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PETERKIN v. HORN

March 20, 2002

OTIS PETERKIN
V.
MARTIN HORN, ET.AL.



The opinion of the court was delivered by: J. Curtis Joyner, J.

MEMORANDUM AND ORDER

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. Peterkin's Application.

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 —
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(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 right.
(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).

Discussion

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 ...


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