The opinion of the court was delivered by: J. Curtis Joyner, J.
Petitioner now seeks the issuance of a Certificate of Appealability as
to his claim that his trial counsel was ineffective for failing to object
to the improper exclusion for cause of prospective jurors who exhibited
any skepticism about the death penalty. The Commonwealth opposes
Petitioner's Application. For the reasons which follow, we deny Mr.
Standards Governing Applications Under 28 U.S.C. § 2253
Since the enactment of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), appeals from decisions in habeas corpus cases
arising out of state proceedings have been determined by the following
version of Section 2253:
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be
taken to the court of appeals from —
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional
(3) The certificate of appealability under paragraph
(1) shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
To obtain a certificate of appealability ("COA") under § 2253(c), a
habeas prisoner must therefore make a substantial showing of the denial
of a constitutional right, a demonstration that includes showing that
reasonable jurists could debate whether (or for that matter agree that)
the petition should have been resolved in a different manner or that the
issues presented were "adequate to deserve encouragement to proceed
further." Slack v. McDaniel, 529 U.S. 473, 483-484, 120 S.Ct. 1595,
1603-1604, 146 L.Ed.2d 542 (2000), quoting Barefoot v. Estelle,
463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Thus,
where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward. The petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims
debatable or wrong. Slack, 120 S.Ct. at 1604. See Also: U.S. v. Cepero,
224 F.3d 256, 262-263 (3d Cir. 2000).
Here, Petitioner argues that under the Third Circuit's recent decision
in Szuchon v. Lehman, 273 F.3d 299 (3d Cir. 2001), he is entitled to
appellate review of this Court's denial of habeas corpus relief for his
trial counsel's ineffective failure to object to the improper exclusion
for cause of several prospective jurors.*fn1 In Szuchon, also a death
penalty case, the petitioner alleged that the trial court improperly
allowed the exclusion for cause of six prospective jurors who voiced
opposition to the death penalty. In granting the petitioner a new trial
for his trial counsel's failure to object to the prosecution's challenge
for cause of one potential venireman because he expressed disbelief in
the death penalty, the Third Circuit merely followed earlier Supreme
Court precedent originally established in Witherspoon v. Illinois,
391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and its progeny.
Indeed, in Witherspoon, the Court held "that a sentence of death cannot
be carried out if the jury that imposed or recommended it was chosen by
excluding veniremen for cause simply because they voiced general
objections to the death penalty or expressed conscientious or religious
scruples against its infliction. No defendant can constitutionally be put
to death at the hands of a tribunal so selected."
Witherspoon, 391 U.S.
at 521-522, 88 S.Ct. at 1777.
Witherspoon's holding is grounded in the right to a fair and impartial
jury guaranteed to state criminal defendants by the Sixth and Fourteenth
Amendments and thus veniremen can be excluded based on their views on
capital punishment only if they would be biased and lack impartiality in
hearing the case. Szuchon, 273 F.3d at 327. Stated otherwise, it is now
the general proposition "that a juror may not be challenged for cause
based on his views about capital punishment unless those views would
prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath." Adams v. Texas,
448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980).
As with any other trial situation where an adversary wishes to exclude
a juror because of bias, it is the adversary seeking exclusion who must
demonstrate, through questioning, that the potential juror lacks
impartiality. Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 852,
83 L.Ed.2d 841 (1985). It is then the trial judge's duty to determine
whether the challenge is proper. Id. Thus, before it can sustain the
exclusion, the judge must make a factual determination that the
prospective juror would be biased and, on federal habeas review, that
determination of bias is entitled to the presumption of correctness.
Szuchon, 273 F.3d at 328. It should be noted, however, that
determinations of juror bias cannot be reduced to question-and-answer
sessions which obtain results in the manner of a catechism. This is
because many veniremen simply cannot be asked enough questions to reach
the point where their bias has been made ...