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JACOBS v. HORN
February 20, 2001
DANIEL JACOBS, PETITIONER
V.
MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; CONNER BLAINE, JR., SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION, GREENE COUNTY; AND JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, RESPONDENTS.
The opinion of the court was delivered by: Munley, District Judge.
In this habeas corpus action, we are asked to determine the
constitutionality of Petitioner Daniel Jacobs' conviction of
first degree murder and his sentence of death. The respondents
are Martin Horn, Commissioner, Pennsylvania Department of
Corrections; Conner Blaine, Jr., Superintendent of the State
Correctional Institution, Greene County; and Joseph P.
Mazurkiewicz, Superintendent of the State Correctional
Institution at Rockview. The petitioner raises a multitude of
issues involving alleged errors of the trial court and
ineffectiveness of counsel. With one exception, we find all of
petitioner's arguments to be either without merit or moot.
However, because we find, for the reasons which follow, that the
petitioner's death sentence violates the Constitution of the
United States, we will conditionally grant the petition for a
writ of habeas corpus.
In 1992, a York County Court of Common Pleas jury convicted
the petitioner of two counts of first degree murder for the
slaying of his girlfriend, Tammy Mock, and their infant
daughter, Holly Jacobs. The victims' bodies were found in the
apartment where they had lived with the petitioner. Tammy Mock
had been stabbed over 200 times and Holly Jacobs, who was seven
months old, drowned in the bathtub. For Tammy Mock's death,
petitioner was sentenced to die. He received a life sentence for
Holly Jacobs' death. The facts are addressed with more
particularity where appropriate below.
Petitioner is seeking a writ of habeas corpus. A district
court's power to grant habeas corpus relief to a state prisoner
is outlined in 28 U.S.C. § 2254. Pursuant to
28 U.S.C. § 2254(a), a federal court is required to consider only petitions
which challenge a state court judgment based upon a violation of
the Constitution or the laws or treaties of the United States.
In addition, it is required that the petitioner exhaust his
state court remedies before bringing a federal habeas corpus
action. 28 U.S.C. § 2254(b), Werts v. Vaughn, 228 F.3d 178,
192 (3d Cir. 2000). This exhaustion requirement does not apply
where there is an absence of available state corrective process
or circumstances exist that render such process ineffective to
protect the rights of the applicant.
28 U.S.C. § 2254(b)(1)(B)(i) and (ii).
Section 2254 proceeds to state:
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.
On April 24, 1996, the Antiterrorism and Effective Death
Penalty Act of 1996 (hereinafter "AEDPA") went into effect and
amended the standards for reviewing state court judgments in
federal habeas petitions filed under 28 U.S.C. § 2254. The
above-quoted language is part of the amendment. Because Jacobs
filed his petition on July 9, 1999, after the effective date of
the AEDPA, we are required to apply the amended standards to his
claim for federal habeas corpus relief. Werts, 228 F.3d at
195.
The Third Circuit has discussed the standard of review as
follows:
The AEDPA increases the deference federal
courts must give to the factual findings and legal
determinations of the state courts. See Dickerson
v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Federal
habeas corpus relief is precluded as to any claim
that was adjudicated on the merits in a state court
proceeding unless such adjudication:
(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. 28 U.S.C. § 2254(d)(1) and (2) (1997).
Factual issues determined by a state court are
presumed to be correct and the petitioner bears the
burden of rebutting this presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1) (1997).
In Williams v. Taylor, the United States Supreme Court
provided the following interpretation to the habeas corpus §
2254(d)(1) standard of review:
Under § 2254(d)(1), the writ may issue only if
one of the following two conditions is satisfied —
the state-court adjudication resulted in a decision
that
(1) "was contrary to . . . clearly established
Federal law as determined by the Supreme Court of the
United States," or
(2) "involved an unreasonable application of . . .
clearly established Federal law, as determined by the
Supreme Court of the United States." Under the
"contrary to" clause, a federal habeas court may
grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on
a question of law or if the state court decides a
case differently than this Court has on a set of
materiality indistinguishable facts. Under the
"unreasonable application" clause, a federal habeas
corpus court may grant the writ if the state court
identifies the correct governing legal principle from
this Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case.
By way of explanation, Third Circuit Court of Appeals has held
the § 2254(d)(1) requires a federal habeas court to make two
inquiries:
Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d
Cir. 1999) cert. denied sub nom Matteo v. Brennan,
528 U.S. 824, 120 S.Ct. 73, 145 L.Ed.2d 62 (1999) quoted in Werts, 228
F.3d at 196-97.
Consequently, two distinct steps are necessary for our
analysis of the petitioner's claims. First, we examine the
claims under the "contrary to" provision. We must identify the
applicable Supreme Court precedent and determine whether it
resolves the petitioner's claim. In Matteo, the Third Circuit
Court of Appeals held:
[I]t is not sufficient for the petitioner to
show merely that his interpretation of Supreme
Court precedent is more plausible than the state
court's; rather, the petitioner must demonstrate
that the Supreme Court precedent requires the
contrary outcome. This standard precludes granting
habeas relief solely on the basis of simple
disagreement with a reasonable state court
interpretation of the applicable precedent.
(emphasis in original)
If it is determined that the state court's decision is not
"contrary to" the applicable United States Supreme Court
precedent, we move on to the second step of the analysis, that
is whether the state court decision was based on an
"unreasonable application of" Supreme Court precedent. This step
requires more than a disagreement with the state court's
decision or ruling because we would have reached a different
result. Werts, 228 F.3d at 197. The AEDPA prohibits such de
novo review. Id. Rather, we must determine whether the state
court's application of United States Supreme Court precedent was
objectively unreasonable. Id. That is, we must decide whether
the state court's application of Supreme Court precedent, when
evaluated objectively and on the merits, resulted in an outcome
that cannot reasonably be justified under existing Supreme Court
precedent. Id.
To summarize, we are empowered to grant relief only in the
following two instances: 1) the petitioner demonstrates that
Supreme Court precedent requires an outcome contrary to that
reached by the state court; or 2) the state court decision
represents an unreasonable application of Supreme Court
precedent.*fn1 In other words, the state court opinion, when
evaluated objectively and on the merits, resulted in an outcome
that cannot reasonably be justified. Matteo, 171 F.3d 877, 891
(3d Cir. 1999). With this analytical framework in place, we will
address the petitioner's claims.
The procedure for capital cases in Pennsylvania is for the
defendant to be tried in a county court of common pleas. The
defendant is able to file post-trial motions with the trial
court. Then the defendant is entitled to an automatic direct
appeal to the Pennsylvania Supreme Court. After the direct
appeal, the defendant can seek relief under the Post Conviction
Relief Act, (hereinafter "PCRA"). PCRA relief is first addressed
by the court of common pleas and is then appealable to the
Pennsylvania Supreme Court.
In the instant case, the petitioner followed the above
procedure as follows: The verdict invoking the death penalty was
entered on September 18, 1992. Trial counsel filed a motion for
a new trial with the trial court. Doc. 13, Respondents' Appendix
(hereinafter "Res.App.") 10. The trial court denied the motion
with a written opinion on January 14, 1993, and formally imposed
the death sentence on January 28, 1993. Res.App. 11, 12. The
judgment of sentence was affirmed by the Pennsylvania Supreme
Court. Commonwealth v. Jacobs, 536 Pa. 402, 639 A.2d 786
(1994).
The current petitioner then filed a pro se PCRA petition on
January 13, 1997. Res.App. 14. On January 24, 1997, J. Richard
Robinson, Esquire was appointed counsel for Jacobs, and a
supplemental PCRA petition was filed on May 23, 1997. Res.App.
14, 15. The supplemental PCRA petition was orally amended at the
PCRA hearing on May 29, 1997. Doc. 10, Response to petition for
writ of habeas corpus, ¶ 15. The trial court denied the PCRA
petition on June 13, 1997. Res. App. 17. On that same day, a
notice of appeal to the Pennsylvania Supreme Court was filed.
Subsequently, Robert Dunham, Esquire, of the Center for Legal
Education Advocacy and Defense Assistance entered his appearance
on behalf of petitioner. The Pennsylvania Supreme Court affirmed
the trial court's denial of PCRA relief on March 26, 1999.
Commonwealth v. Jacobs, 556 Pa. 138, 727 A.2d 545 (1999). On
July 8, 1999, Matthew Lawry, Esquire, and Stuart Lev, Esquire,
of the Defender Association of Philadelphia entered their
appearances on behalf of the petitioner, and the instant
petition for a writ of habeas corpus was filed on November 16,
1999.
Petitioner raises the following fifteen issues: 1) Counsel was
ineffective for failing to investigate and present mental health
mitigating evidence concerning petitioner's cognitive and
emotional impairments and evidence that he suffers from the
effects of a traumatic and neglectful childhood; 2) The trial
court and trial counsel failed to ensure through voir dire that
petitioner would be tried by a fair and impartial jury, and
trial counsel was ineffective for failing to request a change of
venue despite pretrial publicity; 3) Counsel was ineffective for
failing to adequately investigate and present evidence
supporting the diminished capacity defense; 4) Counsel was
ineffective for failing to impeach the testimony of petitioner's
mother with evidence that she had a long history of alcoholism
and was intoxicated when purported admissions were made; 5)
Petitioner was denied a fair trial and effective assistance of
counsel when the trial court permitted lay opinion testimony
from a police officer that all of petitioner's wounds were
self-inflicted; 6) The trial court erred in failing to instruct
the jury that it must find independent evidence that corpus
delicti exists beyond a reasonable doubt prior to considering
petitioner's statements, and prior counsel was ineffective for
not raising this issue; 7) The Commonwealth failed to prove
beyond a reasonable doubt that the petitioner murdered Holly
Jacobs; 8) The prosecutor engaged in improper argument, defense
counsel ineffectively failed to object, and the court took no
action to cure the error; 9) The trial court's instructions on
the torture aggravating circumstance were vague, over broad, and
in violation of petitioner's rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States
Constitution; 10) The court's charge prevented the jury from
considering and giving full effect to the mitigating evidence
regarding age in violation of the Eighth and Fourteenth
Amendments; 11) The trial court erred in failing to instruct the
sentencing jury that, if sentenced to life, petitioner would be
ineligible for parole; 12) The prosecutor improperly told the
jury that it should show petitioner the same mercy he showed the
two decedents, misstated the evidence regarding remorse and
urged the jury to rely upon the prosecutor's personal opinion
regarding what the evidence showed; 13) Petitioner's death
sentence is invalid because he did not receive the meaningful
"proportionality review" mandated by 42 Pa.C.S.A §
9711(h)(3)(iii) and the Eighth and Fourteenth Amendments; 14) To
the extent that state court counsel failed to raise and/or
properly litigate the issues discussed in his habeas corpus
petition, they were ineffective; and 15) Petitioner is entitled
to relief because of the cumulative prejudicial effect of the
errors in this case.
According to the respondents these claims can be broken down
into three kinds: 1) claims that are exhausted, having been
presented to and addressed by the Pennsylvania Supreme Court; 2)
claims that were raised for the first time in state court on
appeal to the Pennsylvania Supreme Court from the trial court's
denial of PCRA relief, which the court found to be waived as a
matter of state procedural law; and 3) unexhausted claims that
were never presented to the state court for review and are
procedurally barred from being raised at the current time.
Initially, therefore, it is important to address the issue of
which claims the petitioner is entitled to bring in a habeas
corpus petition. The law provides as follows:
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
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.
"In other words, the state prisoner must give the state courts
an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition." O'Sullivan v.
Boerckel 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1
(1999). Accordingly, for a habeas corpus claim to be heard on
its merits in federal court, the petitioner must first exhaust
his state court remedies. "This exhaustion requirement is
predicated on the principle of comity which ensures that state
courts have the first opportunity to review federal
constitutional challenges to state convictions and preserves the
role of state courts in protecting federally guaranteed rights."
Werts, 228 F.3d at 192.
In the instant case, the Pennsylvania Supreme Court found that
some of the petitioner's claims were waived and therefore, did
not address their merits. The claims were considered waived
because the Supreme Court found that they were not raised in the
lower court PCRA proceeding. Commonwealth v. Jacobs,
556 Pa. 138, 727 A.2d 545, 549-50 n. 9 (1999).*fn2 The first question
we are faced with is whether the federal courts can address the
merits of the issues that were procedurally defaulted in state
court.
To decide whether the merits of constitutional claims that
were waived in state court can be heard in federal court, it
must be ascertained whether the state procedural rule (that
barred review in state court) is "adequate" to support the
court's decision "independent" of the merits of the federal
claim. Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103
L.Ed.2d 308 (1989). This "adequate and independent" analysis
requires us to determine whether the rule is a firmly
established and regularly followed state practice because only
such a rule can be interposed by a state to prevent subsequent
federal review of constitutional claims. Ford v. Georgia,
498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Banks v.
Horn, 126 F.3d 206, 211 (3d Cir. 1997). The Third Circuit
Court of Appeals has held that state procedural rules provide
independent and adequate basis for precluding federal review of
a state prisoner's habeas corpus claims only if the following
three criteria are met: 1) the state procedural rule speaks in
unmistakable terms; 2) all state appellate courts refused to
review petitioner's claims on the merits; and 3) the state
courts' refusal is consistent with other decisions — that is,
the state rule is consistently and regularly applied. Doctor v.
Walters, 96 F.3d 675, 683-84 (3d Cir. 1996). In the instant
case, the first two factors are clearly met, and the third
factor is the only one we need discuss.
Accordingly, we must determine whether the state rule in the
instant case was a firmly established and regularly followed
state practice. The Pennsylvania Supreme Court did not provide a
detailed analysis of the waiver rule it was applying in the
instant case. It merely stated as follows: "The remainder of the
claims raised by Appellant were not asserted before the PCRA
court. Accordingly, they are waived." Jacobs, 727 A.2d at 549.
Thus, we must turn our attention elsewhere to find a discussion
of the waiver rule that was applied.
We find that the most relevant case to examine is
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998),
which extensively discusses Pennsylvania's waiver rule. In
Albrecht, the Pennsylvania Supreme Court noted that it had
been its practice to relax waiver rules in capital cases.
Albrecht, 720 A.2d at 700. That is, the court would entertain
claims that were actually waived under the law. (With regard to
this practice, the Third Circuit Court of Appeals has noted that
the Pennsylvania Supreme Court "looks beyond" procedural waiver
rules in death penalty cases. Banks v. Horn, 126 F.3d at 213
(3d Cir. 1997)). The Pennsylvania relaxed waiver rule was
created to prevent the court from being instrumental in an
unconstitutional execution. Albrecht, 720 A.2d at 700 (
Pa. 1998).
However, the Albrecht court held that waiver must
necessarily be recognized at some point in the criminal process
in order that finality be eventually achieved, and to that end
it decided that relaxed waiver would no longer be applied by the
court in capital PCRA proceedings. Id. Although Albrecht is
not specifically cited by the court in petitioner's Supreme
Court opinion, it can be assumed the court applied this rule in
deciding that several of the petitioner's claims were waived.
In considering whether this waiver rule was a firmly
established and regularly followed state practice at the time it
was applied in the instant case, we do not examine the law to
ascertain if the rule was firmly established at the time it was
applied, but at the time that the petitioner's alleged waiver
occurred. Id. at 684, 720 A.2d 693. After a careful review, we
find that the rule was not firmly established and regularly
followed state practice at the time of Jacobs' alleged waiver.
This case is akin to the Third Circuit Court of Appeals case
Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996). Doctor was a
federal habeas corpus case dealing with a Pennsylvania Supreme
Court opinion that quashed a defendant's appeal by applying a
fugitive forfeiture law. Under the fugitive forfeiture law if a
defendant became a fugitive, his appeal would be quashed, that
is forfeited. In that case, the Pennsylvania Supreme Court used
the rule to quash the defendant's appeal in 1993 even though the
defendant became a fugitive several years earlier, in 1986. An
issue in the subsequent federal habeas corpus action was whether
the state court default was independent and adequate to
foreclose federal review of the merits of the defendant's
appeal.
Likewise, in the instant case, the relevant time to examine
the waiver issue is not when the petitioner's Supreme Court
decision was handed down, but rather at the time that the
petition was filed and briefed. Relaxed waiver was the general
rule when the petitioner filed and briefed his PCRA appeal.
Jacobs' brief in support of his PCRA appeal before the
Pennsylvania Supreme Court is dated January 30, 1998, and the
reply brief is dated May 4, 1998. See Res.App. 18 and 19. The
Albrecht opinion, dispensing with the relaxed waiver rule, was
filed nearly eleven months later on November 23, 1998. We find,
therefore, that the strict application of waiver principles was
not firmly established and regularly followed state practice at
the time of petitioner's PCRA appeal. Consequently, the strict
waiver rule applied by the Pennsylvania Supreme Court is not an
adequate and independent state procedural bar to federal court
entertainment of constitutional claims, and we can appropriately
address the merits of the petitioner's contentions.
The above analysis applies to claims that the Pennsylvania
Supreme Court found were waived. We shall therefore address the
merits of these claims, infra, where appropriate.*fn3
As a preliminary matter, the respondents note that the instant
habeas corpus petition is not in compliance with Rule 2(c) of
the Rules Governing Section 2254 Cases in the United States
District Courts. Rule 2(c) provides that the petition shall be
signed under penalty of perjury by the petitioner. The original
habeas corpus petition filed in this case was not signed by the
petitioner. We find that the petitioner has remedied this defect
by attaching a verification to his reply brief, verifying that
the facts asserted in the habeas corpus petition are true. See
Attachment "A" to Petitioner's Reply Memorandum in Support of
Petition for a Writ of Habeas Corpus.
Many of petitioner's claims are raised in terms of in
effectiveness of counsel. Accordingly, before discussing the
merits of any of the issues, we will discuss the general law
regarding ineffectiveness of counsel as set forth by the United
States Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
A two-part test for judging ineffectiveness of counsel claims
was developed in Strickland. First, the defendant must show
that counsel's performance was deficient. This requirement
involves demonstrating that counsel made errors so serious that
counsel was not functioning as the "counsel" guaranteed to the
defendant by the Sixth Amendment. Id. at 687, 104 S.Ct. 2052;
Flamer v. State of Delaware, 68 F.3d 710, 727-28 (3d Cir.
1995) cert. denied 516 U.S. 1088, 116 S.Ct. 807, 133 L.Ed.2d
754 (1996). Proof must exist that counsel's representation fell
below an objective standard of reasonableness under prevailing
professional norms. Id. at 728.
The second prong of the ineffectiveness of counsel claim that
a habeas corpus petitioner must establish is that counsel's
ineffectiveness was prejudicial. Id. at 728. The Supreme Court
has held that "when a defendant challenges a death sentence . . ., the
question is whether there is a reasonable probability
that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death." Strickland, 466 U.S. at
695, 104 S.Ct. 2052,
quoted in Flamer, 68 F.3d at 728.
We must be highly deferential to counsel's decisions as there
is a strong presumption that counsel's performance was
reasonable. Strickland v. Washington, 466 U.S. at 689, 104
S.Ct. 2052. "The defendant must overcome the presumption that,
under the circumstances, the challenged action `might be
considered sound trial strategy.'" U.S. v. Kauffman,
109 F.3d 186, 189 (3d Cir. 1997) (quoting Strickland, 466 U.S. at 689,
104 S.Ct. 2052). Moreover, the Third Circuit Court of Appeals
has held that "[i]t is only the rare claim of ineffective
assistance of counsel that should succeed under the properly
deferential standard to be applied in scrutinizing counsel's
performance." Id. at 190 (quoting United States v. Gray,
878 F.2d 702, 711 (3d Cir. 1989)).
Bearing in mind this law with respect to ineffectiveness of
counsel and the analytical framework that applies to habeas
corpus cases, we now turn to the issues raised by the
petitioner.
1. Mental health mitigating evidence
First, the petitioner alleges that trial counsel was
ineffective for failing to investigate and present mental health
mitigating evidence concerning the following: petitioner's
cognitive and emotional impairments; and evidence that he
suffers from the effects of a traumatic and neglectful
childhood. The respondents contend that the Pennsylvania Supreme
Court properly denied this claim.
Before examining the manner in which the Pennsylvania Supreme
Court dealt with the instant issue, it is important to
understand the sentencing procedure for first degree murder in
Pennsylvania state court and to review the evidence that was not
presented at the sentencing hearing.
After a first degree murder verdict is recorded and before the
jury is discharged, the court conducts a separate sentencing
hearing in which the jury determines whether the defendant shall
be sentenced to death or life imprisonment. 42 Pa.C.S.A. §
9701(a). During the sentencing hearing, evidence is presented
regarding aggravating circumstances (those circumstances
favoring death) and mitigating circumstances (those
circumstances favoring life imprisonment). The jury is then
instructed that the verdict must be a sentence of death if it
unanimously finds at least one aggravating circumstance and no
mitigating circumstance or if the jury unanimously finds one or
more aggravating circumstances that outweigh any mitigating
circumstances. The verdict must be a sentence of life
imprisonment in all other cases. 42 Pa.C.S.A. § 9711(c)(iv).
At Jacobs' sentencing hearing, the prosecution simply
presented the evidence from the guilt phase of the trial.
Res.App. 8, N.T. 9/18/92 at 833-34. The defense merely called
one witness in addition to the petitioner.*fn4 The first
witness was Delois Jacobs, the petitioner's mother, who
testified about the petitioner's relationship with his younger
sister; that he loved his daughter, Holly Jacobs; and that he
was sorry that it had happened. Id. at 835-37.
After this brief testimony, the lawyers presented arguments on
the aggravating and mitigating circumstances. The jury's verdict
was a death sentence for the murder of Tammy Mock and life
imprisonment for Holly Jacobs' death. As to Tammy Mock, the jury
found the following aggravating circumstances: the offense was
committed by means of torture; and the defendant was convicted
of another murder committed either before or at the time of the
offense at issue. The jury found the following to be mitigating
factors: that the defendant was under an emotional disturbance;
and his record. Ultimately, the jury concluded that the
mitigating circumstances were outweighed by the aggravating
circumstances and a death sentence was imposed for the murder of
Tammy Mock.*fn5
Petitioner now claims that powerful mitigation evidence was
available. However, because trial counsel failed to investigate,
he was not aware of it and did not present it at the sentencing
hearing. A summary of what an investigation into the
petitioner's background would have revealed follows:
Petitioner does not have a stable family background.
Petitioner's mother was a heavy drinker and drank while she was
pregnant with him. She was beaten by his alcoholic father in
front of their children, including the petitioner. App. Ex. 4,
Declaration/Affidavit of Marjorie Winston, ¶ 8. See also App.
Ex. 5, Declaration/Affidavit of Hazel Jacobs Hinson, ¶ 10 and
App. Ex. 6, Affidavit/Declaration of Lois Jacobs, ¶ 9.
(Hereinafter "Ex. 4", "Ex. 5" and "Ex. 6" respectively).
Petitioner was afraid of his father because of the beatings he
gave his mother. Ex. 4, 8; Ex. 5, ¶ 11. The beatings would
sometimes leave her bloodied and bruised. Ex. 5, ¶ 11; App. Ex.
7, Declaration/Affidavit of Delois Jacobs, ¶ 2 (hereinafter "Ex.
7"). Eventually, petitioner's mother left her husband, and she
and her children never saw him again. Accordingly, the
petitioner never had any kind of real relationship with his
father. Id.; Ex. 4 ¶ 8.
Moreover, petitioner's mother allowed him to drink in bars
from a young age, and he began drinking at home by the age of
twelve. His mother gave him money to buy beer. His aunt came to
his house several times to find ...