On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 99-cv-00438) District Judge: Honorable James F. McClure, Jr.
Before: Sloviter, Roth and Rendell, Circuit Ju dges
The opinion of the court was delivered by: Rendell, Circuit Judge
Argued April 2, 2001 and On Remand from the United States Supreme Court by Order of June 17, 2002
In Horn v. Banks, 122 S. Ct. 2147 (2002), the United States Supreme Court directed us to analyze whether Mills v. Maryland, 486 U.S. 367 (1988), could be retroactively applied under the principles articulated in Teague v. Lane, 489 U.S. 288 (1989), for purposes of our collateral review of George Banks's conviction and sentence. As a result, the Court reversed that portion of our opinion in Banks v. Horn, 271 F.3d 527 (3d Cir. 2001), dealing with Teague. We now conclude that Mills did not announce a new rule of constitutional law for retroactivity purposes, and thus that our analysis and resolution of Banks's Mills claims was proper. Accordingly, we will endorse the reasoning set forth in the remainder of our prior opinion.
George Banks was sentenced to death for the murder of thirteen people in Wilkes-Barre, Pennsylvania, in 1982. His conviction and sentence were upheld by the Supreme Court of Pennsylvania on direct appeal, Commonwealth v. Banks, 521 A.2d 1 (Pa. 1987), and on appeal for state post-conviction relief. Commonwealth v. Banks, 656 A.2d 467 (Pa. 1995). Banks then sought a writ of habeas corpus in the Middle District of Pennsylvania, which was denied in August of 1999. Banks v. Horn, 63 F. Supp. 2d 525 (M.D. Pa. 1999).
On October 31, 2001, we reversed the District Court and granted Banks a provisional writ of habeas corpus, finding meritorious Banks's argument that his death sentence was unconstitutional. Banks v. Horn, 271 F.3d 527 (3d Cir. 2001) ("Banks I"). Specifically, we found that the sentencing phase instructions and forms violated Mills v. Maryland, 486 U.S. 367 (1988). In Mills, the United States Supreme Court reversed a death sentence where there was a substantial probability that a reasonable jury could have understood the sentencing instructions and forms to disallow the consideration of mitigating factors not unanimously found to exist. Id. at 384. In Banks I, we concluded that based on the language of the instructions and verdict slip employed in Banks's penalty phase, a reasonable possibility existed that the jurors believed they were precluded from considering mitigating evidence they had not found unanimously. Banks I, 271 F.3d at 547-551.
In reaching that conclusion, we were presented with the question of whether Mills was applicable for purposes of our collateral review of Banks's conviction and sentence under Teague v. Lane, 489 U.S. 288 (1989). In Teague, the Supreme Court revolutionized the structure for analyzing the retroactivity of criminal procedure decisions, holding that, with rare exception, prisoners may not rely on"new rules" -- essentially, rules not settled by pre-existing precedent -- for purposes of federal habeas corpus review. Id. at 299-301. Teague thus directed that new decisions of constitutional criminal procedure that are favorable to a prisoner are usually inapplicable once the prisoner has fully exhausted her direct appeals, including the filing of a writ of certiorari to the United States Supreme Court. Id.
Teague's new rule of non-retroactivity was premised at least in part on a respect for the workings of state courts and state judges appropriate to our federal system. In particular, the Supreme Court has noted that by validating "reasonable, good-faith interpretations of existing precedents made by state courts," the principles of non-retroactivity established in Teague "effectuate[ ] the States' interest in the finality of criminal convictions and foster[ ] comity between federal and state courts." Gilmore v. Taylor, 508 U.S. 333, 340 (1993); see also Teague, 489 U.S. at 308.
Because Banks's conviction became final in October of 1987,*fn1 eight months before the Supreme Court issued its decision in Mills, one of the Commonwealth's primary arguments before us in Banks I was that Mills was not applicable to Banks's petition for habeas relief. We disagreed. We reasoned that, although Teague"retroactivity is a 'threshold question,' " Banks I , 271 F.3d at 541 (quoting Teague, 489 U.S. at 300), because the Pennsylvania Supreme Court decision itself applied Mills (albeit doing so unreasonably), neither Teague , nor its underlying purposes, required us to perform a retroactivity analysis of Mills. Banks I, 271 F.3d at 541-43. Instead, we found it necessary only to review the merits of the Pennsylvania Supreme Court's decision, concluding:
Teague teaches that the federal courts in habeas corpus proceedings should be reluctant to apply new rules of federal jurisprudence in state court cases decided before such new rules were handed down. Principles of comity and finality counsel that we maintain a circumscribed scope of habeas review. Here, however, . . . the Pennsylvania Supreme Court applied Mills. We are examining the application of Mills, not because we wish to impose a new rule not considered by the Pennsylvania Supreme Court, but as the court in fact did consider and apply it. In such a situation, Teague is not implicated. Accordingly, we need ask only whether the Pennsylvania Supreme Court's application of Mills should be disturbed under [the appropriate standard of review]. Id. at 543 (citations omitted).
Accordingly, we held that resolution of the retroactivity of Mills under Teague was unnecessary, and proceeded directly to our examination of the merits of the Pennsylvania Supreme Court's application of Mills to the facts presented in Banks's appeal. As noted above, we resolved that question in Banks's favor, holding that the sentencing phase jury instructions and forms were clearly unconstitutional, and therefore that the Pennsylvania Supreme Court's decision finding otherwise involved an unreasonable application of established Supreme Court precedent. Id. at 551.
In Horn v. Banks, 122 S. Ct. 2147, 2148 (2002) ("Banks II"), the Supreme Court concluded otherwise, explicitly and emphatically holding that "federal courts must address the Teague question when it is properly argued by the government." In doing so, the Court focused on its statements in Caspari v. Bohlen, 510 U.S. 383 (1994), that Teague's "non-retroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a" new rule, and thus that "if the State . . . argue[s] that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim." Id. at 389 (emphasis in original). Applying these principles, the Supreme Court found that it was "incumbent upon" us to "perform a Teague analysis before granting respondent relief under Mills," and that we "erred in concluding that [we] did 'not need to focus on anything other than the reasoning and determination of the Pennsylvania Supreme Court.' " Banks II, 122 S. Ct. at 2150 (quoting Banks I, 271 F.3d at 541). Accordingly, the Supreme Court "reverse[d][our] holding that 'Teague is not implicated' by this case, and remand[ed] for further proceedings consistent with" its decision. Banks II, 122 S. Ct. at 2151 (quoting Banks I, 271 F.3d at 543).*fn2
We note at the outset that our determination as to the merits of Banks's Mills claim was not reviewed by the Supreme Court. The Court thus did not vacate our previous decision but only reversed that portion of our opinion that concluded that a Teague analysis was unnecessary for our review of Banks's habeas petition. Accordingly, the sole issue presently before us is whether our application of Mills on habeas review of Banks's sentence was improper under the Supreme Court's non-retroactivity jurisprudence. *fn3 To provide background for the analysis, we first briefly discuss the Court's decision in Mills itself, then turn to an examination of the Supreme Court's retroactivity framework.
In Mills, the Court considered the constitutionality of a set of jury instructions, as well as the implementing verdict forms, that could be understood to prevent the consideration of mitigating circumstances if the jury was not unanimous in finding the existence of such circumstances. Mills, 486 U.S. at 371. That is, "even if some or all of the jurors were to believe some mitigating circumstance or circumstances were present, unless they could unanimously agree on the existence of the same mitigating factor, the sentence necessarily would be death."*fn4 Id. (emphasis in original). The Court cited the following two possibilities as constitutionally problematic:
If eleven jurors agree that there are six mitigating circumstances, the result is that no mitigating circumstance is found. Consequently, there is nothing to weigh against any aggravating circumstance found and the judgment is death even though eleven jurors think the death penalty wholly inappropriate. . . .
[In] a situation just as intuitively disturbing: All 12 jurors might agree that some mitigating circumstances were present, and even that those mitigating circumstances were significant enough to outweigh any aggravating circumstance found to exist. But unless all 12 could agree that the same mitigating circumstance was present, they would never be permitted to engage in the weighing process or any deliberation on the appropriateness of the death penalty. Id. at 373-74 (citations omitted).
Noting that imposition of the death penalty under such circumstances would"be the height of arbitrariness," id. at 374, it went on to state:
It is beyond dispute that in a capital case the sentencer may not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. The corollary that the sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence is equally well established. Id. at 374-75 (first and third emphasis added) (quotations and citations omitted).
The Court then reiterated the constitutional problem at hand: "[I]f petitioner is correct, a jury that does not unanimously agree on the existence of any mitigating circumstance may not give mitigating evidence any effect whatsoever, and must impose the sentence of death." Id. at 375. The Court stated that its existing jurisprudence prohibited any "barrier to the sentencer's consideration of all mitigating evidence. . . . [w]hatever [its] cause." Id. As the Court found a "substantial probability" that reasonable jurors would have understood themselves as being precluded from considering mitigating evidence not found unanimously, the Court reversed Mills's sentence of death, concluding: "Under our cases, the sentencer must be permitted to consider all mitigating evidence. The possibility that a single juror could block such consideration, and consequently require the jury to impose the death penalty, is one we dare not risk." Id. at 384.
Again, the sole issue before us is whether the rule enunciated in Mills is retroactively applicable to Banks's appeal. Retroactivity analysis is governed by the principles first articulated in Teague v. Lane, in which the Supreme Court held that "[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague, 489 U.S. at 310. Application of this principle of retroactivity proceeds in three steps. See, e.g., Caspari, 510 U.S. at 390. First, we must determine when the defendant's conviction became final. Id. Second, we must survey the legal landscape to determine whether or not the case in question announced a new rule of constitutional law. Id. Finally, if we determine that the case did announce a new rule, we must consider whether it fits into one of the two exceptions to non-retroactivity. Id. Those exceptions are reserved for (1) rules that "place[ ] a class of private conduct beyond the power of the State to proscribe, . . . or address[ ] a substantive categorical guarantee accorded by the Constitution, such as a rule prohibiting a certain category of punishment for a class of defendants because of their status or offense," or (2) "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 494-95 (1990) (citations and internal quotations omitted). Because the exceptions find rather narrow applicability, however, the typically dispositive step in the Teague retroactivity analysis is the determination of whether the implicated constitutional principle qualifies as a "new rule."
In Teague itself, the Court admitted that it is "often difficult to determine" whether a case announces a new rule, and explicitly avoided any "attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes." Teague, 489 U.S. at 301. The Supreme Court has further recognized that the inquiry is particularly difficult where the decision in question merely extended the reasoning of prior cases. See, e.g., Saffle, 494 U.S. at 488; Graham v. Collins, 506 U.S. 461, 467 (1993); Butler v. McKellar, 494 U.S. 407, 412-13 (1990); see also Mackey v. United States, 401 U.S. 667, 695 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (noting the "inevitable difficulties" in distinguishing new rules from the application of old rules in analogous cases).
Perhaps as a result of the inevitable difficulty in articulating one test to govern all possible retroactivity scenarios, the Supreme Court has "stated variously the formula for determining when a rule is new." O'Dell v. Netherland, 521 U.S. 151, 156 (1997). Under the Court's original explication in Teague, "a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." Teague, 489 U.S. at 301 (emphasis added). "To put it differently," the Teague Court explained,"a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Id. (emphasis in original); see also, e.g., Graham, 506 U.S. at 467 ("A holding constitutes a new rule within the meaning of Teague if it breaks new ground, imposes a new obligation on the States or the Federal Government, or was not dictated by precedent existing at the time the defendant's conviction became final." (quotations omitted) (emphasis in original)). Similarly, the Court has stated that previous precedents must not simply "inform, or even control or govern" the analysis, but instead must"compel the rule" sought by the defendant. Saffle, 494 U.S. at 491; see also Butler, 494 U.S. at 415 (noting that it is insufficient that a decision was considered to be controlled or governed by prior opinions).
At the same time, the Court has focused on the decision-making process confronting state court judges. See, e.g., O'Dell, 521 U.S. at 156 ("At bottom, . . . the Teague doctrine 'validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.' " (quoting Butler, 494 U.S. at 414)); Graham, 506 U.S. at 467; Teague, 489 U.S. at 308. And, in recent decisions, the Court has approached the inquiry from the standpoint of a "reasonable jurist." In Lambrix v. Singletary, 520 U.S. 518 (1997), for instance, the Court asked whether the "unlawfulness of [the defendant's] conviction was apparent to all reasonable jurists." Id. at 527-28; see also id. at 531 (examining whether a "reasonable jurist . . . could have reached a conclusion different from" the one ultimately reached by the Supreme Court); id. at 526 (stating that our inquiry is to "determine whether a state court considering the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution" (quotations omitted)); O'Dell , 521 U.S. at 166 ("Teague asks state court judges to judge reasonably, not presciently."). In sum, "unless reasonable jurists hearing petitioner's claim at the time his conviction became final 'would have felt compelled by existing precedent' to rule in his favor, we are barred from doing so now." Graham, 506 U.S. at 467 (quoting Saffle, 494 U.S. at 488).
We hold that Mills did not announce a new rule of constitutional law for retroactivity purposes, and accordingly that our application of Mills on our habeas review of Banks's sentence was completely proper. *fn5 There are four aspects to our reasoning: (1) the legal landscape at the time of Banks's conviction, (2) the Supreme Court's decision in Mills itself, (3) the relevant post-Mills decisions of the Supreme Court, and (4) the opinions of our sister Courts of Appeals who have addressed whether Teague bars retroactive application of Mills.
Our "first and principal task" under Teague is to survey the legal landscape to determine whether Mills "was dictated by then existing precedent . . . that is,[whether] the unlawfulness [of the situation in Mills ] was apparent to all reasonable jurists." Lambrix, 520 U.S. at 527-28. As discussed above, in Mills the Supreme Court reversed a sentence of death where there was "a substantial probability that reasonable jurors, upon receiving the judge's instructions in th[e] case, and in attempting to complete the verdict form as instructed, . . . thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of " any particular circumstance. Mills, 486 U.S. at 384. We find highly persuasive Banks's argument that, given the legal landscape, Mills represented merely an application of the well established constitutional rule that the Eighth Amendment prohibits all barriers to the sentencer's consideration of any and all mitigation evidence in the penalty phase of a capital trial.
By the time Banks's conviction became final in 1987, the legal landscape was primarily defined by Supreme Court case law spanning nearly a dozen years.*fn6 We begin our examination of this precedent with the Supreme Court's decision in Woodson v. North Carolina, 428 U.S. 280 (1976), which struck down North Carolina's mandatory death penalty statute. Of the many constitutional flaws the plurality found in North Carolina's capital sentencing structure,*fn7 one particularly notable defect was its "failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." Woodson, 428 U.S. at 303; see also Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1977) (striking down Louisiana's mandatory death penalty statute). The plurality reiterated that death as a penalty is distinguishable in kind from all other penalties, and held that "the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson, 428 U.S. at 304 (citations omitted); see also Roberts, 428 U.S. at 333-34 (plurality opinion) (noting that the Constitution requires a "focus on the circumstances of the particular offense and the character and propensities of the offender"); Jurek v. Texas, 428 U.S. 262, 271 (1976) (plurality opinion) (stating that the Eighth and Fourteenth Amendments require that the sentencer be allowed to consider mitigating circumstances).
The Court articulated the full import of Woodson 's constitutional directive more clearly in Lockett v. Ohio, 438 U.S. 586 (1978), in which it struck down a statute that restricted the range of mitigating factors that could be considered by a jury.*fn8 Whereas Woodson involved a statute precluding any consideration of mitigating evidence, Lockett involved somewhat more complex questions: "which facets of an offender or his offense [are] relevant in capital sentencing," and "what degree of consideration of relevant facets" does the Constitution require. Id. at 604. The Court responded, in expansive language, that:
[T]he Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a ...