United States District Court, W.D. Pennsylvania
August 30, 2005.
CHARLES EUGENE CROSS, Petitioner,
JAMES S. PRICE, Respondent.
The opinion of the court was delivered by: DONETTA AMBROSE, District Judge
OPINION and ORDER OF COURT
On March 1, 1982, a jury empaneled by the Court of Common Pleas
of Beaver County convicted Petitioner, Charles E. Cross, of
three-counts of first-degree murder for the brutal killings of
Denise Lucic and her two children, Danielle, age seven, and John
Jr., age three. Following a separate penalty hearing, the jury
sentenced Cross to death for each conviction of first-degree
murder. The validity of Cross' convictions for those heinous
murders is not at issue today. (See Doc. 60; Doc. 68 at 9 n. 1;
Doc. 93). His sentences for death are. Cross contends that the
penalty proceedings against him were infected with federal
constitutional error and that he is entitled to a new penalty
Under Pennsylvania's sentencing scheme, a jury in a capital
case that has convicted a defendant of first-degree murder must
decide at a separate penalty hearing whether to sentence the defendant to death or to life in
prison. At his penalty hearing, Cross took the stand and told the
jury that, if they sentenced him to life imprisonment, he would
later be released on parole and "get on with his life." (Trial
Tr. at 818). This was a clear misstatement of Pennsylvania law,
which actually provides that Cross would never be eligible for
parole if sentenced to life in prison. Cross' trial counsel did
not request a curative instruction to inform the jury of the true
alternatives they faced in sentencing Cross. As a result, the
jury deliberated its sentence under the incorrect and "highly
prejudicial" belief that Cross would one day be back on the
streets if they did not sentence him to death. Carpenter v.
Vaughn, 296 F.3d 138, 158 (3d Cir. 2002). Under these
circumstances, I am constrained to hold that counsel's failure to
request a curative instruction, and his predicate failure to
properly prepare Cross so as to avoid the misstatement of state
law, violated Cross' Sixth Amendment right to effective
assistance of counsel. Counsel's error permeated the entire
sentencing process and undermines confidence in the outcome of
the penalty hearing. Accordingly, I shall vacate Cross' death
sentences and direct that the Commonwealth conduct a new penalty
This case is before me for the second time. In 1997, I rejected
Cross' claims for federal habeas corpus relief. (Docs. 68 & 71).
Following an appeal, the United States Court of Appeals for the
Third Circuit remanded for further review. Because of the
somewhat complex and protracted nature of these proceedings, a
summary of the relevant factual and procedural history of the case is in
At Cross' penalty hearing, the prosecution sought to establish
two aggravating circumstances. First, it sought to establish that
Cross had a significant history of felony convictions involving
the use or threat of violence to the person, 42 PA.CONS.STAT. §
9711(d)(9). In support, it presented evidence that in 1974 Cross
had been convicted of rape and sodomy in Fairfax County,
Virginia, and was sentenced to serve fifteen years in prison for
the rape conviction. (Trial Tr. at 713). During the presentation
of this evidence, the jury also learned that Cross only served
approximately five years of that sentence before he received
parole and moved to Pennsylvania. (Id. at 712-13). Second, the
prosecution sought to establish that Cross had been convicted of
another offense, committed either before or at the time of the
offense at issue, for which a sentence of life imprisonment or
death was imposable, 42 PA.CONS.STAT. § 9711(d)(10). The prior
rape conviction was offered in support of this factor, as were
the murder convictions for which Cross was just
The defense presented evidence in an effort to establish four
mitigating circumstances: (1) that Cross had no significant
history of prior criminal convictions, id., § 9711(e)(1); (2)
that he was under the influence of extreme mental or emotional disturbance at the time of the murders, id., § 9711(e)(2); (3)
that his capacity to appreciate the criminality of his conduct or
to conform his conduct to the requirements of law was
substantially impaired, id., § 9711(e)(3); and (4) that there
were other mitigating circumstances, id., § 9711(e)(8). In
support of its mitigation case, the defense presented the
testimony of Cross (Trial Tr. at 817-18) and the testimony of Dr.
Thomas M. Eberle, a clinical and forensic psychologist. (Id. at
After conducting its deliberations, the jury found that the two
aggravating circumstances outweighed any mitigating circumstances
and sentenced Cross to death on each count of murder. (Id. at
Cross unsuccessfully challenged his judgment of sentence on
direct appeal, Commonwealth v. Cross, 496 A.2d 1144 (Pa. 1985),
and in a proceeding conducted under the Pennsylvania Post
Conviction Relief Act ("PCRA"), Commonwealth v. Cross,
634 A.2d 173 (Pa. 1994). On April 20, 1995, he initiated federal habeas
corpus proceedings in this Court pursuant to
28 U.S.C. § 2254.*fn2 The case was referred to Magistrate Judge Kenneth
J. Benson. On September 12, 1995, Cross filed an Amended Petition
for Writ of Habeas Corpus. (Doc. 37). Therein, he raised numerous
claims and subclaims for relief.
In a claim that will hereinafter be referred to as "Claim 1,"
Cross contended that his trial attorney provided him with
ineffective assistance of counsel contrary to the guarantees of the Sixth Amendment by allowing him to
misstate to the jury, without subsequent correction, that he
would be eligible for parole in twenty years if sentenced to life
in prison. (Doc. 37 ¶ 46k). This claim was premised upon the
following statement Cross made to the jury during the penalty
This jury of twelve people ha[s] found me guilty of a
crime that I did not commit. I stand before God
Almighty as an innocent man. While you found? me
guilty the guilty parties are still on the street.
Eventually they are going to kill again. When they
kill again possibly a confession could come forth. If
you send me to the electric chair it won't help me
any. If you send me to a penitentiary for life, at
least I could be released and get on with my life. I
plead with this jury that you come back with a life
sentence. And it is going to be a long sentence
since I have time waiting for me in Virginia of
fifteen years. From my understanding I will spend
twenty years before I am eligible for parole here.
That's thirty-five years I will be spending behind
bars. I have nothing more to say. Just have mercy on
(Trial Tr. at 817-18 (emphasis added)).
Cross' statement regarding his eligibility for parole if given
a sentence of life imprisonment was incorrect as a matter of
Pennsylvania law. Cross, 634 A.2d at 178; see also 42
PA.CONS.STAT. § 9711(a)(1); PA.STAT. tit. 61, § 331.21(a). In
Pennsylvania, a defendant sentenced to life in prison is not
eligible for parole.*fn3 Id.
In a claim that will hereinafter be referred to as "Claim 2,"
Cross contended that his trial counsel provided him with
ineffective assistance by failing to adequately investigate and
present available evidence of mitigating factors to support the defense's case that Cross should be sentenced to life
in prison. (Doc. 37 ¶ 46a-e; see also id. at ¶¶ 6-13). To
support Claim 2, Cross relied upon testimony presented during the
state PCRA hearing and statements given by his family members and
Approximately one month after he filed his Amended Petition,
Cross filed with this Court the Affidavit of Melvin P. Melnick,
M.D. (Doc. 44). Dr. Melnick is the psychiatrist who testified on
behalf of the Commonwealth during the penalty phase of Cross'
trial. (Id. ¶ 2).*fn4 Cross used Dr. Melnick's affidavit
to supplement the evidentiary support for Claim 2,*fn5 but
he acknowledged that he had never presented Dr. Melnick's
affidavit to the state courts. (Doc. 60 at 46). In order to
exhaust claims premised upon Dr. Melnick's affidavit, Cross filed
a second PCRA petition with the Court of Common Pleas of Beaver
County in January 1997. (Doc. 105, Ex. 1). On March 6, 1997, the
PCRA court denied the petition. (Id., Exs. 7, 13, & 14). Cross
appealed to Supreme Court of Pennsylvania. (Id., Exs. 8-12,
In the meantime, on March 27, 1997, Magistrate Judge Benson
issued his Report and Recommendation ("R&R") to this Court. (Doc. 68). He
recommended that all of Cross' claims be denied. On May 13, 1997,
after de novo review of the pleadings and documents in the
case, together with the R&R and Cross' objections thereto (Doc.
70), Magistrate Judge Benson's R&R was adopted as the Opinion of
this Court. (Doc. 71).
All of Cross' Sixth Amendment ineffective assistance of counsel
claims were reviewed within the framework set forth in
Strickland v. Washington, 466 U.S. 668 (1984). Pursuant to
Strickland, to prevail on an ineffective assistance of counsel
claim the petitioner must first show that his counsel's
representation fell below an objective standard of
reasonableness. 466 U.S. at 688-90. This requires a showing that
counsel made errors so serious that he or she was not functioning
as the "counsel" guaranteed by the Sixth Amendment. Id. Second,
the petitioner must show that his counsel's deficient performance
prejudiced the defense. To prove prejudice, the petitioner "must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Id. at 694; see also id. 692-97.
With respect to Claim 1, I determined that Cross had satisfied
the first prong of Strickland. I concluded his trial counsel's
failure to properly prepare Cross and his subsequent failure to
correct Cross' misstatement of law amounted to objectively
unreasonable representation. (Doc. 68 at 29-36). I held that
counsel's inaction was "clearly erroneous" and that "there is no
reasonable strategy presented in this case for not attempting to correct the misstatement."
(Id. at 32-35).
I further determined, however, that Cross was not entitled to
habeas relief on Claim 1 because he had not demonstrated that
counsel's error prejudiced him. Central to my analysis was the
United States Supreme Court's decision in Simmons v. South
Carolina, 512 U.S. 154 (1994). In Simmons, the defendant was
convicted of first-degree murder in South Carolina state court
and the jury had to deliberate whether to sentence him to death
or life in prison. 512 U.S. at 157-58. Under South Carolina law,
he was ineligible for parole if sentenced to life. Id.
Nonetheless, at the penalty hearing the prosecutor explicitly
argued that the jury should impose a death sentence because the
defendant would be a future danger to society if sentenced to
life. Id. at 157. The Supreme Court held that under these
circumstances, the Due Process Clause of the Fourteenth Amendment
required that the trial judge instruct the jury that the
defendant, if not sentenced to death, would receive a sentence of
life imprisonment without the possibility of parole.*fn6
Id. at 156-78.
After determining that Simmons applied retroactively to this
case,*fn7 I decided that because the prosecution did not
argue Cross' future dangerousness, this case was distinguishable from, and less compelling than, Simmons.
Although I acknowledged that I was genuinely uneasy about the
impact counsel's error may have had on the jury's deliberation, I
ultimately determined that defense counsel's failure to correct
the misstatement of state law did not entitled Cross to habeas
corpus relief on Claim 1. (Doc. 68 at 29-37).
I also determined that Cross was not entitled to habeas relief
on Claim 2. I noted that I considered Dr. Melnick's affidavit in
reviewing this claim, and still determined that habeas corpus
relief was not warranted.*fn8 (Id. at 12; see also
id. at 28 n. 9).
On June 12, 1997, Cross appealed this Court's decision to the
Court of Appeals. (Doc. 72). At the same time, he was pursing an
appeal to the Supreme Court of Pennsylvania challenging the
Common Pleas Court's decision to deny him relief on his second
PCRA petition. (Docs. 105 & 106). In September 1997, he filed a
motion with the Court of Appeals requesting that the proceedings
before it be held in abeyance pending the exhaustion of his Dr.
Melnick claims in the state court appeal. (Doc. 107, Ex. G). The
Court of Appeals granted Cross' motion and stayed the proceedings
before it. (Id., Ex. N). In January 1998, Cross supplemented his appeal in the
Pennsylvania Supreme Court to include an additional claim. (Doc.
106, Ex. 27). He contended that the jury instructions and verdict
sheets during the penalty phase violated the Eighth Amendment by
informing the jury erroneously that they had to unanimously agree
on the existence of any mitigating circumstance before they could
use that circumstance in the life-or-death weighing process with
the aggravating circumstance. He asserted that under the rule set
forth in Mills v. Maryland, 486 U.S. 371 (1988), the jury
should have been informed that each member could decide for
himself or herself which mitigating circumstances existed and
that he or she could use that circumstance in deciding with the
rest of the jury what sentence to impose. Cross further contended
that a recent decision issued by the Court of Appeals, Frey v.
Fulcomer, 132 F.3d 916 (3d Cir. 1997), compelled relief in his
case.*fn9 (Doc. 106, Ex. 27).
On February 25, 1999, the Pennsylvania Supreme Court issued its
decision denying Cross relief on his second PCRA petition.
Commonwealth v. Cross, 726 A.2d 333 (Pa. 1999). It held that
claims premised upon Dr. Melnick's affidavit were untimely under
the PCRA's statute of limitations. Cross, 726 A.2d at 606-11.
It also denied the Mills claim on the merits. It noted that
"[a]lthough the charge given in this case is indistinguishable
from the charge in Frey," it disagreed with the Court of
Appeal's holding in Frey that the charge "creates an ambiguity
as to whether the jury was required to find both aggravating circumstances and
mitigating circumstances unanimously." Id. at 612. It further
held, inter alia, that the rule announced in Mills was a "new
rule" under the retroactivity analysis set forth in Teague v.
Lane, 489 U.S. 288 (1989),*fn10 and therefore could not be
applied retroactively to Cross' case because that decision was
issued after direct review of Cross' judgment of sentence
concluded. Id. at 613 n. 4.
After the Pennsylvania Supreme Court issued its decision, Cross
filed a motion with the Court of Appeals requesting that this
case be remanded to the district court "to conduct such
proceedings as are deemed appropriate by that court and to
consider and review its opinion and order in light of the two
newly exhausted claims resolved by the courts of the Commonwealth
of Pennsylvania." (Doc. 107, Ex. O). The Court of Appeals granted
Cross' Motion, and on August 2, 2001, this case was
remanded.*fn11 (Doc. 80).
Presently, Cross requests that the Court consider three issues.
First, he asks me to reconsider my dismissal of Claim 1 in light of intervening
Court of Appeals' authority, Carpenter v. Vaughn, 296 F.3d 138
(3d Cir. 2002). In Carpenter, the Court of Appeals determined
that the petitioner had received ineffective assistance of
counsel when his trial attorney failed to correct a misstatement
of law that may have misled a capital jury that he could be
paroled if sentenced to life in prison. Second, he asks me to
reconsider the dismissal of Claim 2. Included within this claim
is his contention that his trial counsel should have gathered and
developed social and family history information and provided that
to Dr. Melnick prior to the penalty hearing.*fn12 Third, he
raises an Eighth Amendment claim, arguing that the jury
instruction and verdict slip employed at sentencing violated the
rule announced in Mills.*fn13 He also claims that that
same jury instruction and verdict sheet violated his Fourteenth
Amendment due process rights.
Because I conclude that a writ of habeas corpus is to be issued
with respect to Claim 1,*fn14 I decline Cross' request to
reconsider Claim 2 or decide the merits of his new Eighth Amendment and Fourteenth Amendment claims, as any
relief he could obtain on those claims would be cumulative.
Almost thirteen months after the remand (and while these
proceedings were stayed pending the Supreme Court's decision on
Banks v. Horn, supra note 11), the Court of Appeals issued
its decision in Carpenter v. Vaughn, 296 F.3d 138 (3d Cir.
2002). In that case, the petitioner, James Carpenter, was
convicted of first-degree murder in Pennsylvania state court and
was sentenced to death. Carpenter, 296 F.3d at 141. At the
penalty hearing, the prosecution sought to establish one
aggravating circumstance that Carpenter had "a significant
history of felony convictions involving the use or threat of
violence to the person." Id. at 142 (quoting 42 PA.CONS.STAT. §
9711(d)(9)). To establish this aggravating circumstance, the
prosecution proved that Carpenter had previous convictions for
third-degree murder and assault by a prisoner. Id. at 156. The
jury also learned that Carpenter had been released on parole
after serving time for the prior murder. Id.
After a period of deliberation, the jury asked the following
question: "Can we recommend life imprisonment with a guarantee of
no parole[?]" Id. at 156. The judge stated to them:
The answer is that simply, no absolutely not.
Moreover, ladies and gentlemen, you talk about
recommendation. I don't know exactly what you mean,
but I assume you remember what I told you before,
that you as a jury at this point are not making a
recommendation of death or life imprisonment. I hope you understand that. You
folks are actually fixing the sentence, and not the
Court. It is not the recommendation. Whether you mark
on there death, that's the sentence and there is
nothing this Court can do about it. The Court has
nothing to do on it. If you mark life imprisonment,
there is nothing this Court can do about it or wants
to do about it, because that decision is entirely up
to you as members of the jury. So, I hope you
understand that it is not a recommendation, it is a
sentence that will bind all of us here to whatever
you fix and it's going to have to be very simply
death or life imprisonment. And the question of
parole is absolutely irrelevant. I hope that you
Id. (emphasis in original). Carpenter's trial counsel did not
object to this answer or request clarification or amplification.
Following an unsuccessful appeal in state court, Commonwealth
v. Carpenter, 617 A.2d 1263 (Pa. 1992), Carpenter filed a
petition for writ of habeas corpus in the United States District
Court for the Middle District of Pennsylvania. He claimed his
trial counsel provided him with ineffective assistance of counsel
for failing to object to the judge's response, which he contended
intimated to the jury that he would be eligible for parole if
sentenced to life imprisonment. See Carpenter v. Vaughn,
888 F.Supp. 635 (M.D. Pa. 1994); Carpenter v. Vaughn,
888 F.Supp. 658 (M.D. Pa. 1995).
The district court agreed that the judge's response to the jury
conveyed the misleading impression that a sentence of life
imprisonment without parole was not available. Carpenter,
888 F.Supp. at 650. The court then ruled that a Simmons due process
claim "was inherent" in the Sixth Amendment claim of ineffective
assistance of counsel. Id. After receiving additional briefing
on the issue, the district court distinguished Carpenter's case
from Simmons, noting that "the prosecutor in this case did not make a direct argument concerning petitioner's
future dangerousness." Carpenter, 888 F.Supp. at 668.
Accordingly, it determined that due process did not require that
an instruction be given regarding Carpenter's parole
ineligibility. Because due process did not require the
instruction regarding parole ineligibility, the district court
reasoned, Carpenter's counsel was not ineffective for failing to
request a curative instruction that would inform the jury of its
true sentencing options, notwithstanding that the judge's
response arguably misstated those options under Pennsylvania law.
Carpenter, 888 F.Supp. at 665-68; Carpenter,
888 F.Supp. at 650-51.
The Court of Appeals reversed. Carpenter, 295 F.3 at 156-60.
It stated that: "In a case in which it had been proven that the
defendant was a homicidal recidivist who had previously been
paroled and in which it was apparent that the jury was concerned
about the possibility of future parole," the judge conveyed "a
potentially devastating message" to the jury: that Carpenter
could be eligible for parole if he was not executed. Id. at
157-58. It held that counsel's failure to object to or correct
the judge's response to the jury was objectively unreasonable:
This was a situation in which assistance from counsel
might very well have corrected the problem. The trial
judge knew that Carpenter could not be paroled while
serving a life sentence. If Carpenter's attorney had
told the judge that his answer inadvertently conveyed
the contrary impression and thus misstated
Pennsylvania law on a point that could play a
critical role in the jury's role, we have little
doubt that the judge would have corrected his answer.
Id. at 157-58. The Court of Appeals then held that counsel's
error had a "highly prejudicial impact" on Carpenter's case. Id. at 158.
The Court of Appeals also emphasized that the district court
erred when it conflated Carpenter's Sixth Amendment ineffective
assistance of counsel claim with a Simmons due process claim.
Id. at 159. It explained that even if due process did not
mandate that the jury be informed that Carpenter was not eligible
for parole if sentenced to life in prison, the trial court's
misstatement of the jury's true sentencing options under state
law required Carpenter's counsel to request a curative
instruction. It stated:
We thus hold that the failure of trial counsel to
object based on state law? to the judge's answer to
the jury's question violated Carpenter's
constitutional right to the effective assistance of
counsel. To dispel any possible confusion, we
emphasize that our holding is not based on any other
federal constitutional right or on Simmons.18
18 . . . Our decision here is not based on due
process but on the right to the effective assistance
of counsel, and our decision is not based on the
prosecution's raising of the issue of the defendant's
future dangerousness but on defense trial counsel's
failure to object when the trial judge gave a
dangerously misleading response to the jury's
question about the availability of a life sentence
Id. at 159 & n. 18.
I agree with Cross that Carpenter dictates that he is
entitled to habeas relief on Claim 1. The material facts of this
case and Carpenter are compellingly similar. Here, as in
Carpenter, the jury was misinformed that the defendant would be
released on parole if it did not sentence him to death. Here, as
in Carpenter, defense counsel's error allowed the
misinformation to go uncorrected. And here, as in Carpenter, the jury was aware that the defendant had
committed the murders for which he was being sentenced after
having been released on parole on a sentence he was serving for a
violent crime (in this case, Cross' Virginia rape and sodomy
conviction). Id. at 156.
The Court of Appeals determined that defense counsel's
deficient representation in Carpenter, which resulted in the
"misleading impression" that his client would one day be eligible
for parole if sentenced to life, had "a potentially devastating
effect" on the defense case. Id. at 157. Defense counsel's
failure to correct the misstatement of the capital sentencing
options in Carpenter was deemed "highly prejudicial" by the
Court of Appeals, id. at 158, and its decision compels us to
conclude the same here.
In addition, I also am persuaded by Cross' contention that the
prejudice caused by his trial counsel's error was compounded by
the effect the defense's mental-health mitigation evidence would
have had on a jury operating under the erroneous belief that
Cross would be paroled if sentenced to life. As noted above, at
the penalty hearing, Cross presented expert mental-health
evidence to establish that Cross had serious mental problems and
that he had an uncontrollable propensity for violence.*fn15
This mental-health testimony was intended by defense counsel to assist Cross in making a case for a life sentence by
demonstrating statutorily-enumerated mitigating circumstances.
However, with Cross' own misstatement of state law left
uncorrected, it is reasonably probable that this intended
mitigation evidence worked against him because the jury was: (1)
told by the defense expert that Cross was uncontrollably violent,
and (2) told by Cross himself that he would one day be back out
on the streets if they did not sentence him to death. The
Commonwealth does not contest that as a result, the jury was
prevented from considering and giving full effect to the
mitigating evidence presented. Nor does it contest Cross'
argument that counsel's error also essentially transformed the
defense's mitigating evidence into powerful non-statutory
aggravating circumstances that supported the imposition of
The Commonwealth presents several arguments in opposition to
Claim 1. (Doc. 109 at 4). It first argues that the "law of the
case" doctrine precludes the Court from reexamining the claim.
That doctrine "expresses the practice of courts generally to
refuse to reopen what has been decided." Williams v. Runyon,
130 F.3d 568, 573 (3d Cir. 1997) (internal quotations and
citations omitted). "As most commonly defined, the doctrine
posits that when a court decides upon a rule of law, that
decision should continue to govern the same issue in subsequent
stages in the same case." Arizona v. California, 460 U.S. 605,
618 (1983) (citations omitted). The doctrine of law of the case, however, "directs the court's
discretion, it does not limit the tribunal's power." Id.;
Schultz v. Onan Corp., 737 F.2d 339, 345 (3d Cir. 1984). It is
a presumption that the court will not reconsider its previous
ruling, but it "is no more than a presumption, one whose strength
varies with the circumstances[.]" Avitia v. Metro. Club of
Chicago, 49 F.3d 1219, 1227 (7th Cir. 1995). The doctrine
"is not a straightjacket[,]" id., nor is it a "barrier to the
correction of judicial error." Schultz, 737 F.2d at 345.
Under the circumstances of this case, it is proper to reexamine
Claim 1. Like the district court in Carpenter, when I first
ruled on Claim 1 in 1997, I incorrectly centered my Sixth
Amendment ineffective assistance analysis on whether Simmons'
due process ruling required that a curative instruction be given
during Cross' penalty hearing regarding the jury's true
sentencing options. Because I found this case distinguishable
from Simmons, I determined relief in this case was not
warranted. The Court of Appeals' decision in Carpenter has
disabused me of my reliance upon Simmons, and has made clear to
me that Cross' trial counsel's failure to request an instruction
to cure the misstatement of state law violated Cross'
constitutional right to the effective assistance of counsel. I
have the opportunity to correct my error and it is incumbent upon
me to do so in light of the new authority. See Schultz,
737 F.2d at 345-46 (reconsideration of previously decided claim
within the court's discretion when, inter alia, there is an
announcement of supervening new law, or the earlier decision was
clearly erroneous and would create manifest injustice.);
Avitia, 49 F.3d at 1227 ("A judge may reexamine his earlier ruling . . . if he has a conviction at once strong and reasonable
that the earlier ruling was wrong, and if rescinding it would not
cause undue harm*fn16 to the party that had benefitted from
Next, the Commonwealth attempts to distinguish Carpenter on
the merits. It argues that the question of parole ineligibility
was injected into this case by Cross himself, whereas in
Carpenter it arose from the trial court's answer to a question
from the jury. This argument fails to recognize that Cross'
misstatement resulted from defense counsel's predicate failure to
properly prepare his client. If trial counsel had properly
prepared Cross, he could have prevented his client from making
the significant misstatement of law in the first place. Moreover,
once Cross incorrectly told the jury he would be eligible for
parole if sentenced to life imprisonment, his counsel could have
and should have requested that the trial court correct the
misstatement. Carpenter, 296 F.3d at 158. His failure to do so
was objectively unreasonable. Id.
Also unpersuasive is the Commonwealth's attempt to distinguish
Carpenter by arguing that the jury's question in Carpenter
indicated that it was considering a life sentence, but there was
no such indication in this case. As Cross points out, however,
the distinction actually works to support his claim. If there was
no such jury question in this case,*fn17 it was likely because there
was no jury confusion as to the length of a life sentence and the
availability of parole. The jury reasonably believed what it had
been told by Cross uncorrected by counsel or the trial court
that he would be eligible for parole from a life sentence after
twenty years, and that because of back-time owed to Virginia, he
would be eligible for release after thirty-five years. Because
the jury in Cross' case was expressly informed that Cross would
be released on parole, there was no need for the jury to ask for
clarification of its sentencing options.
Finally, the Commonwealth argues that in light of the
"overwhelming evidence," the outcome of the penalty proceeding
would have been the same notwithstanding counsel's error.
Although I do not dispute that the aggravating circumstances
offered by the prosecution in this case were compelling, I cannot
have confidence in the jury's sentences of death for all of the
aforementioned reasons. Defense counsel's error resulted in the
interjection of a profound, lasting, and wholly incorrect
consideration into the jury deliberations. It vitiated the
defense's mitigating evidence and skewed the weighing of the
aggravating and mitigating evidence.
Because a death sentence is qualitatively different from other
forms of punishment, there is a greater need for reliability in
determining whether it is appropriate in a particular case. See
e.g., Woodson v. North Carolina, 428 U.S. 280, 305 (1976). Here, defense counsel's error was too egregious, the
stakes were too high, and the likelihood of prejudice too great
to deny habeas corpus relief. Although a curative instruction may
not have assured Cross the avoidance of the death penalty, he has
met his burden of establishing that that outcome is within the
realm of reasonable probability as defined in Strickland,
466 U.S. at 694. Accordingly, Cross is entitled to a new sentencing
An appropriate order follows. ORDER OF COURT
AND NOW this 30th day of August 2005, after careful
consideration and for the reasons set forth in the accompanying
Opinion, it is ORDERED that:
1. To the extent that Petitioner seeks relief from
his sentences of death under Claim 1, his request for
habeas corpus relief and Amended Petition (Docket No.
37) is GRANTED;
2. The execution of the writ of habeas corpus is
STAYED for 120 days from the date of this Order,
during which time the Commonwealth of Pennsylvania
may conduct a new sentencing hearing;
3. After one hundred twenty (120) days, should the
Commonwealth of Pennsylvania not conduct a new
sentencing hearing, the writ shall issue and the
Commonwealth shall sentence Petitioner to life
4. In accordance with 28 U.S.C. § 2253 (1994)
(superseded by AEDPA), a certificate of probable
cause is issued; 5. If either party files an appeal to the United
States Court of Appeals for the Third Circuit, this
Order will be stayed pursuant to W.D. Pa. Local R.
6. In accordance with the above, this case is marked
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