related

20

rights, and waiver of specific defenses to first degree murder were

19

Taylor argues that his newly-acquired evidence of

incompetency shows that trial counsel’s investigation was

inadequate, and is sufficient to establish prejudice because there is

a reasonable probability that his new evidence would result in a

finding that he was incompetent. On this basis, he contends, the

District Court should have held an evidentiary hearing. Taylor Br.

at 37. The problem, again, is that Taylor already had an evidentiary

hearing on this issue before the first PCRA court, where he failed

to produce Dr. Blair’s and Dr. Dudley’s evaluations. Cf. Hutchison

v. Bell, 303 F.3d 720, 749 (6th Cir. 2002) (“[T]he defendant] did

receive an evidentiary hearing on his ineffective assistance of

counsel claims in state court. If, as [the defendant] contends, a

reasonable investigation would have revealed the evidence

discussed above, then it should have been developed in relation to

his ineffective assistance claims during his first postconviction

proceeding.”).

20

“Several federal constitutional rights are involved in a

waiver that takes place when a plea of guilty is entered in a state

criminal trial. First, is the privilege against compulsory

self-incrimination guaranteed by the Fifth Amendment and

applicable to the States by reason of the Fourteenth. Second, is the

right to trial by jury. Third, is the right to confront one’s accusers.”

Boykin v. Alabama, 395 U.S. 238, 243 (1969) (citations omitted).

36

not knowing, intelligent, and voluntary. Primarily, he argues that

the trial court’s inquiry into how his mental state influenced his

waivers was inadequate, and he seeks an evidentiary hearing to

develop the record on this issue. Taylor Br. at 63.

For the reasons we explain below, however, we fully agree

with the District Court that the waiver colloquies in this case,

including the written one, made part of the record, were legally

sufficient under federal law.21 See Boykin v. Alabama, 395 U.S.

238, 242-43 (1969).

A. Standard of Review

Taylor’s claim that his guilty plea was not knowing and

voluntary was first raised in his second PCRA petition and has

never been reviewed on the merits by the state courts. Taylor I

does not mention Taylor’s last minute decision to withdraw his

guilty plea, and although the first PCRA court addressed Taylor’s

competence to make decisions, it did not address the broader issue

of whether his guilty plea was knowing and voluntary. We will

therefore review this claim de novo, Appel, 250 F.3d at 210,

affording the state courts’ factual determinations a presumption of

correctness, 28 U.S.C. § 2254(e)(1).

B. Constitutional Requirements for Knowing and Voluntary

Waivers

As noted, competence to plead guilty is subject to the same

legal standard as competence to stand trial. Godinez, 509 U.S. at

398-99. We have already established that Taylor had the requisite

competence to stand trial. However, as the Supreme Court has

explained, that is not enough for a valid waiver:

In addition to determining that a defendant who

seeks to plead guilty or waive counsel is competent,

21

This holding does not extend to Taylor’s waiver of his

state-law right to have a penalty-phase jury, for which there was no

on-the-record colloquy. We address this waiver separately, below.

37

a trial court must satisfy itself that the waiver of his

constitutional rights is knowing and voluntary. In

this sense there is a “heightened” standard for

pleading guilty . . . .

Id. at 400-01 (citations and emphasis omitted). Under Boykin, it

is crucial that the record reveal not only that a defendant was aware

of his rights, but also that he “intelligently and understandingly”

waived them. 395 U.S. at 242; see also Johnson v. Zerbst, 304

U.S. 458, 464 (1938) (“[waiver must be] an intentional

relinquishment or abandonment of a known right or privilege”).

Numerous cases have addressed the basic requirements for

a knowing and voluntary waiver, but there are few hard-and-fast

rules. We have stated that

no criminal defendant should plead guilty to a crime

unless, and until, he has had explained to him and

understands all of his constitutional rights and

protections, including the privilege against

compulsory self-incrimination guaranteed by the

Fifth Amendment, the right to trial by jury, and the

right to confront one’s accusers.

Hill v. Beyer, 62 F.3d 474, 480 (3d Cir. 1995) (citing Boykin, 395

U.S. at 243); see also United States v. Peppers, 302 F.3d 120, 135

(3d Cir. 2002) (stating that “to be valid [a defendant’s] waiver must

be made with an apprehension of the nature of the charges, the

statutory offenses included within them, the range of allowable

punishments thereunder, possible defenses to the charges and

circumstances in mitigation thereof, and all other facts essential to

a broad understanding of the whole matter”); but see United States

v. Thomas, 357 F.3d 357, 364 (3d Cir. 2004) (describing these

same factors as “illustrative examples of factors that courts might

discuss, not a mandatory checklist of required topics”).

The Supreme Court has explained, further, that the level of

detail in the colloquy is not dispositive:

38

[T]he law ordinarily considers a waiver knowing,

intelligent, and sufficiently aware if the defendant

fully understands the nature of the right and how it

would likely apply in general in the circumstances-

even though the defendant may not know the

specific detailed consequences of invoking it. . . . If

[the defendant] . . . lacked a full and complete

appreciation of all of the consequences flowing from

his waiver, it does not defeat the State’s showing that

the information it provided to him satisfied the

constitutional minimum.

Iowa v. Tovar, 541 U.S. 77, 92 (2004) (emphasis, internal

quotation marks, and citation omitted). With these guidelines in

mind, we review the record of Taylor’s waivers.

C. The State Court Record

In accordance with Pennsylvania law, the trial court first

accepted Taylor’s guilty plea to homicide generally, and then held

a hearing to determine his degree of guilt. Before Taylor pleaded

guilty, the court elicited the following:

MR. EVANICK: . . . I have talked to Paul about this

extensively. This is his desire to do this [to plead

guilty]. He understands the consequences of what he

is doing today. He is also aware of the likely

outcome of the further proceedings.

Specifically, he has directed me not to contact

any witnesses or to call any medical personnel who

have interviewed and talked with him. He

understands that there are statutory aggravating

circumstances and that the likely result will be the

imposition of the death penalty.

THE COURT: You heard the statement of your

counsel. Is there anything you wish to add to that at

this point?

THE DEFENDANT: No, Your Honor.

39

...

(App. at 137-38.)

The court then asked Taylor whether he admitted to each of

the murders he was charged with, including the method of each

killing. Taylor admitted to committing each one. The court next

asked:

Also you have had the opportunity to review this

guilty plea colloquy with your attorney and you filled

it out? 22

22

Evanick assisted Taylor in filling out a “Guilty Plea

Colloquy” form. The form is ten pages long, and contains forty-

four questions, most of which required Taylor to supply a

handwritten answer, which he did. Taylor indicated in the form

that he had completed 13 years of education, including “2 yrs of

electrical and 3 yrs of electronic” school. (App. at 329.) The form

asked, “[i]f you are presently being treated for a mental illness, do

you still feel that you can cooperate with your attorney,

comprehend what you are doing today, understand what these

questions mean and know why you must answer these questions?”

Taylor answered “No, Yes.” Taylor also affirmed on the form,

among numerous other things, that he understood that he was

entering a guilty plea (question 15); his attorney had explained all

of the elements of the crime (question 16); he admitted doing all of

things a person must do to be held guilty of the crimes he was

charged with (question 17); he understood the presumption of

innocence, and waiver of that presumption (question 18); he

understood his absolute right to a trial before a jury to determine

his guilt or innocence, and affirmed that he knew of all the rights

he had in the course of a trial (questions 19a-19i); he understood he

could waive his guilt-phase jury right and have the judge decide his

case in its entirety (question 20); he understood that if he pleaded

guilty he would be accepting that he was properly charged

(question 21) and that his guilty plea would terminate his right to

be heard on any challenge the propriety of the charges against him

(question 22); he understood his right to be represented by counsel

40

THE DEFENDANT: Yes.

THE COURT: And from discussing the colloquy

with him, do you understand your trial rights?

THE DEFENDANT: Yes.

THE COURT: And by pleading guilty you are giving

up those rights?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions at all

about anything that is happening today or anything

that has been involved in this whole process from

(question 23); he understood that for first degree murder the court

could impose the death penalty, and that lesser sentences were

available for lesser degrees of murder and manslaughter (question

25); he was not coerced directly or indirectly to enter the plea

(question 35); and he was doing so of his own free will (question

36).

Taylor now argues that any reliance on this form is improper

because the form misleadingly suggested that he would not have

the opportunity to present witnesses at his degree-of-guilt hearing,

and would not be allowed to challenge any trial court errors.

Taylor Br. at 49-50 n.24. If the form had misled Taylor by

erroneously informing him that his post-plea rights were more

extensive than they actually were, we agree that the form might

undermine the validity of Taylor’s plea, depending on the

remainder of the record. We cannot agree, however, that his choice

to plead guilty perhaps thinking that his post-plea rights were more

limited than they actually were, undermines the validity of his

guilty plea. This only shows Taylor would have chosen to plead

guilty in spite of these limitations. To the extent that the form’s

errors may have misled Taylor about his opportunity to present

witnesses at the degree-of-guilt phase, we will consider this

argument, below.

41

your discussions with your attorney or police or

anything that you want to call to the Court’s

attention at this time?

THE DEFENDANT: No.

THE COURT: Mr. Evanick indicates that you

advised him that essentially you don’t wish to

challenge your guilt in these matters and, in effect,

you are telling him to just plead guilty and get it over

with and that you will accept the result which he

thinks is likely to be the death penalty. Is that a

correct statement by you?

THE DEFENDANT: Yes, sir, sort of. Yes.

THE COURT: This would be a good time to add

anything you want to add if you want to correct it or

change it.

THE DEFENDANT: No. I plead guilty to my

charges and I accept it.

THE COURT: What you are saying is whatever

happens happens. . . .

And has Mr. Evanick had the opportunity to

go over with you the requirements for the charge of

criminal homicide, the legality of it telling you what

the elements of the offense are and telling you what

the Commonwealth would have to prove?

THE DEFENDANT: Yes.

THE COURT: And you are satisfied that you

understand what they are?

THE DEFENDANT: Yes.

(App. at 141-43.)

42

The court then questioned Taylor about whether counsel had

gone over with him the Commonwealth’s evidence of criminal

homicide, and whether Taylor understood that he was pleading

guilty to the general charge of homicide, and would later have the

opportunity to contest his degree of guilt, but that the death penalty

was possible. Taylor responded, “Yes.” (App. at 143-44.)

Counsel asked the court to advise Taylor in more detail about the

specific elements of homicide. The court did, explaining the

possible verdicts of first and third degree murder, voluntary

manslaughter, and involuntary manslaughter, as well as the

difference between murder and manslaughter, along with the

elements of the individual offenses. The court asked Taylor

whether he had any questions, and then asked him to give a brief

statement explaining precisely what happened the night of the

killings. Taylor complied, describing the murders in detail, up to

the point when he blacked out in the bathtub and found himself in

the hospital. The court then accepted the guilty plea “finding it to

be knowingly and voluntarily given.” (App. at 152.)

Next, at the combined degree-of-guilt and penalty-phase

hearing, the court began with argument on Taylor’s motion to

suppress his hospital statements:

THE COURT: . . . [A]re you aware that Mr. Evanick

thinks there may be some problems in regard to the

manner in which the police obtained those

statements, that you were not properly advised of

your rights prior to giving them?

THE DEFENDANT: Yes.

THE COURT: And if that is correct, the Court

would have a hearing and determine whether or not

you were properly advised of your rights, and that if

the Court found that you were not, it would be

possible that the Court would suppress those

statements; that is, not permit the Commonwealth to

use those statements in evidence against you here

today. That possibility exists, is what I'm telling

you. Do you understand you have that right?

43

THE DEFENDANT: Yes.

THE COURT: And your attorney’s telling me that

knowing that you have that right, you choose not to

exercise it, that you are telling your attorney, do not

file such a suppression motion, let the

Commonwealth use whatever evidence they want to

use, it doesn’t matter to me, I don’t want to suppress

it?

THE DEFENDANT: Yes.

THE COURT: And you had a sufficient opportunity

to talk to Mr. Evanick about that?

THE DEFENDANT: Yes.

(App. at 158-59.) Before Taylor chose to pursue his suppression

motion, however, he confirmed that a victory would not require

him to revoke his guilty plea:

THE DEFENDANT: [I]f I lose, they would still use

the statement, but if I win, I’d rather go on the road

I’m going now, plead guilty for my charges. . . .

...

I’m not dropping and I’m not going to fight it.

...

THE COURT: If we have a suppression hearing and

I rule in your favor . . . you are saying you still want

to leave your guilty plea in?

THE DEFENDANT: Yes.

THE COURT: And you still want to proceed to have

your hearing?

THE DEFENDANT: Yes.

(App. at 159-61.)

44

After the colloquy, the court heard evidence and granted

Taylor’s suppression motion.23 The court then reaffirmed Taylor’s

desire to plead guilty:

I have suppressed the statements at the hospital.

Those statements may not be introduced into

evidence against you.

Before we proceed, I do want to make sure

that you still wish to stand on your guilty plea and

proceed with the case. This was only a possibility

before. You now know. I have ruled in your favor.

I have suppressed those statements and I want to

know from you whether you still wish to proceed in

the manner that you indicated earlier, whether you

still wish to let your guilty plea stand and whether

you still wish to proceed with the Degree of Guilt

Hearing at this time?

THE DEFENDANT: Yes, proceed with the guilty

plea, and go on the same road I’m going now.

(App. at 193-94.)

After the Commonwealth’s six witnesses testified in detail

about the circumstances surrounding the murders the court

announced a recess. As soon as the hearing resumed, defense

counsel stated that he had no argument on the degree of guilt, and

the court read aloud the elements of first degree murder and found

Taylor guilty of the charges.

The first PCRA court credited counsel’s testimony that it

was Taylor’s informed decision not to contest the first-degree

murder charge. Counsel stated:

Paul told us about using cocaine before the murders

23

Taylor’s June 15 letter of confession contained the same

incriminating information as his hospital statement, and was not

suppressed.

45

occurred and during—while the murders were

occurring. He mentioned the prior use to Dr. Sadoff.

But Paul did not want to exercise any of his rights

and testify or present that defense.

...

[There] was nothing from what Paul was telling us

that the cocaine caused him not to understand what

he was doing or not to understand that it was wrong.

(App. at 273-75) (emphasis added). The court then found that

there was discussion with Mr. Evanick about use of

both alcohol and drugs and that Mr. Taylor made

the decision not to present that testimony or any

other testimony; that Mr. Evanick explained to Mr.

Taylor his right to present testimony both by himself

or by witnesses . . . but that he left it up to Mr.

Taylor to make the final decision as to what

witnesses would be called; and that Mr. Taylor

acting out of remorse and being upset with what had

occurred and wishing to receive the death penalty as

being the only acceptable atonement for his actions

decided not to call those witnesses and to proceed in

the fashion that he did knowing and accepting the

fact that it would lead directly to a death penalty.

(App. at 278.) (emphasis added).

D. Adequacy of The State Court Record

Taylor argues that his on-the-record waivers were

constitutionally deficient because (1) the trial court failed to

undertake a “penetrating and comprehensive” inquiry into the

impact of Taylor’s mental health; (2) the court relied heavily on a

pre-printed waiver form; and (3) the court did not discuss the range

of punishments allowable for lesser degrees of murder, knowing

that there were facts supporting defenses to first degree murder.

We address each of these contentions in turn.

First, Taylor argues that the current state court record is

46

insufficient to judge whether his guilty plea and other waivers were

knowing and voluntary. This argument relies largely on the

findings contained in new affidavits Taylor has obtained from Mr.

Briercheck, Drs. Sadoff, Blair, and Dudley. None of this evidence

is part of the state court record and the District Court denied

Taylor’s request for an evidentiary hearing on the issue.

Because Taylor’s “knowing and voluntary” waiver claims

were new to his second PCRA petition, which was barred by an

inadequate state procedural rule, see supra, we cannot say that

Taylor, by his own fault, failed to establish the factual basis for this

claim under § 2254(e)(2). See Wilson, 426 F.3d at 665. Yet, a

petitioner who diligently but unsuccessfully seeks an evidentiary

hearing in state court still is not entitled to an evidentiary hearing

in federal court under AEDPA. Rather, as we explained

previously, whether to hold a hearing for a petitioner who is not at

fault under § 2254(e)(2) remains in the discretion of the district

court, and depends on whether the hearing would “have the

potential to advance the petitioner’s claim.” See Campbell, 209

F.3d at 287.

We will therefore consider whether this after-acquired

evidence raises an issue that warrants an evidentiary hearing. In

doing so, we review the District Court’s decision not to hold a

hearing for abuse of discretion. But, we will only consider this

evidence to the extent it bears on the knowing and voluntary nature

of Taylor’s plea—we will not revisit our determination that

AEDPA bars a new hearing on competency.

1. Updated Briercheck Affidavit

First, Taylor proffers testimony from Mr. Briercheck, who

has submitted an updated affidavit. He opines, based on a more

recent reevaluation of Taylor and newly available background

material, that Taylor’s decision to waive his rights was “the result

of his grief reaction and his depression.” (App. at 383.) This new

evidence does not warrant a hearing. The fact that an otherwise

competent waiver is the “result” of grief and depression, does not

mean that it was not “an intentional relinquishment or

abandonment of a known right or privilege.” Zerbst, 304 U.S. at

47

464.

Next, Mr. Briercheck suggests that Taylor’s psychological

disturbances in 1991 make it difficult to determine whether

Taylor’s waivers were knowing and voluntary by looking only at

his statements in court. (App. at 382-83.) Fortunately, as the record

currently stands, we have more than Taylor’s statements to

consider. We also have Briercheck’s original, pre-trial report in

which he expressed no reservations about Taylor’s ability to

proceed with the legal aspects of his case. In this report, Mr.

Briercheck reached his conclusion despite his contemporaneous

finding that Taylor was “struggling psychologically,” App. at 317;

despite the fact that his “testing did clearly show that [Taylor] was

suffering from depression with secondary anxiety features,” and a

“profound grief reaction,” App. at 381 (referring to testing in

1991); despite his diagnosis of “Depressive Disorder with

Secondary Anxiety Features;” and despite his recognition that

Taylor’s “coping skills and defenses [were] extremely taxed,” App.

at 317.

In short, no evidentiary hearing is needed to evaluate

Briercheck’s new diagnoses, because his observations before

Taylor pleaded guilty reveal the same functional limitations that he

noted in his new affidavit. Assuming Taylor was competent, as we

have concluded, we are confident on this record that his depression,

anxiety, and grief did not undermine the knowing or voluntary

nature of his plea.

2. Updated Sadoff Affidavit

Second, Taylor proffers testimony from Dr. Sadoff, who

also submitted an updated affidavit. In it, Sadoff concluded that

Taylor’s waivers were the result of his depression, disturbed mental

state, and desire to commit suicide. However, like Briercheck’s

new affidavit, these clinical findings are consistent with Sadoff’s

findings in 1991—which he does not retract—that despite his

disturbed mental state and depression, Taylor “kn[ew] the nature

and consequences of his current legal situation,” and was able to

48

“work with counsel in preparing his defense.” 24 (App. at 326.)

Sadoff’s new affidavit fails to raise an issue about the knowing and

voluntary nature of Taylor’s waivers because it tells us nothing new

about whether Taylor actually and intentionally abandoned his

known rights.

3. Dudley Affidavit

Third, Taylor proffers testimony from Dr. Dudley, who

evaluated him for the first time more than seven years after the

guilty plea. Dudley diagnosed Taylor with longstanding Borderline

Personality Disorder, and states that “symptoms present in Mr.

Taylor’s case prevented him from . . . making knowing, intelligent

and voluntary waivers of his rights.” (App. at 369.) He also

indicates that at the time Taylor waived his rights he was suffering

from a “Major Depressive Episode.” (App. at 368.) Notably, Dr.

Dudley states that Taylor’s Borderline Personality Disorder caused

a psychotic breakdown in 1991 that was well documented by Mr.

Briercheck and Drs. Elyan and Sadoff. And we already know,

from Briercheck’s and Sadoff’s 1991 reports, that Taylor’s suicidal

ideation and depression did not otherwise impair his ability to assist

24

Sadoff’s 1991 evaluation of Taylor shows that he

appreciated the contours of Taylor’s mentally disturbed and

suicidal state. In it, he noted Taylor’s reports of auditory

hallucinations—voices telling Taylor what to do on the night of the

murders and for a month after he was admitted to the medical unit

in prison. He also reported that he had received and agreed with

Dr. Elyan’s May 1991 report, which gave Taylor a diagnosis of

“acute grief reaction, possible cocaine induced psychosis, and

history of cocaine and alcohol abuse.” (App. at 325.) And, in his

updated affidavit, Sadoff reiterated that at the time he initially

evaluated him, Taylor “remained severely depressed and continued

to suffer from an acute grief reaction.” (App. at 378.) In spite of

all these issues, Sadoff concluded in 1991 that Taylor was “not

actively suicidal at present, and [was] no longer hearing voices,” he

“appear[ed] to have recovered from the acute situational

disturbance that occurred in May 1991,” and was “currently

mentally competent to proceed.” (App. at 326.)

49

counsel and proceed with the legal aspects of his case. The legal

conclusions Dr. Dudley reaches based on facts that are already in

the record—that Taylor’s waivers were not “knowing, intelligent

and voluntary”—do not warrant an evidentiary hearing on that

issue. See Landrigan, 127 S. Ct. at1940 (“[I]f the record refutes

the applicant’s factual allegations or otherwise precludes habeas

relief, a district court is not required to hold an evidentiary

hearing.”) (citing Totten v. Merkle, 137 F.3d 1172, 1176 (1998)

(“[A]n evidentiary hearing is not required on issues that can be

resolved by reference to the state court record.”) (emphasis

deleted)).

4. Blair Affidavit

Fourth, and finally, Taylor offers the expert testimony of Dr.

Blair, who also met Taylor for the first time nearly seven years

after he pleaded guilty. Like Dr. Dudley, Dr. Blair diagnosed

Taylor with longstanding borderline personality disorder. Contrary

to Dr. Elyan’s, Mr. Briercheck’s, and Dr. Sadoff’s psychiatric

evaluations conducted in 1991, Blair opines that Taylor “remained

suicidal throughout the trial proceedings in late 1991 and early

1992.” (App. at 374.) In Blair’s opinion, Taylor’s “waivers were

a passive way of committing suicide and were the product of his

mental confusion, disorganization and depression rather than

rational thinking.” (App. at 374.) Blair concludes from these

observations that Taylor’s waivers were not “voluntary, knowing,

and intelligent,” but her focus is entirely on Taylor’s potentially

disordered motivation for seeking the death penalty. Thus,

although she uses the terms “knowing and voluntary,” the

substance of her proposed testimony assesses Taylor’s

competency—his “ability to understand the proceedings” in

1991—not whether he actually did understand the “significance

and consequences” of his decisions and whether they were

uncoerced. See Godinez, 509 U.S. at 401 n.12.

In short, Taylor’s proffered evidence sheds no new light on

whether his plea and other waivers were knowing and voluntary.

The District Court’s denial of an evidentiary hearing on the

knowing and voluntary character of the plea or waivers was

50

therefore not an abuse of discretion.25 See Landrigan, 127 S. Ct. at

1940.

E. Taylor’s Remaining Guilt-Phase Waiver Arguments

Taylor’s remaining arguments challenge the validity of his

waivers based on the state court record as it currently stands. First,

Taylor argues that the trial court’s failure to advise him of his

potential defenses to first-degree murder invalidates his plea and

waiver of defenses. Putting aside the fact that Taylor did

acknowledge his understanding of the range of punishments for

lesser degrees of homicide in his written waiver, the record shows

that he chose to plead guilty after the court informed him of all

lesser degrees of culpability, and the elements that the

Commonwealth was required to prove for each. Moreover,

Taylor’s discussions with Mr. Briercheck, Dr. Sadoff, his counsel,

and the trial court, show that he was well aware that the death

penalty was a possible consequence of a first degree murder

conviction.

Federal law requires no more detailed colloquy than what

Taylor received. See United States v. Thomas, 389 F.3d 424 (3d

Cir. 2004), vacated on other grounds, 545 U.S. 1125 (2005)

(stating, in the context of a federal criminal trial, that defendants do

not have a right to be “advised of possible defenses, such as

voluntary intoxication, during [a] plea colloquy”); United States v.

Broce, 488 U.S. 563, 573-74 (1989) (“Relinquishment derives not

from any inquiry into a defendant’s subjective understanding of the

range of potential defenses, but from the admissions necessarily

made upon entry of a voluntary plea of guilty”). Where, as here, the

defendant fully “understands the nature of the right [being waived]

25

We are not suggesting that mental health evidence is

never relevant to whether a plea is knowing and voluntary, rather,

we reach our conclusion, here, because this particular mental

health evidence—while it uses the words “knowing and

voluntary”—is clearly focused on Taylor’s competence, and does

not raise questions about Taylor’s waivers under the standards set

in Boykin, Godinez, VonMoltke, or any other relevant federal law.

51

and how it would apply in general in the circumstances,” he may

knowingly and intelligently waive that right “even though [he] may

not know the specific detailed consequences of invoking it.” Ruiz,

536 U.S. at 629.

Second, though we agree with Taylor that a pre-printed

waiver form alone does not satisfy Boykin’s requirements, the form

here—which Taylor reviewed with the assistance of counsel—was

supplemented with an adequate oral colloquy.

Third, considering the first PCRA court’s finding that

Taylor instructed counsel not to present any testimony at the

degree-of-guilt hearing, counsel’s in-court statement waiving

defenses to first degree murder clearly represented Taylor’s

knowing and voluntary choice. The record shows that Taylor

apprehended the nature of the charges, the statutory offenses

included within them, the possibility of the death penalty and “all

other facts essential to a broad understanding of the whole matter,”

yet he repeatedly and clearly insisted on his right to plead guilty

and not to present any testimony. See Peppers, 302 F.3d at 135

(internal quotation marks omitted). Because he was competent to

make those decisions, his private motivation does not undermine

their validity under federal law.

In sum, an evidentiary hearing on the knowing and

voluntary character of Taylor’s guilty plea and related waivers is

not warranted. The current record—including the mental health

evidence from 1991—fully supports the District Court’s conclusion

that Taylor appreciated the significance of his plea, despite his

depression, grave remorse, and other mental deficiencies. With full

information and understanding, Taylor repeatedly and clearly

indicated his desire to plead guilty and waive his rights. We will

therefore affirm the District Court’s decision that these waivers

were knowing and voluntary.

F. Ineffective Assistance of Counsel:

Guilty Plea and Waiver of Related Rights (Claim 5)

Taylor argues, next, that trial counsel was ineffective for

failing to ensure that his waivers were knowing and voluntary.

52

(Taylor Br. at 56-58.) This argument is belied by the record, which

shows that trial counsel repeatedly and unambiguously explained

to Taylor the consequences of waiving his rights, and that Taylor

repeatedly and unambiguously expressed his desire to waive them.

Taylor’s argument that counsel should not have permitted him to

make any decisions because of his incompetence has already been

addressed. Based on our review of the record, and adopting the

District Court’s well-reasoned discussion of this issue, counsel’s

performance with respect to Taylor’s guilty plea was not

constitutionally deficient under Strickland, 466 U.S. at 687-88.

VI. Waiver of Penalty Phase Jury (Claim 6)

Taylor claims that he never knowingly and voluntarily

waived his right under 42 Pa. Cons. Stat. Ann. § 9711(b) to have

his sentence determined by a jury. The state’s failure to follow its

own rules of criminal procedure, he argues, violated his Eighth and

Fourteenth Amendment due process rights under the federal

Constitution. Because this claim has not been addressed on the

merits by the state courts we review it de novo.

A capital defendant does not have a federal constitutional

right to be sentenced by a jury, and states are free to determine

whether a judge or jury makes the ultimate sentencing decision.

Spaziano v. Florida, 468 U.S. 447, 464-65 (1984). Section 9711(b)

of Pennsylvania’s death penalty statute provides that

[i]f the defendant has waived a jury trial or pleaded

guilty, the sentencing proceeding shall be conducted

before a jury impaneled for that purpose unless

waived by the defendant with the consent of the

Commonwealth, in which case the trial judge shall

hear the evidence and determine the penalty in the

same manner as would a jury. . . .

42 Pa. Cons. Stat. Ann. § 9711(b). Under Pennsylvania law, a

waiver of rights under § 9711(b) must be on the record and

“calculated to insure the defendant comprehends the nature and

significance of the right being waived.” Commonwealth v. Fears,

836 A.2d 52, 70 (Pa. 2003).

53

Even assuming the state court failed to follow the law of

Pennsylvania, in this federal habeas case, we are limited to

deciding whether Taylor’s conviction and sentence “violated the

Constitution, laws, or treaties of the United States.” Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991). It is well established that “a

state court’s misapplication of its own law does not generally raise

a constitutional claim. The federal courts have no supervisory

authority over state judicial proceedings and may intervene only to

correct wrongs of constitutional dimension.” Geschwendt v. Ryan,

967 F.2d 877, 888-89 (3d Cir. 1992) (en banc) (quoted in Johnson

v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997)).

Taylor argues that the state court’s failure to obtain a

knowing and voluntary waiver of his penalty-phase jury right was

a federal due process violation under Hicks v. Oklahoma, 447 U.S.

343 (1980). In Hicks, an Oklahoma trial court instructed a jury that

if it found the defendant guilty of distributing heroin, it must

sentence him to a 40-year term of imprisonment as an habitual

offender. Id. at 344-45. But after the trial, the Oklahoma Court of

Criminal Appeals declared the mandatory sentencing statute

unconstitutional in an unrelated case. Id. at 345. On appeal, Hicks

sought to have his 40-year sentence vacated in view of the

unconstitutionality of the habitual offender provision. Id. The

Court of Criminal Appeals acknowledged that the provision was

unconstitutional, but affirmed Hicks’s sentence nonetheless,

reasoning that since it was within the range of punishment that

could have been imposed by a new jury, he had not been

prejudiced. Id.

The Supreme Court vacated and remanded the case,

explaining that Hicks had a “substantial and legitimate expectation

that he w[ould] be deprived of his liberty only to the extent

determined by the jury in the exercise of its statutory discretion,

and that liberty interest is one that the Fourteenth Amendment

preserves against arbitrary deprivation by the State.” Id. at 346

(internal citation omitted). Oklahoma had denied Hicks “the jury

sentence to which he was entitled under state law, simply on the

frail conjecture that a jury might have imposed a sentence equally

as harsh as that mandated by the invalid habitual offender

54

provision.” 26 Id. “Such an arbitrary disregard of the petitioner’s

right to liberty,” the Court held, “is a denial of due process of law.”

Id.

“Hicks involved an unusual situation which the Supreme

Court concluded required due process treatment.” Johnson, 117

F.3d at 113. Thus, the Supreme Court has not applied Hicks to

mean that “every error of state law affecting the outcome of a state

criminal proceeding would be cognizable as a due process claim.”

Id. If the Court did, “the district courts in habeas cases effectively

would become state appellate courts one rung above the state

courts of last resort.” Id. Importantly, in Hicks, the prejudice the

defendant suffered because of the state’s error heavily influenced

the Court’s decision: “[t]he possibility that the jury would have

returned a sentence of less than 40 years is . . . substantial,” the

Court explained, and “therefore, [the state court was] wholly

incorrect to say that the petitioner could not have been prejudiced

by the instruction requiring the jury to impose a 40-year prison

sentence.” 447 U.S. at 346.

Accordingly, when considering whether an error under state

law implicates due process, “we require more than that the

defendant simply be prejudiced . . . . The standard requires that the

defendant be prejudiced in a very particular way.” Smith v. Horn,

120 F.3d 400, 416 (3d Cir. 1997) (internal quotation marks

omitted). In Smith, we required that “the erroneous jury

instructions [must] have operated to lift the burden of proof on an

essential element of an offense as defined by state law.” Id.; see

also Hill v. Estelle, 653 F.2d 202, 205 (5th Cir. 1981) (holding that

error in minimum possible sentence did not implicate Hicks when

actual sentence given was large enough to show that error did not

prejudice defendant).

Here, we agree with Taylor that we cannot presume, based

on a silent record, that he knowingly and voluntarily waived his

26

Had the members of the jury been correctly instructed in

Hicks, they could have imposed any sentence above a minimum of

ten years. See id. (citing Okla.Stat., Tit. 21, § 51(A)(1) (1971)).

55

state law right to a penalty phase jury. See Boykin, 395 U.S. at

242; Fears, 836 A.2d at 70. But we still must determine whether

Taylor was prejudiced in a way that implicated his federal

constitutional rights. Cf. Geschwendt, 967 F.2d at 888 (rejecting

defendant’s claim of prejudice, and finding no federal due process

violation even assuming state disregarded its own law). Critically,

Taylor does not argue that having a judge determine his sentence

prejudiced him any way that implicates his federal rights. Indeed,

there were substantial strategic reasons not to elect a penalty-phase

jury in this case, and Taylor has never asserted that he would have

elected one, had he known of the option. And because Taylor does

not suggest that he wanted a penalty-phase jury, he cannot support

his ineffective assistance of counsel claim either, because he cannot

show prejudice to satisfy Strickland’s second prong. Accordingly,

we cannot hold on this record that the alleged state law error

violated the Due Process Clause of the federal Constitution.

VII. Taylor’s Penalty-Phase Ineffective Assistance of

Counsel Claims

and Waiver Claims (Claims 7 and 8)

Taylor’s next argument is that trial counsel failed to

investigate, present, and argue mitigating evidence at the penalty

phase, and his deficient performance prejudiced the defense.

(Taylor Br. 76-84.) Specifically, he argues that counsel failed to:

promptly investigate Taylor’s mental health; follow up on the

Sadoff and Briercheck reports; develop life-history mitigation;

develop and present evidence of substance abuse and dependence;

or argue for a life sentence based on the mitigating evidence that

was already in the record. Because of counsel’s failure to

investigate, Taylor argues that his decision not to present mitigation

evidence was not knowing and voluntary.

A. State Court Proceedings on Counsel’s Assistance in the

Penalty Phase

and Standards of Review

1.

At the hearing on his first PCRA petition, Taylor testified

56

that he had instructed counsel not to present any witnesses at the

degree of guilt or penalty phases. He testified, however, that

counsel should have taken “all authority and represented me . . .

which he did not because he let me decide my fate. And I wasn’t

really up to deciding nothing because of my—my stress I was

under and—and the remorse I had for what I’ve done.” (App. at

254.) He testified, further, that at the time of his proceedings: “I

wanted to plead guilty and—but mostly all—I just wanted to take

my life.” (App. at 256.)

In terms of specific mitigation evidence, Taylor testified that

counsel should have called as witnesses “family members, friends,

employees, [and] bosses,” who could have testified that he had a

good home life with his wife and children, but that he also had a

drug and alcohol problem. (App. at 254-55.) He admitted that

counsel wanted to call some of these witnesses, but that he told

counsel: “I didn’t want to put them under that pressure because . .

. it’s a high profile case and I didn’t want to put my family through

that, you know, whether it be from my family or my wife’s family.

I didn’t want to . . . put them under all this pressure that was

brought on.” (App. at 261.) When asked whether he had made

telephone calls shortly before the hearing and told witnesses not to

appear, Taylor replied: “I don’t recall that, no.” (Id.)

On cross-examination, Taylor admitted that trial counsel

wanted the hospital statements suppressed and to go to trial, but

that he resisted this advice: “I just wanted to plead guilty and . . .

[a]bout that time . . . I started serving God and found God in my

life and I wanted to do . . . the right thing and I told him, no, I don’t

want to go to trial, I’ll plead guilty to what I have done. . . .” (App.

at 257.) The Commonwealth attorney asked Taylor whether

counsel investigated Taylor’s mental health issues, and he replied:

“The Court . . . brung a psychiatrist to see me and I think Evanick

brought one, too, but he never told me the outcome of—of what

they said.” (App. at 258.)

The court then questioned Taylor about his decision not to

present mitigating evidence. Taylor first described how on the

night of the murders he consumed alcohol and cocaine, and

afterwards, various household poisons in a suicide attempt. Taylor

57

explained that counsel had this information at the time of the guilty

plea, but Taylor did not know whether the trial court was aware of

it. The court then asked the following:

THE COURT: Essentially you prevented him from

presenting anything that would have caused the

death penalty not to be imposed, did you not?

You instructed him not to call witnesses on your

behalf and not to present any evidence that would, is

that what you’re indicating?

THE DEFENDANT: Yes, because —

THE COURT: And what you are saying today is that

you were in a mental state such that you were

incapable of making that decision, that Mr. Evanick

told you that legally it was your choice and you had

the final say, and that you accepted that and you told

him not to do it? And you’re saying today that was

the wrong decision and because of your mental state

you weren’t capable of making that decision and Mr.

Evanick shouldn’t have le[t] you make the decision?

THE DEFENDANT: Right.

THE COURT: Does that sum it up?

THE DEFENDANT: Yes, something like that.

(App. at 263-64.)

Trial counsel testified next, and stated that, in his view,

Taylor had been competent to make decisions and fully capable of

understanding the proceedings. Counsel testified, further, that

Taylor was adamant about not presenting witnesses, and even

telephoned scheduled witnesses the night before the degree-of-guilt

and penalty hearing, telling them not to appear. Counsel stated that

he knew “a great deal about Paul’s background but Paul wanted

none of that presented.” (App. at 270.)

58

When asked specifically about Dr. Sadoff’s evaluation,

counsel explained that it was submitted to the trial judge, but

counsel “read the report,” which “indicated that Paul was

competent and that Paul had no apparent defense.” (App. at 272.)27

Counsel testified that he advised Taylor about Dr. Sadoff’s

findings, and discussed with him the relevance of his cocaine use:

“Paul told us about using cocaine before the murders occurred and

during—while the murders were occurring. He mentioned the

prior use to Dr. Sadoff. But Paul did not want to exercise any of

his rights and testify or present that,” either as a defense or in

mitigation. (App. at 273.) On cross-examination, counsel

reiterated his belief that there “was nothing from what Paul was

telling us that the cocaine caused him not to understand what he

was doing or not to understand that it was wrong.” (App. at 275.)

Based on Taylor’s and counsel’s testimony, the first PCRA

court found the following facts bearing on effectiveness of counsel:

The Court finds Mr. Taylor’s testimony today

to be truthful. We believe that it is correct that he

instructed Mr. Evanick not to present testimony, that

he had discussed the possibility of having testimony

by various friends, associates, employers, coworkers

with Mr. Evanick and elected not to call them and, in

fact, he made the phone calls to tell those witnesses

not to come in.

Also that there was discussion with Mr.

Evanick about use of both alcohol and drugs and that

Mr. Taylor made the decision not to present that

testimony or any other testimony; that Mr. Evanick

explained to Mr. Taylor his right to present

testimony both by himself or by witnesses and that

— but that he left it up to Mr. Taylor to make the

final decision as to what witnesses would be called;

and that Mr. Taylor acting out of remorse and being

upset with what had occurred and wishing to receive

27

We note that the report actually is addressed to counsel.

59

the death penalty as being the only acceptable

atonement for his actions decided not to call those

witnesses and to proceed in the fashion that he did

knowing and accepting the fact that it would lead

directly to a death penalty.

...

It’s clear that counsel has the obligation of

explaining these matters to the Defendant and

allowing him to make all of these decisions and that

they’re the decisions of the Defendant not the

decisions of counsel.

(App. at 277-78.) The court then concluded that because Taylor

was competent to make decisions about his case, and his remorse

was not a legal impediment, it was appropriate for counsel to defer

to Taylor’s wishes.

Taylor II affirmed the first PCRA court’s dismissal of

Taylor’s petition, discussing its prior decisions in Commonwealth

v. Morales, 701 A.2d 516 (Pa. 1997), Commonwealth v. Beasley,

678 A.2d 773 (Pa. 1996), and Commonwealth v. Sam, 635 A.2d

603 (Pa. 1993), which held that defense counsel has no duty to

introduce and argue evidence of mitigating circumstances where

his client has specifically directed otherwise.28 718 A.2d at 744-45.

Concluding that Taylor’s case was indistinguishable from Morales,

Beasley, and Sam, the Court explained:

[T]he record in this case clearly supports the PCRA court’s

findings that Taylor made the decision not to present evidence in

the penalty phase and that he did so contrary to the

recommendations and advice of trial counsel. In addition to

Taylor’s having had the benefit of the advice of trial counsel, the

28

The Supreme Court of Pennsylvania has held that its

analysis of ineffective assistance of counsel claims under these

cases is identical to Strickland, 466 U.S. 668, and we agreed in

Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000).

60

trial court in various colloquies also advised him of his rights and

probed whether his decisions were rational and properly

informed. Like trial counsel, the trial court specifically advised

Taylor of his right to defend against imposition of the death

penalty, including the right to present mitigating circumstances,

and that the likely result of the failure to do so would be the

imposition of a sentence of death. Under these circumstances,

counsel cannot be deemed ineffective for failing to override

Taylor’s decision not to present such evidence.

Id. at 745.

2.

The District Court determined that Taylor’s penalty-phase

ineffective assistance of counsel claims were not considered on the

merits by the state courts. We disagree and will therefore review

these claims under § 2254(d). The state court record, which we

recounted above, shows that the first PCRA court considered

whether Taylor instructed counsel not to present mitigating

evidence and whether Taylor was competent to make that decision.

See, e.g., App. at 277-80; see also Taylor II, 718 A.2d at 744-45.

The only exception is Taylor’s claim that he did not

knowingly and voluntarily waive his right to present mitigation

evidence. The state courts did not squarely address this issue.

Without deciding whether this is truly an independent claim or,

rather, an argument that Taylor should have raised when his

competence was litigated before the first PCRA court, we will

review the question de novo. We do so because under either

standard of review, the claim lacks merit. See, e.g., Holloway v.

Horn, 355 F.3d 707, 719 & n.6, 729 (3d Cir. 2004) (reviewing de

novo and under AEDPA, noting that result would be the same

under either standard).

Moreover, because Taylor sought an evidentiary hearing

before the District Court in order to present new mitigating

evidence that trial counsel had failed to uncover, we must evaluate

Taylor’s failure to establish the factual basis for his ineffective

assistance claim under § 2254(e)(2). To the extent that the state

61

courts did make factual findings relevant to counsel’s assistance,

they are binding unless Taylor can rebut “the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1); Appel, 250 F.3d at 210.

B. Federal Standards: Ineffective Assistance of Counsel in

the Penalty Phase

We evaluate counsel’s assistance in the penalty phase of a

death penalty case in light of the fundamental constitutional

requirement that the fact-finder render a decision based upon full

consideration of available mitigating evidence. Williams, 529 U.S.

at 393; Eddings v. Oklahoma, 455 U.S. 104, 110-12 (1982). The

“catch-all” provision of Pennsylvania’s death penalty statute, 42

Pa. Cons. Stat. Ann. § 9711(e)(8), permits the fact-finder to

consider “[a]ny . . . evidence of mitigation concerning the character

and record of the defendant and the circumstances of his offense.”

To ensure this is a meaningful process, counsel has an

“obligation to conduct a thorough investigation” for mitigating

evidence. Williams, 529 U.S. at 396 (citing 1 ABA Standards for

Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980)). The

investigation must include “efforts to discover all reasonably

available mitigating evidence,” including information about

“medical history, educational history, employment and training

history, [and] family and social history.” Wiggins v. Smith, 539

U.S. 510, 524 (2003) (quoting ABA Guidelines for the

Appointment and Performance of Counsel in Death Penalty Cases,

§§ 11.4.1(C), 11.8.6 (1989) (emphasis omitted)); accord Rompilla

v. Beard, 545 U.S. 374, 380-81 (2005). We evaluate counsel’s

investigation under Strickland’s reasonableness standard, based on

prevailing professional norms, such as those found in the ABA

Standards for Criminal Justice. See Outten v. Kearney, 464 F.3d

401, 417 (3d Cir. 2006).

Applying these standards in Wiggins, the Supreme Court

held that counsel’s decision not to expand his investigation of the

defendant’s life history beyond the pre-sentence investigation

report and Department of Social Services records fell short of

62

prevailing professional standards. The Court reasoned that

prevailing norms of practice as reflected in the 1989 ABA

standards were guides to determining what is reasonable, 539 U.S.

at 522, and the pre-sentence report and records provided valuable

leads that counsel unreasonably ignored: “[A]ny reasonably

competent attorney would have realized that pursuing these leads

was necessary to making an informed choice,” particularly given

the absence of prior convictions or other negative information

(such as a history of violence) in Wiggins’s background. Id. at

525.

Similarly, the Supreme Court held in Rompilla, 545 U.S.

374, that “even when a capital defendant’s family members and the

defendant himself have suggested that no mitigating evidence is

available, his lawyer is bound to make reasonable efforts to obtain

and review material that counsel knows the prosecution will

probably rely on as evidence of aggravation at the sentencing phase

of trial.” Id. at 377. In Rompilla, further effort on counsel’s part

would have unearthed school, medical, and prison records showing

severe psychological deficits and evidence of a highly abusive

home life. Id. at 390-93.

The Supreme Court, however, recently distinguished

Wiggins and Rompilla, in the situation in which a defendant

prevents his attorney from presenting mitigating evidence. See

Schriro v. Landrigan, 127 S. Ct. 1933, 1942 (2007). The defendant

in Landrigan, Jeffrey Landrigan, was convicted of first degree

murder. His counsel had two witnesses prepared to testify at the

penalty phase (Landrigan’s mother and his ex-wife), but Landrigan

asked them not to testify. Id. at 1937. In addition to his

instructions to counsel, Landrigan had several outbursts in open

court opposing counsel’s presentation of mitigation evidence. Id.

at 1937-38. For example, when counsel attempted to explain some

of the state’s aggravating evidence in a more mitigating light,

Landrigan verbally attacked counsel, and made comments that

made the state’s aggravating evidence sound even worse than the

state’s presentation. Id. at 1938, 1941. When the trial judge asked

Landrigan if he had instructed his lawyer not to present mitigating

evidence, Landrigan responded affirmatively. Id. at 1941. And

when the court asked whether there were mitigating circumstances

63

it should be aware of, Landrigan replied, “Not as far as I’m

concerned.” Id.

Despite his recalcitrance at trial, Landrigan later filed a

federal habeas petition alleging, among other things, ineffective

assistance of counsel for failure to investigate and present

mitigation. The Supreme Court reversed the Ninth Circuit’s grant

of habeas relief because (1) the state courts’ factual findings that

Landrigan instructed counsel not to present any mitigating evidence

were reasonable; and (2) the state court reasonably concluded that

a defendant who refused to allow the presentation of any mitigating

evidence could not establish Strickland prejudice based on his

counsel’s failure to investigate further. Id. at 1941-42; see also

Shelton v. Carroll, 464 F.3d 423, 440 (3d Cir. 2006) (holding that

counsel’s reliance on defendant’s “deliberate and strategic

determination that he ought not present mitigating evidence does

not rise to the level of unreasonableness under Strickland”).

Landrigan also argued that his decision to present mitigating

evidence was not informed and knowing. Id. at 1942. The

Supreme Court found this claim lacked merit as well, because the

Court “ha[s] never imposed an informed and knowing requirement

upon a defendant’s decision not to introduce evidence.” Id.

(internal quotation marks omitted).29

C. Taylor’s Penalty-Phase Ineffective Assistance of Counsel

Claims

29

Even assuming such a requirement, the Court held that

Landrigan would not be entitled to relief for three reasons: (1) he

had failed to develop the factual basis for this claim in the state

courts; (2) the record showed that counsel had “carefully

explained” the importance of mitigating evidence and the Court has

“never required a specific colloquy to ensure that a defendant

knowingly and intelligently refused to present mitigating evidence”

and (3) it was apparent from Landrigan’s statements—“if you want

to give me the death penalty, just bring it right on. I’m ready for

it.”—that he clearly understood the consequences of asserting that

were no mitigating circumstances. Id. at 1943.

64

As a threshold matter, we will assume that Taylor’s newly

proffered mitigation evidence, showing that he was raised in an

impoverished, alcoholic, neglectful, perverse, and physically

violent home, could have influenced the state trial court to impose

life sentences instead of death. Nevertheless, even if the District

Court had held a hearing and determined that counsel’s failure to

uncover this evidence fell below the standards set out in Wiggins

and Rompilla, the Court still could not have granted the writ

because, under Landrigan, Taylor cannot show Strickland

prejudice.

We agree with Taylor that he was not belligerent and

obstructive in court like the defendant in Landrigan, 127 S. Ct. at

1944, but the record shows that his determination not to present

mitigating evidence was just as strong. Specifically, the first

PCRA court reasonably determined that: (1) Taylor refused to

allow the presentation of any mitigating evidence, and he called off

witnesses that were scheduled to appear; and (2) he was competent

to make those decisions. These factual determinations are

supported by the record from the first PCRA hearing that we have

recounted above, and also by Taylor’s and counsel’s statements on

the record at the guilty plea hearing.30 See 28 U.S.C. § 2254(d)(2).

Thus, whatever counsel could have uncovered, Taylor would not

have permitted any witnesses to testify, and was therefore not

prejudiced by any inadequacy in counsel’s investigation or decision

not to present mitigation evidence. See Landrigan, 127 S. Ct. at

1941.

Taylor further attempts to distinguish Landrigan, arguing

that, in his case, the first PCRA court made no specific finding that

30

Without reiterating all of this testimony here, we note that

Taylor admitted to the first PCRA court that he instructed counsel

not to present any testimony. Morever, the first PCRA court’s

decision to credit counsel’s testimony that Taylor called off

witnesses, as well as the court’s competency determination, which

we have already addressed, were both reasonable, based on the

record.

65

he would have prevented presentation of the mental health

evidence already available in the Sadoff and Briercheck reports.

The record shows, however, that the sentencing court had reviewed

the Sadoff report and was aware that Taylor had mental health

issues.31 To the extent supplemental testimony would have been

necessary at the penalty phase to elaborate on that report, Taylor’s

decision not to present witnesses would have prevented it. And to

the extent that Taylor’s newly obtained mental health evidence

(new reports from Mr. Briercheck, Drs. Sadoff, Dudley, and Blair)

would have made a difference, Taylor has no cognizable excuse for

his failure to present this evidence to the first PCRA court, which

heard testimony on Taylor’s ineffective assistance of counsel

claim. See 28 U.S.C. § 2254(e)(2).

We are also satisfied that Taylor’s decision not to present

mitigating evidence was informed and knowing. Counsel

addressed the trial court and stated that he had discussed with

Taylor the likelihood of a death sentence if no mitigating evidence

was presented, and Taylor did not disagree that he had been so

advised. It is clear from Taylor’s many colloquies with the trial

court that he understood the consequences of not presenting

mitigation evidence. In any event, the Supreme Court stated in

Landrigan that it “ha[s] never imposed an informed and knowing

requirement upon a defendant’s decision not to introduce

evidence.” 127 S. Ct. at 1942 (internal quotation marks omitted).

For all of these reasons, we will affirm the District Court’s

denial of an evidentiary hearing on ineffective assistance of

counsel at the penalty phase, denial of Taylor’s federal habeas

claims based on ineffective assistance of counsel at the penalty

phase, and denial of his claim challenging the validity of his

31

Dr. Sadoff’s original report discusses facts that were

potentially mitigating under 42 Pa. Cons. Stat. Ann. § 9711(e)(2)

(extreme mental or emotional disturbance) and § 9711(e)(3)

(substantially impaired capacity). The trial court was aware from

this report that, in one psychiatrist’s view, “the killings were a

product of [Taylor’s] aberrant state of mind,” and that “he was

responding to his mental disturbance.” (App. at 326.)

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decision not to present mitigating evidence.

VIII. Taylor’s Remaining Claims (Claims 9, 10 and 11)

We have focused, thus far, on what we view as Taylor’s

strongest claims. We have also carefully reviewed the record and

the briefs with respect to Taylor’s three remaining claims: that trial

counsel was ineffective for failing to investigate, develop, and

present the defenses of diminished capacity and voluntary

intoxication (Claims 9 and 10), and that Taylor was denied

effective assistance of counsel on direct appeal (Claim 11). We

adopt and affirm the District Court’s careful analysis of these

claims and agree that they are without merit.

IX. Conclusion

Taylor was competent throughout the proceedings, and

knowingly and voluntarily pleaded guilty and waived his trial

rights. He then unambiguously instructed his attorney not to

present mitigating evidence at the penalty phase because he wanted

to receive the death penalty as punishment for his crimes. Because

the proceedings in the state courts afforded Taylor an opportunity

to exercise all of his Constitutional rights, and otherwise fully

comported with federal law, we will affirm the District Court’s

denial of Taylor’s petition in full.

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