Opposition Brief — Beard v. Bronshtein

US.

FILED

NOV 15 2005

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

MARTIN HORN, Commissioner, Pennsylvania Department of

Corrections, JAMES PRICE, Superintendent of State Correctional

at Greene; JOSEPH MAZURKIEWICZ, Superintendent

rrectional Institution at Rockview; GERALD J]

tlorney (reneral o! Penr

N BRONSHTEIN

Respondent

| TCertoran to the

s for the Third ¢

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

IS M. NATALIL, JR., ESO

RNER & MCDONALD

‘ Spruc street

COUNTER-STATEMENT OF THE QUESTION PRESENTED

Should this Court grant certiorari to review the unanimous decision of the Third Circuit

where that decision applies this Cowii's settled law to the facts of the case; where the Third Circuit's

decision concerns an area of law — the adequacy and independence ve/ non of a state court procedural

default ruling — that this Court traditionally leaves to the lower federal courts because of their greater

familiarity with state law; where the Third Circuit’s ruling arose from an unusual situation when the

Pennsylvania Supreme Court for twenty years applied a no-procedural-default approach in capital

cases then, without warming and without allowing a grace period, switched to an approach in which

procedural bars are strictly enforced; where the Third Circuit’s ruling in this case is in accord with

the rulings of at least twenty-five Third Circuit and District Court judges who have considered the

issue, and where even Justices of the Pennsylvania Supreme Court have recognized the unfairness

of the state court’s sudden about-face on procedura! default issues and the appropriateness of the

Third Circuit's finding of no adequate state procedural ground in this case

TABLE OF CONTENTS

COUNTER-STATEMENT OF THE QUESTION PRESENTED

TABLE OF CONTENTS .

TABLE OF AUTHORITIES ...

COUNTER-STATEMENT OF THE CASE

A. The Pennsylvania Supreme Court's Capital Case Relaxed Waiver Rule

The Pennsylvania Supreme Court

l.

2 The Third Circuit

3 District Courts in Pennsylvama

4, The Commonwealth's representations

The PCRA “Time-Bar.”

Mr. Bronshtein’s Case

l State Court

2 District Court

3 Third Circuit. .

REASONS FOR DENYING THE WRI

CONCLUSION .

TABLE OF AUTHORITIES

FEDERAL CASES

Adams y. Kyler, 2005 WL 1041191 (E.D. Pa. May 2, 2005)

Albrecht v. Horn, 314 F.Supp.2d 451 (E.D. Pa. 2004)

Bailey v. Delaware, 68 F.3d 736 (3d Cir. 1995)

Baker v. Horn, 383 F.Supp.2d 720 (E.D. Pa. 2005)

Banks v. Hor, 126 F.2d 206 (3d Cir. 1997)

Barr v. City of Columbia, 378 U.S. 146 (1964)

Bass v. Chesney, 2005 WL 1941661 (E.D. Pa. Aug. 10, 2005)

Benshunas v. Kiem, 137 Fed.Appx. 510 (3d Cir. 2005)

Booker v. Folino, 2005 WL 638051 (E.D. Pa. March 17, 2005)

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

Brodeur y. Patrick, 2005 WL 1126947 (E.D. Pa. May 11, 2005)

Brown v. Sobina, 2005 WL 139086 (E.D. Pa. Jan. 21, 2005)

Bryant v. Folino, 2005 WL 664037 (E.D. Pa. March 21, 2005)

Buck v. Colleran, 115 Fed. Appx. 526 (3d Cir. 2004)

Buehl v. Vaughn, 166 F.3d 163 (3d Cir. 1999)

Butner v. United States, 440 U.S. 48 (1979)

Cabrera v. Barbo, 175 F.3d 307 (3d Cir. 1999)

Caldwell v. Mississippi, 472 U.S. 320 (1985)

Carpenter v. Vaughn, 296 F.3d 158 (3d Cir. 2002)

Chnsty v. Horn, 115 F.3d 201 (3d Cir. 1997)

Clymer v. Combine, 2005 WL 711651 (E.D. Pa. March 29, 2005)

Coleman v. Thompson, 501 U.S. 722 (1991)

County Court of Ulster Cty. v. Allen, 442 U.S. 140 (1979)

Cristin v. Brennan, 281 F.3d 404 (3d Cir. 2002)

Cullison v. Wolfe. 2005 WL 2644997 (E.D. Pa. Oct. 13, 2005)

D'Agostino vy. Tennis, 2005 WL 568042 (E.D. Pa. March 8, 2005)

Deputy v. Taylor, 19 F.3d 1485 (3d Cir. 1994)

Dugger v. Adams, 489 U.S. 401 (1989)

Elam v. Gillis, 2005 WL 555383 (E.D. Pa. March 7, 2005)

English v. Vaughn, 2005 WL 1677967 (E.D. Pa. July 15, 2005)

Fahy v. Horn, 240 F.3d 239 (3d Cir. 2001)

Fahy v. Horn, 2003 WL 22017231 (E.D. Pa. Aug. 26, 2003)

Faulcon v. Palakovich, 2005 WL 1958071 (E.D. Pa. Aug. 11, 2005)

Flamer vy. Delaware, 68 F.3d 710 (3d Cir. 1995)

Flecha v. Shannon, 2005 WL 851066 (E.D. Pa. April 12, 2005)

Ford v. Georgia, 498 U.S. 411 (1991)

Ford v. Wainwright, 477 U.S. 399 (1986)

Fountain v. Kyler, 420 F.3d 267, 272 (3d Cir. 2005)

Fox Film Corp. v. Muller, 296 U.S. 207 (1935)

Frey v. Fulcomer, 974 F.2d 348 (3rd Cir. 1992)

Prey

Gattis v. Snyder, 278 F.3d 222 (3d Cir. 2002)

eng

Granberry v. Greer, 481 U.S. 129 (1987)

Green v. Rozum, 2005 WL 83258 (E.D. Pa. Jan. 13, 2005)

Green v. Rozum, 2005 WL 1279136 (E.D. Pa. May 25, 2005)

Guy v. Moore, 2005 WL 2104316 (E.D. Pa. Aug. 29, 2005)

Hackett v. Price, 381 F.3d 281 (3d Cir. 2004)

Hameen v. Delaware, 212 F.3d 226 (3d Cir. 2000)

Harper v. Kyler, 2005 WL 950617 (E.D. Pa. April 22, 2005)

Harris v. Reed, 489 U.S. 255 (1989)

Hathorn v. Lovorn, 457 U.S. 255 (1982) ........ccccccccceeeeeeees

Holiday v. Varner, 2005 WL 119572 (E.D. Pa. Jan. 19, 2005) .....

Imes v. Patrick, 2005 WL 1563351 (E.D. Pa. June 29, 2005)

Jacobs v. Horn, 129 F.Supp.2d 390 (M.D. Pa. 2001), aff'd in relevant part, 395 F.3d 92, 117 (3d

Cir. 2005)

Jermyn v. Horn, 266 F.3d 257 (3d Cir. 2001)

Johnson v. DiGuglielmo, 2005 WL 2585448 (E.D. Pa. Oct. 7, 2005)

Johnson v. Kelcher, 2005 WL 2371994 (E.D. Pa. Sept. 26, 2005)

Johnson v. Mississippi, 486 U.S. 578 (1988)

Johnson v. Superintendent, 2005 WL 856888 (E.D. Pa. Apnl 13, 2005)

Keller v. Larkins, 251 F.3d 408 (3d Cir. 2001)

Laird v. Hom, 159 F.Supp.2d 58 (E.D. Pa. 2001), aff'd, 414 F.3d 419, 425 (3d Cir. 2005)

Lambert v. Blackwell, 134 F.3d 506 (3d Cir.1998)

Yk OE TIT "aoa asaepneidnbelbinntemostbounieetiennlanntvanaiedaiaele

Lesko v. Owens, 881 F.2d 44 (3d Cir. 1989) ........

Leyva v. Williams, 2005 WL 746042 (E.D. Pa. March 30, 2005)

Lines v. Larkins, 208 F.3d 153 (3d Cir. 2000)

Lloyd v. Shannon, 2005 WL 1138389 (M.D. Pa. April 28, 2005)

Lutz v. Brennan, 67 Fed. Appx. 151 (3d Cir. 2003) ..........cccccccceccceccccccesecereeereeeeeeeeeeees he Soe oa

Marra v. Larkins, 46 Fed. Appx. 83 (3d Cir. 2002)

Martini v. Hendricks, 348 F.3d 360 (3d Cir. 2003)

“>

—

Uugielmo, 2005 WL 2139952 (E.D. Pa. Sept

5 ,

igheimo, 2005 \V

v. Alabama ex re

Ocasio vy. Varner, 2005 W

Perez v. Sobina, 2005 WI 1653 (1

Person v. Wynder, 2005 WL 2346117 (E.D. Pa. Sept. 2

Prunty v. Klem, 2005 WL 281182 (E.D. Pa. Feb. 3, 20

Purnell v. Shannon, 2005 WL 825902 (E.D. Pa. Apr

vy Hom. 187 F. Supp.2d 260 (W.D. Pa

Richardson v. Warden. 125 Fed. Appx. 395 (3d Cir. 2005)

Rienzi v. Gillis, 2005 WL 645925 (E.D. Pa. March 16, 2005)

Riley v. Lavan, 2005 WL 1995462 (E.D. Pa. Aug. 16, 2005)

3d 261 (3d Cir

Rill v. Meyers, 87 Fed. Appx. 822 (3d Ci 4)

Rinaldi v. Gillis, 2005 WL 701710(E.D. Pa. March 28, 2005)

Robichaw v. Mechling, 2005 WL 331496 (E.D. Pa. Feb. 10, 2005)

Rollins v. Horm, 2005 WL 1806504 (E.D. Pa. July 26, 2005)

Rompilia v. Hom, 355 F.3d 233 (3d Cir. 2004), subsequent history, 125 S. Ct. 2456 (2005)

6.

~

Rone vy. Beard, 2005 WL 825917 (E.D. Pa. April 7, 2005)

Rummel v. Estelle, 445 U.S. 263 (1980)

Saintville v. Colleran, 2005 WL 2106177 (M.D. Pa. Aug. 31, 2005)

Sanchez v. Tennis, 2005 WL 645926 (E.D. Pa. March 17, 2005)

Schwartz v. Colleran, 2005 WL 1389235 (E.D. Pa. June 9, 2005)

Selvage v. Collins, 494 U.S. 108 (1990)

Shackelford v. Stickman, 2005S WL 289935 (E.D. Pa. Feb. 4, 2005)

Simmons v. South Carolina, 512 U.S. 154 (1994)

Sims v. Patrick, 2005 WL 1025150 (E.D. Pa. April 29, 2005)

Sistrunk v. Vaughn, 96 F.3d 666 (3d Cir. 1996)

Smith v. Sobina, 2005 WL 281201 (E.D. Pa. Feb. 4, 2005)

Steckel v. Carroll, 2004 WL 825302 (D. Del. Apr. 13, 2004)

Sweger v. Chesney, 294 F.3d 506 (3d Cir. 2002)

Szuchon v. Lehman, 273 F.3d 299 (3d Cir. 2001)

v. Petsock, 974 F.2d 372 (3d Cir. 1992)

Thomas v. Beard, 2005 WL 2373930 (E.D. Pa. Aug

Tillery v. Horn, 142 Fed. Appx. 66 (3d Cir. 2005)

87 (1997)

2250692 (W.D. Pa. Aug. 29, 2005)

Turner v. Shannon, 2005 WL 1655881 (E.D. Pa. July 12, 2005)

Tyler v. DiGughielmo, 2005 WL 477997 (E.D. Pa. Feb. 28, 2005)

Wainwright v. Sykes, 433 U.S. 72 (1977)

Wallace v. Price, 2002 WL 31180963 (W.D. Pa. Oct. 1, 2002), adopted as modified on other

grounds, 2003 WL 21295982 (W.D. Pa. Mar. 31, 2003)

Weaver v. Frank, 36 Fed.Appx. 693 (3d Cir. 2002)

Weeks v. Snyder, 219 F.3d 245 (3d Cir. 2000)

Wenger v. Frank, 266 F.3d 218 (3d Cir. 2001)

Werts v. Vaughn, 228 F.3d 178 (3d Cir. 2000)

White v. Horm, 191 F.3d 446 (3d Cir. 1999)

Whitney v. Horn, 280 F.3d 240 (3d Cir. 2002)

‘illiams v. Price, 343 F.3d 22° (3d Cir. 2003)

Willis v. Vaughn, 48 Fed. Appx. 402 (3d Cir. 2002)

Wishnefsky v. Meyers, 2005 WL 1498502 (M.D. Pa. June 22, 2005)

Witherspoon v. Llinois, 391 U.S. 510 (1968)

5)

Yarns v. Horn, 230 F.Supp.2d 577 (E.D. Pa. 2002)

In re Zettlemoyer, 53 F.3d 24 (3d Cir. 1995)

Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991)

STATE CASES

~~

Commonwealth v. Abu-Jamal, 555 A.2d 846 (Pa. 1989)

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)

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

Commonwealth v. Baker, 511 A.2d 777 (Pa. 1986)

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

Commonwealth v. Banks, 726 A.2d 374 (Pa. 1999)

Commonwealth v. Beck, 560 A.2d 1370 (Pa. 1989)

Commonwealth vy. Billa, 555 A.2d 835 (Pa. 1989)

Commonwealth v. Breakiron, 729 A.2d 1088 (Pa. 1999)

Commonwealth v. Brown, 711 A.2d 444 (Pa. 1998)

Commonwealth v. Brown, 872 A.2d 1139 (Pa. 2005)

Commonwealth v. Carpenter, 515 A.2d 531 (Pa. 1986)

4,5, 10, 19,

20

Commonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999)

Commonwealth v. Chester, 587 A.2d 1367 (Pa. 1991)

Commonwealth v. Chester, 733 A.2d 1242 (Pa. 1999)

Commonwealth v. Christy, 656 A.2d 877 (Pa. 1995)

Commonwealth v. Clark, 710 A.2d 31 (Pa. 1998)

Commonwealth v. Cook, 676 A.2d 639 (Pa. 1996)

Commonwealth v. Crews, 863 A.2d 498 (Pa. 2004)

Commonwealth v. Crispell, 608 A.2d 18 (Pa. 1992)

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

Commonwealth v. DeHart, 650 A.2d 38 (Pa. 1994)

Commonwealth v. Elliott, 700 A.2d 1243 (Pa. 1997)

Commonwealth v. Ford, 809 A.2d 325 (Pa. 2002)

Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003)

Commonwealth v, Frey, 475 A.2d 700 (Pa. 1984)

Commonwealth v. Gibson, 688 A

Commonwealth v. Gibson, 720 A.2d 473 (Pa. 1998)

Commonwealth v. Hall, 872 A.2d 1177 (Pa. 2005)

,

Commonwealth v. Harris, 703 A.2d 441 (Pa. 1997)

Commonwealth v. Harris, 852 A.2d 1168 (Pa. 2004)

Commonwealth v. Holcomb, 498 A.2d 833 (Pa. 1985)

Commonwealth v. Hughes, 865 A.2d 76! (Pa. 2005)

Commonwealth v. Jacobs, 727 A.2d 545 (Pa. 1999)

Commonwealth v. Jasper, 610 A.2d 949 (Pa. 1992)

Commonwealth v. Jermyn, 709 A.2d 849 (Pa. 1998)

Commonwealth v. Johnson, 668 A.2d 97 (Pa. 1995)

Commonwealth v. Johnson, 815 A.2d 563 (Pa. 2002)

Commonwealth v. Jones, 876 A.2d 380 (Pa. 2005)

Commonwealth v. LaCava, 666 A.2d 221 (Pa. 1995)

Commonwealth v. Laird, 726 A.2d 346 (Pa. 1999)

Commonwealth v. Lesko, 501 A.2d 200 (Pa. 1985)

Commonwealth v. Lewis, 567 A.2d 1376 (Pa. 1989)

Commonwealth v. Marinelli, 690 A.2d 203 (Pa. 1997)

Commonwealth v. Marrero, 748 A.2d 202 (Pa. 2000)

ommonwealth v. Marshall, 810 A.2d 1211 (Pa

May, 6S6 A 1335 (Pa. 1995)

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

ommonwealth v. Michael

Commonwealth v. Miles, 681 A.2d 1295 (Pa. 1996)

Commonwealth v. Miller, 664 A.2d 1310 (Pa

Commonwealth v. Morales, 701 A.2d 516 (Pa. |

( ono } aith v. Morns. 684 A.2d 1037 (Pa. 1996)

Nelson, 523 A.2d 728 (Pa. 1986)

Paoleilo, 665 A.2d 439 (Pa. 1995)

Commonwealth v. Peterkin, 513 A.2d 373 (Pa. 1986)

Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998)

Commonwealth v. Pirela, 507 A.2d 23 (Pa. 1986)

Commonwealth v. Pirela, 726 A.2d 1026 (Pa. 1999)

Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999)

Commonwealth v. Reyes, 870 A.2d 888 (Pa. 2005)

Commonwealth v. Rush, 838 A.2d 65! (Pa. 2003)

Commonwealth v. Saranchak, 810 A.2d 1197 (Pa. 2002)

ommonwealth v. Simmons, 662 A.2d 621 (Pa. 1995)

Commonwealth v. Speight, 677 A.2d 317 (Pa. 1996)

Commonwealth v. Spotz, 716 A.2d 580 (Pa. 1998)

Commonwealth v. Stoyko, 475 A.2d 714 (Pa. 1984)

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

Commonwealth v. Szuchon, 693 A.2d 959 (Pa. 1997)

,<*%

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

Commonwealth v. Walker, 656 A.2d 90 (Pa. 1995)

(Commonwealth v. Wallace, 724 A.2d 916 (Pa. 1999)

Commonwealth vy. Washington, 692 A.2d 1024 (Pa. 1997)

Commonwealth v. Wayne, 720 A.2d 456 (Pa. 1998)

Commonwealth v. Wharton, 665 A.2d 458 (Pa. 1995)

Commonwealth v. Wharton, 811 A.2d 978 (Pa. 2002)

ommonwealth v. Williams, 640 A.2d 1251 (Pa. 1994)

Commonwealth v. Williams, 720 A.2d 679 (Pa. 1998)

Commonwealth v. Williams, 73 1167 (Pa. 1999)

Commonwealth v. Williams. 782 A.2d 517 (Pa. 2001)

Commonwealth v. Wilson, 861 A.2d 919 (Pa. 2004)

Commonwealth v. Yarris, 549 A.2d 513 (Pa. 1988)

Commonwealth v. Yarris, 731 A.2d 581 (Pa. 1999)

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

STATE STATUTES

42 Pa. Cons. Stat. Ann. § 9545(b)

42 Pa. Cons. Stat. Ann. § 9545(5)(1)

COUNTER-STATEMENT OF THE CASE

The Commonwealth asks this Court to grant certioran and review the unanimous decision

of the Third Circuit panel in Bronshtein v. Hom, 404 F.3d 700 (3d Cir. 2005). The Third Circuit

pane! was comprised of Judge Alito, who authored the opinion, and Judges Barry and Stapleton. The

pane! affirmed the District Court's grant of habeas relief from the death sentence under Simmons

v. South Carolina, 512 U.S. 154 (1994), because the prosecution put Petitioner's future

dangerousness at issue but the jury was never informed that there 1s no parole from a life sentence

for first-degree murder in Pennnsylvania.°

Che Commonwealth does not challenge the propriety of the Third Circuit's ruling on the

constitutional error. Rather, the Commonwealth's certiorari argument raises only a procedural

contention. As will be shown, the Commonwealth's contention lacks merit and 1s inconsistent with

the rulings of every Third Circuit panel that has addressed the issue, District Court Judges who have

addressed the issue, and decisions of the Pennsylvania Supreme Court relating to the issue

Certioran should be demied

A. The Pennsylvania Supreme Court's Capital Case Relaxed Waiver Rule

Because the Commonwealth's argument rests upon its claims about the Pennsylvania

Supreme Court's capital case “relaxed waiver” rule, we begin by descnbing that rule as set forth in

(1) the Pennsylvania Supreme Court's caselaw; (2) ihe Third Circuit's decisions; (3) the decisions

of Distnct Courts in Pennsylvama,; and (4) the Commonwealth's own briefs in capital cases

The Pennsylvania Supreme Court first articulated its capital case relaxed waiver

rule in Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa. 1978), which proclaimed that an

“overwhelming public interest” in preventing unconstitutional executions precluded application of

The Petition for Writ of Certiorari is cited as “Petition.” Petitioners are referred to as “the

Commonwealth.” Emphasis ts supplied unless otherwise indicated. Parallel citations are omitted

Pennsylvania is the only state with a life-without-parole alternative to death where this

information routinely ts withheld from capital sentencing june

procedural bar rules in capital cases. id. at 181. Because procedural bar rules “cannot be exalted to

a position so lofty as to require this Court to blind itself to the real issue — the propriety of allowing

the state to conduct an illegal execution of a citizen” — the Pennsylvania Supreme Court declared its

“duty to transcend procedural rules” in capital cases, and to address procedurally barred claims on

their merits. Id. at 180-81

After McKenna, and until late 1998, see infra, the Pennsylvania Supreme Court repeatedly

applied this capital case relaxed waiver rule, held that procedurai bars would not be applied in

r oe 992

Pennsylvania capital cases, and reviewed claims that otherwise were “procedurally barred.” The

‘During this period there are at least fifty reported Pernsylvania Supreme Court opinions

applying the relaxed waiver rule, often to more than one claim. See, e.g., Commonwealth v.

Morales, 701 A.2d 516, 520 n.13 (Pa. 1997) (“this Court’s practice has been to address all waived

issues which have been raised in PCRA death penalty petitions”, granting relief on improper

prosecutorial argumem claim first raised in second PCRA petition); Commonwealth v. Abu-Jamal,

720 A.2d 79, 88 n.9 (Pa. 1998) (noting “this court’s tradition of entertaining all claims raised in a

capital case, whether on direct appeal or collateral attack, irrespective of waiver’); Commonwealth

v. Jermyn, 709 A.2d 849, 856 n.20 (Pa. 1998) (“this court has addressed all issues arising in a death

penalty case, irrespective cf a finding of waiver”), Commonwealth v. Banks, 656 A.24467, 470 n.7

(Pa. 1995) (although claims were “waived under the PCRA, we will nevertheless address all of

Appellant’s claims since ... it is this Court’s practice to address all issues arising in a death penaity

case irrespective of a finding of waiver”); Commonwealth v. Morris, 684 A.2d 1037, 1042 n.11 (Pa.

1996) (same); Commonwealth v. Travaglia, 661 A.2d 352, 356 n.6 (Pa. 1995) (“it is this Court’s

practice to address all issues arising in a death penalty case, irrespective of a finding of waiver”;

addressing merits of issues raised in second PCRA petition); Commonwealth v. Szuchon, 693 A.2d

959, 962-64 (Pa. 1997) (addressing merits of issues first raised in third post-conviction petition);

Commonwealth v. Christy, 656 A.2d 877, 881 n.2, 885 n.14, 886 n.15 (Pa. 1995) (death penalty is

“extraordinary circumstance” that trumps PCRA waiver rules); Commonwealth v. Beck, 560 A.2d

1370, 1374 (Pa. 1989) (“We ... relax the rule of waiver in capital punishment cases specifically in

order to get to the truth.””); Commonwealth v. Brown, 711 A.2d 444, 455-56 (Pa. 1998) (“This Court

generally applies a relaxed waiver rule in capital cases because of the permanent, irrevocable nature

of the death penalty.”); Commonwealth v. Spotz, 716 A.2d 580, 585 n.5, 591 (Pa. 1998) (reviewing

waived claim on merits because of “our practice to relax waiver rules in capital cases”);

Commonwealth v. Wharton, 665 A.2d 45" 462 (Pa. 1995) (same); Commonwealth v. Hill, 666 A.2d

642, 648 (Pa. 1995) (same); Commonweaith v. Williams, 640 A.2d 1251, 1261 (Pa. 1994) (same);

Commonwealth v. Chester, 587 A.2d 1367, 1382 n.9 (Pa. 1991) (same); Commonwealth v. Nelson,

$23 A.2d 728, 736 (Pa. 1986) (same); Commonwealth v. Pirela, 507 A.2d 23, 27 n.2 (Pa. 1986)

(same); Commonwealth v. Frey, 475 A.2d 700, 707 n.4 (Pa. 1984) (same); Commonwealth v

Simmons, 662 A.2d 621, 636 (Pa. 1995) (same); Commonwealth v. Abu-Jamal, 555 A.2d 846, 854

(Pa. 1989) (same); Commonwealth v. Baker, 511 A.2d 777, 790 n.10 (Pa. 1986) (same);

relaxed waiver rule was applied to all types of claims (with one possible exception, described

below), and was applied whether the procedural bar arose from a violation of rules of appellate

procedure, like the bar agains‘ raising issues on appeal that were not preserved in the trial court, ¢.g.,

May; Crispell; Nelson, or from violation of the statutory procedural bar rules contained in the Post

Conviction Relief Act (“PCRA”), the statutory mechanism for seeking state post-conviction relief

in Pennsylvania, e.g., Szuchon (third PCRA petition); Morales (second PCRA petition); Jermyn

(same), Travaglia (same); Banks (first PCRA petition); Abu-Jamal (same); Morris (same); DeHart

(same); Chnsty (same); Lesko (same)

The only (possible) exception to the relaxed waiver rule was for claims under Witherspoon

v. Illinois, 391 U.S. 510 (1968) and its progeny, Le., that jurors were improperly excluded because

of general objections to capital punishment. In Commonwealth v. Szuchon, 484 A.2d 1365, 1377-80

Commonwealth v. Walker, 656 A.2d 90, 98-99 (Pa. 1995) (same); Commonwealth v. Gibson, 688

A.2d 1152, 1160-63 nn.13, 15, 19, 23 (Pa. 1997) (same); Commonwealth v. Gibson, 720 A.2d 473,

481 n.2 (Pa. 1998) (same); Commonwealth v. Wayne, 720 A.2d 456, 469 n.13 (Pa. 1998) (same);

Commonwealth v. Williams, 720 A.2d 679, 684 n.12 (Pa. 1998) (same); Commonwealth v. Clark,

710 A.2d 31, 40 (Pa. 1998) (same); Commonwealth v. Hall, 701 A.2d 190, 200, 202 n.14, 207 n.17

(Pa. 1997) (same); Commonwealth v. Washington, 692 A.2d 1024, 1030 n.11 (Pa. 1997) (same);

Commonwealth v. Marinelli, 690 A.2d 203, 214n.19 (Pa. 1997) (same); Commonwealth v; Gnbble,

703 A.2d 426, 436-37 (Pa. 1997) (same); Commonwealth v. Elliott, 700 A.2d 1243, 1252 n.21 (Pa.

1997) (same); Commonwealth v. Speight, 677 A.2d 317, 326 n.15 (Pa. 1996) (same);

Commonwealth v. Cook, 676 A.2d 639, 649 n.26 (Pa. 1996) (same); Commonwealth v. May, 656

A.2d 1335, 1343 n.7, 1344 n.9 (Pa. 1995) (same); Commonwealth v. Miller, 664 A.2d 1310, 1320

n.17, 1322, 1323 n.22 (Pa. 1995) (same); Commonwealth v. Johnson, 668 A.2d 97, 102 n.12, 103

nn.14-15, 104 n.18, 106 n.20, 107 n.21 (Pa. 1995); Commonwealth v. DeHart, 650 A.2d 38, 48 (Pa.

1994) (same; granting relief on claim first raised on appeal from denial of post-conviction relief);

Commonwealth v. Crispell, 608 A.2d 18, 22 n.1 (Pa. 1992) (same); Commonwealth v. Billa, 555

A.2d 835, 842 (Pa. 1989) (same); Commonwealth v. Harris, 703 A.2d 441, 445 n.5, 446n.7, 9 (Pa.

1997) (same); Commonwealth v. Miles, 681 A.2d 1295, 1301 n.8 (Pa. 1996) (same); Commonwealth

v. LaCava, 666 A.2d 221,228 n.8 (Pa. 1995) (same); Commonwealth v. Paolello, 665 A.2d 439, 453

n.l1 (Pa. 1995) (same); Commonwealth v. Yarris, 549 A.2d 513, 521 (Pa. 1988) (same);

Commonwealth v. Carpenter, 515 A.2d 531, 536 n.4, 538 n.8 (Pa. 1986) (same); Commonwealth

v. Holcomb, 498 A.2d 833, 837 n.6 (Pa. 1985) (same); Commonwealth v. Lesko, 501 A.2d 200, 207

(Pa. 1985) (addressing merits of waived claim first raised in post-conviction); Commonwealth v.

Zettlemoyer, 454 A.2d 937, 942 n.3, 955 n.19 (Pa. 1982) (declining to allow waiver in capital cases

because of “final and irrevocable nature of the death penalty” and “for the reasons stated in”

McKenna); Commonwealth v. Stoyko, 475 A.2d 714, 720-21 (Pa. 1984) (same).

3

(Pa. 1984) and Commonwealth v. Peterkin, 513 A.2d 373, 378-79 (Pa. 1986), the Pennsylvania

Supreme Court held that a Witherspoon claim was waived where trial counse! affirmatively -:ated

that he had no objection to excluding each person.” In Commonwealth v, Lewis, 567 A.2d 1376 (Pa

1989), the Pennsylvania Supreme Court explained that its allowance of waiver for Witherspoon

claims under such circumstances was the sole exception to the relaxed waiver rule

[The Witherspoon claim was] waived by the defendant's approval of the jury and

failure to preserve these claims of error at the trial court. Although waiver of any

claim in a capital case appears to be contradictory to the relaxed waiver rules ..., the

case law of this Commonwealth ts clear. This Court has repeatedly held that

Witherspoon claims are waivable. {citing Peterkin; Szuchon |

Lewis, 567 A.2d at 1381.

On November 23, 1998, in Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), the

Pennsylvania Supreme Court suddenly changed course. The Court began by reaffirming that, since

McKenna, it had “‘been our practice to decline to apply ordinary waiver rules in capital cases.”

Albrecht, 720 A.2d at 700 (citing Mornis, 684 A.2d at 1042 n.11; quotation marks omitted). The

Court also confirmed that the relaxed waiver rule had been created and applied because of the

“unique severity and finality of the death penalty,” and “to prevent this court from being instrumental

in an unconstitutional execution.” Id. The Court complained, however, that the relaxed waiver

“doctrine has, in effect, virtually eliminated any semblance of finality in capital cases”; stated that

the “benefits of relaxed waiver at the PCRA appellate stage are more than outweighed by the need

for finality and efficient use of the resources of this court’; and announced that it would “no /onger

“See also Peterkin, 513 A.2d at 389 (Nix, C.J., concurring) (“I am also concerned with the

majority’s suggestion that an issue in a death penalty case can be waived. Recognizing the

irrevocable nature of the death penalty, this Court has, in the past, firmly adhered to the rule that

there can be no waiver in these cases. (citing numerous cases] In this instance, however, the record

reflects that the challenge to the exclusion was without merit.”)

*Even for Witherspoon claims, Szuchon is the only case that failed to afford merits review

In every other case, the Pennsylvania Supreme Court noted that Witherspoon claims “are waivable,”

but addressed the Witherspoon claim on the merits. See Peterkin, 513 A.2d at 379; Lewis, 567 A.2d

at 1380-81; Commonwealth v. Jasper, 610 A.2d 949, 952-53 (Pa. 1992)

4

[apply the relaxed waiver rule] in PCRA appeals.” \d.

The Pennsylvania Supreme Court’s post-Albrecht decisions confirm that Albrecht marked

an abrupt about-face, and that, before Albrecht, the capital case relaxed waiver rule trumped ordinary

procedural bar rules, including those imposed by the PCRA.°

*See Commonwealth v. Brown, 872 A.2d 1139, 1156(Pa. 2005) (Albrecht was “the seminal

case ... where this Court eliminated the capital case relaxed waiver rule on PCRA review’’); id. at

1161-62 (Castille, J., concurring) (Albrecht “abrogated relaxed waiver on PCRA review ... thereby

rendering the previously nonwaivable claims defaulted”), Commonwealth v. Hughes, 865 A.2d 761,

(Pa. 2005) (Castille, J., concurring and dissenting) (Albrecht was “the seminal decision ... which

eliminated the relaxed waiver rule on capital PCRA review precisely because that judicial rule

wrongly subverted the PCRA'’s statutory waiver”); Commonwealth v. Crews, 863 A.2d 498, 504 (Pa

2004) (“[B etween the filing of his first and second | PCRA] petitions, relaxed waiver was abolished

in capital PCRA cases. [Albrecht] Thus, when first PCRA counsel failed to raise certain issues,

appellant was not on notice that counsel's failure would lead to an eventual time-bar of those

claims.”); Commonwealth v. Freeman, 827 A.2d 385, 398, 401 (Pa. 2003) (after McKenna, relaxed

waiver rule was “expanded exponentially so as to reach the most commonplace of waived claims”

and became “such a matter of routine that it is invoked to capture a myriad of claims, no matter how

comparatively minor or routine”); Commonwealth v. Marshall, 810 A.2d 1211, 1231 (Pa. 2002)

(Castille, J., concurring and dissenting) (relaxed waiver rule was “judicial negation of the PCRA’s

waiver provisions’); id. at 1232 (criticizing iead opinion’s “relaxed waiver approach” of addressing

barred claims on merits as “consistent with the approach taken in ... the cases pre-dating Albrechi’’);

Commonwealth v. Pirela, 726 A.2d 1026, 1030 n.5 (Pa. 1999) (“Appellant urges this court to ignore

his waivers in this death penalty PCRA appeal. Although we have declined to apply ordinary waiver

principles to capital cases in the past, we recently held that this practice will be discontinued

[Albrecht] Accordingly, appellant's request that we ignore his waivers is denied.””); Commonwealth

vy. Laird, 726 A.2d 346, 354 (Pa. 1999) (“Petitioner argues ... that this court should review this issue

under the relaxed waiver rule, which this court has applied in the past when reviewing PCRA appeals

in death penalty cases. ... As stated in Albrecht, ... the [relaxed waiver] rule will no longer be applied

to PCRA appeals in death penalty cases. Accordingly, this claim for relief has been waived.”);

Commonwealth v. Reyes, 870 A.2d 888, 893-94 (Pa. 2005) (holding claims procedurally barred

under the PCRA because, after Albrecht, “the relaxed waiver doctrine no longer applies in PCRA

appeals”); Commonwealth v. Rush, 838 A.2d 651, 655-56 (Pa. 2003) (same); Commonweaith v

Gribble, 863 A.2d 455, 468 (Pa. 2004) {same); Commonwealth v. Wilson, 861 A.2d 919, 928 n.8

(Pa. 2004) (same); Commonwealth v. Harns, 852 A.2d 1168, 1171 n.9 (Pa. 2004) (same);

Commonwealth v. Hawkins, 787 A.2d 292, 296 (Pa. 2001) (same); Commonwealth v. Williams, 782

A.2d 517, 524 (Pa. 2001) (same); Commonwealth v. Chester, 733 A.2d 1242, 1253-54 (Pa. 1999)

(same); Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999) (same); Commonwealth v

Breakiron, 729 A.2d 1088, 1096 (Pa. 1999) (same); Commonwealth v. Jacobs, 727 A.2d 545, 547

(Pa. 1999) (same); Commonwealth v. Pursell, 724 A.2d 293, 303 (Pa. 1999) (“W]e recently held

that we would no longer apply the ‘relaxed waiver’ ... in appeals from post-conviction proceedings

in capital cases. [Albrecht] Instead, we now require strict adherence to the statutory language of the

5

Thus, under the relaxed waiver rule, from 1978 until late 1998, the Pennsylvania Supreme

Court did not apply procedural bars in capital cases, except possibly for Witherspoon claims.

2. The Third Circuit, in several habeas decisions, has surveyed the Pennsylvania

Supreme Court’s capital case decisions and concluded that, before Albrecht, the Pennsylvania

Supreme Court did not apply procedural bar rules in capital cases, even when a procedural bar was

seemingly required by the PCRA’s statutory language.’

PCRA”); Commonwealth v. Yarns, 731 A.2d 581, 587 (Pa. 1999) (same); Commonwealth v.

Marrero, 748 A.2d 202, 204 (Pa. 2000) (Nigro, J., concurring) (same); Commonwealth v. Carpenter,

725 A.2d 154, 160 n.5 (Pa. 1999) (same); Commonwealth v. Wallace, 724 A.2d 916, 920-21 (Pa.

1999) (In Albrecht, “this Court held that ‘while it has been our practice to decline to apply our

ordinary waiver principles in capital cases, we wi!! no longer do so in PCRA appeals.’ ... Thus, under

Albrecht, the relaxed waiver rule is no longer applicable in PCRA appeals and therefore, any claims

that have been waived by Appellant are beyond the power of this Court to review under the terms

of the PCRA.”); Commonwealth v. Jones, 876 A.2d 380, 384 (Pa. 2005) (same); Commonwealth

v. Hall, 872 A.2d 1177, 1182 (Pa. 2005) (same); Commonwealth v. Brown, 872 A.2d 1139, 1144

(Pa. 2005) (same); Commonwealth v. Johnson, 815 A.2d 563, 593 (Pa. 2002) (Eakin, J., concurring

and dissenting) (before Albrecht’s “abolition of relaxed waiver in PCRA capital appeals”

procedurally barred claims were reviewed on merits); Commonwealth v. Wharton, 811 A.2d 978,

991 n.1 (Pa. 2002) (Saylor, J., concurring) (noting Albrecht’s “retroactive abolition of relaxed

waiver’; explaining that relaxed waiver “doctrine had been generally extended in (the PCRA] area

and permitted review of the underlying allegations on their merits” even when procedurally barred;

and finding it unfair to apply “the more stringent standards subsequently adopted by the Court” in

Albrecht); Commonwealth v. Ford, 809 A.2d 325, 337-38 (Pa. 2002) (Saylor, J., concurring) (Before

Albrecht, relaxed waiver applied “in the post-conviction context” and “permitted review of the

underlying allegation on its merits” despite procedural bar; prisoners “were justified in invoking the

doctrine in styling and litigating their claims for relief. It is unjust, in my view, to penalize them for

failing to frame and pursue their claims according to a far more stringent set of rules subsequently

implemented by the Court.”); id. at 348 (Eakin, J. dissenting) (“The doctrine of ‘relaxed waiver’ was

eliminated by Albrecht. ... [R ]etroactive application of the abolition of relaxed waiver puts those who

litigated their petition before Albrecht at a disadvantage.”’).

"See, e.g., Bronshtein v. Horn, 404 F.3d 700 (3d Cir. 2005) (described below); Jacobs v.

Horn, 395 F.3d 92, 117 (3d Cir. 2005) (“Prior to Albrecht, ... the Pennsylvania Supreme Court

applied the relaxed waiver doctrine in capital cases on PCRA appeal. Under the relaxed waiver

doctrine, the Pennsylvania Supreme Court declined to apply ordinary waiver principles in capital

cases in an effort to prevent the court ‘from being instrumental in an unconstitutional execution.’

On November 23, 1998, the Pennsylvania Supreme Court in Albrecht expressly abandoned the

relaxed waiver doctrine in capital cases on PCRA appeal.” (citations omitted)); Carpenter v. Vaughn,

296 F.3d 138, 147 (3d Cir. 2002) (“Pennsylvania Supreme Court did not end its practice of relaxing

waiver rules in death penalty cases until 1998” in A!'brecht); Szuchon v. Lehman, 273 F.3d 299, 326

6

3. District Courts in Pennsylvania, in numerous habeas decisions, have surveyed the

Pennsylvania Supreme Court’s capital case decisions and also found that, before Albrecht, the

Pennsylvania Supreme Court did not apply procedural bar rules in capital cases, even when a

procedural bar was seemingly required by the PCRA’s statutory language.*

(3d Cir. 2001) (McKenna “was the seminal case on” the relaxed waiver rule, which “rather firmly

established that a claim of constitutional error in a capital case would not be waived by a failure to

preserve it”); Lambert v. Blackwell, 134 F.3d 506, 518 (3d Cir.1998) (before Albrecht, “the

Pennsylvania Supreme Court had established a practice of reaching the merits of claims in PCRA

petitions in capital cases notwithstanding the failure of the petitioner to meet the appropriate

procedural requirements”); Banks v. Horn, 126 F.3d 206, 213-14 (3d Cir. 1997) (“Pennsylvania

Supreme Court cases [before Albrecht] demonstrat{e] that it effectively looks beyond those [PCRA

statutory bar] criteria in death penalty cases”; Pennsylvania Supreme Court had a “practice of

reaching the merits of claims in PCRA petitions in capital cases regardless of the failure of the

petition to meet the appropriate procedural criteria”; “Pennsylvania Supreme Court addressed the

merits of claims which seemingly were precluded by the PCRA provisions then in force’’); Laird

v. Horn, 414 F.3d 419, 425 (3d Cir. 2005) (similar ruling); Jermyn v. Horn, 266 F.3d 257, 278-79

(3d Cir. 2001) (same); Fahy v. Hom, 240 F.3d 239, 245 (3d Cir. 2001) (same). The Third Circuit

panels making these findings included Judges Alito, Barry, Becker, Cowen, Fuentes, Greenberg,

Mansmann, McKee, Nygaard, Rendell, Roth, Scirica, Sloviter and Stapleton.

*See, ¢.g., Bronshtein v. Horn, 2001 WL 767593 (E.D. Pa. July 5, 2001) (described below);

Pursell v. Horn, 187 F.Supp.2d 260, 293-94 (W.D. Pa. 2002) (authored by now-Third Circuit Judge

Brooks Smith) (“[B]etween 1978 and 1998, the Pennsylvania Supreme Court simply did not adhere

to [the PCRA procedural bar] provision in capital cases. In [McKenna], for instance, the Court

stated that it had a ‘duty to transcend procedural rules’ in cath penalty cases because procedural

rules ‘cannot be exalted to a position so lofty as to require this Court to bind itself to the real issue--

the propriety of allowing the state to conduct an illegal execution of a citizen.” The doctrine set forth

in McKenna became known as the ‘relaxed waiver rule.’ Under this rule, the Pennsylvania Supreme

Court reviewed the merits of all claims raised in capital cases, whether on direct appeal or in post-

conviction proceedings, regardless of any alleged waiver by the defendant.” (footnoted and citations

omitted)); id. at 293 n.11 (citing some of the “literally dozens of Pennsylvania Supreme Court cases

between 1978 and 1998 that apply the ‘relaxed waiver rule’”’); id. at 294 (before Albrecht, “the

relaxed waiver rule was firmly entrenched in Pennsylvania jurisprudence”); id. at 295 (“between

1978 and 1998, the Pennsylvania Supreme Court had a regular practice of forgiving waivers in

capital cases, whenever they occurred, and reviewing the merits of a petition’); id, at 296 (before

Albrecht, “one clear legal rule governed capital cases in Pennsylvania: the Pennsylvania Supreme

Court addressed the merits of any post-conviction petition, regardless of its procedural failings’);

Thomas v. Beard, —- F.Supp.2d —-, 2005 WL 2373930, *9-*10 & n.10 (E.D. Pa. Aug. 19, 2005)

claims in capital cases”; “the effective rule before Albrecht was one of no-waiver’; citing some of

“numerous Pennsylvania cases relaxing the waiver bar in capital proceedings”); Rollins v. Horn,

7

The Commonwealth's representations in other capital cases also show that, before

2005 WL 1806504, *3 (E.D. Pa. July 26, 2005) (“[B]jetween 1978 and 1998, it was the practice of

the Pennsylvania Supreme Court to apply a relaxed waiver doctrine in capital cases. Under the

relaxed waiver doctrine, the Pennsylvania Supreme Court reviewed the merits of all claims raised

in capital cases, whether on direct appeal or in post-conviction proceedings, regardless of any waiver

by the defendant It was not until 1998 that the Pennsylvania Supreme Court, in [ Albrecht],

announced that it was ending its ‘practice’ of declining to apply ordinary waiver principles in PCRA

appeals pursuant to the relaxed waiver doctrine.”’), id, at *3 n.4 (citing some of the “dozens of capital

cases” in which the Pennsylvania Supreme Court applied relaxed waiver rule between 1978 and

1998); Baker v. Hor, 383 F.Supp.2d 720, 760 n.26 (E.D. Pa. 2005) (“Under the relaxed waiver

doctrine, the Pennsylvania Supreme Court reached the merits of ostensibly waived claims.”);

Albrecht v. Hom, 314 F.Supp.2¢ 451, 458-60 (E.D. Pa. 2004) (“| F]rom 1978 until [Albrecht], the

Supreme Court of Pennsylvania recognized a ‘duty to transcend procedural rules’ in capital cases

This perceived duty led to the doctrine of ‘relaxed waiver’ in death penalty cases, which amounted

to a practice of reaching the merits of claims in PCRA petitions in capital cases regardless of the

failure of the petition to meet the appropriate procedural criteria. ... [Albrecht] was the first capital

case since 1978 in which the Supreme Court enforced the PCRA waiver rules ....” (citations

omitted)); Fahy v. Hom, 2003 WL 22017231, *29 (E.D. Pa. Aug. 26, 2003) (“The Pennsylvania

Supreme Court formerly applied a relaxed waiver rule for PCRA review of capital convictions,

whereby the Court's practice was to address all issues arising in a death penalty case whether or not

the issue was waived. [Albrecht] ... abandoned the practice of reaching the merits of a capital

prisoner's claims despite procedural defaults. .. The Albrecht decision signaled a significant

transformation in the court's approach to relaxed waiver”); Wallace v. Price, 2002 WL 31180963,

*12 (W.D. Pa. Oct. 1, 2002) (Magistrate’s Report & Recommendation) (Before Albrecht, “the

Pennsylvania Supreme Court applied what it called a ‘relaxed waiver rule’ in capital cases, reviewing

the merits of all claims raised, whether on direct appeal or in post-conviction proceedings, regardless

of any alleged procedural bar at issue. As the Pennsylvania Supreme Court explained in [McKenna],

it had a ‘duty to transcend procedural rules’ in death penalty cases because procedural rules ‘cannot

be exalted to a position so lofty as to require this Court to bind itself to the real issue—the propriety

of allowing the state to conduct an illegal execution of a citizen.” ... In [Albrecht], the Pennsylvania

Supreme Court refused to apply its relaxed waiver rule to issues raised for the first time in a PCRA

petition.”), adopted as modified on other grounds, 2003 WL 21295982 (W.D. Pa. Mar. 31, 2003);

Yarns v. Hom, 230 F.Supp.2d 577, 582 n.1 (E.D. Pa. 2002) (under relaxed waiver, “Pennsylvania

Supreme Court provided ments review of a death-sentenced prisoner's claims that would have been

otherwise barred by state procedural rules”); Laird v. Horn, 159 F.Supp.2d 58, 74 (E.D. Pa. 2001)

(before Albrecht, Pennsylvania Supreme Court “applied a relaxed waiver rule during PCRA review

of capital convictions, whereby the Pennsylvania Supreme Court's ‘practice [was] to address all

issucs arising in a death penalty case irrespective of a finding of waiver’”’ (quoting Morns, 684 A.2d

at 1042 n.11)), aff'd, 414 F.3d 419 (3d Cir. 2005); Jacobs v. Horn, 129 F.Supp.2d 390, 399 (M.D

Pa. 2001) (before Albrecht, “[rjelaxed waiver was the general rule” in Pennsylvania capital cases),

aff'd in relevant part, 395 F.3d 92, 117 (3d Cir. 2005). The District Judges making these findings

include Judges Brody, Brooks Smith (now on the Third Circuit), DuBois, Giles, Joyner, Kaufman,

McLaughlin, Munley, Pollak, Reed and Shapiro

Albrecht, the relaxed waiver rule trumped the PCRA'’s statutory bar rules in capital cases, and the

Pennsylvania Supreme Court's practice was to address procedurally barred claims on the merits.”

B. The PCRA “Time-Bar.”

On January 16, 1996, the PCRA was amended to include, for the first time, time limits on

obtaining PCRA relief. See 42 Pa.C.S. § 9545(b). Under the new amendment, with certain narrow

exceptions, a PCRA petition must be filed within one year of the date the conviction becomes final

on direct appeal

*See, e.g, Commonwealth v. Jermyn, No. 134 Capital Appeal Docket, Brief for

Commonwealth at 30 (Pa. Oct. 24, 1996) (filed by Pennsylvania Attorney General’s Office)

(admitting that the Pennsylvania Supreme Court had a practice of “‘relaxing’ (or virtually

eliminating) the PCRA waiver rule in capital cases”); id, at 26 n.9 (rule is to “address{] all issues

arising in a death penalty case, regardless of a finding of waiver’); id. (Pennsylvania Supreme “Court

has a practice of ignoring waiver in death penalty cases”’), id. at 29 (Pennsylvania cases “in essence,

say that claims of error are never waived in death penalty cases”); id. at 37-38 (Pennsylvania

Supreme Court’s “practice [is] to address all issues arising in a capital case, irrespective of a finding

of waiver’); id, at 38 (Pennsylvania Supreme Court addresses merits of barred claims “despite the

lack of any attempt on [petitioner’s] part to demonstrate” no waiver); id. at 41 n.22 (Pennsylvania

Supreme Court “failed to apply [waiver] standard{s]” and “[i]nstead, it measured [waived] claims

under the same standards applicable to” non-waived claims); id, at 27, 28-29, 36-39, 41-42 (relaxed

waiver rule “overcome[s] the [PCRA] statute’s dictates” regarding procedural bar; “ignored the

[PCRA’s] statutory requirement that a person bringing an action ... under the PCRA plead and prove

... that the allegation of error has not been waived”; “trumped the statutory requirement that a PCRA

petitioner plead and prove that a claim for relief has not been waived”; “trumped the clear

requirement of the PCRA concerning the showing of non-waiver”; “excused waiver when the

language of the PCRA would have precluded such a result”; “ignored” PCRA’s statutory bar rules);

Commonwealth v. Carpenter, No. 178 Capital Appeal Docket, Brief for Commonwealth at 9-26 (Pa.

Feb. 12, 1998) (filed by York County District Attorney’s Office) (similar statements);

Commonwealth v. Yarris, No. 232 Capital Appeal Docket, Brief for Commonwealth at 22 (Pa. Dec.

18, 1998) (filed by Delaware County District Attorney’s Office) (“despite the express language of

the PCRA requiring a defendant to show how a claim has not been waived to be eligible for relief

under the PCRA, the [Pennsylvania] Supreme Court has not enforced the statutory language of the

PCRA in capital cases’’); Jacobs v. Hom, No. 99-CV-1203, Response to Petition for Writ of Habeas

Corpus at 14 (M.D. Pa. Jan. 7, 2000) (filed by Pennsylvania Attorney General’s Office) (before

the court entertained the merits of a claim raised at any stage of the proceedings, regardless of

whether the claim was technically waived’’). Similarly, the Commonwealth’s amicus in this Court

admits that McKenna was the first “of a line of Pennsylvania cases ... in which the Pennsylvania

Supreme Court in capital cases waived the usual rule on failure to preserve claims.” Brief Amicus

Curiae of the Criminal Justice Legal Foundation in Support of Petition for Writ of Certiorari, at 7.

9

[he Pennsylvania Supreme Court first addressed the PCRA’s time limits on December 21,

1998, in Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998), a capital case. The Court held

Peterkin’s PCRA petition untimely under § 9545(b) because it was not filed within one year of when

his conviction became final, even though that was in /988, eight years before the PCRA contained

any time limits. See id., 722 A.2d at 641-42. The Court did not mention the relaxed waiver rule or

its curtailment of that rule in Albrecht, which it decided just one month before Peterkin.

The Pennsylvania Supreme Court next addressed the PCRA time limits on February 25,

1999, in Commonwealth v. Cross, 726 A.2d 333 (Pa. 1999), another capital case. As in Peterkin,

the Court did not mention the relaxed waiver rule or Albrecht. The Court held Cross’ PCRA petition

untimely because it was not filed within one year of when his conviction became final, even though

that was in / 986, ten years before the PCRA contained any time limits. See id., 726 A.2d at 334-35.

The Court nevertheless ruled on the merits of a penalty-phase jury instruction claira that was both

untimely and otherwise procedurally barred under the PCRA. See id., 726 A.2d at 336-38.

The Pennsylvania Supreme Court next addressed the PCRA time limits on March 2, 1999,

in Commonwealth v. Banks, 726 A.2d 374 (Pa. 1999), another capital case. As in Peterkin and

Cross, the Court applied the time limits retroactively and held Banks’ PCRA petition untimely

because it was not filed in /988, eight years before the PCRA had time limits. Banks, 726 A.2d at

375-76. The Court for the first time addressed the capital case relaxed waiver rule, stating that the

“gravity of the sentence imposed upon a defendant does not give us liberty to ignore” the PCRA’s

statutory language. Banks, 726 A.2d at 376. The Court did not attempt to reconcile this statement

with its previous recognition that the relaxed waiver rule had a/ways used the “gravity of the

sentence” to trump “the very terms of the Post-Conviction Relief Act.” Albrecht, 720 A.2d at 700.

Mr. Bronshtein’s Case

1. State Court

Mr. Bronshtein was tried in the Montgomery County, Pennsylvania, Court of Common Pleas

for the shooting death of Alexander Gutman The Commonwealth's theory was that Mr. Bronshtein

shot Mr. Gutman. The defense theory was that Mr. Gutman was shot by Adik Karlitsky, that Mr

Bronshtein was present; but that he did not kill Mr. Gutman, did not intend that he be killed and did

not know that Mr. Karlitsky would kill him. The jury convicted Mr. Bronshtein of first-degree

murder and related charges.

At capital sentencing, the defense presented testimony from family members who described

Mr. Bronshtein’s traumatic childhood, and expert testimony from psychologist Gerald Cooke, Ph.D

Dr. Cooke testified that Mr. Bronshtein suffers from severe mental health problems, including a

depressive disorder and a paranoid personality disorder with grandiose and persecutory features,

which had rendered him “acutely psychotic” and led to multiple suicide attempts. NT 4/22/94 at 80-

109. The Commonwealth’s psychiatnst agreed that Mr. Bronshtein has serious mental health

problems. NT 4/22/94 at 115-17, 119-21

The jury found two aggravating circumstances and three mitigating circumstances — “extreme

mental or emotional disturbance,” “poor childhood upbringing” and the “possibility that [Mr

Bronshtein] did not pull the trigger” — and sentenced him to death

Mr. Bronshtein’s conviction became final on October 20, 1997, after the Pennsylvania

Supreme Court affirmed on direct appeal and this Court denied certiorari. Commonwealth y

Bronshtein, 691 A.2d 907 (Pa. 1997) (“Bronshtein-1"), cert. denied, 522 U.S. 936 (1997).

In December 1997, Mr. Bronshtein filed in the Court of Common Pleas (Ott, J.) a pro se

petition for state post-conviction relief under Pennsylvania's Post-Conviction Relief Act (“PCRA”)

In January 1998, however, Mr. Bronshtein wrote to Judge Ott that he wanted to withdraw the

pro se PCRA petition and be executed. Judge Ott appointed psychiatrist Robert Sadoff, M.D., to

perform a competency evaluation. Dr. Sadoff met with Mr. Bronshtein, but was unable to explore

his mental state because he was so paranoid and guarded. Dr. Sadoff submitted his report to Judge

Ott on June 23, 1998, in which he stated that Mr. Bronshtem might be subject to execution under

Ford v. Wainwnght, 477 U.S. 399 (1986), but he could not render an opinion on competency to

waive post-conviction review, and that further expert observation and evaluation were required

before any opimon could be reached

After receiving Dr. Sadoff's report, Judge Ott found that further psychiatric evaluation was

necessary before a competency-to-waive determination could be made. See NT 7/15/98 at 7, 9

Judge Ott informed Mr. Bronshtein of this on July 15, 1998. Shortly thereafter, Mr. Bronshtein

attempted suicide, by slashing his own throat, in the Montgomery County jail

On December 9, 1998, Judge Ott appointed psychiatrist Kenneth Weiss, M.D., to evaluate

Mr. Bronshtein. Mr. Bronshtein, however, refused to see Dr. Weiss, and Dr. Weiss, like Dr. Sadoff,

was unable to render any opinion about Mr. Bronshtein’s competency to waive post-conviction

review

On January 26, 1999, despite the inability of any doctor to render an opinion about Mr

Bronshtein’s competency to waive post-conviction review, and despite Judge Ott’s own finding that

he could not make a competency finding absent expert opinion, Judge Ott allowed Mr. Bronshtein

to withdraw his pro se PCRA petition. Judge Ott ruled that withdrawal of the pro se PCRA petition

was done “knowingly, intelligently and voluntarily,” but he made no finding that it was competent

See Order of 1/26/99

Mr. Bronshtein’s mother and sister filed a notice of appeal and petitioned the Pennsylvania

“Under Ford, a prisoner is competent for execution if he knows that he will be executed and

why he will be executed, a much narrower determination than whether a prisoner 1s competent to

proceed in post-conviction litigation under Pennsylvania law. The latter, in contrast to Ford, looks

to whether the prisoner can rationally assist counsel; has a rational understanding of the legal

proceedings and processes; and, if he chooses not to proceed, whether the prisoner can make a

knowing, intelligent and voluntary waiver of post-conviction nghts

Supreme Court for “next-fnend” standing, alleging that Mr. Bronshtein’s mental illness made him

unable to make a rational choice to withdraw his pro se PCRA petition and be executed. In support,

they proffered reports and affidavits from the psychiatrists appointed by the PCRA court (Drs. Sadoff

and Weiss), and from three other mental health experts (psychologist Gerald Cooke, Ph.D.,’" and

psychiatrists Timothy Michals, M.D.,"° and Robert Fox, M.D.). The experts described Mr

Bronshtein'’s severe mental health problems, which render him suicidal, extremely paranoid,

uncommunicative, possibly delusional, and clinically depressed; they expressed substantial doubts

about his competency to waive post-conviction review, and they found that a competency finding

could not be made without further expert observation and evaluation. The next-friends also

proffered the affidavit of Rabbi Russell Fox, who saw Mr. Bronshtein on March 14, 1999 and

believed that he was “suffering from serious psychiatric disturbances.” The Commonwealth did not

present any evidence or proffer in opposition to these observations and expert opinions

On Apnil 16, 1999, despite the unrebutted expert opinion that Mr. Bronshtein is seriously

mentally tl] and that his competency to waive post-conviction nghts was seriously in doubt and could

not be determined without further expert observation and evaluation, the Pennsylvania Supreme

Court held that Mr. Bronshtein had withdrawn his pro se PCRA petition. Commonwealth v

Bronshtein, 729 A.2d 1102 (Pa. 1999) (“Bronshtein-2”). The Pennsylvania Supreme Court relied

on Dr. Sadoff's suggestion that Mr. Bronshtein might be subject to execution under Ford v

Wainwright. The Pennsylvania Supreme Court completely overlooked that the Ford issue is very

different from competency to waive post-conviction review. See Bronshtein-2 at 1106-08. The

Pennsylvania Supreme Court did not even mention the legal distinction between the two issues. See

note 10, supra (discussing this distinction). Chief Justice Flaherty dissented, and would have ordered

further competency evaluation. Bronshtein-2 at | 108-09

Dr. Cooke was the defense mental health expert at capital sentencing

‘Dr. Michals was the Commonwealth's mental health expert at capital sentencing

13

On April 26, 1999, Mr. Bronshtein’s mother and sister filed in the United States District

Court for the Eastern District of Pennsylvania (Reed, J.) an application for next-friend sianding,

habeas corpus relief and stay of execution.

The same day, Mr. Bronshtein informed the District Court that he had not wanted to die;

wanted to litigate his post-conviction claims; and wanted counsel to represent him. The previously

filed application for next-friend standing was accordingly withdrawn and, on April 28, 1999, Mr.

Bronshtein filed in the District Court a motion for stay of execution and appointment of counsel

On April 29, 1999, the District Court stayed the execution and appointed counsel

Counsel's investigation and preparation of the habeas petition revealed a number of claims

that had not been presented to the state courts. Accordingly, on June 9, 1999, Mr. Bronshtein filed

an amended PCRA petition in the Montgomery County Court of Common Pleas (Ott, J.) to exhaust

his claims. The District Court placed federal proceedings in suspense pending exhaustion.

On October 19, 1999, Common Pleas Judge Ott dismissed the amended PCRA petition,

ruling that it was time-barred under the PCRA because it was not filed within the one year

limitations period of 42 Pa.C.S. § 9545(b)(1), and that Mr. Bronshtein had also “irrevocably waived”

PCRA review in January 1999 when he was allowed to withdraw his pro se PCRA petition

On June 19, 2000, the Pennsylvania Supreme Court affirmed the denial of PCRA relief,

holding that all of Mr. Bronshtein’s claims were procedurally barred. Commonwealth v. Bronshtein,

752 A.2d 868 (Pa. 1999) (“Bronshtein-3"). The Pennsylvania Supreme Court did not hold that Mr.

Bronshiein defaulted his claims when he was allowed to withdraw his pro se PCRA petition in

January 1999, instead, it held that he defaulted on October 20, 1998, when he failed to file his

petition within one year of the date when his conviction became final on direct appeal. See

Bronshtein-3 at 870-71

District Court

h prov ides that federa

that are based purely o

210 (1935). The Supren

has no power to review a state law determination

support the pudement. resolution of any dependent federa

ground fo v¢ decision could not affect the jwdement and would therefore be

advisory ny. Thompson. 501 U.S. 722, 729(1991). Procedural default due

4 ’

to an adequate and independent state ground does not technically deprive a federa

court of jumsdiction, rather, 1t counsels against federal court mvolvement out of

ern for comity and federalism. See Lambrix vy. Singletary. 52 >. 518, 523

(1997). As the Supreme Court observed in Coleman

$ in those cases in which a state prisoner fails t

remedies, a habeas petitioner who has failed |

procedural requirements for presenting his

deprived the state courts of an opportunity to addres

the first mstance T he independent anc acdecquat

Corre - cow?

doctrine ensures that the States’ interest

mistakes 1s respected in all federal habeas cases

,*s

jeman. 501 U.S. at 732

The independent and adequate state ground doctrir

court from considenne the merits of claims made in a

a state court has declined to hear ti merits of those Clair

with a state procedural rule. See W ainwngnt

The independence of a state rule is not ar

The resolution of the adequacy question require

background and precedent of the relevant state rule or practi The Supreme Court

of the United State’ has observed that “only a ‘firmly established and regularly

followed state practice’ may be interposed by a state to prevent subsequent review

y this Court of a federal constitutional claim.” Ford v. Georgia, 498 U.S. 411, 423

24 (1991) (quoting NAACP Alabama ex rel tierson, 35/7 U.S. 449, 457-58

(1958)). A state rule ts scequate only if it is “consistently and regularly applied

pson v. Mississipp:, 486 US 587 (1988), “strictly or regularly followed

d

ind apphed “evenhand to all sipmilar claims,” Hathorn v_ Lov

This does not mean that a state's “willingness in

:

*

renders the rule inadequate. See Banks v. Horm, | 2

iS a State has applied the rule in “the vast majority of

emed adequate. Dugger vy. Adams, 489 U.S. 401, 4100.6

his case was simplified

1 (Bronshtein-3) expressly identified both

Bronshtein defaulted under that rule

lural bar) rule | applied by the state court] is gleaned from

he claims on procedural!

the Supreme ur Pennsylvania dismissed

s second PCRA 1 on as untimely filed, holding that it was barred by

+ 9545(b) 1), which requires PCRA petitions to be filed within one year

idgment. The supreme court held that the one-year rule deprived courts of

risdiction over late-filed petitions, and was not subject to any exceptions beyond

those set forth m the statute. The relevant rule im this case. then. 1s the rule that »

1545(bW 1) oper: us an absolut urisdictional bar to hearing the merits of a late

PCRA petition, and that no exceptions outside those in the statute may save a petition

filed more than onc ter the date judgment becomes final!

> >

ilso cl ed ) precision the

;

Supreme Co Pennsylvania

r occurred im this case

tiere, Appellant's judgement became final on October 20, 1997, the

date that the United States Supreme Court demed certiorari. Thus

Appellant was required to file his petition for post-conviction relief

ar of October 20. 1997, that 1s by October 20. 1998. in

PCRA petition to be timely filed. Instead, Appellant

econad petition for post-conviction rehef on June 9

e t prescribed by § 9545(b) 1)

Pennsylvamia| Supreme Court fixed the date of the

aiver im this case a 1998, the date Bronshtein should have filed his

econd PCRA petition. Thus, my procedural analysis wi!! focus on Pennsylvania law

t stood as of October QO

4 at *5 (some citation Bronshtein-3 omitted)

ourt then surveyed the Pennsylvania Supreme Court’s capital case default law

and concluded that the PCRA time-bar is not an adequate state ground as applied to Mr. Bronshteir

because, given the relaxed waiver rule, “it was neither clearly established nor regularly followed at

me of Bronshtein’s waiver in October 1998, that a late-filed PCRA petition in a capital case

issed as untimely.” Bronshtein-4 at *8. The District Court explained

The “relaxed waiver” doctrine is the term given to the Supreme Court of

Pennsylvania's long-standing, well-established practice of relaxing its enforcement

of state procedural rules in death penalty cases. This practice was explicitly applied

in numerous capital cases on both direct appeal and in PCRA proceedings, to reach

the merits of petitions despite violations of vanety of statutory and judicial

procedural rules. [citing cases]

The Supreme Court of Pennsylvania did not begin to change its approach to

waiver.in capital cases until November 1998, a month after Bronshtein’s “waiver.”

In [ Albrecht}, the court observed, “While it has been our ‘practice’ to decline to apply

ordinary waiver principles in capital cases, we will no longer do so in PCRA

appeals.” Subsequent mentions of Aibrecht by the Supreme Court of Pennsylvania

made it clear that Albrecht marked a sea-change in the court's approach to waiver in

death penalty cases. | citing cases;

The rule of Albrecht was applied directly to the one-year deadline in §

9545(b\(1) in Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374 (1999). The Banks

decision relied on Albrecht in concluding that

The Legislature has spoken on the requisites of receiving relief under the

PCRA and has established a scheme in which PCRA petitions are to be

accorded finality. The gravity of the sentence imposed upon a defendant does

not give us liberty to ignore those clear mandates

id. at 6, 726 A.2d 374; see also Commonwealth v. Fahy, 558 Pa. 313, 325, 737 A.2d

214 (1999)

While it now appears to be clearly established that a late-filed PCRA petition

will no longer be considered under the relaxed waiver rule, back in October 1998,

relaxed waiver remained viable in PCRA cases. Because it is clear that the relaxed

waiver doctrine did not fall out of favor in the PCRA context until after the waiver

in the instant case occurred, Bronshtein’s second PCRA petition was not dismissed

on the basis of an adequate state ground

Bronshtein-4 at *8 n.17; see also id. at *6-*10

Accordingly, the Distnct Court reviewed the ments of Mr. Bronshtein’s claims. It found that

constitutional error infected the trial and capital sentencing, and gra .‘ed relief.

The District Court held that the first-degree murder conviction should be vacated because the

jury instructions relieved the Commonwealth of its due process-imposed burden of proving every

element of first-degree murder beyond a reasonable doubt. Sce Bronshtein-4 at *12-*17. The

District Couri, however, did not vacate the non-homicide convictions (robbery, theft and conspiracy)

See Bronshtein-4 at *24 n.35, Bronshtein v. Horn, 2001 WL 936702 (E.D. Pa. Aug. 16, 2001)

(“Bronshtein-5")

’ te

The District Court also found that constitutional violations required relief from the death

sentence. It held that the trial court's failure to mstruct the jury that life impnsonmen

|

if

Pennsylvania is without possibility of parole, when the prosecutor “unmistakably placed

Bronshtein’s future dangerousness at issue,” violated

due process under this Court's decision in

Simmons v. South Carolina, 512 U.S. 154 (1994)

The Commonwealth appealed from the District Court's grant of relief. Mr. Bronshtein

appealed from the District Court's upholding of the

Third Circuit

The Third Circuit, with Judge Alito writing for a unanimous panel, agreed with the District

Court that there 1s no adequate state procedural! ground here, agreed with the District Court that Mr

Bronshtein’s death sentence is unconstitutional under Simmons v. South Carolina. but held that the

due process violation at the guilt pl ase was harmies |, so, reversed the District Court's

grant of guilt-phase relief, See Bronshtein v. Horn, 4 id 7 $d Cir. 2005) (“Bronshtein-6")

The Third Circuit first described this Court's procedural default law

The procedural default doctrine precludes a federal habeas court from

“review|ing]| a question of federal law decided by a state court if the decision of that

court rests on a state law ground that is independent of the federal question and

adequate to support the judgment.” Coleman vy. Thompson, 501 U.S. 722, 729

(1991) (emphasis added). The United States Supreme Court has employed a variety

of tests to determine whether a state ground is “adequate.” Among other things, state

procedural rules have been held to be inadequate :f they are not “firmly established

and regularly followed,” Ford vy. Georgia, 498 U.S. 411, 424 (1991) (quoting James

v. Kentucky, 466 U.S. 341, 348-51 (1984)); see also Barr v. City of Columbia, 378

U.S. 146, 149 (1964), or if they are “novell!” and unforeseeable. NAACP +

Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958), see also Ford. 498 U.S. at 424

First, the test ensures that federal review is not barred unless a habeas

petitioner had fair notice of the need to follow the state procedural rule. As we said

in Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir. 1999), “a petitioner should be on

notice of how to present his claims in the state courts if his failure to present them ts

to bar him from advancing them im a federal court.

Second, the “firmly established and regularly followed’ test” prevents

discrimination. “Novelty m procedural requirements,” NAACP y. Alabama ex re!

disfavored on the merits. If inconsistently applied procedural! rules sufficed as

adequate’ grounds of decision, they could provide a convenient pretext for state

courts to scuttle federal claims without federal review. The requirement of regular

application ensures that review is foreclosed by what may honestly be called “rules”

directions of general applicability — rather than by whim or prejudice against a

claim or claimant

Bronshtem-6 at 7

Ihe Third Circuit described the Distnct Court's finding that there is no adequate state

ira! ground here

District} Court identified the relevant rule as “the rule that § 9545(b)(1)

operates as an absolute, jurisdictional bar to hearing the merits of a late PCRA

petition, and that no exceptions outside those in the statute may save a petition filed

more than one year after the date judgment becomes final Second, the Court

concluded that the relevant point in time was “the moment petitioner violated the

procedural rule, that 1s, at the tume Bronshtein’s one- year window under § 9545(b)\ 1)

closed.” Since direct review of Bronshtein's conviction and sentence ended when the

United States Supreme Court denied his petition for a wnt of certioran on October

10, 1997, the District Court concluded that the critical date was October 20, 1998

Finally, the Court found that the state procedural rule applied by the Pennsylvania

Supreme Court was not “firmly established and regularly followed” on that date

Bronshtein-6 at 708 (citations omitted)

The Third Circuit then addressed the procedural default issue, agreeing with the District

Court that there 1s no adequate state procedural ground here

We agree with the District Court that the rule applied by the Pennsylvania

Supreme Court was not firmly established and regularly applied until after

Bronshtein missed the PCRA’s one-year filing deadline. To be sure, the pertinent

Statutory provision, 42 Pa. Cons.Stat. Ann. § 9545(b), which took effect on January

16, 1996, appears on its face to impose a one-year deadline .... Nevertheless, as the

District Court observed, strict enforcement of the provision did not begin

immediately

Well before the enactment of this provision, the Pennsylvania Supreme Court

had begun to apply a “relaxed waiver rule” in capital cases. See Commonwealth v

McKenna, 476 Pa. 428, 383 A.2d 174 (1978). In McKenna, the Court stated that it

bore a “duty to transcend procedural rules” in capital cases because of the

overwhelming public interest” in preventing unconstitutional executions. Id. at | 80-

51. As we have observed, McKenna for a time “firmly established that a claim of

constitutional! error in a capital case would not be waived by a failure to preserve it.”

szuchon v. Lehman, 273 F.3d 299, 326 (3d Cir. 2001)

Twenty years later, on November 23, 1998, the state supreme court changed

course in Commonwealth v. Albrecht. 554 Pa. 31. 720 A.cd 693 (1998). After

noting that it had long been the Court's “‘practice’ to decline to apply ordinary

waiver principles m capital cases,” the Court stated that this rule had “in effect,

virtually eliminated any semblance of finality in capital cases.” Id. at 700. The Court

concluded that the “benefits of relaxed waiver at the PCRA appellate stage” were

greatly outweighed by the need for finality and judicial efficiency, and the Court

announced that the relaxed waiver rule would “no longer [apply] in PCRA appeal

Id

On December 21, 1998, the state supreme court held in Commonwealth v.

Peterkin, 554 Pa. 547, 722 A.2d 638 (1998), that the PCRA time bar applies to

capital cases and is not superceded by the relaxed waiver rule. Finally, on March 2,

1999, the state supreme court held unequivocally in Commonwealth v. Banks, 556

Pa. 1, 726 A.2d 374(1999), that the PCRA time limits are yurisdictional and thus not

subject to judicial relaxation. ... For present purposes, ... it is not necessary for us to

decide whether Albrecht, Peterkin, or Banks marke the critical point m time because

Bronshtein’s one-year deadline expired before the earliest of the three dates. As of

October 20, 1998 — the one-year anniversary of the conclusion of direct review in

Bronshtein's case — Bronshtein did not have fair notice that he would not be given

the benefit of the “relaxed waiver” rule and that his failure to file his PCRA petition

within the one-year statutory deadline would result in the dismissal of his petition

Moreover, holding Bronshtein strictly to the one-year deadline would have demed

him the more lenient treatment that the state courts had allowed other capital

defendants up to that pomt. We thus agree with the District Court that the state

procedural rule at issue in this case — the rule stnctly requiring a capital defendant to

file a PCRA petition within one year after the end of direct review — was not firmly

established and regularly followed at the time in questio!

Bronshtein-6 at 708-09

Finally, the Third Circuit noted that its finding that there is no adequate state procedural

ground was tightly linked to the fact that the Pennsylvania Supreme Court eliminated the relaxed

waiver rule without notice and without giving a grace period to petitioners who had been litigating

under the traditional Pennsylvania Supreme Court approach in capital cases

Our analysis of the question of procedural default would proceed along a different

path if the Pennsylvania Supreme Court, when it abandoned the doctrine of “relaxed

waiver, had adopted what might be termed a “transitional rule,” Le., a rule imposing

a special filing deadline for those cases in which a PCRA petitioner’s one-year filing

period expired prior to the end of the “relaxed waiver” era. Accordingly, it would

have made sense for the state supreme court to have adopted a rule requiring such

petitioners to file within some specified time after the termination of the doctrine of

relaxed waiver.” However, no such transitional rule was invoked by the state

supreme court in this case, and none has been called to our attention. The only state

law ground that we may consider in deciding the tssue of procedural default in this

case 1s the general one-year deadline. Because this rule was not firmly established

0)

and regularly applied on the date when Bronshtein’s time ran out, the doctrine of

procedural default does not apply in this case.

Bronshtein-t at 709-10 (footnote omitted)."’

Turning to the merits, the Third Circuit reversed the District Court’s grant of relief with

respect to the first-degree murder conviction. Like the District Court, the Third Circuit found that

the jury instructions on murder violated due process. The Third Circuit held, however, that the error

was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). See Bronshtein-6 at 710-15. The

Third Circuit also affirmed the District Court's denial of relief with respect to the non-homicide

convictions, holding that the claims related to those convictions were meritless and/or procedurally

barred. See Bronshtein-6 at 720-32. Thus, the Third Circuit did not allow any guilt-phase relief.

As to penalty-phase, the Third Circuit affirmed the District Court’s grant of relief under

Simmons v. South Carolina. The Third Circuit found that the prosecution presented “future

dangerousness” evidence through its own mental health expert, Dr. Michals, and through cross-

examination of the defense expert, Dr. Cooke

Drs. Cooke and Michals suggested the following: that Bronshtein’s “combination of

personality disorders” could be “lethal” or “explosive”; that he was prone to lie,

scheme, steal, fight, and act very aggressively; that he was much more likely than a

normal person to distrust others, bear grudges, feel threatened, and respond with a

counterattack; that he was unable to “play by the rules in a civilized society”; that he

was probably remorseless, and unlikely to learn from experience, and thus prone to

commit the same cnmes “over again”, and that there would probably be an

“acceleration” of his anti-social behavior

Bronsntein-6 at 719; see also id, at 717-19 (quoting testimony).

The Third Circuit also found that the prosecutor made “future dangerousness” arguments,

based upon this evidence, by asserting to the jury

Ladies and gentlemen, the medical testimony in this case was significant

because it tells you something about the psyche or persona of this man. He can't

conform to what is required in society. The doctors have told you that he’s anti

‘Compare State v. Wessinger, 736 So.2d 162, 180(La. 1999) (ending Louisiana capital case

relaxed waiver rule prospectively, beginning with penalty-phases held after Wessinger).

21

social. He's prone to lying. He's prone to stealing. He's prone to living a life of

crime

Whatever the seeds were that got him there, they re planted, and that tree has

grown. He’s grown into a twenty-two-year-old person now regardless of how the

seeds were planted

You have to take a look at what effect that has had and what effect it had at

the time he committed these crimes. The doctors have told you he s a man that can't

conform to the needs of society

Bronshtein-6 at 716-17 (emphasis in Bronshtein-6)

Given this evidence and argument, the Third Circurt found that, “[1)n any realistic sense of

the concept, the prosecutor ‘argue{d] that the defendant [would] pose a threat to society in the

future! .|° Simmons, 512 U.S. at 177 (O'Connor, J., concurring in the pudgment),”’ and thus, Simmons

was violated when the court failed to instruct that life imprisonment is without possibility of parole

Bronshtein-6 at 719. The Third Circuit therefore affirmed the District Court's grant of penalty-phase

relief. Id. at 719-20

The Commonwealth does jallenge the propriety of the Third Circuit's analysis and

conclusion on the ments of the Simmons constitutional error. The Commonwealth presents only 2

procedural contention. In light of the Pennsylvama Supreme Court's traditional no-procedural

default approach im capital cases and the decisions of every Third —ircuit pane! and numerous

’ ,

District Courts familiar with Pennsylvania practice, the Commonwealth's certioran contention lacks

merit

REASONS FOR DENYING THE WRIT

The Third Circuit cited, accurately described and applied this Court's precedents on the

adequate state ground doctrine - ¢.g.. Coleman vy. Thompson; Ford v. Georgia; Dugger vy. Adams:

Johnson v. Mississippi, James v. Kentucky; Hathom v. Lovorn,; Wainwnght v. Sykes; Barr v. City

of Columbia: NAACP v. Alabama ex rel. Patterson. The Third Circuit did not misapply this Court's

law. Evenif the Third Circuit had erred, which it did not, there is no reason to grant certioran when

“the asserted error consists of the misa lication of a proverly stated rule of law supreme (€ ourt

’

Rule 10

This Court is especially averse to reviewing the issue the Commonwealth presents here — a

Court of Appeals’ rulmg on the adequacy of a state court procedural bar ruling. As this Court has

“repeatedly recognized, the courts of appeals and district courts are more familiar than we with the

procedural! practices of the States in which they regularly sit” and, thus, in the best position to make

such rulings. Lambnx v. Singletary, 520 U.S. 518, 525 (1997) (declining to address procedural bar

issue).'* Here, an experienced District Judge (Judge Reed, appointed by President Reagan in 1987)

and three experienced Third Circuit Judges (Judges Alito, Barry and Staplevon), all of whom are

familiar with Pennsylvania law, carefully surveyed the Pennsylvania Supreme Court's capital case

precedents and concluded that there ts no adequate state ground barring merits review of Mr

Bronshtein’s claims

Moreover, Third Cirucit Judges Alito, Barry and Stapleton, and District Judge Reed, are far

from alone in ruling that there is no adequate state procedural ground given the Pennsylvania

Supreme Court's capital jurisprudence and its implications under federal procedural default law. At

least twenty-five Third Circuit and Distnct Court Judges — including Circuit Judges Alito, Barry,

Becker, Cowen, Fuentes, Greenberg, Mansmann, McKee, Nygaard, Rendell, Roth, Scirica, Sloviter

and Stapleton, and District Judges Brooks Smith (now on the Third Circuit), Brody, DuBois, Giles,

Joyner, Kaufman, McLaughlin, Munley, Pollak, Reed and Shapiro — have made similar rulings. See

“Accord id, at 547 (O’Connor, J ., dissenting) (“As the Court points out, the Court of Appeals

is better suited to cvaluating matters of state procedure [relevant to procedural bar issues] than are

we.’), Selvage v. Collins, 494 U.S. 108, 110 (1990) (per curiam) (remanding to Court of Appeals

for determination of procedural bar issue because Court of Appeals “is more familiar with [state] law

than we are); Granberry v. Greer, 481 U.S. 129, 136 n.9 (1987) (“Petitioner has also contested the

Court of Appeals’ determination that he failed to exhaust his state remedies On that issue,

however, we defer to the Court of Appeals which 1s more familiar with Illinois’ practice than we

are.”’); Rummel v. Est 445 US. 263, 267 n.7 (1 980) (rejecting state’s procedural bar argument

by “[djeferring to the Court of Appeals interpretation of Texas law’), County Court of Ulster Cty

v_All

en, 442 U.S. 140, 153-54(1979) (declining to find procedural bar where “three Second Circui

Judges, whose experience with New York practice 1s entitled to respect, concluded that” there was

no adequate and independent siate ground); Butner v. United States, 440 U.S. 48, 57-58 (1979)

(lower federal courts better suited to decide questions of state law)

notes 7-8, supra. This is not surprising in light of the Pennsylvania Supreme Court’s traditional

capital case relaxed waiver approach, the Pennsylvamia Supreme Court's sudden retreat from that

approach in Albrecht, and the Pennsylvania Supreme Court's application of Albrecht’s new approach

retroactively to deny review in cases that had been litigated under the traditional no-procedural-

default approach

Indeed, the inadequacy of the Pennsylvania Supreme Court's bar ruling in this case has even

been recognized by Justices of the Pennsylvania Supreme Court. As stated above, the Pennsylvania

Supreme Court has repeatedly recognized that Albrecht was an abrupt about-face, in which

Pennsylvania's capital jurisprudence was transformed from one in which procedural default rules

were not enforced to one in which they are. See Counter-Statement of the Case § A.1.

Pennsylvamia's Supreme Court Justices have recognized that this sudden transformation was unfair

to those, like Mr. Bronshtein, who began their litigation under the old, no-bar regime."

Pennsylvania Supreme Court Justice Saylor has even noted with approval that “the federa/

courts have declined to treat the retroactive elimination of relaxed waiver as a procedural bar to

federal habeas corpus relief’, Justice Saylor explained that federal habeas decisions finding no

adequate state ground in Pennsylvania capital cases are “appropriate”, and Justice Saylor cited the

District Court's decision in the instant case as an “appropriate” federal court finding of no adequate

Dee, ¢.g., Brown, 872 A.2d at 1161-62 (Castille, J., concurring) (Albrecht “render[ed]

previously nonwaivable claims defaulted’); Crews, 863 A.2d at 504 (“{B]etween the filing of his

first and second [PCRA] petitions, relaxed waiver was abolished in capital PCRA cases. [Albrecht]

Thus, when first PCRA counsel failed to raise certain issues, appellant was not on notice that

counsel's failure would lead to an eventual time-bar of those claims.”); Wharton, 811 A.2d at 991

n.! (Saylor, J., concurring) (Albrecht’s “retroactive abolition of relaxed waiver” makes it unfair to

apply “the more stringent standards subsequently adopted by the Court’’), Ford, 809 A.2d at 337-38

(Pa. 2002) (Saylor, J., concurring) (Before Albrecht, prisoners “were justified in invoking the

[relaxed waiver) doctrine in styling and litigating their claims for relief. It is unjust ... to penalize

them for failing to frame and pursue their claims according to a far more stringent set of rules

subsequentiy implemented by the Court.”); id. at 348 (Eakin, J. dissenting) (“[R]etroactive

application of the abolition of relaxed waiver puts those who litigated their petition before Albrecht

at a disadvantage.”)

state ground. See Ford, 809 A.2d at 338 (Saylor, J., concurring) (citing Bronshtein-4 at *7-*8 n.17,

and Pursell v. Horn, 187 F.Supp.2d at 296-97)

Against this overwhelming background - ¢.g., more than eighty Pennsylvama Supreme Court

opinions describing the relaxed waiver rulk roactive abolition and the unfairness created

thereby, see Counter-Statement of the Case § A.1; the Commonwealth's own admissions about the

nature of the relaxed waiver rule, see id, § A.4,; the well-reasoned decisions of at least twenty-five

federal judges who are familiar with Pennsylvania law and found procedural bar rules not adequate

in Pennsylvania capital cases in the wake of the abolition of relaxed waiver, see id. § A.2-3 — the

Commonwealth musters two procedural arguments for certiorari, both meritless

First, the Commonwealth says the Third Circuit “mechanical[ly] ... fixed the date of default”

as October 20, 1998, one year after Mr. Bronshtein's conviction became final, according to the

Commonwealth, the “actual” default was im January 1999, when the PCRA court allowed withdrawal

of Mr. Bronshtein’s pro se PCRA petition. Perit

But it was not the Third Circuit that “fixed the date of default” — 1 was the Pennsylvania

Supreme Court. As the Distnct Court explained, the adequate state ground doctrine looks to the

“decision of the highest state court that dismissed the claims on procedural grounds” to determine

what bar rules were applied by the state court. Bronshtem-4 at *5. Here, the “Supreme Court of

Pennsylvania identified with precision the a the waiver occurred in th >The

[Pennsylvania] Supreme Court fixed the date of the waiver m ths case as October 20, 1998.”

;

Bronshtein-4 at *5 (quoting Bronshtein-3). Since the Pennsylvania Supreme Court “identified” and

/

“fixed the date” of default as October 20, 1998, it plainly was appropriate for the federal courts to

look to that date in applying the adequate state ground doctrine. See Harris v. Reed, 489 U.S. 255

# 4

265 n.12 (1989) (adequate state ground doctrine looks to procedural bar rules actually applied by

Pursell v. Horn, authored by then-Chief District Judge, now Third Circuit Judge, D. Brooks

Smith, held that the PCRA time-bar was not an adequate state ground in a capital case

state court); Caldwell v. Mississippi. 472 U.S. 320, 327 (1985) (same)

Moreover, there 1s an obvious reasons why the Pennsylvama Supreme Court deemed the

clams barred as of October 20, 1998, rather than im January 1999 as suggested by the

Commonwealth. Any ruling that Mr. Bronshteim defaulted his clarms in January 1999 when the state

withdrawal of his pro se PCRA petition would b ccily in conflict with

Supreme Court precedent holding that a death-sentenced prisoner who makes a

knowing, voluntary and intelligent” warver of PCRA review and “withdraws” his PCRA petition

must be allowed to “retract” that withdrawal, “remstate” his PLRA proceedings and obtain review

when he asks for such PCRA review. See, ¢.2., Commonwealth v. Saranchak, 810 A.2d 1197, 1197

As the District Court recognized, under Pennsylvama law the January 1999

of tus first PCRA petition did not, in and of itself, prevent him from bringing a

subsequent PCRA petition Ihe Commonwealth does not appear to contend otherwise

Bronshtein-4 at *3 n.5

The Commonwealth's second assertion 1s that the Third Circust supposedly has adopted a

“one-size-fits-all approach” to procedural default, paying no attention to the facts of the case or the

at issuc, and has used this approach to willy-milly grant relef im capital cases

Again, the Commonwealth errs

iIhurd Circus has denied relief m capital hi cascs from Pennsylvania

Sec alse Commonwealth v. Michael, 755 A.2d 1274(Pa. 2001) (addressing ments of PCRA

a‘ter petitioner repeatedly withdrew and then changed mind and reimstated)

“The Commonwealth's failure to argue for the January 1999 default date in the District Court

should constitute a warver of that argument. see Trest v. Cam. 522 U.S. 87. 89 (1997). another

reason why certioran should be dened

ec. ¢.g.. Rompilia v. Horn, 355 F.3d 233 (3d Cir. 2004) (reversing district court grant of

penalty-phase relief in a Pennsylvama capital case), subsequent history, 125 S.Ct. 2456 (2005)

(reversing Third Circuit's denial of rehef), Hackett v. Price, 381 F.3d 281 (3d Cir. 2004) (reversing

district court grant of penalty-phase relief im Pennsylvania capital case), Whitney vy. Horm, 280 F 3d

240 (3d Cir, 2002) (reversing district court grant of guilt-phase relief in Pennsylvania capital case)

Moreover, im Pennsylvania capital habeas cases, including this case, the Third Circuit has found

claims to be p durally barred” Further, in Pennsylvania non-capital habeas cases, the Third

Circurt has demed rehef and found claims proceduraliy barred Indeed, the imposition of

procedural bars in Pennsylvania non-capital habeas cases 1s so routine that the issue seldom reaches

the Third Circui District Courts in Pennsylvama, applying [Third Circust law, routinely apply

procedural bars and deny a certificate of appea:ability on the issue.~ Finally, in capital habeas case

Buchl v. Vaughn, 166 F.3d 163 (3d Cir. 1999) (affirming district court demal of relief in

Pennsylvania capital case); Lesko v. Owens, 881 F.2d 44 (3d Cir. 1989) (reversing district court

grant of guilt-phase rehef in Pennsylvania capital case), Lerry v. Petsock, 974 F.2d 372 (3d Cur

1992) (affirming district court demal of relief in Pennsylvania capital case), Frey v. Fulcomer, 974

F 2d 348 (3rd Cir. 1992) (reversing district court grant of penalty-phase relief in Pennsylvania capital

case), Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991) (affirming district court demal of relief

in Pennsylvama capital case), White v. Horn, 191 F.3d 446 (3d Cir. 1999) (table) (affirming district

court demal of relief in Pennsylvama capital case), see also Morns v. Hom, 187 F.3d 333 (3d Cir

1999) (affirming district court demal of Rule 60(b) relief in Pennsylvania capital case), Christy +

3d 201 (3d Cir. 1997) (vacating district court “stay and abey’ order in Pennsy!vama

capital case); in re Zettlemoyer, 53 F.3d 24 (3d Cir. 1995) (affirming district court demal of next

fnend standing in Pennsylvamia capital case)

Dee, ¢.2.. Bronshtem-6 at 728; Rompilia, 355 F.3d at 261; Szuchon, 273 F.3d at 307, 324

(Sua sponte imposing procedural bar even though Commonwealth had waived that defense).

Whitney, 280 F.3d at 250-53; Carpenter, 296 F.3d at 141, 148-49

See. ¢.g.. Fountain v. Kyler, 420 F.3d 267, 272 (3d Cir. 2005), Tillery v. Horn, 142

Fed. Appx. 66 (3d Cir. 2005), Benshunas v. Kiem, 137 Fed.Appx. 510 (3d Cir. 2005), Richardson

vy. Warden, 125 Fed. Appx. 395 (3d Cir. 2005), Buck v. Colleran, 115 Fed. Appx. 526 (3d Cir. 2004),

Rill v. Meyers, 87 Fed.Appx. 822 (3d Cir. 2004); Williams vy. Price, 343 F.3d 223, 237 (3d Cit

2003), Mattis v. Vaughn, 80 Fed. Appx. 154 (3d Cir. 2003), Lutz v. Brennan, 67 Fed.Appx. 151 (3d

Cir. 2003), Willis v. Vaughn, 48 Fed. Appx. 402 (3d Cir. 2002), Sweger v. Chesney, 294 F.3d 506,

$20-24 (3d Cir. 2002), Marra y. Larkins, 46 Fed. Appx. 83, 89-93 (3d Cir. 2002); Weaver vy. Frank,

46 Fed. Appx. 693, 696 (3d Cir. 2002), Cristin vy. Brennan, 281 & 3a 404, 419-23 (3d Cir. 2002)

Wenger v. Frank, 266 F.3d 218, 223-27 (3d Civ. 2001); Keller vy. Larkins, 251 F.3d 408, 413-16 (3d

Ci. 2001); Werts v. Vaughn, 228 F.3d 178, 192-95 (3d Cir. 2000); Lines v. Larkins, 208 F.3d 155,

159-69 (3d Cir. 2000), McCandless v. Vaughn, 172 F.3d 255, 260-63 (3d Cir. 1999), Sistrunk y

Vaughn 96 F.3d 666. 673-75 (34d Cir. 1996)

So far in 2005 alone, there have been over 47 decisions by District Courts in Pennsylvama

denying relief on procedural bar grounds and denying a certificate of appealability. See Cullison \

Wolfe, 2005 WL 2644997, *4-*7 (E.D. P; t. 13, 2005), Johnson v. DiGuglielmo, 2005 WI

2585448, *10-*11 (E.D. Pa. Oct. 7, 2005); Johnson v. Kelcher, 2005 WL 2371994, *3-*4(E.D. Pa

from New Jersey and Delaware, the other states in the Third Circuit, the Third Circuit has denied

relief, found claims procedurally barred, and never found a state procedural default inadequate.”

Sept. 26, 2005); Person v. Wynder, 2005 WI 2346117, *3 (E.D. Pa. Sept. 23, 2005); Miles v.

DiGuglielmo, 2005 WL 2139952, *3 n.2 (E.D. Pa. Sept. 1, 2005); Saintville v. Colleran, 2005 WL

2106177, *4-*6 (M.D. Pa. Aug. 31, 2005); Guy v. Moore, 2005 WL 2104316, *3-*4(E.D. Pa. Aug.

29, 2005); Turner v. DiGuglielmo, 2005 WL 2250692 (W.D. Pa. Aug. 29, 2005); Riley v. Lavan,

2005 WL 1995462 (E.D. Pa. Aug. 16, 2005); Faulcon v. Palakovich, 2005 WL 1958071, *3-*5(E.D

Pa. Aug. 11, 2005); Bass v. Chesney, 2005 WL 1941661, *5-*6 (E.D. Pa. Aug. 10, 2005); English

vy. Vaughn, 2005S WL 1677967, *3-*5S (E.D. Pa. July 15, 2005); Tumer v. Shannon, 2005 WL

Pa. June 29, 2005); Wishnefsky v. Meyers, 2005 WL 1498502, *4-*5 (M.D. Pa. June 22, 2005);

Schwartz v. Colleran, 2005 WL 1389235, *7-*11 (E.D. Pa. June 9, 2005); Green v. Rozum, 2005

WL 1279136 (E.D. Pa. May 25, 2005); Brodeur vy. Patrick, 2005 WL 1126947, *4-*6(E.D. Pa. May

11, 2005), Wyatt v. DiGuglielmo, 2005 WL 1114350, *7 (E.D. Pa. May 10, 2005); Adams v. Kyler,

2005 WL 1041191, *2(E.D. Pa. May 2, 2005); Sims v. Patrick, 2005 WL 1025150, *7-*9 (E.D. Pa.

April 29, 2005); Lloyd vy. Shannon, 2005 WL 1138389, *3 (M.D. Pa. April 28, 2005); Harper vy.

Kyler, 2005 WL 950617, *6-*7 (E.D. Pa. Apnl 22, 2005), Johnson v. Superintendent, 2005 WL

856888, *7 (E.D. Pa. April 13, 2005); Flecha v. Shannon, 2005 WL 851066, *2-*3 (E.D. Pa. April

12, 2005); Ocasio vy. Varner, 2005 WL 856897, *2-*4(E.D. Pa. Aprnl 12, 2005); Purnell v. Shannon,

2005 WL 825902 (E.D. Pa. Apri! 7, 2005); Rorie v. Beard, 2005 WL 825917, *5-*6, *7 n.2 (B.D.

Pa. April 7, 2005); Leyva v. Williams, 2005 WL 746042, *2-*5 (E.D. Pa. March 30, 2005); Clymer

v. Combine, 2005 WL 711651, *3-*7 (E.D. Pa. March 29, 2005); Perez v. Sobina, 2005 WL 711653,

*7-*8 (E.D. Pa. March 29, 2005), Rinaldi v. Gillis, 2005 WL 701710, *6-*9 (E.D. Pa. March 28,

2005); Bryant v. Folino, 2005 WL. 664037, *2-*3 (E.D. Pa. March 21, 2005); Booker v. Folino, 2005

WL 638051, *5 (E.D. Pa. March 17, 2005), Sanchez v. Tennis, 2005 WL 645926, *2-*5 (E.D. Pa.

March 17, 2005); Rienzi v. Gillis, 2005 WL 645925, *5 n.3 (E.D. Pa. March 16, 2005); D'Agostino

v. Tennis, 2005 WL 568042, *2-*3 (E.D. Pa. March 8, 2005); Elam v. Gillis, 2005 WL 555383, *7-

*8 (E.D. Pa. March 7, 2005); Tyler v. DiGuglielmo, 2005 WL 477997, *3-*7 (E.D. Pa. Feb. 28,

2005); Miles v. DiGuglielmo, 2005 WL 396603, *12-*13 nn.14-15 (E.D. Pa. Feb. 17, 2005);

Robichaw v. Mechling, 2005 WL 331496, *5-*6 (E.D. Pa. Feb. 10, 2005); Smith v. Sobina, 2005

WL 281201, *5 (E.D. Pa. Feb. 4, 2005); Shackelford vy. Stickman, 2005 WL 289935, *2-*3 (E.D.

Pa. Feb. 4, 2005); Prunty v. Klem, 2005 WL 281182 (E.D. Pa. Feb. 3, 2005); Brown v. Sobina, 2005

WL 139086, *2-*4(E.D. Pa. Jan. 21, 2005); Holiday v. Varner, 2005 WL 119572 (E.D. Pa. Jan. 19,

2005), Green v. Rozum, 2005 WL 83258 (E.D. Pa. Jan. 13, 2005)

The Third Circuit has denied relief in six of the seven Delaware capital habeas cases it has

reviewed, see Gattis v. Snyder, 278 F.3d 222 (3d Cir. 2002); Weeks v. Snyder, 219 F.3d 245 (3d Cir.

2000); Hameen v. Delaware, 212 F.3d 226 (3d Cir. 2000); Bailey v. Delaware, 68 F.3d 736 (3d Cir.

relief and neither the district court nor the Third Circuit allowed a certificate of appealability. See

Steckel v. Carroll, 2004 WL 825302 (D. Del. Apr. 13, 2004). The Third Circuit has never found a

28

lhe Third Circuit and its District Courts simply do not take a “one-size-fits-all approach” to

procedural! default or the death penalty

CONCLUSION

For the reasons stated above, certioran should be demed

Respectfully submitted,

V4 4 |

tl, C TU A t Al. t. A

4 é : ‘

LOUIS M. NATALI, JR., ESO” |

TURNER & MCDONALD j

1725 Spruce Street .

Philadelpina Pennsylvama 19103

21 §.546-9700

Counsel for Respondent, Antuan Bronshtein

‘7

Dated: November 15, 2005

bar inadequate im capital cases from these states, and has repeatedly found claims procedurally

procedural bar finding. See Gattis, 278 F.3d at 225, 228;

. .

Rilcy v. Laylor, 277 F.3d 261, 302-03 (3d Cir. 2001) (en banc); Bailey, 68 F.3d at 755, 756, 758;

Deputy

barred, or approved the district court's

CERTIFICATE OF SERVICE

|, Lours M. Natal, Jr., Esquire, certify that on this 15" day of November, 2005, I have caused

the foregoing bref in opposition to be served by FIRST CLASS MAIL on the following persons

Mary Ann Killinger, Esquire

Office of the Montgomery County District Attorney

Montgomery County Courthouse

P.©. Box 311

Norristown, Pennsylvama 19404-0311

Thomas ( Dolgenos

Philadelphia Distnct Attorney's Office

1421 Arch Street

Philadelphia, Pennsylvania 19102

Counsel for Petitioners

__

| Xx

; ft

Louts M. Natali, Jr., Esquire ,

;

a

—

No. 05-346

IN THE

SUPREME COURT OF THE UNITED STATES

JEFFREY BEARD, Commissioner, Pennsylvania Department

of Corrections; JAMES PRICE, Superintendent of State

Correctional Institution at Greene; JOSEPH

MAZURKIEWICZ, Superintendent of State Correctional

Institution at Rockview; GERALD |. PAPPERT, Attorney

General of Pennsylvania,

Petitioners,

ANTUAN BRONSHTEIN,

Respondent

— ——

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Thurd Circuit

PETITIONERS’ REPLY

BRUCE L. CASTOR, JR

(Counsel of Record)

District Attorney

Montgomery County

District Attorney's Office

Montgomery County Courthouse

Norristown, PA 19404

(610) 278-3104

PATRICIA E. COONAHAN THOMAS W. DOLGENOS

Captain, Appellate Division Chief, Federal Litigation

MARY MACNEIL KILLINGER LYNNE ABRAHAM

Chief, Appellate Division District Attorney

Montgomery ounty 1421 Arch Street

District Attorney's Office Philadelphia, PA 19102

TABLE OF CONTENTS

ARGUMENT IN REPLY

CONCLUSION

TABLE OF AUTHORITIES

Federal Cases

Bradshaw v. Richey (No. 05-101. 2005)

Caldwell v. Mississippi, S. 320 (1985)

(sranberry v. Greer. 48] 1279 (1987)

Lambnx v. Singletary.

Lee v. Kemna. $34 |

Osborn 10. 4 103 (1990)

yonwealth v. Albrecht, /2' 2d 693 (Pa. 1998)

Commonwealth v. Banks, 72 13/74 (Pa. 1999)

Freeman

ARGUMENT LN REPLY

In their Petition for Wnt of Certiorari, petitioners

explained that Pennsylvania's one-year collatcral review

deadline, set out in the state’s Post Conviction Relief Act

(“PCRA”), is a clear statutory mandate. It has been strictly

applied, exactly as written, in both capital and non-capital

cases since its effective date in 1996. The Third Circuit,

therefore, made a fundamental mistake by declaring this

statutory rule to be “inadequate” as a procedural bar

In his response, Bronshtein avoids discussion of the

PCRA deadline almost entirely. Instead, he concentrates on

an unrelated doctrine — the Pennsylvania Supreme Court's

now-abandoned practice of relaxing its waiver rules in capital

cases. This “relaxed waiver,” Bronshtein insists, made

application of the PCRA deadline uncertain, and therefore

inadequate. But Bronshtein does not contest a series of

important points

The Pennsylvania Supreme Court has never relaxed

the collateral review time-bar. The entire foundation of

Bronshtein’s argument, and of the Third Circuit’s inadequacy

holding, is that the PCRA time-bar was unpredictable in

capital cases, because the Pennsylvania Supreme Court might

have “relaxed” the deadline for death-sentenced prisoners

But it has never happened. Bronshtein does not, and cannot,

cite even one case where the Pennsylvania Supreme Court

ever actually “relaxed” the PCRA time-bar — because there

are no such cases. On the contrary, the state supreme court

has firmly and repeatedly held that the deadline is strict and

jurisdictional. Petition at 12 (citing cases). This rule was

fully adequate as a procedural bar

Bronshtein had actual knowledge of the PCRA

deadline before he gave up his claims. Bronshtein had “fair

notice” of the time-bar, because it 1s a clearly-worded

statute.’ But he also had actual knowledge of the rule. As

described in the Petition, Bronshtein explicitly stated, on the

record, that he was aware of the time limit. Petition at 14.

He said this in state court, before he waived further review,

before his timely first PCRA petition was dismissed at his

request, before he filed his second, untimely petition, and

before the time-bar was applied to him. Bronshtein does not

contest the fact that he had actual knowledge of the time-bar

he does not even mention it. The question remains: how

can a state prisoner not have fair notice of a procedural bar

that he has explicitly acknowledged, in open court?

New procedural rules do not have to be judicially

applied before they become “adequate.” The Third Circuit

held that the PCRA time-bar was uncertain in capital cases

until it was actually applied by appellate judges, an approach

that is fundamentally inconsistent with this Court’s

jurisprudence. See Lee v. Kemna, 534 U.S. 362, 382 n.13

(2002) (“[t}he adequacy of a state ground, of course, does not

depend on an appellate decision applying general rules to the

precise facts of the case at bar”). See also Bradshaw,

U.S. at __, No. 05-101 (prisoners have “adequate notice” of

statute’s reasonable interpretation, even where there are no

“fundamentally similar prior cases”). Bronshtein does not

' Just a few days ago, this Court reaffirmed the principle that state

prisoners have fair notice of statutory requirements, even where the

statute has not yet been applied to a similar fact pattern and there is

some dispute about whether it should apply. Bradshaw v. Richey,

_ US. __, No. 05-101 (Nov. 28, 2005) (“reasonable warning”

of statute’s meaning, rather than “fundamentally similar prior

cases,” constitutes “adequate notice”)

contest this basic principle. It is difficult to imagine how this

particular statute could have been any clearer

The PCRA time-bar serves a legitimate state interest

This is an obvious point, but it is worth stressing. This Court

has found “inadequate” state rules that served no legitimate

purpose. Lee, 534 US. at 378, quoting Osborne v. Ohio, 495

U.S. 103, 124 (1990). But the PCRA deadline, like the

federal habeas deadline, has a clear goal: it is designed to

stop post-conviction delay. What Bronshtein did in state

court — his year-long insistence on waiving further review,

spurring a serics of hearings and examinations, followed by a

complete turn-around a few weeks later — is the kind of

gamesmanship that the deadline is meant to stop

The decision below has widened a split in the circuits

concerning the adequacy of similar rules. \n the Petition, the

Commonwealth pointed out that several other circuits have

reached starkly different conclusions about the adequacy of

similar state rules. Petition at 25-29. Bronshtein does not

even cite any of these cases. let alone try to reconcile them

[he arguments that Bronshtein does make are mostly

irrelevant. and certainly incorrect

lL. The Third Circuit's “inadequacy” standard

was incorrect. Sronshicin first insists that the Third Circuit

used the correct standard in determining the “adequacy” of

the state collateral] review deadline, and he concludes that the

only dispute here is how to apply that standard to a particular

set of facts. Response at 22. On the contrary, the point here

is that the Third Circuit did nor apply the correct standard

Bronshtein had fair notice of deadline, and a reasonable

opportunity to raise his claims — that 1s the proper test. See

Petition at 16-19. See also Brief Amicus Curiae of the

Cnminal Justice Legal Foundation ir Support of the Petition

lor Wnt of Certiorari, at 4-6

In fact, Bronshtein does not even address the “fair

notice/reasonable opportunity” test in his response, or explain

why it should not apply to this case and other cases

2. This Court should not defer to the opinion

below. A large portion of Bronshtein’s argument is devoted

to the proposition that there is a mountain of Third Circuit

precedent rejecting the PCRA time-bar as inadequate in death

penalty cases, and this Court should defer to the Third

Circuit's greater experience with local Pennsylvania practice

Response at 23-25. But this makes little sense. The Courts

of Appeals do not have the final word on the meaning of state

aw; the states do. And where a federal question rests on an

interpretation of state law, as “adequacy” often does, this

Court regularly takes up the question. The authorities

Bronshtein cites for this supposed rule of deference to the

Circuits, Response at 23 & n.14, do not -reate any suc h

hands off” policy. In those cases, this Court either declined

to consider a state procedural issue that the Circuit did not

even address,” or chose to avoid wading into a dispute about

an arcane bit of local practice that was not centr~' to the

appeal Neither of these situations exists here. The PCRA

deadline, and the scope of “relaxed waiver,” are not

mysterious local practice; they are defined by statute, and by

.”’ ’ §?5 (1997)

E.g., Lambrix v. Singletary, 52'

E.g., Granberry v. Greer, 481 U.S. 129, 136 0.9 (1987) (declining

to decide whether Illinois mandamu petition should be filed im

ower state court, or state appellate court, when tssuc presented

was whether federai court can raise exhaustion sua sponte)

the state supreme court. The Third Circuit squarely

addressed the “adequacy” of the procedural bar in this case

Finally, this is not a tangential issue — this is the whole point

of the Petition

As for Bronshtein’s list of lower federal court

decisions supposedly holding the PCRA time-bar inadequate,

it is both misleading and significant. The list is misleading,

because the vast miajority of these cases held other state rules

to be inadequate — not the PCRA deadline. On the other

hand, the list is significant, because it demonstrates the wide

impact of the Third Circuit’s mistaken view of “adequacy.”

For years now, the Third Circuit has been applying an

unadorned “uncertainty” test to measure the adequacy of

various state rules; in the process, the court has overlooked a

number of plain procedural defaults. In Bronshtein’s case,

the Third Circuit's approach has reached its logical, but

absurd, extreme: invalidation of a plainly-worded statutory

deadline, merely because an exception might have been made

to it (but was not). That the Court of Appeals regularly

applies this same mistaken (est to other rules is reason to

grant certiorari review, rather than deny it

3. The state courts do not agree that the PCRA

time-bar is inadequate. Bronshtein boldly claims that “the

inadequacy of the Pennsylvania Supreme Court's bar ruling

in this case has even been recognized by Justices of the

Supreme Court.” Response at 24. This is patently false. No

Pennsylvania Supreme Court justice has ever stated, or even

Suggested, that the collateral review deadline is, or was,

inadequate in capital cases. One member of the Court,

Justice Saylor, once opined in an un-joined concurrence that

some rules of waiver (not the time limit) might be inadequate

in capital cases; but this view was explicitly rejected by

Justice Castille, no other member of the Court agreed with it,

and in any event “adequacy” is a doctrine of federal law that

is properly defined by federal judges.“ Furthermore, in a

later case in which the Pennsylvania Supreme Court finally

abandoned “relaxed waiver” altogether, Justice Saylor

dissented (again by himself) from the majority's lengthy and

definitive discussion of “relaxed waiver's” history and scope,

demonstrating that this particular Justice's views concerning

“relaxed waiver” have been rejected by other members of the

State supreme court, and should not be accepted by this Court

as authoritative. See Commonwealth v. Freeman, 827 A.2d

385, 417 (Pa. 2003) (Saylor, J., concurring and dissenting)

4. The Third Circuit's “date of default” analysis

was incorrect. The court below held that the PCRA time-bar

was uncertain in application on the date of Bronshtein’s

default, which it fixed on October 20, 1998, or one year after

Bronshtein’s judgment became final. 14a. Even if this date

were correct, however, the PCRA deadline was still adequate,

because Bronshtein had fair notice of the law by then — it was

effective in 1996. In any event, as explained in the Petition

this “date of default” is wrong. Petition at 23-24. By

incorrectly identifying the critical date, the Third Circuit was

able to ignore additional evidence of the deadline’s adequacy

namely, a Pennsylvania Supreme Court decision applying it

i~- “6 9 ,

The “adequacy” question consists

application of the state rule, whict

lawmakers and/or state judges, an q' of that rule

defined, as a bar to federal claums. It is hat latter questior

that is answered by the federa! courts } respect to the PLRA

time-bar, the Pennsylvania courts have spoken with one consistent

voice — the deadline 18 always apph in every

amounts to a jurisdictional Dar. [he issue for the

whether that uniformly applied deadline ts “adequate

in a capital case. See Commonwealth v. Peterkin, 722 A

638, 643 (Pa., Dec. 21, 1998)

Bronshtein defends the Third Circuit's analysis

arguing that the federal courts have no choice but to fix the

date of default” on October 20, 1998, because that date was

chosen by the state supreme court. Response ai 25-26. But

that is a misinterpretation of the state court's ruling. [he

Pennsylvama Supreme Court held that Bronshtein’s second

PCRA petition was untimely because it was not filed within

one year of the judgment. This was merely an application of

the PCRA statute, 42 Pa. C.S.A. § 9545(b); the Court did not

purport to determine when Bronshtein actually chose to

forego his claims, or when his actions made further state

review impossible. Federal adequacy analysis is different

the issue ultimately turns on fairness, and whether the

consequences of Bronshtein’s actions were reasonably

the date of default forward, the Court of Apr-als aiso

confront (Commonwealth v. Albre

1995), in whach the state supreme court

t waiver in capital collateral

ithe ifurd Circuit rely almost

sudden change in state law that

Mmowever. ial is again

brecht was whether rules o

laxed in Caprtal appeais

me-bar. and the Court has

PCRA deadline was made

the state supreme court has

early and repeated! ained that the PLRA deadline is a

urisdictional requirement, \ nh by its nature could not be

relaxed waiver a mM, nwealth v. Banks. /26 A.Jd

1/4. 3/6 (Pa. 1999) Cf cadiine rs jurisdictional and “relaxed

Waiver ‘ 4iag

foreseeable when he gave up his claims, which he did on

January 26, 1999. That is the critical date here

[he cases upon which Bronshtein relies for his “date

of default” argument are simply irrelevant. In Harns y. Reed,

489 U.S. 255, 265 n.12 (1989), this Court stated that the state

court must actually rely on a procedural bar in order for that

bar to lead to a default in federal court. See also Caldwell v

199

Mississippi, 472 U.S. 320, 327 (1985) (same). But that ts not

the issue — no one disputes that that the PCRA time-bar was

appiied to Bronshtein by the Pennsylvania Supreme Court

[he only issue here is whether that application was fair. In

order to dec:de that question, the federal courts must decide

whether Bronshtein had fair notice of the deadline when he

voluntanly gave up his nghts to further review — on January

26, 1999

S. The Third Circuit did not focus on the specific

procedural bar applied by the state courts. As explained

in the Petition, the Third Circuit adopted a “one-size-fits-all”

approach to procedural bars in Pennsylvania capital cases

because the “relaxed waiver” doctrine had been used to

overcome other state procedural bars, the panel reasoned,

then it must have rendered the PCRA deadline uncertain and

nadequate, too. But the PCRA deadline has never been

relaxed, and the jhird Circuit did not sult rently focus on

the adequacy this rule, as opposed to other rules

Bronshtein attacks this argument by mischaractenzing

ircuit does not have a “one-size-fits-all”

approach to death penalty cases, he insists, citing several

ases where the Circuit actually rejected appeals by death

sentenced prisoners.” But that is not the Commonwealth's

argument. The point is not that the Third Circuit treats every

death penalty case the same way, but that its default analysis

treats every Pennsylvania death penalty ru/e as if they were

all equally susceptible to “relaxed waiver.” In fact, this

particular rule — the PCRA deadline — was never relaxed at

all. It follows that, even if “relaxed waiver” could have made

other rules inadequate (a dubious proposition), it certainly did

not make this one inadequate

” Bronshtein attempts to portray the Third Circuit as even-handed

in Pennsylvania death-penalty cases, but he does not tell the whole

story. In fact, since the state’s post-Furman death penalty statute

became effective in the early 1980's, the courts have not permitted

any executions in Pennsylvania capital cases where the prisoner

did not wish to be executed