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Thomas v. Horn

July 1, 2009; as amended July 15, 2009


On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 00-cv-803 District Judge: The Honorable Louis H. Pollak.

The opinion of the court was delivered by: Smith, Circuit Judge.


Argued May 1, 2009

Before: MCKEE, SMITH, and STAPLETON, Circuit Judges.


In 1986, Brian Thomas was convicted in the Court of Common Pleas of Philadelphia of murder in the first degree, burglary, involuntary deviate sexual intercourse, and rape. The jury sentenced him to death. Thomas was unsuccessful on direct appeal, see Commonwealth v. Thomas, 561 A.2d 699 (Pa. 1989) (hereinafter "Thomas I"), and in his state court petition for post-conviction relief, see Commonwealth v. Thomas, 744 A.2d 713 (Pa. 2000) (hereinafter "Thomas II"). Thomas then petitioned the District Court for habeas relief pursuant to 28 U.S.C. § 2254. Thomas v. Beard, 388 F. Supp. 2d 489 (E.D. Pa. 2005) (hereinafter "Thomas III"). The District Court granted Thomas sentencing relief based on his trial counsel's ineffectiveness, but denied his guilt-phase claims. Id. at 536. Both Thomas and the Commonwealth*fn1 appealed. For the reasons that follow, we will affirm the District Court's guilt-phase determinations, but will vacate the District Court's order for sentencing relief, and remand for an evidentiary hearing concerning the extent, if any, of trial counsel's pre-sentencing investigative efforts to obtain mitigation evidence.


On August 9, 1985, one of Linda Johnson's roommates walked into their Philadelphia apartment and found Johnson's dead body lying face-down on a broken box-spring in her room. Johnson's eyes and face were swollen, and her nose and right temple were bleeding. She had a bite mark on her cheek and bruises on her arms and thighs. She was naked from the waist down, and blood was seeping from her vagina and rectum. A blood-encrusted crutch was found near her body. It was also determined that a television set and a can containing about twenty-nine dollars in change were missing from the apartment.

An autopsy of Johnson revealed that she had three fractured ribs and a twenty-three inch tear inside her body that reached from her vagina to her chest cavity. A shirt also had been inserted into her rectum, through her intestinal wall, and into her abdominal cavity with a blunt instrument while she was still alive. Additionally, sperm was found inside her vagina.

Three days after the discovery of Johnson's body, the Commonwealth arrested Thomas for her rape and murder, and for burglarizing her apartment. At trial, three witnesses testified that they had seen Thomas and Johnson together at or near her apartment within hours of the discovery of her body. The Commonwealth also introduced medical evidence that: the sperm found in Johnson's vagina was deposited around the time that Thomas and Johnson were last seen together; the sperm was deposited by a non-secretor (one who does not secrete traces of blood in bodily emissions); Thomas was a non-secretor; blood found on Thomas' boxer shorts was human blood; and the bite mark on Johnson's cheek matched Thomas' teeth. Finally, the Commonwealth introduced evidence that Thomas was in possession of both the missing television and the twenty-nine dollars in change.

On February 6, 1986, the jury found Thomas guilty of murder in the first degree, rape, involuntary deviate sexual intercourse, and burglary. During the penalty phase, which began later that day, the Commonwealth offered evidence of three aggravating circumstances to support its request for the death penalty: 1) killing while perpetrating another felony, namely rape; 2) killing by means of torture; and 3) a significant history of violent felony convictions. See 42 Pa. Cons. Stat. § 9711(d)(6), (8), (9). The Commonwealth relied on trial evidence already presented to establish the first two aggravating circumstances. To establish the third, the Commonwealth offered evidence of Thomas' 1978 conviction for felonious aggravated assault and indecent assault on a three-year old, which caused injuries to the child's rectum and intestines, and Thomas' 1984 conviction for criminal trespass where Thomas unlawfully entered a neighbor's bedroom while she was sleeping.

At the close of the Commonwealth's penalty-phase evidence, Thomas' court-appointed counsel informed the court that Thomas would not be presenting any mitigating evidence. The court determined that Thomas should be colloquied regarding the decision to present no mitigating evidence. After this colloquy, Thomas, through his counsel, declined the Commonwealth's offer to stipulate to his age and to the fact that he graduated from high school. As a result, Thomas presented no evidence of mitigating circumstances during the penalty phase. Nonetheless, in its penalty-phase charge to the jury, the court recited all the mitigating circumstances listed in Pennsylvania's sentencing statute for first-degree murder, 42 Pa. Cons. Stat. § 9711(e), and told the jury that "you may consider anything as a mitigating circumstance."

The jury found the three proposed aggravating circumstances and no mitigating circumstances. Accordingly, Thomas was sentenced to death on the first-degree murder conviction and to consecutive terms of imprisonment of up to fifty years for the burglary, rape, and involuntary deviate sexual intercourse convictions.

Thomas, represented by new court-appointed appellate counsel, unsuccessfully challenged his conviction and sentence on direct appeal to the Pennsylvania Supreme Court. Thomas I, 561 A.2d at 710. His subsequent petition for relief under Pennsylvania's Post-Conviction Relief Act, 42 Pa. Cons. Stat. § 9541 et. seq. (hereinafter "PCRA"), was also denied. Thomas II, 744 A.2d at 717. Thomas then petitioned the District Court for habeas relief pursuant to 28 U.S.C. § 2254, raising twenty-three grounds for relief. Thomas III, 388 F. Supp. 2d at 495--96 & n.1. The District Court denied Thomas' petition as to his guilt-phase claims. Id. at 536. The District Court, however, determined that Thomas' trial counsel was ineffective at sentencing under Strickland v. Washington, 466 U.S. 668 (1984), because counsel failed to investigate and present mitigating evidence of Thomas' mental health. Thomas III, 388 F. Supp. 2d at 505--11. The District Court also determined that Thomas did not knowingly and intelligently waive his right to present mitigating evidence because the nature of the proceedings were not adequately explained to him, so the purported waiver could not cure the prejudice resulting from counsel's deficiencies. Id. at 513--16.*fn2 Accordingly, the District Court vacated Thomas' death sentence. Id. at 536.*fn3

Thomas filed a timely appeal, and the District Court issued a certificate of appealability for three of Thomas' claims. The Commonwealth filed a cross-appeal alleging that the District Court's decision to vacate Thomas' sentence was in error.


The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254, and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Since the District Court ruled on Thomas' habeas petition without an evidentiary hearing, our review of its decision is plenary. See Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002). This means that we review the state courts' determinations under the same standard that the District Court was required to apply. Id.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "federal courts are to review a state court's determinations on the merits only to ascertain whether the state court reached a decision that was 'contrary to' or involved an 'unreasonable application' of clearly established Supreme Court law, or if a decision was based on an 'unreasonable determination' of the facts in light of the evidence presented." Fahy v. Horn, 516 F.3d 169, 189 n.20 (3d Cir. 2008). But when "the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA... do not apply." Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). "In such an instance, the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of AEDPA." Id. A state court's factual determinations, however, "are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence." Id.


We will first address the three claims before us on Thomas' appeal: 1) the trial court's "reasonable doubt" instruction to the jury was unconstitutional; 2) the Commonwealth's closing argument at sentencing was unconstitutional, and Thomas' counsel was ineffective for not objecting to it; and 3) Thomas' counsel was ineffective for failing to life-qualify the jury.


At the outset, the parties contest whether AEDPA deference pursuant to Section 2254(d) applies to Thomas' claims. Section 2254(d) "applies only to claims already 'adjudicated on the merits in State court proceedings.'" Appel, 250 F.3d at 210 (quoting 28 U.S.C. § 2254(d)). Here, the PCRA court ruled on the merits of two of Thomas' claims-his closing argument and life-qualification claims-but did not address the third-his objection to the reasonable doubt instruction. On appeal, the Pennsylvania Supreme Court dismissed all three claims as waived because they were not raised in Thomas' amended PCRA petition. See Thomas II, 744 A.2d at 715 n.4. The Commonwealth argues that the PCRA court's decision on the merits is an "adjudicat[ion] on the merits in State court proceedings," which renders Section 2254(d) applicable to two of Thomas' claims. Thomas, however, contends that the Pennsylvania Supreme Court's determination supercedes the PCRA court's decision for the purposes of determining whether AEDPA deference is due. Accordingly, we must decide whether a claim has been "adjudicated on the merits in State court proceedings" when a lower state court decided the claim on its merits, but the reviewing state court resolved the claim entirely on procedural grounds.

The Second Circuit has provided a textual analysis of "adjudicated on the merits" as used in Section 2254(d):

When Congress uses a term of art such as "adjudicated on the merits," we presume that it speaks consistently with the commonly understood meaning of this term. See [Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207 (1997)]. "Adjudicated on the merits" has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground. See e.g., Semtek Int'l, Inc. v. Lockheed Martin Corp., 531 U.S. 497... (2001) (noting one definition of an "on the merits" adjudication as "one that actually passes directly on the substance of a particular claim before the court") (internal quotation marks and alterations omitted). See also, e.g., Black's Law Dictionary 42 (7th ed. 1999) (adjudication: "1. The legal process of resolving a dispute; the process of judicially deciding a case. 2. Judgment."; adjudicate: "1. To rule upon judicially. 2. Adjudge."); Webster's Third New Int'l Dictionary 27 (1993) (adjudicate: "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised; enter on the records of a court (a final judgment, order, or decree of sentence)").

Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). In Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004), rev'd on other grounds sub nom. Rompilla v. Beard, 545 U.S. 374 (2005), we quoted with approval the Second Circuit's interpretation of "adjudicated on the merits." Id. at 247 (quoting Sellan, 261 F.3d at 311). Other courts of appeals have done so as well. See Teti v. Bender, 507 F.3d 50, 56--57 (1st Cir. 2007); Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004); see also Muth v. Frank, 412 F.3d 808, 815 (7th Cir. 2005); Schoenberger v. Russell, 290 F.3d 831, 840 (6th Cir. 2002) (Keith, J., concurring).

We reiterate today our approval of the Second Circuit's interpretation of "adjudicated on the merits." For the purposes of Section 2254(d), a claim has been "adjudicated on the merits in State court proceedings" when a state court has made a decision that 1) finally resolves the claim, and 2) resolves the claim on the basis of its substance, rather than on a procedural, or other, ground. See Rompilla, 355 F.3d at 247 (quoting Sellan, 261 F.3d at 311); see also Lambert, 393 F.3d at 969 ("[A] state has 'adjudicated' a petitioner's constitutional claim 'on the merits' for purposes of § 2254(d) when it has decided the petitioner's right to post conviction relief on the basis of the substance of the constitutional claim advanced, rather than denying the claim on the basis of a procedural or other rule precluding state court review of the merits."); Sellan, 261 F.3d at 312 ("For the purposes of AEDPA deference, a state court 'adjudicate[s]' a state prisoner's federal claim on the merits when it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment.").

We agree with the Commonwealth that an "adjudication on the merits" can occur at any level of state court. Unlike other statutes that address federal review of state court decisions, the plain language of Section 2254(d) does not specify that the "adjudication on the merits" be from any particular state court. Compare 28 U.S.C. § 2254(d) with 28 U.S.C. § 1257(a) ("Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari...." (emphasis added)). But to qualify as an "adjudication on the merits," the state court decision must finally resolve the claim. This means that the state court's resolution of the claim must have preclusive effect. See Rompilla, 355 F.3d at 247 (quoting Sellan, 261 F.3d at 311).

Applying this rule to the state court decisions here, we see no "adjudication on the merits." Here, the Pennsylvania Supreme Court decided Thomas' claims on purely procedural, not substantive, grounds. This decision stripped the PCRA court's substantive determination of Thomas' claims of preclusive effect. See Restatement (Second) of Judgments § 27 cmt. o (1982) ("If the judgment of the court of first instance was based on a determination of two issues, either of which standing independently would be sufficient to support the result... [and] [i]f the appellate court upholds one of these determinations as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is conclusive as to the first determination."); 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4432 (2d ed. 2002) ("If the appellate court terminates the case by final rulings as to some matters only, preclusion is limited to the matters actually resolved by the appellate court...."); see also, e.g., Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 327--28 (4th Cir. 2005) (holding that, although the trial court reversed an administrative determination on, inter alia, Constitutional grounds, res judicata did not apply to the Constitutional claims because the appellate court affirmed the trial court's decision without reaching the Constitutional issues). The Pennsylvania Supreme Court's procedure-based decision remains as the only resolution of Thomas' claims with preclusive effect. Accordingly, there has been no "adjudication on the merits," and AEDPA deference is not due. See also Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir. 1997) (noting that Section 2254(d) did not apply to claims decided on the merits in state trial court, but disposed of on procedural grounds in the state court of appeals because "the disposition of the last state court to issue an opinion determines whether the state has invoked a ground of forfeiture" (citing Ylst v. Nunnemaker, 501 U.S. 797 (1991))).

The Commonwealth argues that the result we reach today is contrary to our decision in Nara v. Frank, 488 F.3d 187 (3d Cir. 2007). It is not. In Nara, the lower state court decided the merits of the petitioner's incompetency claim and the appellate court subsequently reversed this decision on procedural grounds. Id. at 191--92. Nonetheless, we remarked that the lower state court "plainly did reach the merits of Nara's incompetency claim...." Id. at 201. This statement, however, was not directed at any Section 2254(d) analysis; it was made in the context of determining whether the District Court correctly accorded a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1) to the factual determinations of the lower state court. Id. at 200. As we pointed out, "the § 2254(e)(1) presumption of correctness applies regardless of whether there has been an 'adjudication on the merits' for purposes of § 2254(d)." Id. at 200--01. As a result, the Nara panel made no ruling on whether the lower court's decision on the merits was an "adjudication on the merits" for the purposes of Section 2254(d). Indeed, we described the lower court as having "reach[ed]," rather than adjudicated, the merits of Nara's claim.

Fahy v. Horn is also consistent with our decision in this case. In Fahy, we applied AEDPA deference to a lower court's decision on the merits even though a state appellate court dismissed the petitioner's subsequent appeal as waived. 516 F.3d at 197, 199, 202--03. The unique facts of that case, however, warranted such a disposition. In Fahy, while his appeal of the lower court's decision on the merits was pending, the petitioner filed a motion to "withdraw his appeal and to waive all collateral proceedings so that his death sentence could be carried out." Id. at 177. The appellate court remanded the appeal to the lower court "for a colloquy to determine whether petitioner fully understands the consequences of his request to withdraw his appeal and to waive all collateral proceedings." Id. After conducting the colloquy, the lower court determined that the petitioner's withdrawal and waiver decisions were made knowingly and voluntarily, and the petitioner appealed. Id. at 178; see also Commonwealth v. Fahy, 700 A.2d 1256, 1258--59 (Pa. 1997). The appellate court affirmed the validity of the petitioner's withdrawal and waiver, and dismissed the appeal. 516 F.3d at 178; 700 A.2d at 1259--60.

On federal habeas review, we acknowledged that "the state supreme court never reached the merits of [petitioner's] petition because of his waiver, [but] we believe that deference still applies to the [lower state] court's decision." 516 F.3d at 203 n.36. We arrived at that conclusion because after the appellate court affirmed the validity of the petitioner's withdrawal and waiver, the lower court's decision on the merits was the decision that finally resolved the claims. See Angel v. Bullington, 330 U.S. 183, 189 (1947) ("If a litigant chooses not to continue to assert his rights after an intermediate tribunal has decided against him, he has concluded his litigation as effectively as though he had proceeded through the highest tribunal available to him."). Therefore, the lower court's decision was an "adjudication on the merits" that warranted AEDPA deference.

In sum, for the purposes of Section 2254(d), a claim has been "adjudicated on the merits in State court proceedings" when a state court has made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. Here, neither the Pennsylvania Supreme Court nor the PCRA court "adjudicated on the merits" the three claims before us on Thomas' appeal. Accordingly, we will review purely legal questions and mixed questions of law and fact de novo, but presume the correctness of any factual conclusions made by the state courts. See Appel, 250 F.3d at 210.


Having decided the appropriate standard of review, we will move to the merits of the claims at issue in Thomas' appeal.*fn4


Thomas' first claim is that the trial court's instruction on the definition of reasonable doubt violated due process because it suggested a higher degree of doubt than is required for acquittal under the reasonable doubt standard. Here, the trial court instructed the jury that a reasonable doubt is "such a doubt as would cause a reasonable person to restrain from acting in a matter of great importance in his or her own life." Thomas argues that the words "restrain from acting" set the Commonwealth's burden of proof too low.

"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation." In re Winship, 397 U.S. 358, 361 (1970). Trial courts are free to provide juries with a definition for reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5 (1994). Further, "so long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." Id. (internal citations omitted). Our task on review is to determine "whether there is a reasonable likelihood that the jury ...

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