The opinion of the court was delivered by: MCCLURE
On February 21, 1996, petitioner George E. Banks, an inmate at the State Correctional Institution at Greene, initiated this action with the filing of a motion to proceed in forma pauperis, for a stay of execution, and for the appointment of counsel. Banks was convicted in 1983 of thirteen counts of murder in the first degree in the Court of Common Pleas of Luzerne County, Pennsylvania. Twelve sentences of death were imposed following the return of the verdicts as to those charges.
Banks has pursued a direct appeal as well as post-conviction relief. See Commonwealth v. Banks, 656 A.2d 467 (Pa.)(affirming denial of post-conviction relief), cert. denied, 133 L. Ed. 2d 65, 116 S. Ct. 113 (1995). On February 15, 1996, Governor Thomas Ridge of Pennsylvania signed a warrant for the execution of Banks during the week of March 3, 1996. This court stayed the execution by Order of Court dated February 22, 1996. We granted leave for Banks to proceed in forma pauperis on March 12, 1996.
In our Order of Court dated February 22, 1996, we directed Banks to file his petition for a writ of habeas corpus on or before March 22, 1996, and a brief in support thereof on or before April 12, 1996. Banks filed his petition, as well as a motion for a remand and to stay these proceedings pending exhaustion of additional claims in state court. Following initial review under Rule 4 of the Rules Governing § 2254 Cases, 28 U.S.C. following § 2254, the court directed service of the petition upon respondents. In moving for remand, Banks conceded that the petition contains claims which have not been exhausted. Respondents opposed the motion by contending that the petition should be dismissed as a "mixed petition," i.e. one in which some but not all claims have been exhausted. See Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993).
By Order #1 of April 29, 1996, the court denied Banks' motion for remand and to stay these proceedings, holding that amendments to Title 42 of the Pennsylvania Consolidated Statutes barred further review by the state courts. Before the court is respondents' motion for reconsideration of that order, in which Banks partially concurs.
Respondents correctly point out that the amendments on which the court relied apply to cases in which the death penalty was imposed after January 1, 1996. Act Amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, Pub. L. No. 1995-32 (SS1), § 3(2), (1995). In this case, the jury verdict was returned in 1983, and petitioner was formally sentenced in 1985. See Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1, 3 (Pa.), cert. denied, 484 U.S. 873, 98 L. Ed. 2d 162, 108 S. Ct. 211 (1987). The amendments therefore do not apply to this case, and the court will reconsider its prior disposition of the motion for remand.
Generally, before presenting a petition for a writ of habeas corpus to a federal court, a person in state custody must exhaust all remedies provided in the state courts. 28 U.S.C. § 2254(b). A mixed petition, that is, one which contains both exhausted and unexhausted claims, must be dismissed. Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). However, if the unexhausted claims are procedurally barred in the state courts, the petition is not a mixed petition. Toulson at 987. In such an instance, "the district court may not go to the merits of the barred claims, but must decide the merits of the claims that are exhausted and not barred." Id. (citation omitted). Before the requirement of exhaustion will be excused, state law must clearly foreclose review by the state courts of unexhausted claims. Id. (citing Gibson v. Scheidemantel, 805 F.2d 135, 139 (3d Cir. 1986)).
Under Pennsylvania law, an issue is waived for purposes of post conviction relief if the petitioner failed to raise the issue and it could have been raised before trial, at trial, on direct appeal, or in prior collateral proceedings. 42 Pa. Cons. Stat. Ann. § 9544(b). If an issue is waived, it may be presented to the state courts only under limited circumstances. 42 Pa. Cons. Stat. Ann. § 9543(a)(3)(ii), (iii).
Banks argues that the Supreme Court of Pennsylvania has lowered the waiver standard in capital cases, so that he still may present his unexhausted issues to the state courts. See Commonwealth v. Banks, 656 A.2d 467, 470 n. 7 (Pa. 1995) (citing Commonwealth v. DeHart, 539 Pa. 5, 650 A.2d 38 (Pa. 1994)). The policy of considering issues despite waiver discussed by the Supreme Court in those cases refers to issues raised in the context of a petition under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541 et seq., which were not raised in the trial court or on direct appeal, and not to second or successive petitions.
In Commonwealth v. Szuchon, 534 Pa. 483, 633 A.2d 1098 (Pa. 1993), the Pennsylvania Supreme Court set forth the standard which applies to claims raised for the first time in a second or subsequent petition in the context of a capital case. It held:
Finally, our cases require that a second or subsequent petition for post-conviction relief will not be entertained "unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107[, 112] (1988).
This standard is met if the petitioner can demonstrate either: (a) that the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate, or (b) that he is innocent of the crimes charged. Id.
Szuchon at 1099-1100. This standard applies when the waived issues relate to the penalty phase of a capital trial. See Szuchon at 1099 (Lawson standard applies to claims of ineffective assistance of counsel during the penalty phase). In this case, all three issues relate to the penalty phase of the trial, so that a claim of innocence by Banks is not justification for excusing waiver.
The question before this court, then, is whether it is clear that Pennsylvania courts, applying the standard that unexhausted claims raised by a capital defendant in a second post-conviction petition must render the sentence a miscarriage of justice which no civilized society can tolerate, would consider the merits of Banks' claims.
III. MISCARRIAGE OF JUSTICE
Unfortunately, the Pennsylvania courts have not more clearly delineated what circumstances they intend to bring within the description "miscarriage of justice"; indeed, given the multiplicity of circumstances which may arise in any given case, a specific definition probably is not possible. Perhaps the most apt description is set forth in a line of cases from the Superior Court in which a claimed error is said to be a miscarriage of justice if it "undermine[s] the truth-determining process." Commonwealth v. Dukeman, 413 Pa. Super. 397, 605 A.2d 418, 420, 421 (Pa. Super. 1992) (specifically relating to claims of ineffective assistance of counsel but applying standard "concurrent with our analysis pursuant to Lawson"; citations omitted). See also 42 Pa. Cons. Stat. Ann. § 9543(a)(2)(ii) (statute from which language quoted). Another way to determine more accurately the meaning of the phrase is to review cases in which claimed error has been considered under the miscarriage of justice standard.
Likewise, in Szuchon, the defendant argued that his trial counsel was ineffective during the penalty phase for introducing evidence of a prior conviction for robbery and for failing to object to the sufficiency of the evidence with respect to an aggravating circumstance. 633 A.2d at 1098. Without elaboration, the Supreme Court held that these claims did not render the proceedings so unfair as to constitute a miscarriage of justice. 633 A.2d at 1100.
Finally, a defendant who claimed that: (1) he was not informed of the elements of the crime for which a plea of nolo contendere was entered; (2) his speedy trial rights were violated; (3) the sentence imposed was an abuse of discretion; and (4) the sentence exceeded Pennsylvania's sentencing guidelines, did not state a basis for a finding of a miscarriage of justice. Commonwealth v. Williams, 442 Pa. Super. 590, 660 A.2d 614, 618-619 (Pa. Super. 1995), allocatur denied, 674 A.2d 1071, (Pa. filed April 11, 1996) (table). On the other hand, the same defendant set forth a claim which might possibly serve as a basis for a finding of a miscarriage of justice by arguing that the prosecutor had failed to abide by a plea agreement with respect to the sentence. Id. at 619 ("Certainly, if the prosecutor failed to adhere to the terms of the plea agreement, this would provide grounds for PCRA relief as it would be a miscarriage of justice for a person to relinquish cherished ...