On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civil No. 99-cv-01203) District Judge: Honorable James M. Munley
Before: Scirica, Chief Judge, McKEE and Fuentes,
The opinion of the court was delivered by: Fuentes, Circuit Judge
Pennsylvania inmate Daniel Jacobs was sentenced to death for murdering his girlfriend Tammy Mock and to life in prison for murdering their baby Holly Jacobs. On federal habeas review, the District Court concluded that Jacobs' trial counsel rendered ineffective assistance during the penalty phase for failing to investigate and present mitigating evidence concerning Jacobs' cognitive and emotional impairments and his childhood and family background. The District Court conditionally granted a writ of habeas corpus to allow the Commonwealth to resentence Jacobs. The District Court rejected each of Jacobs' remaining challenges to his convictions and sentences.
Jacobs now appeals from the District Court's denial of federal habeas relief on several of his claims challenging his convictions.*fn1
For the following reasons, we will reverse the District Court's denial of habeas corpus relief on Jacobs' claim that trial counsel rendered ineffective assistance during the guilt phase by failing to adequately investigate, prepare, and present mental health evidence in support of his diminished capacity defense. We will affirm the District Court's denial of habeas corpus relief on each of Jacobs' remaining claims.
Daniel Jacobs and his girlfriend Tammy Mock lived in an apartment in York, Pennsylvania, with their seven-month-old daughter Holly Jacobs. In February 1992, York police received a telephone call from Jacobs' mother, Delois Jacobs, in Virginia, who under a fictitious identity asked them to check on Tammy and Holly. This telephone call prompted the police to check the apartment, where they found Tammy and Holly dead in the bathtub. Tammy had been stabbed more than 200 times. Holly died from drowning and had no stab wounds or evidence of trauma. The police tracked down Delois, who gave a statement that Jacobs had admitted in telephone conversations that he had killed both Tammy and Holly. Delois also testified at a preliminary hearing that Jacobs admitted killing Tammy and Holly.
In preparation for trial, counsel consulted with Dr. Robert Davis, a psychiatrist with a clinical and forensic practice. Dr. Davis conducted a mental health evaluation of Jacobs regarding his criminal responsibility and competency to stand trial. Counsel did not inform Dr. Davis that Jacobs was subject to the death penalty, and did not provide him with materials concerning Jacobs' background or the background of the offenses. Dr. Davis reported orally to counsel that he found no evidence of a major mental illness. At counsel's request, Dr. Davis did not prepare a written report.
Jacobs was tried before a jury in the York County Court of Common Pleas for the first degree murders of Tammy and Holly. At trial, Jacobs denied killing Holly. He testified that Tammy killed Holly and that he stabbed Tammy to death after losing control at the sight of Holly dead in the bathtub. He presented a heat of passion and diminished capacity defense, i.e., that he was incapable of forming a specific intent to kill her given his mental state at the time of the killing. Delois testified that Jacobs admitted in his telephone calls that he killed Tammy, but that she could not remember whether he also admitted that he killed Holly. The Commonwealth presented Delois' pretrial statements that Jacobs admitted to killing both Tammy and Holly.
The jury found Jacobs guilty of murder in the first degree of both Tammy and Holly. Jacobs was sentenced to death for murdering Tammy and to life in prison for murdering Holly. On direct appeal, the Pennsylvania Supreme Court affirmed the judgments of sentence. Commonwealth v. Jacobs, 639 A.2d 786 (Pa. 1994) ("Jacobs I"). Jacobs pursued state collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"). The PCRA court conducted hearings and denied all relief in an oral decision rendered June 13, 1997. The Pennsylvania Supreme Court affirmed. Commonwealth v. Jacobs, 727 A.2d 545 (Pa. 1999) ("Jacobs II").
Jacobs then filed the current habeas corpus petition in the District Court, in which he presented fifteen claims for relief.*fn2 Without conducting an evidentiary hearing, the District Court granted habeas relief as to Jacobs' claim of ineffective assistance of counsel during the penalty phase for failing to investigate and present mitigating evidence concerning Jacobs' cognitive and emotional impairments, and evidence that he suffers from the effects of a traumatic and neglectful childhood.
Jacobs v. Horn, 129 F. Supp. 2d 390, 405-08 (M.D. Pa. 2001) ("Jacobs III"). According to the District Court, if counsel had investigated Jacobs' background and childhood, he would have discovered the following facts. Jacobs' mother Delois drank heavily while she was pregnant with Jacobs. His alcoholic father severely beat her in the presence of their children. After Delois left Jacobs' father when Jacobs was very young, she was involved in relationships with several men who drank heavily and abused her, as well as Jacobs. Jacobs' older brother also beat him constantly and stabbed him on one occasion. When he was about six years old, Jacobs suffered brain damage due to a car accident. As a young teenager, Jacobs often acted like a child and required his mother's assistance in getting dressed. Relatives who visited the home sometimes found Jacobs sitting at home undressed, dirty, and unkempt. One of Delois' boyfriends, with whom she was involved for about ten years, would become intoxicated with Jacobs then fly into a rage and beat him. As Jacobs grew older, he attempted to assist his mother by working but was unable to find and maintain employment.
Based on counsel's failure to discover and present mitigating evidence*fn3 at the penalty phase, the District Court conditionally granted the writ of habeas corpus to allow the Commonwealth to resentence Jacobs for murdering Tammy. Id. at 423. The District Court found each of Jacobs' remaining challenges to his convictions either lacking in merit or procedurally barred from federal habeas review. Jacobs timely appealed. The District Court issued a certificate of appealability and stayed its order pending appeal.
II. JURISDICTION AND STANDARDS OF REVIEW
Our jurisdiction is based on 28 U.S.C. §§ 1291 and 2253. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. Because the District Court ruled on Jacobs' habeas corpus petition without conducting an evidentiary hearing, our review of the District Court's decision is plenary. See Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002).
We apply the same standards as the District Court, as mandated by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); Marshall, 307 F.3d at 50. A federal habeas court must presume that a state court's findings of fact are correct. See 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.
A state court decision is contrary to Supreme Court precedent under § 2254(d)(1) where the state court reached a "'conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.'" Marshall, 307 F.3d at 51 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision is an unreasonable application under § 2254(d)(1) if the court "identifies the correct governing legal rule from the Supreme Court's cases but unreasonably applies it to the facts of the particular case or if the state court either unreasonably extends a legal principle from the Supreme Court's precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."
Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002) (citing Williams, 529 U.S. at 407). The unreasonable application test is an objective one – a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003); Gattis, 278 F.3d at 228.
AEDPA's deferential standards of review do not apply "unless it is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of federal law as established by the Supreme Court of the United States." Everett v. Beard, 290 F.3d 500, 508 (3d Cir. 2002). In cases where the AEDPA standards of review do not apply, federal habeas courts apply pre-AEDPA standards of review. Id. Prior to AEDPA, federal habeas courts conducted a de novo review over pure legal questions and mixed questions of law and fact. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). In such circumstances, the state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence under § 2254(e)(1). Id.
On appeal, Jacobs challenges the District Court's denial of habeas corpus relief on the following claims:*fn4
(1) Trial counsel was ineffective for failing to adequately investigate, prepare, and present mental health evidence in support of the diminished capacity defense to the charges of first degree murder.
(2) Appellant's constitutional rights to due process and the effective assistance of counsel were violated where the trial court failed to properly instruct the jury on Pennsylvania's corpus delicti rule, trial counsel failed to object or request an appropriate instruction, and w here th e Commonwealth's evidence was insufficient, under Pennsylvania law, to prove that Holly Jacobs was killed by criminal means.
(3) Appellant was denied his right to effective assistance of counsel as a result of trial counsel's failure to investigate and present evidence that Mr. Jacobs' mother had a long history of alcoholism and was intoxicated when the purported admissions were made.
(4) Trial counsel was ineffective for failing to inquire concerning racial bias among members of the jury, where the entire venire was white and the case involved the murder of a white female teenager and child by her African-American boyfriend.
Appellant's Opening Br. at ii-iv. We address each claim separately.
A. Ineffective Assistance of Counsel During the Guilt Phase for Failing to Investigate and Discover Mental Health Evidence
We begin with Jacobs' claim that trial counsel rendered ineffective assistance during the guilt phase by failing to investigate and present mental health evidence for the purpose of supporting his diminished capacity defense.*fn5 Jacobs testified that on the day of the killings, he and Tammy argued, fought, and cut each other. According to Jacobs, after fighting with Tammy, he helped her into the bathtub, brought the baby into the bathroom, then left the bathroom. When he returned to the bathroom a short time later, he saw the baby dead in the bathtub, lost control, and stabbed Tammy repeatedly. Based on Jacobs' testimony, defense counsel presented a heat of passion and diminished capacity defense, asserting that Jacobs lacked the specific intent to kill Tammy Mock.*fn6
In preparation for Jacobs' PCRA appeal, Dr. Julie Kessel, a licensed and certified psychiatrist familiar with forensic mental health issues, conducted a forensic psychiatric evaluation of Jacobs. (Kessel Affidavit ¶¶ 1-2). Dr. Kessel reported that Jacobs suffers from a number of mental health deficits, including mild mental retardation, organic brain damage, and schizoid personality disorder, and was a child witness and victim of abuse, neglect, and drug and alcohol abuse. (Id. ¶¶ 3-5). According to Dr. Kessel, the combination of these impairments substantially hindered Jacobs' mental, emotional, and cognitive capacities. (Id. ¶ 5). In Dr. Kessel's opinion, at the time of the crimes, Jacobs' capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law was substantially impaired. (Id. ¶ 12). His impairments also substantially diminished his capacity to formulate the specific intent to kill. (Id. ¶ 14). Dr. Kessel concluded that Jacobs "did not in fact have the specific intent to kill Ms. Mock." (Id. ¶ 14).
Dr. Patricia Fleming, a licensed clinical psychologist and neuropsychologist, also evaluated Jacobs and reported that he "is seriously psychologically, emotionally and cognitively impaired." (Fleming Affidavit ¶ 4). After conducting a number of psychological and neuropsychological tests, Dr. Fleming reported that Jacobs suffers from mild mental retardation, brain damage, and cognitive and emotional impairments. (Id. ¶¶ 9, 13). At the time of the offenses, Dr. Fleming stated, Jacobs' disturbances "substantially impaired [his] capacity to appreciate the consequences of his conduct or to conform his conduct to the requirements of the law." (Id. ¶ 13). In particular, his "mental retardation, brain damage and other mental health and cognitive impairments significantly diminish[ed] his capacity to premeditate and form a specific intent to kill." (Id. ¶ 14). Dr. Fleming concluded that the facts "support the conclusion that [Jacobs] did not have the capacity to form the specific intent to kill." (Id.).
As described previously, trial counsel pursued a heat of passion and diminished capacity defense to the murder of Tammy Mock. Beyond his oral consultation with Dr. Davis, however, counsel took no further steps to discover evidence of Jacobs' mental retardation, brain damage, or other impairments. Trial counsel was thus unable to support Jacobs' diminished capacity defense with psychiatric evidence establishing that he suffered from any mental disorders which prevented him from formulating the specific intent to kill. Apparently the only evidence of heat of passion or diminished capacity presented at the guilt phase was Jacobs' own testimony that he "lost it" and stabbed Tammy repeatedly upon seeing their baby drowned in the bathtub. Jacobs claims that trial counsel's failure to investigate, discover, and present mental health evidence constitutes ineffective assistance in violation of the Sixth Amendment.
Sixth Amendment claims of ineffective assistance of counsel are governed by the familiar two-prong test of Strickland v. Washington, 466 U.S. 668 (1984):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687; see Williams, 529 U.S. at 390-91.
Under Strickland's first prong, Jacobs must show that counsel's performance was deficient. The proper standard for attorney performance is that of "reasonably effective assistance" – Jacobs must show that trial counsel's representation fell below an objective standard of reasonableness considering all the circumstances. Strickland, 466 U.S. at 687-88. Counsel's reasonableness must be assessed on the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 689. In the context of ineffective assistance based on counsel's failure to investigate, the court must determine whether counsel exercised "reasonable professional judgment." Wiggins, 539 U.S. at 522-23.
In Pennsylvania, when asserting a diminished capacity defense, "a defendant attempts to negate the element of specific intent to kill and, if successful, first degree murder is reduced to third degree murder." Commonwealth v. McCullum, 738 A.2d 1007, 1009 (Pa. 1999). According to the Pennsylvania Supreme Court, "[d]iminished capacity is an extremely limited defense, which requires extensive psychiatric testimony establishing a defendant suffered from one or more mental disorders which prevented him from formulating the specific intent to kill." Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003) (citing Commonwealth v. Zettlemoyer, 454 A.2d 937, 943 (Pa. 1982)).
The specific question posed here is whether counsel exercised reasonable professional judgment in failing to investigate further and discover Jacobs' mental retardation, brain damage, and other impairments as evidence to support the diminished capacity defense. To his credit, counsel did ask Dr. Davis to evaluate Jacobs. (Davis Affidavit ¶ 2). Counsel did not, however, inform Dr. Davis that the Commonwealth was seeking the death penalty, nor did he provide Davis with any background information concerning the crimes or Jacobs' history. (Id. ¶¶ 2, 3). According to Dr. Davis, if he had known that this was a capital case, he would have automatically requested testing for brain damage or other impairments that are not readily apparent from a standard evaluation. (Id. ¶ 6). Dr. Davis reported orally to counsel that he did not find any evidence of a major mental illness. (Id. ¶ 4). Upon receipt of this report, counsel chose not to investigate further, although he presented the diminished capacity defense at trial. Counsel did not question any of Jacobs' family members or friends regarding his childhood, background, or mental health history, or obtain any medical records demonstrating mental deficiencies.
At the time counsel decided not to investigate further, he knew or should have known from Jacobs' behavior and from his interactions with Jacobs that he should initiate some investigation "of a psychological or psychiatric nature." (PCRA Hearing Tr. 5/29/97 at 29:24). Counsel knew that Jacobs, a young man with no criminal history or history of violence, admitted to stabbing his girlfriend more than 200 times. Counsel knew that Jacobs faced the death penalty, yet did not inform Dr. Davis that the Commonwealth was seeking the death penalty, nor did he provide Davis with any background information concerning the crimes or Jacobs' history. Counsel interviewed Jacobs' mother before trial, but did not ask her any questions regarding Jacobs' mental health history, childhood, or background. In light of all that was known or made available to counsel, we conclude that Jacobs has satisfied the first prong of the Strickland test. He has demonstrated that counsel did not exercise reasonable professional judgment in failing to investigate further and discover evidence of Jacobs' mental retardation, brain damage, and other impairments that could have prevented him from forming the specific intent to kill Tammy Mock.
The District Court was persuaded that counsel's performance was not deficient in this regard. See Jacobs III, 129 F. Supp. 2d at 412-13. The District Court relied on two cases from other circuits that the District Court interpreted as holding that counsel is not required to investigate further unless a psychiatric evaluator indicates further information is needed. Id. One of these, on which the Commonwealth relies heavily, is Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995).
In Hendricks, counsel hired a psychiatrist who met with the defendant for about four and one-half hours and found no evidence to support a "mental defense." Id. at 1037. The psychiatrist posited that psychological testing might be useful and suggested that counsel consult a psychologist. A psychologist then interviewed the defendant for about fifteen hours, ran several psychological tests, reviewed records regarding the crime and the defendant's life history, and found no evidence to support a mental defense. Counsel relied on the experts' opinions and decided not to explore further or present a mental defense. Id.
The Ninth Circuit ruled that Hendricks' attorneys had discharged their duty to seek out a psychiatric evaluation. Id. at 1038-39. The Ninth Circuit further ruled that counsel "fell within the broad range of presumptively acceptable conduct by hiring two mental health professionals to investigate potential mental defenses and then relying on their shared, unqualified conclusion that there was no basis for a ...