The opinion of the court was delivered by: McCLURE, District Judge.
On March 22, 1999, petitioner George E. Banks, an inmate at the
State Correctional Institution at Waymart, Wayne County,
Pennsylvania, commenced this action with the filing of a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
According to the petition, Banks was convicted in 1983 of twelve
counts of first-degree murder, one count of third-degree murder,
one count of attempted murder, and one count of robbery. Twelve
consecutive sentences of death, plus a consecutive sentence of 25
to 50 years total incarceration, were imposed by the Court of
Common Pleas of Luzerne County, Pennsylvania.
Banks has been granted leave to proceed in forma pauperis,
counsel has been appointed, and a stay of a previously scheduled
execution has issued.
On March 31, 1999, on initial review under Rule 4 of the Rules
Governing Section 2254 Cases in the U.S. District Courts,
28 U.S.C. following § 2254, we issued a rule to show cause why four
of Banks' claims should not be dismissed as procedurally barred.
Before the court is Banks' response to the rule to show cause.
The facts underlying Banks' conviction having been recited in a
number of the published opinions related to this case, we will
not repeat them here. Because the legal questions before us are
narrow, any repetition of the facts is unnecessary. Specific
reference is made to the thorough recitation provided by the
Supreme Court of Pennsylvania in its first opinion. See
Commonwealth v. Banks, 513 Pa. 318, 324-335, 521 A.2d 1, 3-9
The grounds asserted by Banks which we indicated appear to be
procedurally barred (numbered as in our prior order) are:
(7) The trial court, in the sentencing hearing, failed to
instruct the jury on life imprisonment without parole in
violation of the defendant's rights to protection from cruel and
unusual punishment and due process of law under the Eighth and
(9) The trial court's failure to instruct the jury that it
could render a verdict of life imprisonment based on a finding of
mercy engendered from the evidence violated the defendant's
Eighth Amendment right to protection from cruel and unusual
(11) The trial court's failure to voir dire prospective jurors
on whether they would automatically impose a sentence of death
upon a finding of first degree murder deprived the defendant of a
jury which would consider mitigating evidence in a capital
sentencing hearing in violation of the Eighth Amendment.
(12) The trial court improperly applied a clear and convincing
standard for the burden of proof rather than a preponderance of
the evidence standard in determining whether the defendant met
his burden of proof as to competency to stand trial and to waive
his Fifth and Sixth Amendment rights.
In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991), the Supreme Court of the United States
discussed the concept of procedural default, which implicates the
independent and adequate state ground doctrine. A federal court
will not review a question of federal law which has been
procedurally defaulted in state court if the decision of the
state court is independent of the federal question and adequate
to support the judgment. Id. at 727-729, 111 S.Ct. 2546.
However, there must be a clear and express statement by the state
court that its decision is based upon state law. Id. at
731-735, 111 S.Ct. 2546.
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 ...