Blystone v. Horn

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 05-9002 and 05-9003

_____________

SCOTT WAYNE BLYSTONE,

Appellant in 05-9002

v.

MARTIN HORN, Commissioner, Pennsylvania Department

of Corrections;

JAMES S. PRICE, Superintendent of the State Correctional

Institution at Greene; JOSEPH P. MAZURKIEWICZ,

Superintendent of the State Correctional Institution at

Rockview,

Appellants in 05-9003

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court No. 99-cv-00490)

District Judge: Hon. Gary L. Lancaster

_____________

Argued April 27, 2011

Before: CHAGARES, NYGAARD, and ROTH, Circuit

Judges.

(Filed December 22, 2011)

Maureen Kearney Rowley, Esq.

Samuel J.B. Angell, Esq. (Argued)

Federal Community Defender Office for the Eastern District

of Pennsylvania

Capital Habeas Corpus Unit

Suite 545 West – Curtis Building

Independence Square West

Philadelphia, PA 19106

Robert Brett Dunham, Esq. (Argued)

Federal Public Defender Office for the Middle District

of Pennsylvania

100 Chestnut Street

Suite 300

Harrisburg, PA 17101

Paul D. Boas, Esq.

Law & Finance Building

Fifth Floor

429 Fourth Avenue

Pittsburgh, PA 15219

Attorneys for Appellant/Cross-Appellee

2

Linda L. Kelly, Esq.

Richard A. Sheetz, Jr., Esq.

Amy Zapp, Esq. (Argued)

Stuart Suss, Esq.

Office of the Attorney General of Pennsylvania

Strawberry Square, 16th Floor

Harrisburg, PA 17120

Attorneys for Appellee/Cross-Appellant

__________________

OPINION

__________________

CHAGARES, Circuit Judge.

In 1984, a jury sentenced Scott Wayne Blystone to

death following his convictions in Pennsylvania state court

for first-degree murder, robbery, conspiracy to commit

murder, and conspiracy to commit robbery. After making

several unsuccessful attempts to overturn his convictions and

sentence in state court, Blystone filed the present petition for

a writ of habeas corpus in the United States District Court for

the Western District of Pennsylvania, alleging that both the

guilt and penalty phases of his trial were infected with federal

constitutional error and that he is entitled to a new trial or, at

a minimum, a new sentencing hearing. The District Court

denied relief on all guilt phase claims, but granted the writ as

to Blystone‘s death sentence, finding that trial counsel was

ineffective for failing to investigate, develop, or introduce

expert mental health testimony and institutional records in

mitigation, and that the state court‘s decision to the contrary

was unreasonable. Accordingly, the District Court remanded

the case for resentencing. Thereafter, Blystone filed a Fed. R.

3

Civ. P. 59(e) motion to alter or amend the judgment based on

alleged newly discovered evidence of prosecutorial

misconduct during the guilt phase of trial. The District Court

denied the Rule 59(e) motion, concluding that the evidence

submitted in support was not, in fact, ―newly discovered.‖

Blystone now appeals the District Court‘s denial of his

Rule 59(e) motion. The defendants (collectively, the

―Commonwealth‖) cross-appeal the District Court‘s grant of

penalty phase relief. Having approached this case with the

utmost respect for the deferential standards of review that we

are obligated to apply, we will affirm the judgment of the

District Court.

I.

A.

On the morning of September 10, 1983, a passerby

discovered the body of Dalton Charles Smithburger, Jr., lying

near a road in Fayette County, Pennsylvania. Smithburger

had sustained six gunshot wounds to the back of the head.

―Blystone eluded detection as Smithburger‘s murderer for

over three months. However, his associates eventually

exposed him.‖ Commonwealth v. Blystone, 549 A.2d 81, 84

(Pa. 1988) (―Blystone I‖). First to contact the police was

Miles Miller. Miller told the police that he had information

implicating Blystone in Smithburger‘s murder and agreed to

wear a tape recorder and transmitter during a meeting with

Blystone in the hopes of eliciting a confession. In the course

of this meeting, Blystone admitted to robbing Smithburger of

thirteen dollars and then shooting him.

4

At trial, the Commonwealth introduced portions of

Blystone‘s taped conversation with Miller into evidence. The

jury heard Blystone‘s ―own voice bragging in vivid and grisly

detail of the killing of [Smithburger.]‖ Blystone I, 549 A.2d

at 84. Blystone recounted that he had been out in his car with

his girlfriend, Jackie Guthrie, his friend, George Powell, and

Powell‘s girlfriend, Barbara Clark. In need of cash, Blystone

picked up Smithburger, a hitchhiker, and asked him to

contribute gas money. When Smithburger replied that he

could only give him a few dollars, Blystone pulled out a gun

and, in his own words, ―almost splattered him right there in

the car.‖ Blystone then stopped driving and told Smithburger

to get out. Having first led Smithburger away from the car,

Blystone searched his belongings and found thirteen dollars.

Blystone took the money and then ran back to the car to tell

his friends that he was going to kill the hitchhiker. Upon

making this pronouncement, Blystone immediately returned

to where Smithburger stood and asked him to describe

Blystone‘s car. Smithburger accurately described the car, so

Blystone said ―goodbye‖ and ―wasted him.‖ He proceeded to

shoot Smithburger six times.

Barbara Clark‘s testimony at trial largely corroborated

the story that Blystone recounted to Miller in the tape

recorded conversation. She recalled that on September 9,

1983, Blystone offered Smithburger a ride and asked him for

gas money. When Smithburger said he only had a couple of

dollars, Blystone pulled out a gun on him. Clark heard six

gun shots after the two men exited the car. Upon returning to

the car, Blystone announced to his passengers that he had

taken thirteen dollars from Smithburger. Jackie Guthrie‘s

testimony corroborated Barbara Clark‘s in all respects.

5

Before resting its case, the Commonwealth also

presented testimony establishing that the bullets retrieved

from Smithburger‘s body were of the .22 caliber class, and

that Blystone had stolen a .22 caliber pistol prior to the

murder. Jackie Guthrie confirmed that the gun Blystone had

stolen was the same gun he used to shoot Smithburger.

Blystone called no witnesses and presented no evidence in his

defense.

On June 13, 1984, a jury empaneled by the Court of

Common Pleas of Fayette County, Pennsylvania, convicted

Blystone of first-degree murder, robbery, conspiracy to

commit murder, and conspiracy to commit robbery.

Following the verdict, and outside of the jury‘s presence,

Blystone‘s attorney, Jeffrey Whiteko, told the judge that

Blystone wished to offer no evidence in mitigation at the

penalty phase of the trial. Whiteko claimed to have had

lengthy discussions with Blystone about the benefits of

presenting a mitigation case. He asserted that he strongly

objected to Blystone‘s decision and he expressed a desire to

put Blystone and his parents on the stand at the sentencing

phase of the trial.

Thereafter, the judge conducted a colloquy with

Blystone in which he explained that the jury would determine

the penalty and that the sentencing hearing was Blystone‘s

only opportunity to present the jury with mitigating evidence.

The judge explained the role that aggravating and mitigating

circumstances would play in the jury‘s decision and informed

Blystone that, while the prosecution had the burden of

proving aggravating circumstances beyond a reasonable

doubt, Blystone had the burden of proving mitigating

6

circumstances by a preponderance of the evidence. The judge

then listed the statutory mitigating circumstances.

Noting that Blystone had an absolute right to remain

silent, the judge asked him to consider the effect of his failure

to present any mitigating evidence, and explained that he

could not later argue that he did not have an opportunity to

offer testimony. After taking a moment to confer with

Whiteko, Blystone had the following exchange with the

judge:

JUDGE ADAMS: Do you wish to testify yourself or

to have your parents testify or to

offer any other evidence in this

case?

…

MR. BLYSTONE: I have no testimony and no

witnesses.

JUDGE ADAMS: Either through yourself or anyone

else?

MR. BLYSTONE: No.

…

JUDGE ADAMS: Can you state for the record why

it is that you do not want to offer

any testimony?

MR. BLYSTONE: I don‘t want anybody else brought

into it.

…

7

JUDGE ADAMS: Is that your only reason for not

offering any testimony?

DEFENDANT SHAKES HIS HEAD ―YES.‖

JUDGE ADAMS: Of course, if you testify yourself

that would not be bringing anyone

into it except yourself, do you

understand?

MR. BLYSTONE: Uh-huh.

Appendix (―App.‖) 970-72. At the conclusion of the

colloquy, the judge stated for the record that he found

Blystone to be an intelligent man who understood the

consequences of his decision. The jurors then reentered the

courtroom and the judge informed them that Blystone had

chosen not to present mitigating evidence at sentencing. The

judge reminded the jurors that Blystone had an absolute right

to remain silent and instructed them to consider all evidence

presented to them in the course of the trial to determine

whether mitigating circumstances existed.

The Commonwealth argued that the jury should find,

as an aggravating circumstance, that Blystone committed the

murder in the perpetration of a felony, in accordance with the

jury‘s verdict that Blystone was guilty of robbery. See 42 Pa.

Cons. Stat. § 9711(d)(6). Whiteko argued against the penalty

of death. The jury inevitably found one aggravating

circumstance — that Blystone ―committed a killing while in

the perpetration of a felony,‖ id. — and no mitigating

circumstances. Accordingly, the jury imposed a death

8

sentence for the murder conviction, as required by

Pennsylvania law under the circumstances. Id. §

9711(c)(1)(iv) (―[T]he verdict must be a sentence of death if

the jury unanimously finds at least one aggravating

circumstance specified in subsection (d) and no mitigating

circumstance[.]‖). The judge imposed an independent

sentence of ten to twenty years of imprisonment for the

robbery conviction.

The Pennsylvania Supreme Court affirmed the

conviction and sentence on direct appeal. Blystone I, 549

A.2d at 81. Thereafter, Blystone appealed to the United

States Supreme Court, which granted certiorari to decide

whether the mandatory aspect of the Pennsylvania death

penalty statute impermissibly limited the jury‘s discretion in

deciding the penalty, in violation of the constitution.

Blystone v. Pennsylvania, 494 U.S. 299, 303 (1990).

Rejecting Blystone‘s constitutional challenge, the Supreme

Court affirmed the death sentence. Id.

B.

The Governor of Pennsylvania signed Blystone‘s death

warrant in 1995 and, thereafter, Blystone retained post-

conviction counsel, obtained a stay of execution, and filed a

petition under the Post-Conviction Relief Act (―PCRA‖) in

Pennsylvania state court, raising numerous claims for relief

based on alleged constitutional defects in both the guilt and

penalty phases of his trial. The PCRA court held an

evidentiary hearing on Blystone‘s primary claim for

ineffective assistance of counsel. A summary of the evidence

presented at that hearing follows.

9

Whiteko, Blystone‘s trial lawyer, testified that he

graduated law school in 1982 and, after completing a one-

year judicial clerkship, began working part-time at the Public

Defender‘s Office. He had only three months experience as a

practicing attorney when he was appointed to this capital

case. At the time of Blystone‘s June 1984 trial, Whiteko had

represented criminal defendants in approximately twenty

trials, none of them murder cases. Whiteko testified that the

Chief Public Defender assisted him with the preliminary

hearing and voir dire in Blystone‘s case, and that he had the

help of an investigator to prepare for the guilt phase, but that

he had no assistance in preparing for the sentencing phase of

trial.

Whiteko knew that, if the jury found Blystone guilty of

both murder and robbery, Blystone would automatically be

subject to at least one statutory aggravating circumstance —

committing the murder in the course of another felony.

Nonetheless, Whiteko conducted an extremely limited

investigation into the sort of potentially mitigating evidence

that might have permitted the jury to avoid imposing the

death penalty. Indeed, in preparation for the penalty phase,

Whiteko interviewed, at most, four people: Blystone, his

parents, and one of his sisters, whom Whiteko unintentionally

encountered in the hallway of the courthouse during trial.

Whiteko told the PCRA court that he conducted the

most extensive of these interviews with Blystone‘s father,

Norman. After reading the list of statutory mitigating factors

to Norman, Whiteko asked Norman to describe Blystone‘s

life from childhood until the time of trial. Whiteko recounted

that he chose to focus his limited investigation on Blystone‘s

parents because he thought that Blystone had a ―good chance

10

at [establishing] mitigating factors‖ through their testimony.

App. 1145. He believed Blystone‘s parents to be sincere and

thought that they would present a good picture of their son‘s

troubled past. Whiteko never intended to present any

testimony at sentencing other than that of Blystone and his

parents. Finally, Whiteko explained to the PCRA court that

Blystone would not accept a plea to a life sentence because he

did not want to spend his life in prison. Thus, it was

Whiteko‘s understanding of his client‘s instructions that, if

convicted, Blystone would not permit him to call witnesses or

to beg for mercy at sentencing. App. 1161-64.

Blystone then presented a number of lay witnesses to

the PCRA court in order to establish that his life history was

replete with potentially mitigating evidence, which Whiteko

could have uncovered through a more extensive investigation

of his background. First, Blystone‘s father, Norman, testified

in detail about his son‘s troubled childhood. Norman

recounted that Blystone was hit in the head with a steel swing

when he was four years old. The accident left him with a

large gash on his temple and knocked him unconscious, and

afterward, Blystone suffered from recurring headaches,

seizures, fevers, and night sweats. Blystone started to have

behavioral problems at age six or seven. From the ages of

seven to twelve, Norman disciplined him physically for his

frequent misbehavior. Norman would typically hit him with a

belt and his hand once or twice a week. At times, Norman

kicked him on his backside. Blystone‘s mother would

occasionally intervene when she felt Norman‘s efforts to

discipline Blystone were excessive.

Norman informed the PCRA court that, as a child,

Blystone developed a nervous habit of pulling out his hair

until there was a bald spot. Blystone had no interests or

11

hobbies as a teenager; he ran away from home often; he slept

in the closet; he suffered nightmares; he exhibited bizarre

behavioral changes; and he made up incredible stories about

himself. Blystone was also a risk-taker: he abused alcohol,

he engaged in self-mutilation, such as burning himself with

cigarettes, and, on one occasion, he rolled under a moving

train.

When Blystone was in his late teens, Norman allowed

him to live in a cottage on the family property with his

girlfriend, Jackie Guthrie. Norman told Blystone that Guthrie

had to leave after the couple began having problems. Instead

of asking Guthrie to move out, however, Blystone chose to

live with her in his car. This occurred shortly before

Smithburger‘s murder. Norman testified that Blystone was

regularly under the influence of alcohol during the time

leading up to the homicide. Finally, Norman asserted that

Whiteko had neither discussed the list of mitigating

circumstances with him prior to sentencing, nor asked him

whether he knew of other potential witnesses who could offer

mitigating evidence.1

Blystone‘s younger sister, Cindy Guthrie,2 elaborated

on Blystone‘s substance abuse issues during the PCRA

hearing, testifying that he used both drugs and alcohol to

1

The parties stipulated that Norma Blystone, Blystone‘s

mother, would provide testimony similar to that of her

husband.

2

For the sake of clarity, Cindy Guthrie is the sister-in-law of

Blystone‘s girlfriend, Jackie Guthrie. App. 1259.

12

excess. She stated that she never discussed Blystone‘s

behavior with Whiteko prior to sentencing. Rather, her only

contact with Whiteko was a brief conversation in the hallway

of the courthouse just before sentencing.3

Blystone‘s uncle, Kenneth Blystone, testified that he

lived near his nephew in Maryland until Blystone was about

fifteen years old. He stated that Blystone appeared normal as

a young boy, but later became withdrawn. Kenneth believed

that, though Blystone needed help, he was fundamentally a

good man. He made clear that he would have testified on

Blystone‘s behalf at sentencing or, at least, discussed the

matter with Whiteko, had he been asked to do so.

Lawrence Short, a close friend of Blystone‘s as a

teenager, testified that he and Blystone enlisted in the Navy

together at age seventeen. Though the two men went their

separate ways after enlisting, they remained in periodic

contact for some time. Short knew that Blystone was unable

to conform to the discipline required in the Navy, and that

this behavioral deficiency resulted in his discharge. Short

testified that, during the course of their friendship, he bore

witness to Blystone‘s self-mutilation and substance abuse.

He also testified that he heard Blystone tell exaggerated

stories about himself. Short, too, would have been willing to

testify on Blystone‘s behalf at sentencing, had he been asked

to do so.

3

The parties stipulated that Blystone‘s other sister, Julie Dice,

would have corroborated Cindy Guthrie‘s testimony and that

Whiteko had no contact with Ms. Dice prior to or at the trial.

13

Sharon Smitley testified that Blystone attended her

birthday party on the night of the homicide. She stated that

Blystone had been drinking and using marijuana at the party,

and that she asked him to leave after he became too

intoxicated.4

Blystone next presented expert mental health

testimony to establish before the PCRA court that he suffered

from serious untreated brain damage and psychiatric

disorders, all of which were aggravated by a history of poly-

substance abuse.

Dr. Patricia Fleming, a clinical psychologist and

neuropsychologist who has provided expert testimony in

numerous death penalty proceedings in both federal and state

court, testified that she saw Blystone three times in the month

leading up to the PCRA hearing and spent eleven to twelve

hours with him. During this time, she interviewed Blystone,

administered psychological tests, and reviewed his records, as

well as the affidavits of family members. After performing

her investigation, Dr. Fleming diagnosed Blystone, to a

reasonable degree of medical certainty, with organic brain

damage. She stated that physical indicia supporting a

diagnosis of brain damage were present from Blystone‘s

infancy: he was a frail baby that did not eat much and

suffered from chronic high fever and seizures. The diagnosis

of brain damage was further supported by Blystone‘s early

malnutrition, abnormal sleep patterns, irritability, and

hyperactivity as a young child. Dr. Fleming also diagnosed

Blystone with bipolar disorder. She explained that this

4

Smitley also testified on Blystone‘s behalf at the 1985

hearing on his post-trial motions.

14

disorder is characterized by major depressive episodes —

exemplified by Blystone‘s habit of sleeping in the closet, his

withdrawn behavior, and his self-mutilation — alternating

with periods of marked agitation — exemplified by

Blystone‘s bouts of insomnia, frequent exaggerated stories,

and abuse of drugs and alcohol. Dr. Fleming further

diagnosed Blystone with borderline personality disorder,

which is typified by unstable relationships, mood fluctuations,

and severe agitation. Finally, Dr. Fleming diagnosed

Blystone with poly-substance abuse, which she believed

exacerbated his other disorders.

Next, Dr. Alec Whyte, a psychiatrist who has testified

in more than 400 criminal trials, testified before the PCRA

court. Like Dr. Fleming, Dr. Whyte diagnosed Blystone with

borderline personality disorder, bipolar mood disorder, and

organic personality disorder caused by physical injury to the

brain.5 Importantly, both doctors agreed that qualified

experts had all of the means necessary to arrive at the same

diagnoses based upon the information available at the time of

trial.

Drs. Fleming and Whyte each testified to a reasonable

degree of medical certainty that Blystone‘s capacity to

conform his conduct to the requirements of the law at the time

of the homicide was substantially impaired by his mental

disorders. Dr. Fleming opined that Blystone was under

5

Dr. Whyte testified that he believed Blystone‘s brain

damage was caused by the serious head injury he sustained at

age four. Whether the damage was present at birth, as opined

by Dr. Fleming, or caused by early childhood head trauma,

both experts agreed that it was irreversibly present after age

four.

15

extreme emotional distress at the time of the murder due to a

combination of his disorders and his use of drugs and alcohol.

Dr. Whyte similarly thought that the combination of

intoxication and Blystone‘s disorders would have resulted in

extreme mental disturbance. Nonetheless, both experts also

agreed that, as evidenced by his institutional records,

Blystone would not pose a future danger to society if he were

to spend the rest of his life in a highly structured

environment, such as prison.

Finally, Blystone introduced three types of institutional

records, each of which contained potentially significant

mitigating evidence, and each of which was available at the

time of trial.

Blystone‘s Navy records indicate that he received an

unsuitable discharge primarily because of ―[a]pathy and

defective attitudes.‖ App. 1495. The records further indicate

that ―due to the nature of SMSR Blystone‘s past service and

the severity of his present personality disorder, it was the

Commandant‘s opinion that further retention would not have

been in the best interests of the Navy.‖ App. 1494. His Navy

records reflect a number of problems with his service, such as

frequent unauthorized absences and mediocre performance.

He received a low mark in ―[a]daptability‖ because he needed

―to strengthen his relationship with his superiors and be more

conscientious of his military responsibilities.‖ App. 1496.

Lastly, the Navy records indicate that he had a burn scar on

his right forearm, as well as a gunshot wound on his anterior

elbow, and that he had been hospitalized once in connection

with an injury near his right eyebrow. Though Whiteko knew

that Blystone served in the Navy, he made no effort to obtain

these records and, thus, never followed up on their contents.

16

Blystone also introduced his Maryland Department of

Correction Records (―prison records‖), which reflect that he

received a ten year sentence for robbery in 1979. The prison

records consist of both a medical and an administrative

section. The medical section of the records indicates that

Blystone saw medical personnel frequently from 1980 to

1982, with complaints of fainting, headaches, and vision

problems.6 It also references the scars on his arms, which are

suggestive of self-mutilation. The administrative section of

the prison records indicates that Blystone exhibited excellent

institutional adjustment and that he had no violent episodes

while incarcerated. Moreover, Blystone‘s work supervisor

recommended him for parole after he completed less than

three years of his sentence because of his superior

performance in the prison workforce.

Finally, Blystone introduced the competency

evaluation conducted prior to trial by Mayview State

Hospital. As indicated by Drs. Fleming and Whyte, the

evaluation, though brief, contains psychologically significant

information, which arguably should have led Whiteko to

investigate Blystone‘s mental health further for mitigation

purposes. The evaluation indicates that Blystone has an I.Q.

score placing him in the superior range of intellectual

functioning. But it also reflects that he has ―anger related to

authority figures that is well-entrenched and stems from deep-

rooted problems in his familial relationships. He has a high

energy level and strong need for immediate gratification.‖

App. 1490. Other test results conducted as part of the

6

Dr. Whyte testified that these physical symptoms are

indicative of organic brain damage.

17

competency evaluation indicate that Blystone periodically

suffered from low self-esteem, possessed significant ―acting-

out potential,‖ had unfulfilled needs for attention, and had

marked antisocial ideation.

Both Dr. Fleming and Dr. Whyte agreed that a

competency evaluation, particularly one as ―disappointingly

brief,‖ App. 1357, as the Mayview Report, is of an entirely

different nature than a mitigation evaluation.

Notwithstanding its brevity, however, both doctors also

agreed that the competency evaluation, which counsel had

possession of prior to trial, included clinically significant ―red

flags‖ that required follow-up with regard to mitigation.

They also agreed that all of the tools they used to diagnose

Blystone were available at the time of trial and that a

qualified expert would have reached the same diagnoses at

that time. Whiteko acknowledged at the PCRA hearing that

he had read the competency evaluation, but had decided,

without the assistance of an expert, that nothing in the report

would be useful in developing a mitigation case.

After hearing this substantial body of evidence, the

PCRA court denied Blystone‘s petition. It was persuaded that

Whiteko conducted a sufficient investigation into mitigating

circumstances by reviewing all of the available discovery

materials, including the Mayview Hospital competency

evaluation, and interviewing members of Blystone‘s family.

The PCRA court found it significant that neither Blystone nor

his family members told Whiteko, when asked, about other

potential witnesses that could provide mitigating evidence or

indicated that Blystone had substance abuse issues. Notably,

the court found Norman Blystone‘s testimony that Whiteko

never posed such questions to him to lack credibility because

18

it was inconsistent with his statement that he could not

remember everything about Whiteko‘s interviews. The

PCRA court also discounted Sharon Smitley‘s testimony as to

Blystone‘s substance use on the night of the homicide

because she did not mention Blystone‘s intoxication when she

testified at the 1985 hearing on his post-trial motions.

The PCRA court further concluded that Whiteko could

not be deemed ineffective for failing to employ mental health

professionals to evaluate Blystone prior to sentencing because

Blsytone had no constitutional right to such assistance, and

any right that he may have had was protected by the court-

appointed doctors who had performed the competency

evaluation. It additionally found the testimony of Drs.

Fleming and Whyte to be ―in large measure irrelevant,‖

because neither doctor knew Blystone at the time of the

crimes, and their evaluations were performed long after the

homicide occurred. The PCRA court also stated that it could

not find counsel ineffective for failing to pursue the purported

―red flags‖ Drs. Fleming and Whyte found in the Mayview

Hospital report because the Mayview doctors did not see

them as ―red flags‖ for purposes of competency. App. 1645.

On appeal, the Pennsylvania Supreme Court affirmed,

stating that ―[t]he PCRA court determined that counsel

conducted a proper investigation into all possible mitigating

circumstances, and we find substantial support in the record

to uphold [that] determination.‖ Commonwealth v. Blystone,

725 A.2d 1197, 1206 (Pa. 1999) (―Blystone II‖). It further

found that Blystone could not succeed in an ineffective

assistance of counsel claim because he waived his right to

present any mitigating evidence to the jury and, therefore,

19

could not demonstrate that his counsel‘s failures, if any,

caused him prejudice.

C.

Blystone filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the District Court in 2000

raising numerous constitutional challenges to his convictions

and death sentence. In a lengthy and thorough opinion issued

March 31, 2005, the District Court denied relief on all guilt-

phase claims, but granted the writ as to the death sentence,

concluding that the state court‘s denial of Blystone‘s

ineffective assistance of counsel claim was objectively

unreasonable. Specifically, the District Court found that trial

counsel was ineffective in failing to investigate, develop, or

introduce expert mental health evidence and institutional

records in mitigation, and that Blystone did not waive his

right to present all mitigating evidence — at most, Blystone

waived presentation of lay witness testimony. The District

Court thus held that, on the record presented to the state court,

it was unreasonable to conclude that Blystone‘s waiver

prevented him from demonstrating that prejudice resulted

from counsel‘s deficiencies. In addition, the District Court

denied (but granted Blystone a Certificate of Appealability

on) an additional claim for penalty-phase relief based on trial

counsel‘s failure to investigate adequately and develop lay

witness testimony in mitigation.7

7

The District Court took pains to note that Blystone raised

serious questions about the state court‘s conclusions with

regard to lay witness testimony, and indicated its belief that if

Whiteko had obtained Blystone‘s institutional records and

better understood the Mayview Hospital report, he would

20

Blystone filed a timely motion to alter or amend the

District Court‘s judgment pursuant to Federal Rule of Civil

Procedure 59(e), claiming to have newly discovered evidence

of prosecutorial misconduct relevant to three of his guilt

phase claims.8 By way of this motion, Blystone asked the

District Court to grant him leave to conduct discovery of the

alleged prosecutorial misconduct, as well as a subsequent

opportunity to amend his petition to add new claims,

depending upon what the discovery might reveal. Blystone

asserted that the three prosecutors who handled his case, as

well as the lead investigator, State Trooper Montgomery

Goodwin, were central players in recent court proceedings

have been able to conduct a more thorough investigation of

the mitigating evidence available through lay witness

testimony. Though the District Court believed that the state

court erred in rejecting this part of Blystone‘s claim, it could

not find the state court‘s conclusion to be unreasonable.

8

These are: Claim VII alleging that trial counsel was

ineffective in failing to pursue the issue of drug, alcohol, and

mental impairment to reduce the degree of guilt to third-

degree murder; Claim XV alleging that the Commonwealth

violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to

disclose that its lead state police investigator had ―substantial

doubts‖ about whether Blystone had committed a robbery,

which also provided the sole alleged aggravating factor for

his death sentence; and Claim XVI alleging that counsel was

ineffective for failing to investigate and present exculpatory

testimony from George Powell concerning the alleged

robbery, as well as evidence supporting guilt-stage defenses

to murder.

21

that exposed a systematic practice of discovery abuses by the

Fayette County District Attorney‘s office around the time of

Blystone‘s trial. These discovery abuses included

withholding exculpatory evidence, making undisclosed deals

with witnesses, and altering, redacting, or hiding witness

statements favorable to the defense. In support of this

assertion, Blystone relied primarily upon an October 1, 2004

decision of the Fayette County Court of Common Pleas in

Commonwealth v. Munchinski, which granted the defendant

a new trial based upon prosecutorial misconduct committed

by the same prosecutors who had handled Blystone‘s case

approximately two years earlier. Blystone also obtained an

affidavit, dated November 3, 2004, from Trooper Goodwin,

then an inmate in state prison, stating that ―in cases in which I

was lead investigator, documents were altered or changed

before they were provided to defense counsel.‖ App. 634.

Trooper Goodwin further stated that ―it [was] obvious to

[him] that there were redactions and alterations‖ in Blystone‘s

police records, though he declined to explain further for fear

of hurting his chances at parole. Id. Finally, Blystone

submitted the police records that he believed were redacted or

altered, as well as the 1995 Affidavit of Gary Hendrix, the

chief investigator for Blystone‘s post-conviction team, which

stated that Miles Miller claimed to have been coerced by the

police into wearing a wire to tape his conversation with

Blystone, and that the District Attorney‘s office paid him to

testify.

The District Court denied the Rule 59(e) motion to

alter or amend judgment, finding that the evidence presented

in support was not newly discovered; rather, Blystone had

been in possession of all the information upon which he relied

in the Rule 59(e) motion well before the District Court issued

22

its judgment on March 31, 2005. The District Court thus

concluded that Blystone‘s motion was dilatory. Moreover,

the District Court was persuaded that consideration of the

purportedly new evidence would ultimately be futile to

Blystone‘s case because the evidence of his guilt on the first-

degree murder and robbery convictions was overwhelming

and nothing submitted in support of the Rule 59(e) motion

convinced the District Court that it might amend its judgment

as to guilt-phase relief.

II.

The District Court had jurisdiction over this action

pursuant to 28 U.S.C. §§ 2241 and 2254. We have appellate

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

Presently before this court is Blystone‘s timely appeal

from the final judgment and order denying his Rule 59(e)

motion, as well as the Commonwealth‘s cross-appeal from

the District Court‘s grant of penalty-phase relief. This Court

granted Blystone a Certificate of Appealability (―COA‖) as to

two specific issues related to the District Court‘s denial of his

Rule 59(e) motion. First, we granted review as to whether the

District Court abused its discretion in denying Claims VII,

XV, and XVI, arising from the guilt phase of Blystone‘s trial,

without first granting him discovery with regard to the alleged

newly discovered evidence of prosecutorial misconduct.

Second, we granted review to determine whether the District

Court abused its discretion in denying Blystone‘s Rule 59(e)

motion insofar as he sought permission to conduct discovery

into alleged newly discovered evidence of prosecutorial

misconduct and amend his habeas petition to raise previously

unavailable Brady claims. In essence, however, Blystone‘s

23

appeal requires us to answer only one fairly straightforward

question: did the District Court abuse its discretion in

denying the Rule 59(e) motion?

The Commonwealth‘s cross-appeal brings two

additional issues before us. First, we must determine whether

the District Court erred in granting relief on Blystone‘s claim

that trial counsel was ineffective for failing to investigate,

develop, or introduce expert mental health testimony and

institutional records in mitigation. And, second, we must

determine whether the District Court erred in denying relief

on Blystone‘s claim that trial counsel was also ineffective for

failing to investigate adequately and develop lay witness

testimony in mitigation.

III.

A.

As an initial matter, we must ask whether the District

Court had jurisdiction to pass on Blystone‘s Rule 59(e)

motion, and whether we, in turn, have jurisdiction to review it

on appeal.

The Antiterrorism and Effective Death Penalty Act of

1996 (―AEDPA‖), Pub. L. No. 104-132, 110 Stat. 1214

(1996), places the federal courts of appeals in the role of

―gate-keeper,‖ charging them with the responsibility of

―preventing the repeated filing of habeas petitions that attack

the prisoner‘s underlying conviction.‖ Leal Garcia v.

Quarterman, 573 F.3d 214, 220 (5th Cir. 2009). Pursuant to

this gate-keeping function, AEDPA instructs the courts of

appeals to dismiss any claim presented in a second or

24

successive petition that the petitioner presented in a previous

application. See 28 U.S.C. § 2244(b)(1). If a petitioner

presents a new claim in a second or successive habeas corpus

application, we must also dismiss that claim unless one of two

narrow exceptions applies:

(A) the applicant shows that the claim

relies on a new rule of constitutional law,

made retroactive to cases on collateral

review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim

could not have been discovered

previously through the exercise of due

diligence; and

(ii) the facts underlying the claim, if

proven and viewed in light of the

evidence as a whole, would be sufficient

to establish by clear and convincing

evidence that, but for constitutional

error, no reasonable factfinder would

have found the applicant guilty of the

underlying offense.

Id. § 2244(b)(2)(A)-(B)(ii). ―Before a second or successive

application permitted by this section is filed in the district

court, the applicant shall move in the appropriate court of

appeals for an order authorizing the district court to consider

the application.‖ Id. § 2244(b)(3)(A). A petitioner‘s failure

to seek such authorization from the appropriate appellate

court before filing a second or successive habeas petition

25

―acts as a jurisdictional bar.‖ United States v. Key, 205 F.3d

773, 774 (5th Cir. 2000).

Our sister Circuits have split on the issue of whether a

Rule 59(e) motion to alter or amend judgment that raises a

cognizable habeas claim is properly construed as a second or

successive habeas petition. If so considered, AEDPA

required Blystone to seek this Court‘s authorization to file the

motion before the District Court could properly entertain it

and we are, therefore, without jurisdiction to review the

District Court‘s disposition of the motion on appeal. See 28

U.S.C. § 2244(b); see also Gonzales v. Crosby, 545 U.S. 524,

529 (2005) (―Rule 60(b), like the rest of the Rules of Civil

Procedure, applies in habeas corpus proceedings . . . only ‗to

the extent that [it is] not inconsistent with‘ applicable federal

statutory provisions and rules.‖ (alteration in original and

footnote omitted)).

Our discussion of this issue necessarily begins with

Gonzalez v. Crosby. In Gonzales, the Supreme Court

addressed the question of when a federal court should

construe a petitioner‘s motion for relief from judgment

pursuant to Rule 60(b) as a second or successive petition

subject to the restrictions of AEDPA. 545 U.S. at 526.

Noting that ―[a]s a textual matter, § 2244(b) applies only

where the court acts pursuant to a prisoner‘s ‗application‘ for

a writ of habeas corpus,‖ the Court began its analysis by

stating that ―it is clear that for purposes of § 2244(b) an

‗application‘ for habeas relief is a filing that contains one or

more ‗claims.‘‖ Id. at 530 (quotation marks omitted). The

Court explained that ―[i]n some instances, a Rule 60(b)

motion will contain one or more ‗claims,‘‖ and ―[a] habeas

petitioner‘s filing that seeks vindication of such a claim is, if

26

not in substance a ‗habeas corpus application,‘ at least similar

enough that failing to subject it to the same requirements

would be ‗inconsistent with‘ the statute.‖ Id. at 530, 531.

This must be so because

[u]sing Rule 60(b) to present new claims

for relief from a state court‘s judgment

of conviction — even claims couched in

the language of a true Rule 60(b) motion

— circumvents AEDPA‘s requirement

that a new claim be dismissed unless it

relies on either a new rule of

constitutional law or newly discovered

facts.

Id. at 531. Accordingly, the Court held that a Rule 60(b)

motion is subject to the restrictions contained in 28 U.S.C. §

2244(b) when it advances one or more ―claims.‖9

The Court also explained that ―when a Rule 60(b)

motion attacks, not the substance of the federal court‘s

resolution of a claim on the merits, but some defect in the

integrity of the federal habeas proceedings,‖ the motion is not

properly construed as advancing a ―claim‖ and is, therefore,

not a second or successive petition. Id. at 532. In light of

this admonition, the Court went on to provide specific

guidance as to when a Rule 60(b) motion advances a ―claim‖

for purposes of AEDPA. Id. at 531-32. For example, ―[a]

motion that seeks to add a new ground for relief‖ advances a

claim, as does a motion that ―attacks the federal court‘s

9

Prior to Gonzales, this Court held similarly with regard to

Rule 60(b) motions in Pridgen v. Shannon, 380 F.3d 721, 727

(3d Cir. 2004).

27

previous resolution of a claim on the merits, since alleging

that the court erred in denying habeas relief on the merits is

effectively indistinguishable from alleging that the movant is,

under the substantive provisions of the statutes, entitled to

habeas relief.‖ Id. at 532 (footnote omitted). Similarly, a

motion that seeks to present newly discovered evidence in

support of a claim previously denied presents a claim. Id.

Blystone‘s Rule 59(e) motion does not raise any new

claims; rather, it seeks only discovery and a subsequent

opportunity either to amend the petition to add new claims

should they become available, or to present new evidence in

support of three of his previously denied claims.

Nonetheless, we are convinced that Blystone‘s Rule 59(e)

motion is a habeas corpus petition within the meaning set

forth in Gonzales. As the Supreme Court explained, a motion

―seek[ing] leave to present ‗newly discovered evidence‘ in

support of a claim previously denied‖ advances a claim and

is, therefore, a habeas corpus petition. Id. at 531 (citation

omitted). And ―by taking steps that lead inexorably to a

merits-based attack on the prior‖ judgment on his habeas

petition, Post v. Bradshaw, 422 F.3d 419, 424-25 (6th Cir.

2005), Blystone has made evident his purpose to seek

vindication of previously denied claims through the

presentation of new evidence. Accordingly, we conclude that

Blystone‘s Rule 59(e) motion advances a claim and is thus a

habeas corpus petition.

The pertinent question for our jurisdictional analysis,

then, is whether a Rule 59(e) motion to amend or alter

judgment is materially different from a Rule 60(b) motion to

reconsider, such that it does not constitute a second or

successive petition, even if it advances a claim. We now join

28

the Court of Appeals for the Sixth Circuit in answering that

question in the affirmative.

As indicated above, Gonzales clearly delineated when

a ―Rule 60(b) motion should be treated like a habeas corpus

application.‖ Gonzales, 545 U.S. at 533. Notably, however,

even though ―it is well settled that the phrase [‗second or

successive‘] does not simply ‗refe[r] to all [habeas]

applications filed second or successively in time,‘‖ Magwood

v. Patterson, 130 S. Ct. 2788, 2796 (2010) (second alteration

in original), Gonzales did not explicitly address the

subsequent question in the analytical chain — whether a Rule

60(b) motion, which constitutes a habeas corpus petition, is

properly treated as a second or successive one. Instead, the

Court effectively assumed that, if a Rule 60(b) motion

constitutes a habeas corpus petition, it is necessarily second

or successive and, therefore, subject to AEDPA‘s

jurisdictional restrictions. And the reason for such an

assumption is rendered immediately evident by the operation

of Rule 60(b): Rule 60(b) only comes into play after the time

to appeal has expired and the judgment has become final. See

Gonzales, 545 U.S. at 528. Accordingly, a Rule 60(b) motion

that raises a claim attacking the underlying criminal judgment

must be a second or successive petition because, the judgment

having become final, the petitioner has expended the ―one full

opportunity to seek collateral review‖ that AEDPA ensures.

Urinyi v. United States, 607 F.3d 318, 320 (2d Cir. 2010)

(quotation marks omitted). In other words, a Rule 60(b)

motion is, in substance, both a collateral attack on the first

habeas judgment and a new collateral attack on the

underlying criminal judgment because Rule 60(b) does not

prevent the original habeas judgment from becoming final;

instead, it seeks to set aside the already final judgment. See

29

Curry v. United States, 307 F.3d 664, 665 (7th Cir. 2002).

This is not so in the case of a Rule 59(e) motion.

Quite to the contrary, a timely Rule 59(e) motion

suspends the finality of the judgment by tolling the time for

appeal.10 See Howard v. United States, 533 F.3d 472, 475

(6th Cir. 2008). Accordingly, we cannot logically subject a

Rule 59(e) motion to the statutory limitations imposed upon

second or successive collateral attacks on criminal judgments

because, unlike a Rule 60(b) motion, it is neither a collateral

attack on the initial habeas judgment, nor a new collateral

attack on the underlying criminal judgment — rather it is part

and parcel of the petitioner‘s ―one full opportunity to seek

collateral review.‖ Urinyi, 607 F.3d at 320 (quotation marks

omitted); see Curry, 307 F.3d at 665. It is for this reason that

we agree with the Court of Appeals for the Sixth Circuit that

―[t]he purposes behind Rule 59(e), as well as the mechanics

of its operation, counsel in favor of the nonapplicability of

second-or-successive limitations,‖ even if the motion

advances a claim. Howard, 533 F.3d at 474.

Rule 59(e) makes explicit that the district court may

continue to exercise the inherent power that it has to rectify

its own mistakes prior to the entry of judgment for a brief

10

We note, however, that a Rule 59(e) motion does not

suspend the finality of a judgment for purposes of claim or

issue preclusion. See 18A Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure

§ 4432 (2d ed. 2002) (―[I]t is clear that definitions of finality

cannot automatically be carried over from appeals cases to

preclusion problems.‖).

30

period of time immediately after judgment is entered. See

White v. N.H. Dep‘t of Emp‘t Sec., 455 U.S. 445, 450

(1982).11 Viewed against this backdrop, we think it clear that

applying AEDPA‘s limitations on successive collateral

attacks to Rule 59(e) motions would unduly interfere with the

prompt reconsideration of just-entered judgments. That is to

say, it would frustrate Rule 59(e)‘s intention to allow the

district court to correct obvious errors in its reasoning readily,

which in turn ―further[s] the important goal of avoiding

piecemeal appellate review of judgments.‖ Osterneck v.

Ernst & Whinney, 489 U.S. 169, 177 (1989). We are

unwilling to attribute to Congress the ―unlikely intent‖ to so

impede Rule 59(e)‘s operation by way of AEDPA‘s ―second

or successive‖ restrictions. Howard, 533 F.3d at 475.

We are cognizant of the fact that Howard was issued

over a strong dissent, which concluded that, while Rule 59(e)

motions that seek only ―to bring to the attention of a district

judge errors[] . . . in the judge‘s decision on the case as it was

put before him‖ should not be considered second or

successive petitions, those based on wholly new claims

cannot escape being ruled out by the basic premise of

AEDPA ―that all habeas claims should generally be brought

at one time.‖ Howard, 533 F.3d at 476 (Boggs, C.J.,

dissenting). Following this reasoning, the Court of Appeals

for the Fifth Circuit has concluded that, though technical

differences exist between Rule 59(e) and Rule 60(b), in

practice the two rules ―permit the same relief — a change in

11

This power is entirely ―distinct from the power explicitly

granted by Rule 60 to reopen cases well after final judgment

has been entered.‖ In re Saffady, 524 F.3d 799, 803 (6th Cir.

2008).

31

judgment,‖ and thus the Gonzales framework should apply

equally to both types of motions. Williams v. Thaler, 602

F.3d 291, 303-04 (5th Cir. 2010) (quotation marks omitted).12

Following this logic, in Williams, the Court of Appeals for

the Fifth Circuit opined that a Rule 59(e) motion that

advances a claim constitutes a second or successive petition.

We understand the temptation to apply the rule of

Gonzales to those Rule 59(e) motions that assert ―wholly new

claims,‖ Howard, 533 F.3d at 476 (Boggs, C.J., dissenting),

since one could argue that such motions are, in effect, new

petitions improperly captioned as motions to reconsider. But

we, nonetheless, disagree with the Court of Appeals for the

Fifth Circuit‘s holding because we do not believe that the

differences between Rules 60(b) and 59(e) are merely

technical. To the contrary, as we explained above, we think it

is clear that, unlike a Rule 60(b) motion, a Rule 59(e) motion

is part of the one full opportunity for collateral review that

AEDPA ensures to each petitioner. And we are unwilling to

suppose that Congress meant to deny the District Court the

first opportunity to rework its newly issued judgment. Thus,

we are convinced that a ―Rule 59(e) motion, whether or not it

should properly be denied on its merits, does not require a

12

In Williams, the court also cited Ward v. Norris, 577 F.3d

925, 935 (8th Cir. 2009), and United States v. Pedraza, 466

F.3d 932, 934 (10th Cir. 2006), as support for the conclusion

that AEDPA‘s limitations on successive petitions apply to

Rule 59(e) motions. We do not believe that Ward and

Pedraza are helpful, however, because they each concerned

Rule 59(e) motions to reconsider the dismissal of Rule 60(b)

motions that the district court had determined to be second or

successive petitions requiring court of appeals permission.

32

transfer to this court to determine whether the requirements of

[AEDPA] are met.‖ Howard, 533 F.3d at 476.

Accordingly, we now join the Court of Appeals for the

Sixth Circuit in holding that a timely Rule 59(e) motion to

amend or alter a judgment is not a second or successive

petition, whether or not it advances a claim, and therefore

such a motion lies outside the reach of the jurisdictional

limitations that AEDPA imposes upon multiple collateral

attacks.

B.

Having determined that the District Court properly

exercised jurisdiction over Blystone‘s Rule 59(e) motion, we

turn to the merits of Blystone‘s challenge to that ruling. We

review the District Court‘s denial of a motion to alter or

amend a judgment pursuant to Rule 59(e) for abuse of

discretion, ―except over matters of law, which are subject to

plenary review.‖ Cureton v. Nat‘l Collegiate Athletic Ass‘n,

252 F.3d 267, 272 (3d Cir. 2001).

The scope of a motion for reconsideration, we have

held, is extremely limited. Such motions are not to be used as

an opportunity to relitigate the case; rather, they may be used

only to correct manifest errors of law or fact or to present

newly discovered evidence. Howard Hess Dental Labs., Inc.

v. Dentsply Int‘l Inc., 602 F.3d 237, 251 (3d Cir. 2010).

―Accordingly, a judgment may be altered or amended [only]

if the party seeking reconsideration shows at least one of the

following grounds: (1) an intervening change in the

controlling law; (2) the availability of new evidence that was

not available when the court granted the motion for summary

judgment; or (3) the need to correct a clear error of law or fact

33

or to prevent manifest injustice.‖ Id. (quotation marks

omitted) (emphasis added). We have made clear that ―‗new

evidence,‘ for reconsideration purposes, does not refer to

evidence that a party . . . submits to the court after an adverse

ruling. Rather, new evidence in this context means evidence

that a party could not earlier submit to the court because that

evidence was not previously available.‖ Id. at 252. Evidence

that is not newly discovered, as so defined, cannot provide the

basis for a successful motion for reconsideration. Harsco

Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).

The District Court denied Blystone‘s Rule 59(e)

motion, finding that the evidence submitted in support was

not in fact newly discovered, since Blystone had possession

of it many months before the District Court denied habeas

relief.13 This was plainly not an abuse of discretion under our

clearly articulated standards for the assessment of a motion

for reconsideration. See Howard Hess Dental Labs., 602 F.3d

at 251-52; see also Howard, 533 F.3d at 475 (explaining in

the context of a habeas action that ―Rule 59(e) motions

cannot be used to present new arguments that could have

13

The District Court found, in the alternative, that the new

evidence would have no impact on its judgment as to

Blystone‘s guilt phase claims because the evidence of his

guilt was overwhelming. This alternative basis was neither

essential to the District Court‘s denial of the Rule 59(e)

motion, nor is it necessary to our review.

34

been raised prior to judgment‖). We, therefore, decline to

upset the District Court‘s ruling.14

14

Blystone makes three other arguments in favor of reversing

the District Court‘s denial of his Rule 59(e) motion, each of

which is without merit.

First, relying on Adams v. Gould Inc., 739 F.2d 858,

869 (3d Cir. 1984), he contends that his Rule 59(e) motion

was effectively a motion for leave to amend his habeas

petition, and that the District Court should have applied the

liberal standard used to assess a motion under Fed. R. Civ. P.

15(a). In Adams, the district court denied the plaintiffs‘ Rule

59(e) and Rule 15 motions, which were filed after we directed

the entry of a judgment against the plaintiffs in a § 1292(b)

interlocutory appeal. In holding that the district court abused

its discretion by denying relief, we stated that the rationale

underlying most cases rejecting post-judgment amendments

— that the plaintiff should have raised the new theory before

trial — did not apply where only an interlocutory judgment

had issued. Id. at 868. This case is distinct from Adams in

two important respects. First, Blystone did not file a motion

seeking to amend his petition; rather, he sought leave to

conduct discovery and additional time thereafter in which to

move to amend. The District Court, therefore, had no motion

to amend before it, and did not err in failing to treat the

motion for reconsideration as something it was not. Second,

unlike in Adams, the rationale that generally underlies the

denial of post-judgment amendments indeed applies here:

Blystone should have sought leave for discovery before the

District Court adjudicated the petition, given that the ―new‖

evidence was available to him before such judgment was

issued.

35

IV.

We next turn to the District Court‘s grant of penalty-

phase relief.

A.

Because the District Court did not conduct an

evidentiary hearing before ruling on the habeas petition, our

review is plenary and we conduct our analysis as the District

Court did. Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.

2002). The state court adjudicated Blystone‘s ineffective

assistance of counsel claim on the merits;15 thus, our review is

Second, relying on Bracy v. Gramley, 520 U.S. 899

(1997), Blystone argues that the District Court erred in

denying the Rule 59(e) motion because he set forth sufficient

facts to warrant discovery. Even if Blystone indeed set forth

evidence sufficient to warrant discovery had he presented it

while his petition was pending, that is a different question

than the one before this court — namely, whether the District

Court erred in finding that the motion for discovery was

dilatory because the evidence presented in support of the Rule

59(e) motion was not newly discovered.

Third, Blystone contends that the District Court abused

its discretion because, pursuant to 28 U.S.C. § 2244(d)(1)(D),

he had a year from the date on which the ―new‖ evidence

could have been discovered through the exercise of due

diligence to raise claims thereon. Again, this is a different

question than whether the District Court erred in denying the

Rule 59(e) motion.

15

Where a lower state court opinion ―represents the state

courts‘ last reasoned opinion on [the relevant issue],‖ we

36

limited by the mandates of AEDPA. See Adamson v. Cathel,

633 F.3d 248, 254-55 (3d Cir. 2011). As the Supreme Court

has made clear, AEDPA imposes a ―highly deferential

standard for evaluating state-court rulings, and demands that

state-court decisions be given the benefit of the doubt.‖

Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (citation and

quotation marks omitted). Accordingly, under AEDPA, our

task is only to determine whether the state court‘s

adjudication of Blystone‘s Strickland 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.

28 U.S.C. § 2254(d).

―look through‖ the higher state court-opinion and apply §

2254(d)‘s standards to the ―highest reasoned opinion.‖ Bond

v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008) (citation

omitted). Because the PCRA court presented a much more

thoroughly reasoned decision than the Pennsylvania Supreme

Court on some of the issues involved, we will, at times,

analyze the PCRA court‘s decision, on which the Supreme

Court decision heavily relied.

37

Consistent with Supreme Court precedent, we read §

2254(d) to require three distinct legal inquiries. See, e.g.,

Harrington v. Richter, 131 S. Ct. 770, 785 (2011). First, we

―must inquire whether the state court decision was ‗contrary

to‘ clearly established federal law, as determined by the

Supreme Court of the United States; second, if it was not,

[we] must evaluate whether the state court judgment rests

upon an objectively unreasonable application of clearly

established Supreme Court jurisprudence.‖ Matteo v.

Superintendent, SCI Albion, 171 F.3d 877, 880 (3d Cir. 1999)

(en banc). Third, we must ask whether the state court

decision ―was based on an unreasonable determination of the

facts in light of the evidence presented‖ to the state court. 28

U.S.C. § 2254(d)(2).

As the Supreme Court has explained, a decision by a

state court is contrary to clearly established law if it applies a

rule that contradicts the governing law set forth in the Court‘s

cases or if it confronts a set of facts that are materially

indistinguishable from a decision of the Court and

nevertheless arrives at a result different from the Court‘s

precedent. See Williams v. Taylor, 529 U.S. 362, 405-06

(2000).

A state court decision is objectively unreasonable ―if

the state court identifies the correct governing principle from

th[e Supreme] Court‘s decision [] but unreasonably applies

that principle to the facts of the prisoner‘s case.‖ Id. at 413.

Under this standard, ―[a] federal habeas court may not issue

the writ simply because that court concludes in its

independent judgment that the state-court decision applied a

Supreme Court case incorrectly. Rather, it is the habeas

38

applicant‘s burden to show that the state court applied that

case to the facts of his case in an objectively unreasonable

manner.‖ Price v. Vincent, 538 U.S. 634, 641 (2003)

(citations, quotation marks, and brackets omitted). In other

words, ―[a] state court‘s determination that a claim lacks

merit precludes federal habeas relief so long as ‗fairminded

jurists could disagree‘ on the correctness of the state court‘s

decision.‖ Harrington, 131 S. Ct. at 786 (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)). And ―the more

general the rule at issue — and thus the greater the potential

for reasoned disagreement among fair-minded judges — the

more leeway state courts have in reaching outcomes in case-

by-case determinations.‖ Renico, 130 S. Ct. at 1864

(quotation marks and brackets omitted).

With regard to § 2254(d)(2), this Court has explained

that ―a decision adjudicated on the merits in a state court and

based on a factual determination will not be overturned on

factual grounds unless [the state court‘s findings of fact are]

objectively unreasonable in light of the evidence presented in

the state-court proceeding.‖ Lambert v. Blackwell, 387 F.3d

210, 234 (3d Cir. 2004) (quotation marks omitted). ―State-

court factual findings, moreover, are presumed correct; the

petitioner has the burden of rebutting the presumption by

‗clear and convincing evidence.‘‖ Rice v. Collins, 546 U.S.

333, 338-339 (2006) (quoting § 2254(e)(1)); see also

Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (―Under

the § 2254 standard, a district court is bound to presume that

the state court‘s factual findings are correct, with the burden

on the petitioner to rebut those findings by clear and

convincing evidence.‖). The evidence against which a federal

court measures the reasonableness of the state court‘s factual

findings is the record evidence at the time of the state court‘s

39

adjudication. Cullen v. Pinholster, 131 S. Ct. 1388, 1401

(2011).

As there is no dispute that the state court applied the

correct principle of law to adjudicate Blystone‘s claim, we

may only overturn the state court‘s decision if it was

objectively unreasonable.

B.

Blystone first contends that the state court‘s denial of

his ineffective assistance of counsel claim, as it relates to

counsel‘s failure to investigate and develop expert mental

health testimony and institutional records in mitigation, was

unreasonable in light of clearly established Supreme Court

precedent, and was made in reliance upon unreasonable

determinations of the facts. The District Court agreed and

vacated Blystone‘s death sentence on that basis. We, too,

agree and will affirm the judgment of the District Court.

We evaluate claims of ineffective assistance of counsel

using the two-pronged test set forth in Strickland v.

Washington, 466 U.S. 668 (1984). To succeed on such a

claim, the petitioner must demonstrate (1) that counsel‘s

performance was deficient, in that it fell below an objective

standard of reasonableness, and (2) that the petitioner suffered

prejudice as a result of the deficiency. Id. at 687. To

establish prejudice the petitioner ―must show that there is a

reasonable probability that, but for counsel‘s unprofessional

errors, the result of the proceeding would have been different.

40

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.‖ Id. at 694.16

―Surmounting Strickland‘s high bar is never an easy

task.‖ Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010).

―[U]nder de novo review, the standard for judging counsel‘s

representation is a most deferential one,‖ Harrington, 131 S.

Ct. at 788, and

[e]stablishing that a state court‘s

application of Strickland was

unreasonable under § 2254(d) is all the

more difficult. The standards created by

Strickland and § 2254(d) are both highly

deferential, and when the two apply in

tandem, review is doubly so. The

Strickland standard is a general one, so

the range of reasonable applications is

substantial. Federal habeas courts must

guard against the danger of equating

16

The Commonwealth argues that Blystone‘s claim for relief

depends on this Court‘s willingness to recognize a new rule

— namely, that the principles of Strickland impose upon

counsel an obligation to refuse the instructions of a competent

client with respect to the presentation of mitigating evidence.

But Blystone advocates no such new rule; rather, Blystone

argues merely that counsel failed in his predicate duty to

investigate, and advise Blystone of, available mitigating

evidence prior to sentencing, and that he was prejudiced

thereby. The merits of such a claim are ―squarely governed‖

by Strickland. Williams, 529 U.S. at 390.

41

unreasonableness under Strickland with

unreasonableness under § 2254(d). When

§ 2254(d) applies, the question is not

whether counsel‘s actions were

reasonable. The question is whether there

is any reasonable argument that counsel

satisfied Strickland‘s deferential

standard.

Id. (citations and quotation marks omitted).17

1.

We first turn to the state court‘s interpretation and

application of Strickland‘s performance prong. Blystone

argued unsuccessfully in state court that counsel was deficient

in failing to investigate adequately and develop expert mental

health testimony and institutional records in mitigation at the

sentencing phase. For the reasons set forth below, we can

discern no reasonable argument to sustain the state court‘s

17

Though application of the Strickland test requires a case-

specific examination of the evidence, this ―obviates neither

the clarity of the rule nor the extent to which the rule must be

seen as ‗established‘ by [the Supreme Court.]‖ Williams, 529

U.S. at 391. Supreme Court decisions since the issuance of

Strickland have shed further light on precisely what is

required of counsel in conducting a sufficient investigation

prior to sentencing. But such a duty to investigate is certainly

encompassed in the mandate of Strickland and has, therefore,

been ―established‖ for purposes of AEDPA since the issuance

of that decision. See Marshall, 307 F.3d at 99-107.

42

conclusion that Blystone‘s lawyer satisfied Strickland‘s

deferential standard.

Unquestionably, investigation is essential to the

lawyer‘s duties as both advisor and advocate. See 1 ABA

Standards for Criminal Justice 4-4.1 (2d ed. 1980).18 After

all, ―[t]he effectiveness of advocacy is not to be measured

solely by what the lawyer does at the trial; without careful

preparation, the lawyer cannot fulfill the advocate‘s role.‖ Id.

Indeed, the ―right to present, and to have the sentencer

consider, any and all mitigating evidence means little if

defense counsel fails to look for mitigating evidence‖ in the

first instance. Hendricks, 307 F.3d at 99 (quotation marks

omitted).

―[C]ounsel‘s general duty to investigate takes on

supreme importance to a defendant in the context of

developing mitigating evidence to present to a judge or jury

considering the sentence of death.‖ Id. (quotation marks

omitted). ―The lawyer . . . has a substantial and important

role to perform in raising mitigating factors both to the

prosecutor initially and to the court at sentencing.‖ 1 ABA

Standards, supra, 4-4.1. And this formidable task ―cannot

effectively be done on the basis of broad general emotional

appeals or on the strength of statements made to the lawyer

by the defendant.‖ Id. Rather, the lawyer must make

sufficient ―efforts to discover all reasonably available

18

As the Supreme Court noted in Wiggins v. Smith, ―we long

have referred [to ABA standards] as guides to determining

what is reasonable.‖ 539 U.S. 510, 524 (2003) (quotation

marks omitted).

43

mitigating evidence and evidence to rebut any aggravating

evidence that may be introduced by the prosecutor.‖

Wiggins, 539 U.S. at 524 (quotation marks omitted).

―Information concerning the defendant‘s background,

education, employment record, mental and emotional

stability, family relationships, and the like, will be relevant. . .

.‖ 1 ABA Standards, supra, 4-4.1.

Of course, while much is expected of trial counsel,

Strickland also calls for great deference to an attorney‘s

tactical decision to forego particular lines of investigation.

And those strategic choices that counsel makes after

conducting a thorough investigation of the relevant law and

facts ―are virtually unchallengeable[.]‖ Wiggins v. Smith,

539 U.S. 510, 521 (2003) (quotation marks omitted). This

does not mean, however, that counsel can insulate his

decisions from review merely by calling them strategic, for

―choices made after less than complete investigation are

reasonable [only] to the extent that reasonable professional

judgments support the limitations on investigation.‖ Id.

(quotation marks omitted). That is to say, ―counsel has a duty

to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.‖

Id. (quotation marks omitted).

Importantly for our present purposes, this duty to

conduct a reasonable investigation of mitigating evidence

exists independently of counsel‘s duty to present a mitigation

case to the jury. In fact, the former is a necessary predicate to

the latter: if counsel has failed to conduct a reasonable

investigation to prepare for sentencing, then he cannot

possibly be said to have made a reasonable decision as to

what to present at sentencing. As such, ―our principal

44

concern in deciding whether [counsel] exercised ‗reasonable

professional judgment‘ is not whether counsel should have

presented a mitigation case. Rather, we focus on whether the

investigation supporting counsel‘s decision not to introduce

mitigating evidence of [the defendant‘s] background was

itself reasonable.‖ Id. at 522-23 (citation and brackets

omitted).

We need not delve too deeply into the question of

whether Whiteko‘s investigation prior to sentencing was

deficient because the Commonwealth‘s brief all but concedes

that it was. See Commonwealth‘s Reply Br. 10 (―If counsel

had persuaded petitioner not to contest the imposition of a

sentence of death, then [Supreme Court precedent] would

require an evaluation of whether counsel‘s inadequate

investigation tainted his instructions and advice to his client.‖

(emphasis added)). And, for the reasons that follow, we are

persuaded that no reasonable argument can be made to

support the state court‘s decision to the contrary.

Notably, the Commonwealth does not dispute that the

expert mental health testimony and institutional records

presented at the PCRA hearing amount to constitutionally

significant mitigating evidence. Nor does the Commonwealth

dispute that all of this evidence was readily available to

Whiteko at the time of trial, had he looked for it. Thus, the

question before us is simply whether any reasonable

argument can be made to support the conclusion that

counsel‘s failure to explore these sources of mitigating

evidence was not constitutionally deficient.

The PCRA court determined that trial counsel‘s

investigation into expert mental health evidence was adequate

45

because Blystone underwent a competency evaluation at the

Mayview Hospital prior to trial and nothing in the resulting

report would have suggested to counsel that he should inquire

further into Blystone‘s mental health. We disagree. Indeed,

we believe the state court‘s conclusion in this regard was

objectively unreasonable in light of the evidence presented in

the proceedings before it.

As the District Court aptly noted, ―[i]t is beyond cavil

that the scope of an evaluation for purposes of mitigation at a

capital sentencing proceeding is far broader than that for

competency at trial.‖ District Court Op. 105 (citing

Commonwealth v. Basemore, 744 A.2d 717, 738 n.24 (Pa.

2000); Blanco v. Singletary, 943 F.2d 1477, 1503 (11th Cir.

1991)). Thus, the fact that the Mayview Hospital report

found Blystone competent to stand trial plainly does not, as

the PCRA court‘s opinion suggests, lead inexorably to the

conclusion that the report gave Blystone a clean bill of mental

health for purposes of mitigation. In fact, the record before

the PCRA court demonstrated quite the opposite. Drs.

Fleming and Whyte testified that the Mayview Hospital

competency evaluation contained clinically significant ―red

flags,‖ which a qualified expert would have found to require

follow-up prior to sentencing. But counsel never even

presented the competency evaluation to an expert, instead

determining of his own accord that nothing in the report

suggested that Blystone suffered from a mental illness.

Notably, nothing was presented to the PCRA court that could

have served to undermine the conclusion of Drs. Fleming and

Whyte that any qualified expert would have found the

contents of the Mayview Hospital report to be clinically

significant. On such a record, we conclude that the state

court‘s assertion that the Mayview Hospital report contained

46

no indications of mental illness was an unreasonable

determination of the facts.

The state court‘s decision was similarly unreasonable

in reaching the concomitant conclusion that counsel was not

ineffective for failing to solicit an independent mental health

evaluation because Blystone had no constitutional right to

such an evaluation prior to sentencing. Drs. Fleming and

Whyte testified that, had the appropriate follow-up

investigation of the Mayview Hospital report been conducted,

a qualified expert would have had all of the means necessary

at the time of trial to diagnose Blystone with organic brain

syndrome caused by a childhood head injury, bipolar

disorder, and borderline personality disorder. Both doctors

believed that the psychological conditions from which

Blystone suffered rendered him substantially impaired at the

time of the crime and they were of the opinion that a qualified

expert would have reached the same conclusion prior to

sentencing. Again, nothing was presented to the PCRA court

to undermine the opinions of Drs. Fleming and Whyte in this

regard.19 Even assuming that the state court correctly

concluded that Blystone had no constitutional right to an

independent mental health evaluation prior to sentencing, it

was certainly within the trial court‘s discretion to appoint an

19

The state court dismissed the opinions of Drs. Fleming and

Whyte because they did not know Blystone at the time of the

offense or at the time of trial. In so doing, the state court

ignored the fact that both doctors testified that all of the

materials upon which they relied were available at the time of

trial and that qualified experts would have reached the same

diagnoses at that time.

47

expert had counsel so requested. See, e.g., Commonwealth v.

Miller, 746 A.2d 592, 605 (Pa. 2000) (Saylor, J., concurring).

We believe it clear that competent counsel would have so

requested under the circumstances. Cf. Everett v. Beard, 290

F.3d 500, 509 (3d Cir. 2002) (explaining that a ―reasonably

competent attorney patently is required to know the state of

the applicable law‖). The state court‘s suggestion to the

contrary is unreasonable.

Counsel sought to justify further his failure to seek an

expert mental health evaluation by explaining to the PCRA

court that Blystone wanted ―all or nothing‖ — in other words,

he believed his client wanted only to contest his guilt at trial

and did not want to present a mitigation case if convicted.20

This proffered justification, however, relies on an illogical

leap: the fact that Blystone rejected a plea deal offering him

life in prison in exchange for an admission of guilt in no way

compels the conclusion that he wanted to die if convicted.

And, in any event, ―[t]he investigation for preparation of the

sentencing phase should be conducted regardless of any

initial assertion by the client that mitigation is not to be

offered.‖ ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases, Guideline

11.4.1(C). Counsel cannot avoid the consequences of his

inadequate preparation simply by virtue of the serendipitous

occurrence that, on the day of sentencing, his client stuck

with the decision not to go forward with a mitigation case. 21

20

Counsel did not defend his decision not to obtain the

institutional records before the PCRA court.

21

We certainly recognize that

48

With regard to institutional records, we start with the

fact that counsel knew prior to sentencing that Blystone had

served in the Navy and been incarcerated in Maryland for

robbery. Yet, counsel failed even to attempt to acquire

records from either institution. The Commonwealth correctly

points out that these records contain some information that

may have proven unfavorable to Blystone. But they also

[t]he reasonableness of counsel‘s actions

may be determined or substantially

influenced by the defendant‘s own

statements or actions. . . . And when a

defendant has given counsel reason to

believe that pursuing certain

investigations would be fruitless or even

harmful, counsel‘s failure to pursue those

investigations may not later be

challenged as unreasonable.

Strickland, 466 U.S. at 691. Still, notwithstanding any

statements a defendant may make as to his desire to present a

case in mitigation at sentencing, the duty to, at the very least,

―explore all avenues leading to facts relevant to . . . the

penalty‖ before sentencing belongs to the lawyer and ―exists

regardless of the accused‘s admissions or statements to the

lawyer of facts constituting guilt or the accused‘s stated desire

to plead guilty.‖ 1 ABA Standards for Criminal Justice 4-4.1

(2d ed. 1982 Supp.). After all, counsel also has a duty to

provide advice upon which his client can make an informed

decision not to present evidence in mitigation. And counsel

cannot fulfill this duty without first knowing what mitigating

circumstances may exist. See Hamblin v. Mitchell, 354 F.3d

482, 492 (6th Cir. 2003).

49

contain evidence that plainly corroborates the testimony of

Drs. Fleming and Whyte as to Blystone‘s personality disorder

and childhood head injury. Any amount of substantive

engagement with this evidence would have spurred competent

counsel to further investigate Blystone‘s mental health. As

Supreme Court precedent makes clear, defense counsel has a

duty to obtain administrative records, such as those at issue

here, as part of the ―obligation to conduct a thorough

investigation of the defendant‘s background.‖ Williams, 529

U.S. at 396 (citing 1 ABA Standards, supra, commentary, p.

4-55). We think it abundantly clear that trial counsel fell

short of professional standards in failing to explore

institutional records in the course of investigating Blystone‘s

background in this case. The state court‘s conclusion to the

contrary reflects an unreasonable application of clearly

established federal law. See, e.g., Wiggins, 539 U.S. at 527-

28 (finding state court‘s conclusion that counsel performed

adequately, even though he did not fully explore known

institutional records, to be objectively unreasonable).

Moreover, counsel‘s inadequate investigation was

clearly not the result of the type of reasoned tactical decision

to which we owe deference under Strickland. Indeed,

counsel‘s testimony at the PCRA hearing makes evident that

he did not even perform an investigation sufficient to provide

the foundation for a reasoned strategic choice as to which

avenues of potentially mitigating evidence to pursue. See

United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)

(―[C]ounsel can hardly be said to have made a strategic

choice against pursuing a certain line of investigation when

s/he has not yet obtained the facts on which such a decision

could be made.‖).

50

We recognize that ―[t]he right to counsel does not

require that a criminal defense attorney leave no stone and no

witness unpursued.‖ Jermyn v. Horn, 266 F.3d 257, 308 (3d

Cir. 2001) (alteration in original) (quotation marks omitted).

But the Sixth Amendment at least ―require[s] a reasoned

judgment as to the amount of investigation the particular

circumstances of a given case require.‖ Id. (quotation marks

omitted); see also Strickland, 466 U.S. at 691. It is evident

from the PCRA record that counsel‘s limited investigation

was not the result of any such reasoned judgment, but was

merely the consequence of lackluster performance. In other

words, we think that ―counsel chose to abandon the[]

investigation at an unreasonable juncture, making a fully

informed decision with respect to sentencing strategy

impossible.‖ Wiggins, 539 U.S. at 527-28. And we are

convinced that there could be no disagreement among

―fairminded jurists‖ that the state court‘s decision to the

contrary was incorrect. Harrington, 131 S. Ct. at 786 (―[A]

state court‘s determination that a claim lacks merit precludes

federal habeas relief so long as ‗fairminded jurists could

disagree‘ on the correctness of the state court‘s decision.‖

(quoting Yarborough, 541 U.S. at 664)).

2.

Having largely conceded that Whiteko‘s performance

was deficient, the Commonwealth focuses its attention on the

prejudice prong of the Strickland test. The Commonwealth

argues, as the Pennsylvania Supreme Court found, that

Blystone made a ―knowing, intelligent, and voluntary,‖

waiver of his right to present any mitigating evidence at

sentencing. Blystone II, 725 A.2d at 1205 (noting that

Blystone ―not only refused to take the stand to testify in

51

mitigation, but he also refused to allow any other mitigating

evidence to be presented in his behalf‖). Accordingly, the

argument continues, Blystone has ―failed to demonstrate how

counsel‘s alleged ineffectiveness prejudiced him‖ because the

jury would not have been privy to any additional evidence

that Whiteko may have uncovered through an adequate

investigation. Id. at 1205 n.20. More specifically, the

Commonwealth contends that the relief Blystone seeks is

foreclosed by the Supreme Court‘s decision in Schriro v.

Landrigan, 550 U.S. 465 (2007), in which the petitioner,

Landrigan, made a similar ineffective assistance of counsel

claim based upon an allegedly deficient investigation. A

summary of Schriro and its progeny will be of use in

explaining why we do not agree that Schriro controls our

analysis of this case.

In Schriro, the Supreme Court confronted for the first

time ―a situation in which a client interferes with counsel‘s

efforts to present mitigating evidence to a sentencing court.‖

Id. at 478. Though Landrigan‘s counsel had advised his

client ―very strongly‖ to allow the presentation of a mitigation

case, Landrigan made clear upon questioning from the

sentencing judge that he had instructed his counsel, in no

uncertain terms, not to present any mitigating evidence. Id. at

469. Indeed, while Landrigan‘s counsel was proffering to the

court the mitigating evidence he would have presented, if so

permitted by his client, Landrigan went as far as to interrupt

multiple times to explain away the mitigating characteristics

of the evidence, and to reaffirm that he did not want the

evidence presented in court. Id. at 470. Moreover, Landrigan

made it abundantly clear that he understood the consequences

of his choice not to present a mitigation case: at the end of

the sentencing hearing, he explicitly asked the jury to impose

52

a death sentence, stating ―I think if you want to give me the

death penalty, just bring it right on. I‘m ready for it.‖ Id.

(quotation marks omitted). Applying AEDPA‘s deferential

standard of review to these facts, the Supreme Court

determined that the state court reasonably concluded that

Landrigan had refused to allow the presentation of any

mitigating evidence, regardless of its form, and that this

refusal prevented him from thereafter demonstrating that

counsel‘s allegedly inadequate investigation resulted in

prejudice because no additional mitigating evidence would

have come before the jury. Id. at 475-77.

We found Schriro to be controlling in Taylor v. Horn,

504 F.3d 416 (3d. Cir. 2007). In Taylor, the petitioner wrote

a confession letter to the police, in which he stated, ―I want

the maximum sentence.‖ Id. at 421 (quotation marks

omitted). At his change of plea hearing, the petitioner

confirmed that he had instructed his attorney not to contact

any witnesses or to call medical personnel who could testify

on his behalf, and that he understood that ―the likely result

will be imposition of the death penalty.‖ Id. (quotation marks

omitted). At sentencing, the petitioner informed the court that

he declined to present any mitigating evidence and the court

sentenced him to death. Id. at 422. Despite his dogged

opposition to the presentation of mitigating evidence, the

petitioner filed an ineffective assistance claim in subsequent

state post-conviction proceedings based on his counsel‘s

allegedly deficient investigation in preparation for sentencing.

The state court denied the claim, finding that the petitioner

could not make the necessary showing of prejudice, since he

unwaveringly refused to allow his attorney to present any

evidence in mitigation, going so far as to personally call

potential witnesses to instruct them not to attend his

53

sentencing. Id. at 424. Applying AEDPA‘s deferential

standard of review, we determined in Taylor that the state

court‘s assessment of the facts was reasonable. Id. at 452,

455. Though the petitioner in that case ―was not belligerent

and obstructive in court like the defendant in [Schriro],‖ we

were persuaded by the record ―that his determination not to

present mitigating evidence was just as strong.‖ Id. at 455.

As a result, we found that ―whatever counsel could have

uncovered, [the petitioner] 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.‖ Id.

In the subsequent case of Thomas v. Horn, the

Commonwealth relied on Schriro and Taylor to argue that,

even assuming that effective counsel would have discovered

Thomas‘s history of mental illness prior to sentencing, no

prejudice could have resulted from the inadequate

investigation because Thomas would have prevented his

counsel from presenting any evidence of his mental illness at

sentencing. 570 F.3d 105, 126 (3d Cir. 2009). We rejected

this argument,22 holding that we could not conclude on the

record before us that Thomas would have interfered with the

presentation of all mitigating evidence, regardless of its form.

Id. We explained that Thomas‘s colloquy at sentencing

focused narrowly on whether he wanted to take the stand

himself, and did not provide a reasonable basis to conclude,

as a factual matter, that he would have refused to present all

22

Unlike in Schriro and Taylor, our review in Thomas was

not restricted by AEDPA because the state courts had not

addressed Thomas‘s ineffective assistance of counsel claim

on the merits. Thomas, 570 F.3d at 127.

54

other forms of mitigating evidence as well, had his attorney

been prepared to do so. Id. at 128. Although we

acknowledged that the sentencing court had asked Thomas to

confirm that it was his decision not to present ―any evidence,‖

we noted that this question was part of a compound question

that simultaneously asked Thomas to reaffirm that he did not

wish to take the stand in his own behalf. Id. (quotation marks

omitted). We were convinced that Thomas‘s ―terse answer to

[the sentencing court‘s compound] inquiry does not display

an intent to interfere with the presentation of mitigating

evidence that is strong enough to preclude a showing of

prejudice.‖ Id. We similarly concluded that Thomas‘s

response in the negative to the court‘s question as to whether

he had any witnesses to call did not demonstrate that Thomas

would have prevented the presentation of mitigating evidence

in the form of expert testimony or records. Id.

The Commonwealth suggests that, like in Schriro and

Taylor, Blystone‘s colloquy with the trial court provides

indisputable support for the notion that Blystone would have

refused to allow Whiteko to present any mitigating evidence

on his behalf — including expert mental health testimony and

institutional records — and thereby eliminates the possibility

that prejudice might have resulted from Whiteko‘s deficient

investigation. To this end, the Commonwealth places much

stock in Blystone‘s answer in the negative to the question

―Do you wish to testify yourself or to have your parents

testify or to offer any other evidence in this case?‖ App. 970

(emphasis added). The fact that Blystone declined to ―offer

any other evidence,‖ the argument goes, is the beginning and

the end of the prejudice inquiry. We are not so persuaded.

The trial court‘s colloquy in this case focused almost

55

entirely on whether Blystone wished to take the stand himself

or have his parents testify on his behalf. The colloquy was

narrowly focused in this manner for an obvious reason: the

testimony of Blystone and his parents was the only evidence

that Whiteko was prepared to present. As in Thomas, the

inquiry upon which the Commonwealth relies was part of a

compound question that also asked Blystone to affirm his

desire not to take the stand himself or to have his parents

testify on his behalf. See 570 F.3d at 128. And as in

Thomas, we are of the opinion that Blystone‘s ―terse answer

to this inquiry does not display an intent to interfere with the

presentation of mitigating evidence that is strong enough to

preclude a showing of prejudice‖ in the manner that the

conduct of the petitioners in Schriro and Taylor did. Id. We

think that the only reasonable reading of the colloquy

indicates that Blystone waived, at most, all lay witness

testimony through his statement that he did not want

―anybody else brought into it.‖ App. 972. We believe it not

only incorrect, but also unreasonable, to infer from the

colloquy that Blystone would have prevented counsel from

presenting any mitigating evidence, regardless of the form

that it took.

The substance of the colloquy, in combination with the

testimony presented at the PCRA hearing, does not provide

reason to believe that Blystone even understood that any form

of evidence other than lay witness testimony could have been

offered in mitigation. Though Whiteko testified before the

PCRA court that Blystone did not want him ―to present

anything‖ at sentencing, App. 1172, glaringly absent from the

record is any suggestion that Whiteko ever discussed with

Blystone the possibility of considering mitigating evidence

other than the testimony of Blystone or his parents. In this

56

regard, we believe that the present case bears little

resemblance to Schriro, in which the petitioner was certainly

aware that other types of mitigating evidence could be

presented on his behalf, since nearly all of the evidence that

the petitioner claimed would have been uncovered in an

adequate investigation was in fact proffered to the judge —

over the interruptions of the petitioner — at sentencing. As

the Supreme Court put it, ―[i]n the constellation of refusals to

have mitigating evidence presented . . . [Schriro] is surely a

bright star.‖ Schriro, 550 U.S. at 477 (second alteration in

original) (quotation marks omitted). Despite the

Commonwealth‘s extensive arguments to the contrary, the

facts of this case are clearly distinguishable from Schriro.

The fact that Blystone chose to forego the presentation

of his own testimony and that of the two family members,

which counsel was prepared to put on the stand, simply does

not permit the inference that, had counsel competently

investigated and developed expert mental health evidence and

institutional records, Blystone would have also declined their

presentation. And unlike the petitioners in Schriro and

Taylor, Blystone never behaved in a manner, either prior to or

during sentencing, to suggest that such an inference might be

appropriate. We therefore ―find it impossible to predict with

any degree of certainty what [Blystone] would have done had

his trial counsel investigated and prepared to present all of the

available mitigating evidence that [Blystone] now points to.‖

Young v. Sirmons, 551 F.3d 942, 959 (10th Cir. 2008). We

conclude that the state court‘s belief that it could predict what

Blystone would have done was unreasonable. Thus, we agree

with the District Court that the state court‘s determination that

Blystone waived the presentation of all mitigating evidence,

regardless of its form, was objectively unreasonable in light

57

of the evidence before it. In turn, we also conclude that the

state court was unreasonable in holding that Blystone‘s

waiver prevented him from making the necessary showing of

Strickland prejudice.

Finally, we are convinced that the body of potentially

mitigating evidence adduced at the PCRA hearing is

sufficient to demonstrate that counsel‘s deficiencies

prejudiced Blystone.23 Under Pennsylvania law, ―the jury‘s

decision on the [death] penalty must be unanimous.‖ Jermyn,

266 F.3d at 309. Thus, Blystone ―can show prejudice in this

case if there is a reasonable probability that the presentation

of the [mitigating] evidence . . . would have convinced one

juror to find the mitigating factors to outweigh the single

aggravating factor the Commonwealth relied upon in this

case.‖ Id.

Had counsel‘s investigation not been deficient, the jury

could have heard expert testimony as to Blystone‘s organic

brain damage, bipolar disorder, and borderline personality

disorder. These same experts would have told the jury that, at

the time of the crime, Blystone acted under extreme

emotional disturbance and suffered from a substantially

impaired capacity to conform his conduct to the law. The

jury also would have been told that Blystone can adapt

successfully to institutional life and would likely not pose a

future danger to society if sentenced to life in prison.

23

Because the state court did not reach the merits of the

prejudice prong, the deferential AEDPA standard of review

does not apply and we instead review this portion of

Blystone‘s claim de novo. See Porter v. McCollum, 130 S.

Ct. 447, 452 (2009).

58

We are persuaded that the introduction of this evidence

―might well have influenced [at least one juror‘s] appraisal of

[Blystone‘s] moral culpability.‖ Williams, 529 U.S. at 398;

see Penry v. Lynaugh, 492 U.S. 302, 319 (1989)

(―‗[E]vidence about the defendant‘s background and

character is relevant because of the belief, long held by this

society, that defendants who commit criminal acts that are

attributable . . . to emotional and mental problems, may be

less culpable than defendants who have no such excuse.‘‖

(quoting California v. Brown, 479 U.S. 538, 545 (1987)

(O‘Connor, J., concurring))). We, therefore, agree with the

District Court that Blystone has demonstrated a reasonable

probability that the result of his sentencing hearing would

have been different, had counsel conducted an adequate

investigation of mitigating circumstances. Accordingly, we

will affirm the District Court‘s decision to vacate Blystone‘s

death sentence and remand for resentencing.

C.

Finally, Blystone contends that the state court was

unreasonable in rejecting the portion of his ineffective

assistance of counsel claim which relates to counsel‘s alleged

failure to investigate adequately and develop lay witness

testimony in mitigation. In rejecting this sub-claim, the

PCRA court found that counsel ―spoke with [Blystone] at

length prior to and during the trial about all aspects thereof . .

. and interviewed [his] mother and father, as well as one

sister, concerning [his] life, from early childhood to the time

of trial.‖ App. 1649. The PCRA court also found it

significant that neither Blystone nor his family indicated to

counsel prior to sentencing that Blystone had substance abuse

59

issues. Relying on these factual findings, the Pennsylvania

Supreme Court upheld the PCRA court‘s conclusion that

counsel had adequately explored lay witness testimony in

preparing for sentencing. See Blystone II, 725 A.2d at 1206.

Blystone takes issue with the state court‘s findings of

fact, claiming that nothing in the record suggests that trial

counsel adequately interviewed him or his family members

regarding the existence of potentially mitigating evidence.

Having thoroughly reviewed the record from the PCRA

hearing, however, we agree with the District Court that the

state court had sufficient testimony before it to support its

findings. Although Blystone argues that his family‘s

testimony at the PCRA hearing contradicts counsel‘s

assertions that he thoroughly inquired as to the existence of

mitigating evidence, the PCRA court did not credit their

testimony. Neither did the PCRA court credit Sharon

Smitley‘s testimony that Blystone was severely intoxicated on

the night of the murder. The PCRA court did, however,

credit Whiteko‘s assertions that, to prepare for sentencing, he

(1) interviewed Blystone ―continuously,‖ (2) interviewed

Blystone‘s father about his son‘s ―childhood, when he was

young, very young, until the day of trial,‖ App. 1144-45, (3)

spoke with Blystone‘s mother and sister, and (4) explored the

list of statutory mitigating circumstances with Blystone and

his parents, inquiring as to whether they knew of anything

that might be of use in building a mitigation case. We, like

the District Court, are bound by those credibility

determinations.

The disparity between the lay witness testimony that

counsel was prepared to present at sentencing and that which

was elicited at the PCRA hearing suggests that counsel should

60

have engaged in a more extensive investigation prior to

sentencing. But, in light of the record evidence and the

constraints imposed upon us by AEDPA, we cannot conclude

that the state court was unreasonable in finding that counsel‘s

investigation of lay witness testimony satisfied the deferential

standard of Strickland.24 Accordingly, we will affirm the

District Court‘s denial of Blystone‘s ineffective assistance of

counsel claim to the extent that it relates to counsel‘s

investigation and development of lay witness testimony prior

to sentencing.25

V.

For the foregoing reasons, we will affirm the order of

the District Court denying Blystone‘s Rule 59(e) motion, as

24

The Supreme Court‘s decision in Rompilla v. Beard, 545

U.S. 374 (2005), does not compel a different result. In

Rompilla, counsel‘s investigation included interviews with

Rompilla and some of his family members. The Supreme

Court recognized that the adequacy of counsel‘s

investigation into lay witness testimony was subject to debate,

but held only that counsel was deficient for failing to examine

a court file on the defendant‘s prior conviction, which was

there ―for the asking‖ and which counsel knew would be used

to establish an aggravating circumstance at sentencing. Id. at

384.

25

In affirming this denial, we decide only that the District

Court‘s ruling on this issue of lay witness testimony was not

in error under the standards of review set forth by AEDPA.

We in no way hold that lay witness testimony cannot be

presented at the resentencing hearing.

61

well as the District Court‘s judgment vacating Blystone‘s

death sentence and remanding for resentencing.

62