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STORY v. KINDT

February 7, 1997

STANTON T. STORY, Petitioner
v.
WARDEN TOM KINDT, Respondent and THE ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, Additional Respondent.



The opinion of the court was delivered by: SENSENICH

Re: Doc. # 50

 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

 I. RECOMMENDATION

 It is recommended that the petition for writ of habeas corpus be denied. It is further recommended that a certificate of appealability be granted with respect to the issue of whether Petitioner was deprived of his Sixth Amendment right to be tried by an impartial jury by reason of the fact that his jury was death qualified.

 II. REPORT

 Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his second conviction of first degree murder of a police officer after his first conviction was reversed on appeal by the Supreme Court of Pennsylvania. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (Pa. 1978). Both convictions resulted in sentences to death which were subsequently vacated. During his first appeal the death penalty statute in existence was declared unconstitutional. Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (Pa. 1977), cert. denied, 438 U.S. 914, 57 L. Ed. 2d 1160, 98 S. Ct. 3143 (1978). His second death sentence was vacated because the new death penalty statute was enacted after commission of his crime. Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (Pa. 1981).

 This case is now back on remand from the Court of Appeals. On August 14, 1992, a report and recommendation was filed, recommending that the petition, filed on December 4, 1991 by Petitioner Stanton T. Story, be dismissed as a mixed petition because it raised some claims not exhausted in the state courts. (Doc. # 15.) On September 16, 1992, the district court adopted the report and recommendation. (Doc. # 17.) On October 1, 1992, Petitioner filed an appeal in the Court of Appeals for the Third Circuit, and on May 28, 1993, the court issued a certificate of probable cause. *fn1"

 On May 27, 1994, the Court of Appeals reversed the decision of the district court, holding that, because of extensive delay in the processing of Petitioner's Post Conviction Hearing Act (PCHA) *fn2" petition, which was attributable primarily to the Allegheny County docketing system, exhaustion should be excused and the habeas corpus petition should be addressed on the merits. This opinion was published as Story v. Kindt, 26 F.3d 402 (3d Cir. 1994), cert. denied, 513 U.S. 1024, 115 S. Ct. 593, 130 L. Ed. 2d 506 (1995). Following remand Petitioner was ordered to file an amended petition by September 30, 1994 and an evidentiary hearing was set for January 10, 1995. Subsequently, Petitioner appealed to the United States Supreme Court, which denied his petition for certiorari. 115 S. Ct. 593 (1995). The evidentiary hearing scheduled for January 10, 1995 was continued generally. Petitioner then chose to exhaust all of his state court remedies and sought an extension of time to file his amended petition up to sixty (60) days after he had exhausted all of his state court remedies. His amended petition was filed on October 2, 1995 by Michael D. Bartko of the Federal Public Defender's Officer, who had been appointed to represent Petitioner in these proceedings. (Doc. # 30.) Respondents filed an answer to the amended petition on December 4, 1995 (Doc. # 31), and supplemental answers on April 18 (Doc. # 48) and June 12, 1996 (Doc. # 49). On March 12, 1996, Petitioner filed a motion for an evidentiary hearing, which the Court denied by order dated June 17, 1996 (Doc. # 46). On June 27, 1996, Petitioner filed a Motion to Reconsider His Request for an Evidentiary Hearing. (Doc. # 50.) That motion is being denied pursuant to an opinion and order filed on the same date as this report and recommendation.

 In addition, the following procedural history has occurred in the state courts. Following remand by the Superior Court of Petitioner's PCHA petition (Answer Ex. 12), *fn3" Judge George H. Ross of the Court of Common Pleas of Allegheny County, Pennsylvania appointed Jerome DeRiso to represent Petitioner on February 4, 1993. Thereafter, Judge Ross issued several orders upon Attorney DeRiso to file an amended PCHA petition (Answer Exs. 14, 18), but the amended petition was not filed until February 14, 1994.

 In the amended PCHA petition, Petitioner raised the following claims:

 
Petitioner's conviction resulted from the ineffective assistance of counsel which, in the circumstances of this particular case, so undermined the truth-determining process, that no reliable adjudication of guilt or innocence could have taken place, as more particularly set forth as follows:
 
a. Petitioner maintains that his trial counsel was ineffective in that he did not interview Robert Davis, as he was the person that shot the police officer.
 
b. Trial counsel was ineffective for failing to interview Lafayette Jones to determine if he saw who shot the police officer, and who could have testified that Petitioner's hair was in an afro-style, and the Robert Davis' hair was platted.
 
c. Trial counsel was ineffective for not interviewing Jim-Jim Davis who could have testified that Petitioner's hair was in an afro-style while Davis' hair was platted.
 
d. Trial counsel was ineffective in that he did not interview S.T. Story, Petitioner's father, who cooked breakfast for both Petitioner and Davis the morning of the shooting. S.T. Story would have put Davis with Petitioner the morning of the shooting, would have testified that Petitioner did not have a gun, would have testified that Petitioner's hair was in an afro-style, and that Davis' hair was platted.
 
e. Trial counsel was ineffective as he did not interview Sandy Sommers, who was the woman identified as talking with Davis and Petitioner before the shooting, [who would have testified] that both Davis and Petitioner were in the car,that Petitioners hair was in an afro-style, and that Davis' hair was platted, and that Petitioner was a passenger in the car.
 
f. Trial counsel was ineffective in that he did not interview any of Lafayette Jones' family who saw Petitioner with Davis earlier that morning, and who could have testified that they were together, that Petitioner's hair was in an afro-style and that Davis' hair was platted.
 
Petitioner was tried before a death penalty qualified jury in the Court of Common Pleas of Allegheny County, Criminal Division, on October 12, 1979.
 
Although defense counsel filed the Motion for the court to prohibit the prosecution from seeking the death penalty, the Motion was denied and the death penalty qualified jury was selected. On appeal, the Pennsylvania Supreme Court ruled that the Pennsylvania Death Penalty Statute was not in effect at the time of the murder, and therefore violated the Ex Post Facto Clause of the Constitution of the United States.
 
Petitioner's right to an impartial jury and his Due Process Rights under the Constitution of the United States were violated by having a trial before a death penalty qualified jury.
 
Petitioner's sentence of life imprisonment by the Pennsylvania Supreme Court is illegal and an invalidation of the Constitution of the Commonwealth of Pennsylvania in that the Petitioner's right of allocution was denied.

 (Answer Ex. 20 PP 9-13.) *fn4" On February 22, 1994, an evidentiary hearing began. (Answer Ex. 21.) This hearing continued on March 1, 1994, at which time Petitioner questioned his trial counsel, Charles Schwartz, about Schwartz's alleged ineffectiveness at Petitioner's second trial in October 1979. (Answer Ex. 22.)

 Before the hearing concluded, Petitioner himself read into the record the following issues he wanted to raise: trial counsel was ineffective for failing to object when Detective Robert Miller was not asked about his expert credentials, when hearsay was given by Officers Stotlemyer and Freeman, when irrelevant testimony about the cadillac was given by William Bebler, when the testimony of Alene Smith and Nadine Brown was read into the record in violation of both the Confrontation Clause and the Due Process Clause because only parts were read in, and when the testimony of these witnesses improperly presented a prejudicial hearsay admission that Petitioner was in the presence of two individuals involved in the shooting while he was in Florida; appellate counsel was ineffective for not raising trial counsel's failure to object to Peter Marone acting as a gun expert, for not raising trial counsel's failure to argue that the testimony of Alene Smith and Nadine Brown had been improperly read into the record, for not raising trial counsel's overruled objections to have stricken the testimony of Detective Swearingen who had taken handwritten notes and thrown them away prior to trial, and for failing to raise all issues that were not raised by trial counsel. (Answer Ex. 22 at 23-27, 47-49, 51.) *fn5" On March 16, 1994, Judge Ross denied the PCHA petition. (Answer Ex. 23.) *fn6"

 Counsel filed an appeal in the Superior Court, which was docketed at No. 626 Pgh. 1994, and Petitioner filed his own pro se appeal, which was docketed at No. 826 Pgh. 1994. The counseled appeal raised the following issues:

 
A. WHETHER OR NOT COUNSEL FOR [PETITIONER] WAS INEFFECTIVE FOR FAILING TO INTERVIEW POTENTIAL WITNESSES AND FAILING TO MAKE REASONABLE INVESTIGATIONS INTO [PETITIONER'S] DEFENSE.
 
B. WHETHER OR NOT [PETITIONER'S] RIGHT TO AN IMPARTIAL JURY AND HIS DUE PROCESS RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES WERE VIOLATED BY HAVING A TRIAL BEFORE A DEATH PENALTY QUALIFIED JURY.
 
C. WHETHER OR NOT THE PENNSYLVANIA SUPREME COURT ERRED IN SENTENCING [PETITIONER] TO LIFE IMPRISONMENT IN THAT [PETITIONER'S] RIGHT OF ALLOCUTION WAS DENIED.

 (Answer Ex. 26 at 3.) On June 14, 1994, the Superior Court dismissed the pro se appeal at No. 826 as duplicative of the counseled appeal at No. 626. (Answer Ex. 25.) On September 29, 1994, Judge Ross issued his opinion on the denial of the PCHA petition. (Answer Ex. 24.) On April 5, 1995, the Superior Court affirmed the decision of the PCHA court. (Answer Ex. 30.) On April 12, 1995, Attorney Bartko sent a letter to Attorney DeRiso with a copy to Petitioner informing him of the Superior Court's decision. (Ex. A to Exs. 31-32.)

 Petitioner did not file a timely appeal in the Pennsylvania Supreme Court. However, on June 19, 1995, he filed a pro se pleading in both the Superior Court and the Supreme Court requesting permission to file an appeal nunc pro tunc. (Answer Exs. 31-32.) The Superior Court denied his pleading on June 30, 1996, and the Supreme Court denied the petition to appeal nunc pro tunc on September 8, 1995. (Answer Exs. 33-34.) No further filings took place.

 In the amended petition, filed October 2, 1995, Petitioner raises the following claims:

 
I. WHETHER THE JURY WAS UNCONSTITUTIONALLY SELECTED IN THAT THE JURY WAS DEATH QUALIFIED WHEN STORY SHOULD NOT HAVE BEEN TRIED UNDER THE DEATH PENALTY STATUTE?
 
II. WHETHER STORY WAS DENIED HIS CONSTITUTIONAL RIGHT UNDER THE SIXTH AMENDMENT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS DUE PROCESS RIGHTS AS APPLIED TO THE STATES UNDER THE FOURTEENTH AMENDMENT, NAMELY:
 
(a) Counsel's failure to investigate any part of Story's defense;
 
(b) Counsel's failure to object to evidence at numerous phases of the trial that were extremely prejudicial and inadmissable [sic] if properly objected to;
 
(c) Counsel's failure on direct appeal to raise errors made by the trial court?
 
III. WHETHER THE PENNSYLVANIA SUPREME COURT ERRED IN SENTENCING STORY TO LIFE IMPRISONMENT INSTEAD OF REMANDING THE CASE TO THE ALLEGHENY COUNTY COURT OF COMMON PLEAS FOR RESENTENCING?

 (Doc. # 30 at 1-2.) Specifically, Petitioner alleges that counsel was ineffective for failing to investigate and interview Robert Davis, LaFayette Jones, "Jim-Jim" Davis, Petitioner's father S.T. Story, Sandy Sommers, and any of the Jones family who saw Petitioner with Robert Davis the day of the shooting. (Id. at 20-21.) Further, he alleges that counsel failed to object when Detective Robert Miller was not asked about his expert credentials (Id. at 26), when hearsay was given by Officers Stotlemyer and Freeman (Id. at 26-27), when irrelevant testimony about the cadillac was given by William Bebler (Id. at 27), when the testimony of Alene Smith and Nadine Brown was read into the record in violation of both the Confrontation Clause and the Due Process Clause because only parts were read in (Id. at 27), and when the testimony of these witnesses improperly presented a prejudicial hearsay admission that Petitioner was in the presence of two individuals involved in the shooting while he was in Florida. (Id. at 28-29.)

 Petitioner alleges that appellate counsel (Attorney Schwartz, assisted on the brief by Welsh White) was ineffective for not raising trial counsel's failure to object to Peter Marone acting as a gun expert (Id. at 30), for not raising trial counsel's failure to argue that testimony of Alene Smith and Nadine Brown had been improperly read into the record (Id. at 31), for not raising trial counsel's overruled objections to have stricken the testimony of Detective Swearingen who had taken handwritten notes and thrown them away prior to trial (Id. at 31), and for failing to raise all issues raised in II(a-b) that were not raised by trial counsel (Id. at 32).

 Of these claims, the ones that were added in the amended petition were the failure to interview Petitioner's father and witness Sandy Sommers, and all claims raised in II(b-c) above (as noted above, these were the issues that Petitioner tried to raise by reading them to Judge Ross at the conclusion of the PCHA hearing). Respondents argue that: 1) the Court of Appeals excused exhaustion only as to those claims that were present in the petition in 1994, not newly added claims; 2) Petitioner's failure to file a timely appeal in the Pennsylvania Supreme Court and that court's denial of his petition for allowance of appeal nunc pro tunc are procedural defaults preventing this Court from addressing Petitioner's new claims unless he demonstrates either "cause" for the default and actual prejudice resulting therefrom or that the failure to address these claims will result in a fundamental miscarriage of justice, and he has not met either of these exceptions; 3) Petitioner's claim relating to the death qualified jury was decided on the merits by the state courts and their findings of fact (and perhaps, under newly enacted habeas statutes, their findings of law and mixed fact and law issues) are entitled to a presumption of correctness; 4) Petitioner's claim of counsel ineffectiveness for not interviewing witnesses fails on the merits because he cannot demonstrate that he was actually prejudiced by this allegation of ineffectiveness and because counsel did make efforts to locate many of these witnesses; and 5) Petitioner's claim regarding the action of the Pennsylvania Supreme Court in resentencing him instead of remanding the case, assuming that it raises an issue cognizable in federal habeas corpus, should be denied on the merits because there is no relief the Court can grant him. *fn7" Petitioner asserts that the Court of Appeals excused exhaustion in his case completely, so that his newly added claims should be addressed on the merits, and he argues, in the light of Judge Cowen's dissenting opinion, that his death qualified jury claim has merit and entitles him to a writ of habeas corpus.

 Status of Newly Added Claims

 Ordinarily, the first issue that must be addressed by a federal district court when considering a habeas corpus petition filed by a state prisoner is whether the prisoner has exhausted available state court remedies as required by 28 U.S.C. §§ 2254(b) and (c). Section 2254(b)(1) (as amended Apr. 24, 1996) provides:

 
An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--
 
(A) the applicant has exhausted the remedies available in the courts of the State; or
 
(B) (i) there is an absence of available State corrective process; or
 
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

 Furthermore, § 2254(c) provides:

 
An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the state to raise, by any available procedure, the question presented.

 It is well settled that, as a matter of comity, the state should be provided with the first opportunity to consider the claims of constitutional violations and to correct any errors committed in its courts. Rose v. Lundy, 455 U.S. 509, 518, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1981); Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973). Accordingly, before a state prisoner's claims may be addressed by a federal habeas court, the constitutional issues must first have "been fairly presented to the state courts" for review. Castille v. Peoples, 489 U.S. 346, 351, 103 L. Ed. 2d 380, 109 S. Ct. 1056 (1989) (quoting Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971)).

 However, in its opinion remanding the case, the Court of Appeals held as follows:

 
We find it wholly untenable to penalize Story for his attorneys' failures and the Court of Common Pleas' inability to manage its own docket. Nor do we consider recent progress on Story's PCHA petition sufficient to require him to afford the state's courts three more years, in addition to the nearly nine already consumed. The Commonwealth simply has not met its burden to show why, in light of its inordinate and inexcusable delay, we should not excuse exhaustion. We will therefore reverse the order dismissing the habeas petition and remand the case to the district court with directions to entertain Story's petition on the merits.

 26 F.3d at 406 (footnote omitted). At least one of Petitioner's claims had not previously been presented to any court (the claim concerning the Pennsylvania Supreme Court sentencing him to life imprisonment rather than remanding to trial court), yet the Court of Appeals ordered that exhaustion be excused in this case because of inordinate delay by the Commonwealth. It is therefore unlikely that the Court of Appeals would now require Petitioner to exhaust state remedies with respect to claims added to the petition after remand, even if these claims had not been previously presented to the state courts. In addition, some of the newly added claims raise issues already presented by the original petition; they merely name other individuals whom trial counsel allegedly failed to interview or investigate, and they present the same issues against appellate counsel as were presented against trial counsel. Therefore, the Court will not have to address on the merits issues unrelated to those already considered by the state courts. Other issues raise evidentiary rulings, questions of state law that are not cognizable in federal habeas corpus. Under the unusual circumstances of this case, the Court should consider exhaustion to have been satisfied or waived by the Court of Appeals and should proceed to the merits of all claims in the petition, except those presenting issues of state law. *fn8"

 Standard of Review

 Previously, § 2254(d) required that a determination of a factual issue, after a hearing on the merits by a state court of competent jurisdiction in a proceeding to which the petitioner and an officer of the state were parties and which was evidenced by reliable and adequate written indicia, be presumed correct unless one of eight exceptions applied. However, mixed questions of law and fact and conclusions of law had to be reviewed by a federal court de novo. See Wright v. West, 505 U.S. 277, 305, 120 L. Ed. 2d 225, 112 S. Ct. 2482 (1992) (O'Connor, J., concurring in the judgment). See, e.g., Strickland v. Washington, 466 U.S. 668, 698, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) (state court findings of fact concerning counsel's performance subject to presumption of correctness, but ultimate conclusion that counsel was not ineffective requires independent review by federal court).

 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (the AEDPA), which revises many of the procedures for habeas corpus proceedings. Section 104(4) of the AEDPA amends the section on factual presumptions, redesignated § 2254(e), to read that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Moreover, section 104(3) adds a new subsection 2254(d), which states that:

 
(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
 
(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.

 Respondents argue that new section 2254(d) provides for a more lenient standard of review for state court mixed findings of fact and law and that the new provisions should be applied in this case, although the case had been filed prior to the date the amendments of the AEDPA were enacted. However, the retroactivity issue is significant only if it would alter the result. "Of the circuit courts of appeals that have had the opportunity to consider the retroactivity issue, two courts have determined that the AEDPA's changes to § 2254 are not to be applied retroactively, see Boria v. Keane, 90 F.3d 36 (2d Cir. 1996) and Edens v. Hannigan, 87 F.3d 1109, 1112 n.1 (10th Cir. 1996), and one court has found that the AEDPA is to be applied retroactively in non-capital cases. Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc)." Berryman v. Morton, 100 F.3d 1089, 1102 (3d Cir. 1996). However, having outlined these two approaches, the Court of Appeals in Berryman, as it had previously, noted that the result would have been the same under either standard and thus it did not resolve the retroactivity question. See Meyers v. Gillis, 93 F.3d 1147, 1149 n.1 (3d Cir. 1996); Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). See also Ayala v. Speckard, 89 F.3d 91, 96-97 (2d Cir. 1996); Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). The Court need not determine whether this new section applies, because under either standard, Petitioner's claims should be denied.

 Sixth Amendment Claim Based on Impartiality of Jury

 Petitioner's first claim is that the "death-qualification" of his jury resulted in a violation of the Sixth Amendment because at the time of his second trial he was not eligible for the death penalty. Thus, Petitioner's attack is upon the death qualification of the jury under the circumstances of his case, rather than a challenge to individual veniremen as having been wrongfully excluded from the jury pursuant to Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), *fn9" which held that exclusion from the jury of persons who had conscientious scruples against capital punishment or who were opposed to it did not establish that the jury was biased with respect to the petitioner's guilt, but that it did deprive him of the impartial jury he was entitled to under the Sixth and Fourteenth Amendments on the question of punishment.

 In Lockhart v. McCree, 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986), voir dire at defendant McCree's trial resulted in the exclusion of eight potential jurors who stated that they could not apply the death penalty under any circumstances, and McCree claimed that the jury that remained was more prone to convict in violation of the requirements of the Sixth and Fourteenth Amendments that a defendant have his guilt or innocence determined by an impartial jury selected from a representative cross section of the community. The district court examined the social science studies submitted and granted the writ, but the Eighth Circuit affirmed only as to the fair cross section claim, not reaching the impartiality claim. Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985).

 The Supreme Court noted that of the fifteen studies submitted by McCree, only six actually measured the potential effect on guilt-innocence determinations of the removal of "Witherspoon-excludables," *fn10" that three of those six studies were presented and found to be too tentative and fragmentary in Witherspoon itself, and that the remaining three did not provide substantial support for the per se constitutional rule McCree advocated. 476 U.S. at 168-73. Nevertheless, the Court assumed for the purposes of the case that the studies were valid and that death qualification in fact produces juries that are somewhat more conviction prone than non-death qualified juries. Even so, the Court held that this process did not offend the fair cross section requirement of the Sixth Amendment because that requirement has never been extended to petit juries on any issues, only jury panels and venires. Id. at 174-75.

 Secondly, even if it applied at this level, the fair cross section requirement refers to distinctive groups (blacks, women, Mexican-Americans) not people who share a common attitude (i.e., opposition to the death penalty), nor does the exclusion of people on this basis provide an "appearance of unfairness." Also, only those who cannot set aside their beliefs to follow the law may be so excluded, and those that are excluded may serve in other cases and they are treated like any other juror who expresses an inability to follow the law. Furthermore, with regard to McCree's claim that the exclusion of these jurors created an impartial jury slanted toward conviction, the Court rejected the notion of "balancing" various juror predispositions in accordance with previous case law. The circumstances in McCree differed from those in Witherspoon and Adams in that the Arkansas process in McCree did not improperly remove jurors who had some philosophical questions about the death penalty, but only those who would not apply it in any circumstance, which is permitted. The other cases dealt with capital sentencing, whereas McCree was challenging the basic finding of guilt or innocence (he was sentenced to life without parole).

 In Buchanan v. Kentucky, 483 U.S. 402, 97 L. Ed. 2d 336, 107 S. Ct. 2906 (1987), defendant Buchanan, a minor who was not subject to the death penalty, was tried jointly with Stanford, an adult who not only raped and sodomized the victim but actually shot her. The jury was "death qualified" because Stanford's crimes made him eligible for the death penalty, and Buchanan filed a habeas corpus action challenging the death qualification of the jury. Buchanan's claim of a fair cross section violation was rejected on the basis of Court's holding in McCree. Id. at 415-16. As for his claim that he had been improperly tried jointly with Stanford, the Court held that Kentucky had an interest in promoting reliability and consistency by trying actors in same events together (and Buchanan had not moved to sever the trials in any event). Id. at 416-20.

 In Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), the Supreme Court reiterated a conclusion reached in Ross v. Oklahoma, 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273 (1988): a defendant may challenge for cause a venireman who indicates that he will automatically vote to impose the death penalty when that option is available to him (referred to in social science studies as an A.D.P. for automatic death penalty, see People of the State of California v. Middleton, 198 Cal. App. 3d 1294, 244 Cal. Rptr. 378, 391 n.17 (Cal. Ct. App. 1988), review denied without opinion). However, the Court noted that Illinois' improper procedure in the case required only the reversal of the defendant's death sentence and had no bearing on his conviction. Id. at 739 n.11. In Ross, the defendant's claim of an impartial jury failed because after the trial court rejected the challenge of the A.D.P. for cause, defense counsel exercised a peremptory challenge to remove him. 487 U.S. at 85-86. Thus, even when considering the challenges to the death qualification process, the Supreme Court has indicated that a defendant must demonstrate that his particular jury was non-neutral because otherwise, he is not entitled to any relief.

 Similarly, the Pennsylvania Supreme Court has held that death qualifying a jury does not violate any rights under Pennsylvania law and has followed the reasoning of the United States Supreme Court in McCree. See Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81, 91-92 (Pa. 1988), aff'd on other grounds, 494 U.S. 299 (1990); Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 384 (Pa. 1986), cert. denied, 479 U.S. 1070, 93 L. Ed. 2d 1010, 107 S. Ct. 962 (1987); Commonwealth v. DeHart, 516 A.2d 656, 663-64 & n.8 (1986), cert. denied, 483 U.S. 1010 (1987); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (Pa. 1987). The Pennsylvania Supreme Court has also found, following McCree, that death qualified juries are not more prone to convict. See Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1283 (Pa. 1989); Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (Pa. 1986); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811, 817-18 (Pa. 1985), cert. denied, 476 U.S. 1140, 90 L. Ed. 2d 692, 106 S. Ct. 2245 (1986).

 Petitioner's claim herein arises because, after his first trial in 1975, the Pennsylvania death penalty statute pursuant to which he was sentenced to death was declared unconstitutional by the Pennsylvania Supreme Court. Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (Pa. 1977), cert. denied, 438 U.S. 914, 57 L. Ed. 2d 1160, 98 S. Ct. 3143 (1978). Before his second trial in 1979, the Legislature enacted the Act of September 13, 1978, P.L. 756, No. 141, § 1, 42 Pa. C.S. § 9711. Thus, the question presented was whether the newly enacted death penalty statute could properly be applied to Petitioner for a crime committed in 1974.

 Attorney Schwartz filed a Petition to Prevent the Commonwealth From Seeking the Death Penalty on April 19, 1979. (Answer Ex. 1.) Judge Ross denied this motion on April 24, 1979 and issued an extensive opinion in which he addressed five arguments presented by Petitioner as to why the new statute should not apply to him (effect of an unconstitutional statute, ex post facto laws, double jeopardy, equal protection, due process). (Answer Ex. 2.) Nevertheless, because the issue presented "a controlling question of law as to which there is substantial ground for difference of opinion," Judge Ross certified the order for immediate appeal to the Pennsylvania Supreme Court. (Answer Ex. 3.) However, on June 9, 1979, the Pennsylvania Supreme Court denied the petition for permission to appeal without comment (Answer Ex. 4), and therefore Judge Ross permitted the prosecution to proceed with the case as a death penalty case. Judge Ross could not have known that the Pennsylvania Supreme Court would later find, by a 4-3 vote, that the newly enacted death penalty statute could not be applied to Petitioner in this case. Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (Pa. 1981). Indeed, he noted this unfortunate turn of events at Petitioner's PCHA hearing (PCHA Hr'g, Answer Ex. 22, at 39-40).

 Judge Cowen's dissenting opinion states that, because of a state legislative mandate against construing new statutes retroactively in the absence of clear and manifest language from the Legislature indicating otherwise, "it was clear before the second trial that Story was not eligible for capital punishment pursuant to the newly enacted Act of 1978 because he allegedly committed the offense in 1974." 26 F.3d at 408 (Cowen, J., dissenting) (footnote omitted). Further, Judge Cowen concludes that the Supreme Court "was not without difficulty in permitting the use of death-qualified juries even in the[] limited circumstances" of McCree and Buchanan and that the justifications supporting death qualification in those cases (the fact that the defendant himself was eligible for the death penalty if convicted, the state interest in holding joint trials of co-defendants) are absent in this case. Id. at 410. Judge Cowen further cites People of the State of California v. Middleton, 198 Cal. App. 3d 1294, 244 Cal. Rptr. 378, 396 n.25 (Cal. Ct. App. 1988), review denied without opinion, (Cal. May 26, 1988), for its holding that even the state interest identified in Buchanan can easily be satisfied by "impaneling a separate non-death-qualified jury to try the non-capital defendants simultaneously with the death-qualified jury that tries the capital defendants." Id. at 410 n.4. Therefore, Judge Cowen would have granted the petition on the basis of the death qualified jury issue.

 The majority noted that "we do not believe the dissent's analysis and conclusion to be free from doubt." Id. at 407 n.12. After review of the relevant Supreme Court cases and consideration of the facts of this case it appears that Petitioner's trial before a death qualified jury did not violate the Sixth and Fourteenth Amendments. First, although the Pennsylvania Supreme Court eventually concluded that the new death penalty statute could not be applied to Petitioner, it did so by the very narrowest of margins, a 4-3 decision. Retroactivity is far from an easy issue, see, e.g., Centre Beverage Co. v. Miller Brewing Co., 779 F.2d 168 (3d Cir. 1985) (describing the difficulty of determining whether an amendment to Pennsylvania's liquor code was to be applied retroactively), and it would not be appropriate for a federal court, with the aid of hindsight, to conclude that in 1979, Judge Ross committed constitutional error in failing to predict as "clear" an issue of Pennsylvania law that the Pennsylvania Supreme Court finally resolved two years later by a bare majority of one. *fn11"

 Second, although neither McCree nor Buchanan was a unanimous decision, the dissents in both cases were authored by Justice Marshall and joined by Justices Brennan and Stevens. Justice Stevens remains on the Court, but Justices Marshall and Brennan have retired and there is no indication that those dissents are likely to attain majority status. Indeed, Justice Thomas (Justice Marshall's successor) joined Justice Scalia's dissent in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 156, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994), rejecting the conclusion of the majority that the equal protection clause prohibits discrimination in jury selection on the basis of gender. Judge Cowen cites J.E.B. as a recent case in which "the conviction-proneness of certain jurors disturbs many a jurist." 26 F.3d at 411. However, the Supreme Court's decision in J.E.B. does not rely on the conviction proneness of certain jurors, but upon the impropriety of excluding any potential juror based upon ...


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