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. In addition, Banks was found guilty of one count each of murder in the third degree, attempted murder, aggravated assault, recklessly endangering another person, robbery, and theft of a motor vehicle.
Banks has pursued a direct appeal as well as post-conviction relief. See Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (Pa.)("Banks I "; affirming verdicts and sentence on direct appeal), cert. denied, 484 U.S. 873, 98 L. Ed. 2d 162, 108 S. Ct. 211 (1987); Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467 (Pa.) ("Banks II "; 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.
The court has since denied a motion by respondents to dismiss the petition as a mixed petition, a motion by petitioner for a stay of proceedings while additional claims were presented to the state courts, Banks v. Horn, 928 F. Supp. 512 (M.D. Pa. 1996), and a motion by petition for judgment on the pleadings. The court also directed respondents to supplement the record by filing transcripts of proceedings in the Court of Common Pleas. The petition now is ripe for disposition.
In his petition for a writ of habeas corpus, Banks raises the following as grounds for issuance of the writ:
(1) Banks did not make a knowing, intelligent and voluntary waiver of his Sixth Amendment right to counsel before the trial court permitted him to assume control of the presentation of evidence and cross-examination of witnesses;
(2) Banks was not competent to waive his Sixth Amendment right to counsel at that time;
(3) Banks did not make a knowing, intelligent and voluntary waiver of his Fifth Amendment right against self-incrimination when the trial court permitted him to assume control of the presentation of evidence and cross-examination of witnesses;
(4) Banks was not competent to waive his Fifth Amendment right against self-incrimination at that time;
(5) Banks was not competent to be tried and sentenced, so that the judgment of the trial court violates the Due Process Clause of the Fourteenth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment;
(6) During the penalty phase, the trial court's instruction to the jury, the verdict slip, and the jury poll required the jury to find unanimously both aggravating and mitigating circumstances in violation of Banks' Eighth Amendment right against cruel and unusual punishment;
(7) During the sentencing phase, the trial court failed to instruct the jury with respect to life imprisonment without parole in violation of Banks' Eighth Amendment right against cruel and unusual punishment and Banks' right to due process under the Fourteenth Amendment;
(8) The lack of uniformity in the death penalty procedures applied in Pennsylvania did not provide a narrowing of discretion in the imposition of a death sentence as required by the Eighth Amendment;
(9) The trial court's failure to instruct the jury that it could render a verdict of life imprisonment based upon a finding of mercy engendered from the evidence violated the defendant's Eighth Amendment right against cruel and unusual punishment;
(10) Pennsylvania's Proportionality Review Statute deprived Banks of his right to due process under the Fourteenth Amendment; and
(11) The trial court's failure to question, during voir dire, prospective jurors on whether they automatically would impose a death sentence upon a finding of first degree murder deprived Banks of a jury which would consider mitigating evidence during the sentencing phase, in violation of Banks' right against cruel and unusual punishment under the Eighth Amendment.
In our earlier memorandum, we discussed three of these issues and determined that they had not been exhausted in the state proceedings. Generally, a petition under § 2254 with both exhausted and unexhausted claims must be dismissed. 928 F. Supp. at 514 (citing Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982)). However, since Banks' unexhausted claims are procedurally barred, we concluded that the exhausted claims set forth in the petition should be considered by this court. 928 F. Supp. at 514-515, 521 (citing Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993)). Consistent with our earlier review of the unexhausted claims, the court will not consider the merits of Grounds (7), (9), and (11).
We have previously recited the standard for the issuance of a writ of habeas corpus as follows:
The authority for and limitations upon issuance of a writ of habeas corpus such as that sought by petitioner are set forth in 28 U.S.C. § 2254. A district court may entertain a petition for a writ of habeas corpus filed by a person in state custody "only on the ground that he [or she] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Habeas corpus relief may be considered only upon a showing by the petitioner that he or she has exhausted the remedies available in the state courts. 28 U.S.C. § 2254(b). Determinations made by a state court after a hearing on issues of fact are presumed to be correct, with specified exceptions. 28 U.S.C. § 2254(d). The district court may, however, direct expansion of the record with evidence relevant to the court's determination of the merits of the petition. Rule 7 of the Rules Governing § 2254 Cases in the United States District Courts, 28 U.S.C. following § 2254.
Carpenter v. Vaughn, 888 F. Supp. 635, 643 (M.D. Pa. 1994) (footnotes omitted).
One of the footnotes omitted from the paragraph quoted above was a short discussion concerning the development of the law of habeas corpus. At the time § 2254 was enacted, it did not create new law but codified existing authority. Most importantly, we noted, "The evolution of the law of federal habeas corpus continues to be the responsibility of the judiciary." Carpenter at 643 n. 4 (citations omitted).
Recently, the political branches of the government brought that tradition to an end. On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (April 24, 1996)("the Antiterrorism Act"). Title I of the Antiterrorism Act, entitled Habeas Corpus Reform, creates Chapter 154 of Title 28 of the United States Code. Chapter 154 sets forth specific provisions for "death penalty litigation procedures," Id., § 107. Numerous amendments to existing statutes, including § 2254, also are set forth.
As to Chapter 154, we find that these provisions are inapplicable in this case, since Pennsylvania has not established a "unitary review procedure" as defined in Title I/Chapter 154. See id., § 107(a) (adding 28 U.S.C. § 2265(a) and (b), which define "unitary review procedure," and §§ 2261 and 2265(c) which make Title I/Chapter 154 applicable to cases in which the state in which the petitioner was convicted has created a "unitary review procedure"). Pennsylvania's procedure for unitary review in capital cases, see 42 Pa. Cons. Stat. Ann. §§ 9571 et seq., does not apply for present purposes as it was made applicable 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), well after Banks' sentence was imposed. Since it is clear that Pennsylvania did not have a unitary review procedure in place at the time of Banks' conviction and appeals, we do not reach the question of whether the current Pennsylvania unitary review procedure falls within the term as used in Title 1/Chapter 154.
As relevant, § 2254 as amended by the Antiterrorism Act reads:
(d) 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