Reply Brief — Richard Roland Laird, Petitioner v. Laurel Harry, Secretary, Pennsylvania Department of Corrections, et al.

OCTOBER TERM, 2024

No. 24-7262

_______________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________________________

RICHARD ROLAND LAIRD,

Petitioner,

v.

LAUREL HARRY, SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS;

SUPERINTENDENT, S.C.I. SOMERSET,

Respondents.

______________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

______________________________

REPLY IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

______________________________

— CAPITAL CASE —

Joseph W. Luby*

Cristi A. Charpentier

Assistant Federal Defenders

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street, Suite 545 West

Philadelphia, PA 19106

(215) 928-0520

Joseph_Luby@fd.org

Cristi_Charpentier@fd.org

*Counsel of record for Petitioner

Member of the Bar of the Supreme Court

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... ii

REPLY TO RESPONDENTS’ “COUNTER STATEMENT OF THE CASE” .............. 1

REPLY ARGUMENT .................................................................................................... 3

I.

RESPONDENTS MISREAD THE LOWER COURTS’ DIVIDED OPINIONS ... 3

II.

RESPONDENTS’ ISSUE-BY-ISSUE APPROACH TO AEDPA DEFERENCE

CONFLICTS WITH THE STATUTE’S PURPOSES AS WELL AS THIS

COURT’S DECISIONS . ........................................................................................ 6

III. RESPONDENTS’ DE NOVO REVIEW OF COUNSEL’S PERFORMANCE IS

UNAVAILING........................................................................................................ 8

CONCLUSION............................................................................................................. 10

i

TABLE OF AUTHORITIES

Federal Cases

Adeyanju v. Wiersma, 12 F.4th 669 (7th Cir. 2021) ..................................................... 4

Atkins v. Zenk, 667 F.3d 939 (7th Cir. 2012) ................................................................ 4

Barker v. Fleming, 423 F.3d 1085 (9th Cir. 2005) ................................................ 5, 6, 8

Bond v. Beard, 539 F.3d 256 (3d Cir. 2008).................................................................. 7

Brady v. Maryland, 373 U.S. 83 (1963) ........................................................................ 5

Dunn v. Jess, 981 F.3d 582 (7th Cir. 2020)............................................................... 3, 4

Estelle v. McGuire, 502 U.S. 52 (1991).......................................................................... 1

Hammond v. Hall, 586 F.3d 1289 (11th Cir. 2009) .................................................. 5, 8

Harrington v. Richter, 562 U.S. 86 (2011) .................................................................... 7

Knight v. Fla. Dep’t of Corr., 958 F.3d 1035 (11th Cir. 2020) .............................. 4, 5, 8

Laird v. Horn, 159 F. Supp. 2d 58 (E.D. Pa. 2001)....................................................... 1

Lentz v. Kennedy, 967 F.3d 675 (7th Cir. 2020)............................................................ 3

Rompilla v. Beard, 545 U.S. 374 (2005)................................................................ 5, 8, 9

Strickland v. Washington, 466 U.S. 668 (1984) ............................................................ 3

Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015) .................................................. 4, 8

Wiggins v. Smith, 539 U.S. 510 (2003) ................................................................. 5, 8, 9

Williams v. Taylor, 529 U.S. 362 (2000) ....................................................................... 8

Wilson v. Sellers, 584 U.S. 122 (2018)............................................................... 3, 5, 6, 7

Federal Statutes

28 U.S.C. § 2254 ......................................................................................................... 2, 6

State Cases

Brennan v. St. Luke’s Hosp., 285 A.2d 471 (Pa. 1971) ............................................. 1, 2

Commonwealth v. Davis, No. 618 WDA 2013, 2015 WL 7260024

(Pa. Super. Ct. May 11, 2015)............................................................................. 2

Commonwealth v. Flor., 259 A.3d 891 (Pa. 2021) ........................................................ 2

Commonwealth v. Gibson, 19 A.3d 512 (Pa. 2011) ....................................................... 2

State Constitutional Provisions

Pa. Const. art. V, § 2(a).................................................................................................. 6

Pa. Const. art. V, § 10(a)................................................................................................ 6

ii

REPLY TO RESPONDENTS’ “COUNTER STATEMENT OF THE CASE”

Respondents observe that psychologist Dr. Henry Dee testified at Laird’s

retrial concerning a 1996 report from psychiatrist Dr. David Silverman. BIO 9. As

elicited during the Commonwealth’s cross-examination of Dr. Dee, the 1996 report

stated that Laird had a “long smoldering antagonism toward persons identified as

homosexuals.” Id. Dr. Dee acknowledged that Laird’s antagonism “might” have led

him to victimize Anthony Milano, which supported the prosecution’s theory that the

killing was an anti-gay hate crime. NT 2/13/2007 at 98.

Entirely absent from the testimony of Dr. Dee or any other witness, though,

was Dr. Silverman’s connection of the crime to Laird’s history of sexual abuse. Dr.

Silverman had observed that Laird’s homophobia “may have been caused by the fact

that at about age 9 he had been required to perform fellatio on an adult male [relative]

on a few separate occasions.” Laird v. Horn, 159 F. Supp. 2d 58, 114 n.30 (E.D. Pa.

2001). The sentencer was never provided such an explanation for Laird’s offense.

Similarly misleading is Respondents’ argument that the Court must ignore

psychologist Dr. David Lisak’s report simply because the trial-level PCRA court

declined to admit it. BIO 13. Respondents miscast the issue as whether “the report

was improperly excluded under Pennsylvania’s evidentiary rules.” Id. They insist

that federal courts on habeas review cannot “reexamine state-court determinations

on state law questions.” Id. (quoting Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)).

These contentions miss the point, which is that Pennsylvania courts have the

discretion to admit an expert’s report alongside the expert’s testimony. Brennan v.

St. Luke’s Hosp., 285 A.2d 471, 473 (Pa. 1971) (such admission was “proper, if not

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harmless error”); Commonwealth v. Davis, No. 618 WDA 2013, 2015 WL 7260024, at

*14 (Pa. Super. Ct. May 11, 2015) (“The admissibility of expert reports is within the

sound discretion of the trial court . . . .”). That is what the state courts did in the cases

cited by Laird. See Cert Pet. 3 n.1 (citing Commonwealth v. Flor, 259 A.3d 891, 912

(Pa. 2021); Commonwealth v. Gibson, 19 A.3d 512, 516 (Pa. 2011)).

In this case, Laird proffered Dr. Lisak’s report to the PCRA court, urged its

admission, and formally filed it—which led to the report’s inclusion in the state-court

record relied on below. A253, 273; NT 5/24/12 at 5–7, 198–99, 218–19. It makes no

difference whether Laird appealed the postconviction judge’s discretionary ruling to

the Pennsylvania Supreme Court, let alone whether he separately exhausted a

federal claim on the issue. And it is no fault of Laird that the PCRA court declined to

consider some of “the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2) (emphasis added). In any event, Respondents did not object to Laird’s

use of Dr. Lisak’s report in the district court, and they expressly relied on the report

when urging the Third Circuit to deny a certificate of appealability. See Dist. Dkt.

#51 (Petitioner’s Reply) at 3; Memorandum in Opposition to Application for

Certificate of Appealability (Mar. 26, 2018), at 42 (“Dr. Lisak himself states in his

2012 report that Laird’s disclosure of sexual abuse had been ‘piecemeal,’ a pattern

typical among male victims of sexual abuse.”).

2

REPLY ARGUMENT

I.

RESPONDENTS MISREAD THE LOWER COURTS’ DIVIDED

OPINIONS.

The Third Circuit squarely resolved the question that Laird’s case squarely

presents: whether a habeas court should afford AEDPA deference to a lower state

court’s ruling on one element of a federal claim even when a higher state court

resolved the merits on a different ground. A28–29. Respondents belittle the divided

authority on that question, but to no avail.

Respondents “wholly discard” the Seventh Circuit’s ruling in Dunn v. Jess, 981

F.3d 582 (7th Cir. 2020), because the parties in Dunn agreed to the method of AEDPA

review urged by Laird. BIO 19–20. But the parties’ agreement does not vitiate the

court’s holding, which cited Wilson v. Sellers, 584 U.S. 122 (2018), and explained that

AEDPA deference “only applies to issues that the last reasoned state court decision

reached on the merits.” Dunn, 981 F.3d at 591 (emphasis added). The court stated

that it must focus on the last merits decision and “simply review the specific reasons

given by the state court and defer to those reasons if they are reasonable.” Id. (citing

Lentz v. Kennedy, 967 F.3d 675, 688 (7th Cir. 2020), itself quoting Wilson, 584 U.S.

at 125)) (citation modified). When conducting de novo review of the prejudice issue

that the state appellate court left undecided, the Seventh Circuit embraced the

parties’ view as its own: “The Wisconsin Court of Appeals did not reach Strickland’s

prejudice prong, and so the parties agree that AEDPA deference does not apply and

we review that prong de novo.” Dunn, 981 F.3d at 591 (emphasis added).

Respondents fare no better invoking the Seventh Circuit’s pre-Wilson decision

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in Atkins v. Zenk, 667 F.3d 939 (7th Cir. 2012), or disagreeing with that court’s

disavowal of Atkins in Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015). BIO 19–20.

In Thomas, the Seventh Circuit reasoned that Atkins did not “render a holding on the

deference owed” to a lower state court’s decision on a question left undecided by a

higher state court’s merits ruling. 789 F.3d at 766. The court went on to observe that

its decisions before and after Atkins “gave deference only to the prong the appellate

court did reach and reviewed the other de novo.” Id. 766–67 (citing cases).

Respondents offer nothing more than disagreement with the Seventh Circuit’s grasp

of its own precedents.

Still more off base is Respondents’ reliance on Adeyanju v. Wiersma, 12 F.4th

669 (7th Cir. 2021). BIO 20–21. Far from rejecting the court’s approach in Dunn—a

case not even cited in the opinion—the Seventh Circuit followed the parties’

agreement that AEDPA deference did not apply to the Strickland prejudice issue that

the state appellate court left undecided. See Adeyanju, 12 F.4th at 673–74.

Respondents note that the Seventh Circuit gave “great weight” to the trial court’s

rationale on the question of prejudice. BIO 21 (quoting Adeyanju, 12 F.4th 674 n.1).

But the trial court’s remarks simply “strengthened” the Seventh Circuit’s de novo

determination. Adeyanju, 12 F.4th at 674, 674 n.1. It is unremarkable that the court

would find additional support for its conclusion by crediting the trial judge’s superior

recollection of the proceedings. Id.

Respondents take a similar approach to the Eleventh Circuit’s opinion in

Knight v. Florida Department of Corrections, 958 F.3d 1035 (11th Cir. 2020). Once

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again, Respondents criticize the decision. They contend that the Eleventh Circuit

offered “no meaningful analysis” beyond a footnote explaining that Wilson’s general

“look-through” rule does not apply in the circumstances present here. BIO 18; see also

Knight, 958 F.3d at 1046 n.3 (“To be clear, this case provides us no occasion to ‘look

through’ the Florida Supreme Court’s decision and defer to the state trial court’s

prejudice determination under Wilson v. Sellers.”). Respondents then contend that

Knight conflicts with the Eleventh Circuit’s pre-Wilson decision in Hammond v. Hall,

586 F.3d 1289 (11th Cir. 2009), as well as with Respondents’ reading of this Court’s

opinions in Wiggins v. Smith, 539 U.S. 510 (2003), and Rompilla v. Beard, 545 U.S.

374 (2005). BIO 18–19. Respondents are of course free to disagree with authority that

conflicts with the ruling below, but the conflict itself persists.

Respondents also misread the Ninth Circuit’s opinion in Barker v. Fleming,

423 F.3d 1085 (9th Cir. 2005). BIO 16–17. Contrary to Respondents’ summary, the

Washington Supreme Court ruled only (and unreasonably) that Barker was not

prejudiced by any suppression of the exculpatory evidence at issue. See Barker, 423

F.3d at 1088, 1095–96; Appellee’s Br., Barker v. Fleming, No. 04-39511 (9th Cir., filed

Feb. 11, 2025), 2005 WL 946172, at *25–26. Washington’s highest court reserved and

expressed doubt on the issue of suppression under Brady v. Maryland, 373 U.S. 83

(1963), but without deciding it. See Barker, 423 F.3d at 1096 n.6. The state urged the

Ninth Circuit to accord AEDPA deference to the lower appellate court’s ruling, which

reasoned that defense counsel could have discovered the allegedly suppressed

evidence through “reasonable diligence” and that Barker otherwise failed to prove

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non-disclosure by the prosecution. Appellee’s Br., 2005 WL 946172, at *16, *19, *24.

The Ninth Circuit nevertheless rejected the state’s request by reviewing the

suppression issue de novo. Barker, 423 F.3d at 1095–96. Barker thus ruled in Laird’s

favor on the question presented here. In Respondents’ parlance, Barker involved “the

same circumstance as the § 2254(d)(1) analysis at hand where the Third Circuit

looked through the Pennsylvania Supreme Court’s silence” on an element of the

prisoner’s claim. BIO 17.

II.

RESPONDENTS’ ISSUE-BY-ISSUE APPROACH TO AEDPA

DEFERENCE CONFLICTS WITH THE STATUTE’S PURPOSES AS

WELL AS THIS COURT’S DECISIONS.

Invoking the concerns of federalism, comity, and delay-reduction, Respondents

argue that a federal court should evaluate multiple state-court merits decisions

instead of a single one. BIO 23. But Respondents’ proposed rule conflicts with these

statutory aims. For one thing, a federal habeas court does not genuinely defer to a

state-court “decision,” 28 U.S.C. § 2254(d)(1)–(2), or extend comity to a state’s

judiciary, when it relies on an inferior ruling on the merits instead of a superior one.

Pennsylvania’s supreme court is the “highest court in the Commonwealth,” to which

the Pennsylvania Constitution assigns “supreme judicial power” as well as

supervisory and administrative authority over all other courts. Pa. Const. art. V,

§§ 2(a), 10(a). Habeas review properly focuses on the higher court’s ruling when, as

here, “the last state court to decide a prisoner’s federal claim explains its decision on

the merits in a reasoned opinion.” Wilson, 584 U.S. at 125.

Neither would Respondents’ proposal reduce delay. Many habeas claims have

6

multiple elements, and Respondents’ approach would require a federal court to parse

multiple state-court decisions to determine which portions of each decision should be

accorded AEDPA deference.

The present case illustrates that problem. Respondents argue that the

Pennsylvania Supreme Court did not reject the lower court’s merits ruling on the

question of counsel’s performance. BIO 27–28. They describe the higher court’s

remarks as a mere “linguistic quibble” concerning the relative scope of mitigating

evidence at trial and in postconviction. Id. at 28. But the Third Circuit took a different

view, stating that the higher court “did not agree” with the lower court’s reasoning.

A21. Respondents’ approach would require a federal court to adjudicate

disagreements like the one between Respondents and the Third Circuit, all the while

calibrating an issue-specific standard of review to assess separate portions of both

merits rulings. Those tasks are neither efficient nor especially useful.

Respondents’ legal arguments are equally misguided. Yes, this Court in Wilson

cited the Third Circuit’s decision in Bond v. Beard, 539 F.3d 265 (3d Cir. 2008), when

describing the split authority on the question under review. BIO 26. But that question

was whether a habeas court should “look through” and apply AEDPA to a lower state

court’s merits ruling when a higher court’s merits ruling is unexplained, or instead

whether the federal court should apply the even more deferential standard of

Harrington v. Richter, 562 U.S. 86 (2011), to the higher unexplained decision. See

Wilson, 584 U.S. at 128. It is true that Bond adopted the general “look through”

mechanism that Wilson prescribed, id., but this Court did not endorse the issue-by-

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issue version of that method taken by Bond and endorsed by Respondents, rather

than the claim-by-claim approach adopted by the majority of lower courts. See Cert

Pet. 18–20.

It does not help Respondents to cite Wiggins and Rompilla in support of the

element-by-element approach. BIO 26–27. Neither opinion resolves the question

Laird presents, because the Court in both cases exercised de novo review over the

Strickland prejudice issue that all state courts had left unresolved—quite unlike the

present case, in which the Pennsylvania Supreme Court declined to resolve the

performance question that the lower court had decided. See Wiggins, 539 U.S. at 534;

Rompilla, 545 U.S. at 390; A200–02. For that matter, lower courts disagree on

whether Wiggins and Rompilla support the claim-by-claim approach advanced by

Laird, as opposed to the element-by-element approach urged by Respondents. See

Knight, 958 F.3d at 1045–46, 1046 n.3 (citing Wiggins and Rompilla in support of

Laird’s view); Thomas, 789 F.3d at 767 (so citing Wiggins); Barker, 423 F.3d at 1093

(so construing Williams v. Taylor, 529 U.S. 362 (2000)); but see Hammond, 586 F.3d

at 1331 (citing Wiggins in support of Respondents’ view). Yet again, the Court should

resolve the conflicting authority.

III.

RESPONDENTS’

DE

NOVO

REVIEW

PERFORMANCE IS UNAVAILING.

OF

COUNSEL’S

Even though the Third Circuit applied only deferential review, Respondents

offer a de novo defense of counsel’s performance. BIO 28–31; A29, 37. Respondents

insist that “it was Laird himself who withheld the information that he now claims

was vital to his mitigation strategy.” BIO 28. But Respondents ignore trial counsel’s

8

own recognition that they had incomplete knowledge about Laird’s sexual abuse and

its effects. See Cert Pet. 10–11. Counsel admitted that Laird was hesitant to disclose

the details, even while counsel complained that visits in the local jail were nonconfidential—and even while counsel refused to visit Laird at his prison across the

state. Id. Counsel spent little time consulting with the mental health experts who

had examined Laird a decade earlier and who saw him briefly just before the retrial

began. Id. at 9.

Capital counsel’s duty to seek out “all reasonably available mitigating

evidence,” Wiggins, 539 U.S. at 524, operates even when the defendant provides only

“minimal” assistance. Rompilla, 545 U.S. at 381. That duty is all the more

pronounced when counsel recognize that their work is incomplete, which is to say,

when “the known evidence would lead a reasonable attorney to investigate further.”

Wiggins, 539 U.S. at 527. Unfortunately for Laird, counsel refrained as “a matter of

convenience” from having their out-of-state experts evaluate Laird at the western

Pennsylvania prison where he resided. NT 5/23/12 at 29, 32–33.

Neither is it true that Dr. Lisak’s evidence “presented little more than a few

additional anecdotes of the abuse Laird suffered at the hands of his father.” BIO 30.

The retrial defense offered no explanation for the crime. Defense counsel could only

speculate about the effects of Laird’s abuse: “What kind of person does that create? A

person who, obviously, can no longer function on the streets of this world.” NT 2/13/07

at 150. Counsel simply failed to develop and present evidence such as that offered by

Dr. Lisak, i.e., that Laird felt “worthless” and “intensively ashamed of himself” as a

9

result of his father’s sexual abuse, that he developed “a kind of hyper-masculinity to

counter what he really felt about himself,” and that his crime may reflect “the long,

pent-up rage he was capable of feeling towards any male whom he perceived as

wanting to touch him against his will.” NT 5/24/12 at 115–16; A271–72. The

prosecution argued that Laird’s abuse did not make his crime any “less terrible,” NT

2/13/07 at 124, and the defense had no answer when counsel could and should have.

CONCLUSION

For the foregoing reasons, the Court should grant the petition for writ of

certiorari.

Respectfully submitted,

/s/ Joseph W. Luby

Joseph W. Luby*

Cristi A. Charpentier

Assistant Federal Defenders

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street, Suite 545 West

Philadelphia, PA 19106

(215) 928-0520

Joseph_Luby@fd.org

Cristi_Charpentier@fd.org

*Counsel of record for Petitioner

Member of the Bar of the Supreme Court

Dated: June 25, 2025

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