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August 30, 2005.

JAMES S. PRICE, Respondent.

The opinion of the court was delivered by: DONETTA AMBROSE, District Judge


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 hearing.

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 hearing.


  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 order.


  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 convicted.*fn1

  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 718-75).

  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 833).

  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 hearing:
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 me.
(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 mental-health experts.

  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. ...

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