Once it is determined that a federal claim has been
procedurally defaulted, a federal court to which a petition for a
writ of habeas corpus is presented will consider the claim only
if the petitioner can demonstrate cause for the default and
prejudice as a result of the violation of federal law (the cause
and prejudice standard), or that failure to consider the claim
will result in a fundamental miscarriage of justice. Id. at
750, 111 S.Ct. 2546. See generally Carpenter v. Vaughn,
888 F. Supp. 635, 644-646 (M.D.Pa. 1994) (summarizing Coleman).
The case was before this court previously, and we denied a
motion to dismiss the petition as a "mixed petition" under Rose
v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982),
and Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993). See Banks
v. Horn, 928 F. Supp. 512 (M.D.Pa. 1996). The Third Circuit
reversed, holding that review of the claims was not clearly
foreclosed under state law and therefore not procedurally barred
in federal court. Banks v. Horn, 126 F.3d 206 (3d Cir. 1997).
Since then, the Supreme Court of Pennsylvania has held that four
of the issues recited in the instant petition, which include the
three claims which we held were procedurally barred, are
time-barred under Pennsylvania law. Commonwealth v. Banks,
726 A.2d 374, 1999 WL 104576 (Pa. Mar.2, 1999) (citing 42
Pa.Cons.Stat.Ann. § 9545(b), which sets forth a one-year
limitation period on petitions under the Post Conviction Relief
Act). It was this ruling which formed the basis for our
determination that the four claims recited above probably are
barred as having been procedurally defaulted, and for our
issuance of the rule to show cause.
We turn, then, to the reasons recited by Banks for finding that
the claims have not been procedurally defaulted or that the
default should be excused.
III. ADEQUACY OF STATE GROUNDS
Banks first argues that the state rule applied by the Supreme
Court of Pennsylvania does not furnish an adequate basis for
denying relief. The crux of this argument lies in amendments to
the Pennsylvania Post Conviction Relief Act (PCRA), 42
Pa.Cons.Stat.Ann. §§ 9541 et seq. The amendments, enacted in 1995
and effective January 16, 1996, included the one-year time
limitation on the filing of a petition under the PCRA, § 9545(b),
which is jurisdictional in nature. Banks, 726 A.2d 374, 376.
Banks argues that the state procedural rule is not "adequate"
because, at the time he filed his second PCRA petition, he could
no longer pursue an avenue of relief which was available to him
prior to the amendment. He relies on Ford v. Georgia,
498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), for this proposition.
In Ford, the defendant filed a pre-trial motion in state
court to preclude the prosecution from exercising its peremptory
strikes in a racially discriminatory manner, and defense counsel
argued the motion at a pretrial hearing. Id. at 414-415, 111
S.Ct. 850. The motion was denied. Id. at 415, 111 S.Ct. 850. On
the second day of trial, the trial judge held a conference in
chambers and placed on the record the manner in which the
prosecution used its peremptory strikes. Id. at 416, 111 S.Ct.
At that time, the applicable opinion of the Supreme Court of
the United States was Swain v. Alabama, 380 U.S. 202, 85 S.Ct.
824, 13 L.Ed.2d 759 (1965). After the defendant's conviction and
sentence were affirmed by the Supreme Court of Georgia, he
petitioned for certiorari with the Supreme Court of the United
States. While that petition was pending, the Supreme Court issued
its opinion in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986), altering the burden of proof for such a
claim. While not generally retroactive, Allen v. Hardy,
478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), the rule of
Batson was held to apply to all
cases pending on direct review or not final when Batson was
issued. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93
L.Ed.2d 649 (1987). The Supreme Court of the United States
granted the petition for certiorari in Ford and remanded the
case for further consideration. Ford at 417, 111 S.Ct. 850.
On remand, the Supreme Court of Georgia held that the claim was
procedurally barred based on its intervening decision in State
v. Sparks, 257 Ga. 97, 355 S.E.2d 658 (1987), that a Batson
claim had to be raised prior to the time the jurors selected for
trial were sworn. Ford at 417-418, 111 S.Ct. 850.*fn1 Since
the defendant had not made an objection between jury selection
and trial, according to the Supreme Court of Georgia, the
Swain/Batson claim was barred by the state procedural rule.
The Supreme Court of the United States reversed, holding that,
because the applicable state procedural rule was not clearly
established at the applicable time, the rule was not adequate to
support the judgment.
The application of the opinion in Ford is a bit confusing,
mostly due to the different procedural posture. When the Supreme
Court reviews a state court decision pursuant to a writ of
certiorari, see 28 U.S.C. § 1257, it is reviewing the judgment
of the state court. If resolution of a federal question does not
affect the judgment, "there is nothing for the Court to do,"
Coleman at 730, 111 S.Ct. 2546, and the Supreme Court lacks
jurisdiction. Review of the independence and adequacy of the
asserted state procedural bar is therefore a necessary part of
the Supreme Court's review of the judgment.
In contrast, a federal court on habeas review is determining
the lawfulness of the petitioner's custody "simpliciter," and not
the judgment itself. Id. Still, because custody is pursuant to
a state judgment, the independent and adequate state ground
doctrine applies for reasons of comity and federalism, as opposed
to jurisdiction. Id. at 730-731, 111 S.Ct. 2546. Thus, in
Ford, the Supreme court exercised its jurisdiction by remanding
for consideration of the constitutional issue by the state courts
because the asserted state procedural bar was not adequate. 498
U.S. at 425, 111 S.Ct. 850. See also James v. Kentucky,
466 U.S. 341, 351-352, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)
(remanding to state court for harmless error analysis when state
procedural bar inadequate). In contrast, in the habeas context,
the fact that the state courts did not base a decision on an
independent and adequate state ground permits the federal court
to consider the merits of the constitutional issue. Coleman at
735, 111 S.Ct. 2546. Regardless, the independent and adequate
state ground doctrine applies with equal force in both contexts,
as it is the basis for its application, and not the manner of its
application, that differs.
In Ford, the Supreme Court emphasized that the timeliness of
the exercise of local power is essential in determining the
sufficiency of a procedural bar. 498 U.S. at 423, 111 S.Ct. 850.
The state rule must be "firmly established and regularly
followed" at the time of trial, or such other appropriate time
for action, to prevent review of a constitutional claim. Id. at
423-424, 111 S.Ct. 850 (quoting and citing James at 348-351,
104 S.Ct. 1830). In Ford, the Sparks rule did not exist at
the time of the defendant's trial, so that he could not have
known that an objection to the prosecution's use of peremptory
strikes had to be raised between jury selection and the oath.
Since the defendant could not have known to raise his
constitutional claim at the appropriate time, a judgment that he
failed to do so was inadequate to bar presentation of the claim.
Id. at 424, 111 S.Ct. 850. The same principle applied in
James, in which the Supreme Court noted that Kentucky's
distinction between "instruction"
and "admonition" was not applied in a consistent manner at the
time of the defendant's trial, i.e. the time at which he would
have to raise the constitutional claim at issue. The claim there
related to the defendant's entitlement to an instruction to the
jury on the proscription on drawing an adverse inference from the
failure of the defendant to testify. Id. at 350-351, 104 S.Ct.
The Third Circuit has held that a state rule may provide an
independent and adequate ground only if: "(1) the state
procedural rule speaks in unmistakable terms; (2) all appellate
courts refused to review the petitioner's claims on the merits;
and (3) the state courts' refusal in this instance is consistent
with other decisions." Doctor v. Walters, 96 F.3d 675, 683-684
(3d Cir. 1996), reh'g and reh'g in banc denied. In this
instance, the rule is statutory and clear, i.e. "speaks in
unmistakable terms." The only appellate court which may review
the claims, the Supreme Court of Pennsylvania, refused. There are
no other opinions with which to compare the Supreme Court's
decision because of recency of the amendment of § 9545(b), but
the decision is consistent with the Pennsylvania courts'
interpretation of the plain language of a statute.
Banks' argument that "retroactive" application of the amended
version of § 9545(b) renders it inadequate under the independent
and adequate state ground doctrine misconstrues the timeliness
consideration at issue. The times at which Banks could have
raised the constitutional claims under consideration passed long
before the amendment of § 9545(b). Those times were: for claims
(7) and (9) — charge to the jury during the penalty phase; for
claim (11) — jury selection; and for claim (12) — the competency
hearing or at trial. The claims also could have been raised in
post-trial motions, on direct appeal, or at any stage of the
proceedings on Banks' first petition for post-trial relief, or in
a second petition filed before the amendment of § 9545(b). Even
after the amendment, Banks had 60 days before the amendment
became effective in which to file a second PCRA petition.
In other words, the time applicable for purposes of the state
procedural bar at issue is the date on which a second PCRA
petition is filed. That time was prospective in the sense that it
would apply only to petitions filed after the effective date, not
to petitions filed before the effective date. Therefore, it was
not a state procedural bar's retroactive application which
prevented Banks from pursuing the four claims at issue. Rather,
it was Banks' failure to raise the claims in the approximately 13
years that they were available for raising that prevented him
from pursuing them. That period included the 60 days in which it
was clear (due to the passage of the amendments to the PCRA) that
the time for filing a petition would not be unlimited.*fn2
We conclude that the one-year limitation period of § 9545(b)
constitutes an adequate state ground.
IV. INDEPENDENCE OF STATE GROUNDS
Banks next contends that the procedural bar is not
"independent" for purposes of
procedural default. According to Banks, the Supreme Court of
Pennsylvania has a statutory duty to consider constitutional
claims, so that affirming the conviction and sentence on direct
appeal is an implicit rejection of Banks' constitutional claims.
This argument has its genesis in Ake v. Oklahoma,
470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Before addressing the
constitutional issue involved, the Supreme Court of the United
States addressed the preliminary question of whether a state
procedural bar deprived it of jurisdiction:
The Oklahoma waiver rule does not apply to
fundamental trial error. . . . Under Oklahoma law,
and as the State conceded at oral argument, federal
constitutional errors are "fundamental." . . . Thus,
the State has made application of the procedural bar
depend on an antecedent ruling on federal law, that
is, on the determination of whether federal
constitutional error has been committed. Before
applying the waiver doctrine to a constitutional
question, the state court must rule, either
explicitly or implicitly, on the merits of the
Id. at 74-75, 105 S.Ct. 1087 (citations omitted).
The Ninth Circuit has expanded on the holding of Ake. In
Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993), cert. denied sub
nom. Arave v. Beam, 511 U.S. 1060, 114 S.Ct. 1631, 128 L.Ed.2d
354 (1994), it considered a mandatory review statute from Idaho
in which the record was to be reviewed by the Idaho Supreme Court
to determine whether a death sentence was the product of
"passion, prejudice, or any other arbitrary factor." Id. at
1306 (citing Idaho Code § 19-2827). The court noted that the
State of Montana had mandatory review provisions identical to
those of Idaho in all relevant respects. Id. The Montana
Supreme Court had reviewed the provisions and held that any claim
covered by the mandatory review provisions was to be deemed
resolved against a defendant if the trial court was affirmed,
regardless of whether the claim was raised or whether the claim
was addressed in the Supreme Court's opinion. Id. Thus, if the
claim was raised on collateral review, the reviewing court could
rely on the affirmance and not review the claim further. Id.
The Ninth Circuit opined that the Idaho Supreme Court would treat
its mandatory review provision in an identical manner. Id. at
1306-1307. In light of Ake, then, review of constitutional
questions is implicit in the state's direct review, and
"application of the procedural bar depends upon an antecedent
determination of federal law and does not constitute an
independent and adequate state ground." Id. at 1307.
The Pennsylvania statute governing mandatory review by the
state Supreme Court also contains language to the effect that the
court must determine whether the death sentence was "the product
of passion, prejudice or any other arbitrary factor . . ." 42
Pa.Cons.Stat.Ann. § 9711(h)(3)(i). However, the Supreme Court of
Pennsylvania has never held that, if it affirms a conviction and
sentence under this provision, all constitutional claims should
be deemed to have been resolved against the defendant. Rather,
its mandatory review generally seems to be for a sufficiency of
the evidence. Commonwealth v. Thomas, 552 Pa. 621,
717 A.2d 468, 473 (1998), reargument denied.
More importantly, grounds for relief under the PCRA include
federal constitutional claims. See 42 Pa.Cons.Stat.Ann. §
9543(a)(2)(i) (same both before and after amendment). A reading
that all constitutional claims are deemed presented on direct
appeal would obviate the need to present such claims on
collateral review, a reading at odds with the express language of
the PCRA. See generally Commonwealth v. Albrecht, 554 Pa. 31,
720 A.2d 693, 707 (1998) (reviewing, in context of appeal from
denial of PCRA petition, claim that due process required state to
provide funds for assistance of scientific expert in the PCRA
proceedings), reargument denied. Moreover, in at least one
the Supreme Court of Pennsylvania has rejected the notion that it
is responsible for detecting all errors of constitutional
magnitude on direct appeal:
As we are reversing the sentence of death, we
decline to review the ineffectiveness claims
regarding counsel's actions in the penalty phase. In
addition, we decline counsel's invitation to scour
the record for additional errors caused by counsel
and sua sponte raise said issues; the request is
inappropriate and nonsensical in that such advocacy
would be beyond the scope of our appellate review.
Commonwealth v. Paolello, 542 Pa. 47, 76 n. 12, 665 A.2d 439,
454 n. 12 (1995).
We conclude that the Supreme Court of Pennsylvania would not
hold that its statutorily mandated review in capital cases would
mean that any unresolved constitutional questions are deemed
resolved against the defendant in collateral proceedings under
the PCRA. Assuming that the Third Circuit would follow the
holding of the Ninth Circuit in Beam under similar
circumstances, cf. Bennett v. Angelone, 92 F.3d 1336, 1345 (4th
Cir.) (not deciding whether Fourth Circuit would follow Beam
because claims were denied on merits in district court), cert.
denied, 519 U.S. 1002, 117 S.Ct. 503, 136 L.Ed.2d 395 (1996), we
conclude that the underlying principle does not transfer to the
Pennsylvania mandatory review statute. Therefore, a federal
constitutional issue cannot be deemed to have been fairly
presented to the Supreme Court of Pennsylvania merely because the
Supreme Court has conducted direct review in a capital case, and
the procedural bar is an independent state ground.
V. RETROACTIVE APPLICATION OF RECOGNIZED RIGHTS
Banks contends that the decision of the Supreme Court of
Pennsylvania does not clearly and unambiguously rest on state law
grounds because the Supreme Court determined that none of the
exceptions to the one-year limit under § 9545(b) applies. Among
the exceptions is the following:
. . the right asserted is a constitutional right
that was recognized by the Supreme Court of the
United States or the Supreme Court of Pennsylvania
after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.Cons.Stat.Ann. § 9545(b)(1)(iii). The Supreme Court stated
in its most recent opinion in this case, "Finally, Appellant
fails to refer to any constitutional rights recognized after his
conviction became final and which were held to have retroactive
application." Banks, 726 A.2d 374 at 376.
According to Banks, this statement implicates retroactivity
analysis under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,
103 L.Ed.2d 334 (1989). Actually, no constitutional analysis is
implicated whatsoever. The right at issue must have been
recognized previously before the exception applies. The time of
the holding that the right is retroactive also is prior to the
filing of the petition to which the holding is said to apply.
That this is so is supported by the language of the statute: the
right was recognized and "has been held" (not is held) to be
retroactive. Also, the court which recognized the right must make
the retroactivity holding, since the exception states, "has been
held by that court". Of course, it is also true that a PCRA
petition is filed in the trial court, not the Supreme Court of
the United States or the Supreme Court of Pennsylvania, the
courts which must recognize the right and determine its
retroactivity, so that it is only common sense that the PCRA
court does not engage in any retroactivity analysis.
Moreover, the Supreme Court of Pennsylvania conducted no
retroactivity analysis, either overt or implicit, in determining
that Banks pointed to no newly recognized, retroactive right. It
merely stated that Banks did not refer to any such right. No
retroactivity analysis is interwoven, as
Banks puts it, in such a holding. The Supreme Court of
Pennsylvania clearly and unambiguously rested its decision upon a
state procedural rule which bars consideration of the merits of
VI. FAIR PRESENTATION OF COMPETENCY CLAIM
Ground (12) of Banks' petition in this court is that the trial
court erred in requiring Banks to prove by clear and convincing
evidence that he was not competent to stand trial. Banks first
argues that this claim was presented to the state courts. Two of
the sources cited by Banks for this assertion are his motion for
a new trial and the opinion of the Supreme Court of Pennsylvania
on direct appeal. In moving for a new trial, Banks recited the
following as error:
While not following the Mental Health Procedures Act
in determining competency, the Court required the
Defendant to meet the burden of proof under that Act
(clear and convincing evidence) though apparently
relying on case law decisions dealing with competency
whereby the burden of proof on the Defendant should
have been by a preponderance of the evidence.
Petition for a Writ of Habeas Corpus, Exhibit 1 at 2 ¶ 2(h)
(quoting Motion for New Trial and/or Arrest of Judgment (filed
July 1, 1983) at 3 ¶ 2(h)). Banks argues that presentation of
this issue means that the issue before this court, Ground (12),
"ha[s] been previously presented to and decided upon the merits
by the state courts." Brief of Petitioner in Response to Rule to
Show Cause at 8. In other words, the claim has been exhausted
because it was fairly presented to the state courts.
The requirement of exhaustion means that a state
prisoner may initiate a federal habeas corpus action
only after the state courts have had an opportunity
to hear the claim the petitioner seeks to vindicate
in federal court. Vasquez v. Hillery, 474 U.S. 254,
257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986). The
exhaustion doctrine requires the defendant to present
the issue to any intermediate state appellate court,
if applicable, and to the state's supreme court.
Evans v. Court of Common Pleas of Delaware County,
959 F.2d 1227, 1230 (3d Cir. 1992) (citing Castille
v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103
L.Ed.2d 380, reh'q denied, 490 U.S. 1076, 109 S.Ct.
2091, 104 L.Ed.2d 654 (1989)), cert. dismissed,
506 U.S. 1089, 113 S.Ct. 1071, 122 L.Ed.2d 498 (1993).
The issue must be "fairly presented" to the state
courts, meaning that "[b]oth the legal theory and the
facts underpinning the federal claim must have been
presented to the state courts, . . . and the same
method of legal analysis must be available to the
state court as will be employed in federal court . .
." Evans, 959 F.2d at 1231 (citing Picard v.
Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30
L.Ed.2d 438 (1971); Santana v. Fenton, 685 F.2d 71,
74 (3d Cir. 1982), cert. denied, 459 U.S. 1115, 103
S.Ct. 750, 74 L.Ed.2d 968 (1983); Gibson v.
Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986)).
Carpenter v. Vaughn, 888 F. Supp. 635, 643-644 (M.D.Pa. 1994).
See also Doctor v. Walters,