Eighth Amendment and the Fourteenth Amendment. This argument fails for the reasons discussed with respect to the trial court's determination of Banks' competency.
VII. CHARGE AND VERDICT FORM
Banks next contends that, in the sentencing phase of the trial, the instructions to the jury, the verdict slip, and the jury poll impermissibly suggested that the jury was required to be unanimous in finding the existence of a mitigating factor to be weighed against any aggravating factor found (again unanimously) by the jury. The requirement of jury unanimity under these circumstances would violate the rule of Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988).
The Commonwealth cites a number of opinions of the Supreme Court of Pennsylvania to the effect that the jury instructions at issue, or very like them, do not contravene the rule of Mills. See Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100, 1111 (Pa. 1993); Commonwealth v. Hackett, 534 Pa. 210, 627 A.2d 719, 725-726 (A.2d 1993); Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575, 585-586 (Pa. 1991); Commonwealth v. O'Shea, 523 Pa. 384, 567 A.2d 1023, 1035-1036 (Pa. 1989), cert. denied, 498 U.S. 881, 112 L. Ed. 2d 180, 111 S. Ct. 225 (1990). More useful for present purposes, since it is binding on this court, is Zettlemoyer v. Fulcomer, 923 F.2d 284, 306-309 (3d Cir.), reh'g denied, cert. denied, 502 U.S. 902, 116 L. Ed. 2d 232, 112 S. Ct. 280, reh'g denied, 502 U.S. 1000, 116 L. Ed. 2d 646, 112 S. Ct. 624 (1991).
A review of the record of the sentencing phase of Banks' trial, N.T. trial volume 6 at 2,315-2,327 (June 22, 1983); Verdict Form, Respondents' Appendix C (record document no. 33), shows that the charge and verdict form are not substantially different from those considered in Zettlemoyer. They state repeatedly that the jury must find unanimously at least one aggravating circumstance beyond a reasonable doubt and that any aggravating circumstances so found must outweigh any mitigating circumstances (to be found by a preponderance of the evidence). They also state that the final verdict must be unanimous. Nowhere is there a statement that any mitigating circumstances must be found unanimously by the jury before they could be weighed against any aggravating circumstances.
Based on Zettlemoyer, we find that the charge and verdict slip in this case are consistent with Mills. See also DeShields v. Snyder, 829 F. Supp. 676, 688 (D. Del. 1993)(reaching same conclusion with respect to similar jury instruction).
VIII. LACK OF UNIFORMITY
Banks contends that a lack of uniformity in the sentencing procedures for capital cases in Pennsylvania at the time of his trial renders his sentence invalid. Banks points to no specific constitutional error to support this contention. In fact, of the five errors listed by Banks (all referring to Pennsylvania law), he only contends that one of them occurred in his case. With respect to that one error, being notice of the aggravating factors to be argued by the Commonwealth only after the verdicts of guilty were returned, Banks does not allege insufficient notice. Nor does it appear from the record that Banks was unable to respond to the factors submitted by the Commonwealth. This was especially so since all of the supporting evidence was introduced during the guilt phase of trial, and the sentencing phase consisted of arguments by counsel and the court's charge. There was no new evidence to require investigation or other preparation.
Potential problems, especially problems of state procedure, in other cases do not render the verdict and sentence in Banks' case unconstitutional.
IX. PROPORTIONALITY REVIEW
Finally, Banks contends that the system of proportionality review employed by the Supreme Court of Pennsylvania with respect to capital cases denied him his right to due process under the Fourteenth Amendment. The argument fails for several reasons.
First, proportionality review is not mandated under the Constitution. Pulley v. Harris, 465 U.S. 37, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984).
Second, Banks' argument is premised in part on the fact that a procedure for proportionality review of capital sentences is not set forth in the statute governing such review, 42 Pa. Cons. Stat. Ann. § 9711(b)(3)(iii), the Pennsylvania Rules of Criminal Procedure, or the Pennsylvania Rules of Appellate Procedure. However, as the Supreme Court of Pennsylvania pointed out in its review of the denial of post-conviction relief, the manner in which proportionality review is conducted is set forth in an order of the Supreme Court. Banks II at 474 (quoting Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656, 669 (Pa. 1986), cert. denied, 483 U.S. 1010, 97 L. Ed. 2d 746, 107 S. Ct. 3241 (1987), remanded on other grounds, 539 Pa. 5, 650 A.2d 38 (Pa. 1994)). See also Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, 707-708 (Pa.)(setting forth procedure), cert. denied, 469 U.S. 963, 83 L. Ed. 2d 296, 105 S. Ct. 360 (1984), and Frey at 712-713, Appendix (form for compiling data for proportionality review). The statute therefore does not stand in isolation, and there is a procedure in place under Pennsylvania law for proportionality review.
Banks adds that there is no manner for challenging the "evidence" relied upon in proportionality review. Actually, Banks raised his argument in the context of a petition for post-conviction relief, and it was considered on the merits by the Supreme Court. The fact of the matter is that the data compiled by the Administrative Office of Pennsylvania Courts is available, and Banks "has failed to point to any actual deficiencies and/or inaccuracies in the relevant information supplied by the AOPC." Banks II at 474.
In other words, Banks chose to argue the theory that if a deficiency or inaccuracy existed, he had no way to correct it, yet pointed to absolutely no deficiencies or inaccuracies. A theoretical deprivation is not a basis for habeas relief. Moreover, the opinion indicates that such a challenge may be made in the context of a petition for post-conviction relief.
In Harris ex rel. Ramseyer v. Blodgett, 853 F. Supp. 1239, 1290-1291 (W.D. Wash. 1994), aff'd, 64 F.3d 1432 (9th Cir. 1995)(affirming on other grounds), the district court found that the State of Washington's procedure for proportionality review of capital sentences was constitutionally defective because (1) there was inadequate notice of the procedures to be followed, and (2) there was inadequate notice of the state courts' definition or interpretation of "similar cases."
It is true that, despite the fact that proportionality review is not constitutionally mandated, if state law provides for such review, due process standards apply. Foster v. Delo, 39 F.3d 873, 882 (8th Cir. 1994)(en banc), cert. denied, 131 L. Ed. 2d 578, 115 S. Ct. 1719 (1995). However, when state law furnishes sufficient guidance to the sentencer, there is a presumption that the sentence was not "wantonly and freakishly imposed," and a federal court does not review the conclusion of the state's highest court so long as the proportionality review was undertaken in good faith. Walton v. Arizona, 497 U.S. 639, 655-656, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (citations, internal quotations omitted), reh'g denied, 497 U.S. 1050, 111 L. Ed. 2d 828, 111 S. Ct. 14 (1990). In this case, the Supreme Court of Pennsylvania clearly undertook the proportionality review in good faith. See Banks II at 474.
To this we would add that, unlike the court in Harris, we do not think that state law must further clarify the phrase "similar cases." The phrase is ordinary English, not a term of art, and no further clarification is necessary to satisfy the Due Process Clause. The Supreme Court of the United States used the phrase as such. See Walton at 656 ("...sentence was proportional to the sentences imposed in cases similar to his").
Finally, Banks argues that the Supreme Court of Pennsylvania has never found that a sentence of death was disproportionate in its review scheme. Whether that court has done so is immaterial. Banks would need to show that in cases similar to his, the death penalty is not normally imposed. He has not demonstrated such.
We find no constitutional infirmity in the Pennsylvania system of proportionality review of capital sentences.
The final issue to be resolved by the court is the stay of execution, which remains in effect. Under Local Appellate Rule 111.3(b), this court must certify whether there is probable cause for an appeal of a final decision on a claim seeking relief under § 2254. If we so certify, we are required to grant a stay pending disposition of the appeal.
In this case, we declined to dismiss the petition as mixed because the unexhausted claims were procedurally barred. While most of the claims raised by Banks do not seem to be particularly close issues, those issues related to the procedural bar at least are sufficiently close for a certificate of probable cause. We therefore shall so certify, and the stay currently in effect will be extended until final disposition of any appeal or until the time for filing such an appeal expires, if no notice of appeal is filed.
Banks has failed to show that he is entitled to relief in the form of a writ of habeas corpus. We do not reach the question of which version of § 2254 applies because this conclusion is the same under former § 2254 or as amended by the Antiterrorism Act. There being no issues of fact for which an evidentiary hearing is necessary or appropriate, the petition for a writ of habeas corpus will be denied without such a hearing.
An appropriate order will issue.
James F. McClure, Jr.
United States District Judge
August 30, 1996
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. Petitioner George E. Banks' petition (record document no. 8) for a writ of habeas corpus is denied.
2. Pursuant to Third Circuit Local Appellate Rule 111.3(b), we certify that there is probable cause for appeal of petitioner's amended petition for a writ of habeas corpus.
3. Our stay of execution (record document no. 4), originally issued February 22, 1996, shall remain in full force and effect pending disposition of any appeal, pursuant to Local Appellate Rule 111.3(b).
4. If no notice of appeal is filed, the stay of execution shall expire with the time period permitted for the filing of a notice of appeal.
5. The clerk is directed to close the file.
James F. McClure, Jr.
United States District Judge
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