The opinion of the court was delivered by: Joyner, J.
This matter has been brought before the Court on Motion of the Petitioner, Roger Judge, for Partial Summary Judgment as to Claim V of his Petition for Habeas Corpus (Docket No. 62). After careful consideration, the Motion shall be granted for the reasons set forth below.
On April 15, 1987, Petitioner was convicted of two counts of first degree murder and one count of possession of an instrument of crime for the deaths of Christopher Outterbridge and Tabitha Mitchell*fn1 and sentenced to death following a jury trial in the Philadelphia County Court of Common Pleas. Following the denial of post-trial motions, the trial judge, the Honorable Albert F. Sabo, formally sentenced Mr. Judge to death on June 12, 1987 in accordance with the jury's sentencing verdict. Two days later, Petitioner escaped from Holmesburg Prison in Philadelphia and fled to Vancouver, Canada where, on July 13, 1988, he was convicted of two robberies and sentenced to ten years imprisonment. His Canadian convictions were affirmed on appeal.*fn2
On August 11, 1987, while Petitioner was a fugitive, his convictions and death sentences were certified for automatic appeal to the Pennsylvania Supreme Court. Acting sua sponte on December 22, 1989, the Pennsylvania Supreme Court issued a per curium order which limited its review to sufficiency of the evidence and propriety of the sentence "as required by Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed. 2d 1327, reh'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed. 2d 1452..." See, Commonwealth v. Judge, 530 Pa. 403, 405, 609 A.2d 785, 786, n.4 (1992). Despite this, Petitioner's attorney raised several claims of trial error for review. Acknowledging that it had "the authority to correct errors at trial which the appellant raises," the Supreme Court noted that its "rules expressly provide for the quashing of an appeal when the appellant is a fugitive..., and it is within the discretion of this Court to take such action sua sponte ... Additionally, this Court has held that 'a defendant who elects to escape from custody forfeits his right to appellate review.'" Judge, 609 A.2d at 786, (citing Pa.R.A.P. 1972(6), Commonwealth v. Passaro, 504 Pa. 611, 616, 476 A.2d 346, 349 (1984) and Commonwealth v. Tomlinson, 467 Pa. 22, 354 A.2d 254 (1976) (emphasis in original)). The Court went on to review the case record and found that the evidence produced was sufficient beyond a reasonable doubt to support the first degree murder convictions and that the sentences of death imposed were neither excessive nor disproportionate to the penalty imposed in similar cases. It therefore affirmed the petitioner's convictions and death sentence. Judge, 609 A.2d at 790-791.
On June 15, 1993, Petitioner was ordered deported from Canada but the deportation order was made conditional because Petitioner had announced his intention to claim refugee status. Thereafter, he withdrew this claim and the deportation order became effective on June 8, 1994. However, on January 26, 1995, on recommendation of the Correctional Services of Canada, Mr. Judge's case was reviewed by the National Parole Board, which ordered that he be detained in Canada to serve out the balance of his sentence or until August 8, 1998.
On November 10, 1997, the petitioner wrote to the Canadian Minister of Citizenship and Immigration requesting ministerial intervention to stay the deportation order against him until such time as the United States sought to extradite him. Apparently, Petitioner was aware that if the U.S. sought to extradite him, Canada could ask for assurances from the U.S. that he would not be executed.*fn3 Via letter dated February 18, 1998, however, the Canadian Minister refused this request. Petitioner then applied to the Federal Court of Canada for leave to commence an application for judicial review of the Minister's refusal and for a stay of the deportation order and a declaration that his detention in Canada and deportation to the U.S. violated his rights under the Canadian Charter. This application was summarily denied on June 23, 1998 and Mr. Judge then petitioned the Superior Court of Quebec, which had concurrent jurisdiction with the Canadian Federal Court for identical relief. That Court, on August 6, 1998, declined to exercise jurisdiction because proceedings had already been undertaken in the Federal Court and the following day, Mr. Judge filed a complaint with the Human Rights Committee of the United Nations claiming that Canada violated articles 6, 7, 10 and 14 of the International Covenant on Civil and Political Rights ("ICCPR") by deporting him to face a sentence of death in Pennsylvania. On August 9, 1998, Canada deported the petitioner to New York and Pennsylvania thereafter had him extradited back to the Commonwealth. Eventually, the United Nations' Human Relations Committee determined, via published decision dated August 13, 2003, that Canada had violated articles 2 and 6 of the ICCPR by deporting the petitioner from Canada to the U.S. where he faced the death penalty without receipt of assurances from the U.S. that the penalty would not be carried out and by failing to afford him the opportunity to appeal the deportation decision prior to his having been removed from Canada to the U.S. Judge v. Canada, U.N. Human Rights Committee 78th session, CCPR/C/78/D/829/1998 (13 August 2003).
While still confined in Canada, on January 14, 1997, Mr. Judge had also filed a pro se petition in the Philadelphia County Court of Common Pleas under Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S. §9542, et. seq. which was subsequently amended on February 16, 1999 after counsel was appointed to represent him. The Court of Common Pleas dismissed the petition without a hearing on July 27, 1999, giving as the reason therefor that Petitioner's fugitive status had forfeited his post-conviction rights and that decision was affirmed by the Pennsylvania Supreme Court on May 23, 2002. See, Commonwealth v. Judge, 568 Pa. 377, 797 A.2d 250 (2002).
On August 16, 2002, Petitioner filed a Petition for Writ of Habeas Corpus in this Court, along with a second petition under the PCRA seeking relief under the U.S. Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002)(holding that U.S. Constitution places significant restrictions on a state's power to execute a mentally retarded offender).*fn4 In addition, on October 10, 2003, he filed yet another petition in the state courts captioned Petition for Statutory Habeas Corpus Relief and Habeas Corpus Relief under Article I, Section 14 of the Pennsylvania Constitution and/or for Statutory Post-Conviction Relief Under the Post Conviction Relief Act in reliance upon the findings of the U.N. Human Rights Committee that Canada had violated the ICCPR in deporting him to the United States. This Court then stayed the instant habeas proceedings to enable Petitioner the opportunity to exhaust these claims in the Pennsylvania courts. In an Opinion dated May 12, 2005, the Philadelphia County Court of Common Pleas determined that because the identical claim had been raised in Petitioner's federal Habeas Corpus petition, it need not address the claim and therefore dismissed the PCRA application. Although it did consider the violation of international law argument, the Pennsylvania Supreme Court nevertheless affirmed the dismissal of Petitioner's third PCRA on the grounds that there was nothing in the ICCPR itself or in the decisions of the Human Rights Committee which compelled the Pennsylvania state courts to enforce the international treaties involved. Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511 (2007). On November 7, 2007, the United States Supreme Court denied petitioner's application for writ of certiorari. Judge v. Pennsylvania, 128 S.Ct. 533, 169 L.Ed. 2d 374 (2007).
It appearing to this Court that the petitioner had then exhausted his available state remedies, we lifted the stay of proceedings in this matter on December 12, 2007. On July 29, 2008, Petitioner filed this motion for partial summary judgment.
Summary Judgment Standards in Habeas Corpus Cases
As a general rule, petitions for habeas corpus are treated as civil actions and the Federal Rules of Civil Procedure, including Rule 56, apply to them. See, e.g., Wilson v. Beard, Civ. A. No. 05-2667, 2006 U.S. Dist. LEXIS 56115 at *11, fn. 3 (E.D. Pa. Aug. 9, 2006); Fed. R. Civ. P. 81(a)(4). Thus, "summary judgment is appropriate in a habeas case, as in other cases, 'when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Wilson, supra., quoting Forman v. Cathel, Civ. A. No. 04-5309, 2006 U.S. Dist. LEXIS 18137 (D.N.J. March 23, 2006) and Fed. R. Civ. P. 56(c).
It is of course well-settled that in ruling upon a motion for summary judgment, the courts view the record in the light most favorable to the non-moving party to ascertain whether there is a genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. See, Michaels v. New Jersey, 222 F.3d 118, 121 (3d Cir. 2000); Jones v. School District of Philadelphia, 198 F.3d 403, 409 (3d Cir. 1999).
As noted, Petitioner has moved for summary judgment on Claim V of his habeas corpus petition. More particularly, that claim, which is based upon Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed. 2d 384 (1988), challenges Mr. Judge's death sentence on the grounds that the trial judge's instructions to the jury erroneously led the jury to believe that it could not return a verdict at the penalty phase of the trial without agreeing unanimously both as to individual mitigating circumstances and the ultimate penalty. Respondents oppose Petitioner's motion for the reason that Petitioner permanently forfeited this claim by escaping during direct appeal and not returning until well after it became final. Respondents thus assert that as applied in this case, the state fugitive disentitlement (a/k/a fugitive forfeiture) rule was adequate to bar review of Petitioner's Mills claim. Given that we cannot reach Mr. Judge's Mills claim if it is procedurally barred, we must therefore consider the Respondents' forfeiture argument first.
A. Bar of the Fugitive Forfeiture Rule
In keeping with the principle of comity, the Supreme Court has long adhered to the rule that a state prisoner's habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-2555, 115 L.Ed. 2d 640, 656-657 (1991), citing, inter alia, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed. 2d 379 (1982). This exhaustion principle was effectively codified at 28 U.S.C. §2254(b)(1), which states 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 addition, a federal habeas court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." AbuJamal v. Horn, 520 F.3d 272, 286 (3d Cir. 2008), quoting Lambrix v. Singletary, 520 U.S. 518, 522, 117 S.Ct. 1517, 137 L.Ed. 2d 771 (1997) and Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed. 2d 640 (1991). A state rule is "adequate" if it was "firmly established, readily ascertainable, and regularly followed at the time of the purported default." Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007), quoting Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001).
In support of the instant motion, Petitioner relies in large part on our decision in Kindler v. Horn, 291 F. Supp. 2d 323 (2003), and on the Third Circuit's decision affirming it. Kindler v. Horn, 542 F.3d 70 (3d Cir. 2008). As we explained procedural default in that case:
[I]f a state's procedural rules bar a petitioner from seeking further relief in the state courts, the exhaustion requirement is satisfied because there is an absence of available State corrective process. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000), citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); 28 U.S.C. §2254 (b)(1)(B)(i). This is otherwise known as 'procedural default' and it is said to occur when a prisoner's federal claim is barred from consideration in the state courts by an independent and adequate state rule. Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002). Even so, this does not mean that a federal court may, without more, proceed to the merits. Instead, claims deemed exhausted because of a state procedural bar may not be considered by the federal courts unless the petitioner establishes "cause and prejudice" or a "fundamental miscarriage of justice" to explain the procedural default. Id. "Cause" sufficient to excuse procedural default requires a showing that some objective factor, external to the defense, prevented compliance with state procedural rules. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L. Ed 2d 397 (1986). "Actual prejudice" occurs only if an error caused the "actual and substantial disadvantage" of the petitioner. Riley v. Myers, Civ. A . No. 01-6958, 2002 U.S. Dist. LEXIS 24404, *20 (E.D. Pa. Dec. 18, 2002), quoting U.S. v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed. 2d 816 (1982). The burden of proof is on the petitioner to establish both cause for the default and resulting prejudice. Id., citing Teague v. Lane 489 U.S. 288, 298, 109 S.Ct. 1060, 103 L.Ed. 2d 334 (1989).
Alternatively, if the petitioner establishes that the state procedural rule was not independent or adequate, the federal court may proceed to consider the merits of his claim. See Generally: Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 2080, 135 L.Ed.2d 457 (1996); Harris v. Reed, 489 U.S. 255, 262-263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). A state rule provides an independent and adequate basis for precluding federal review of a state prisoner's habeas claims only if: (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions. Doctors v. Walters, 96 F.3d 675, 683-684 (3d Cir. 1996); Jones v. Lavan, Civ. A. No. 02-2359, 2002 U.S. Dist. LEXIS 23715, *5 (E.D. Pa. Dec. 9, 2002). A state procedural ground is not "adequate" unless the procedural rule is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988); Doctor v. Walters, supra. See Also: Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857-58, 112 L.Ed. 2d 935 (1991). Nevertheless, the Supreme Court has held that if a state supreme court faithfully has applied a procedural rule in "the vast majority" of cases, its willingness in a few cases to overlook the rule and address a claim on the merits does not mean that it does not apply the procedural rule regularly or consistently. Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997), citing Dugger v. Adams, 489 U.S. 401, 410, n. 6, 109 S.Ct. 1211, 1217, n.6, 103 L.Ed.2d 435 (1989).
Accordingly, an occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate to procedurally bar advancing a habeas corpus claim in a district court. Id. See Also: Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir. 1999). Federal courts should generally determine questions of procedural default according to the habeas waiver law in effect at the time of the asserted waiver. Doctor v. Walters, 96 F.3d at 694, citing Reynolds v. Ellingsworth, 843 F.2d 712, 722 (3d Cir. 1988). See Also: Jermyn v. Horn, 266 F.3d 257, 278 (3d Cir. 2001); Banks v. Horn, 126 F.3d at 212-213; Peterkin v. Horn, 176 F. Supp. 2d 342, 253-354 (E.D. Pa. 2001).
Kindler, 291 F. Supp. 2d at 340-341.
Kindler was also a capital case in which the Petitioner escaped to Canada following his first degree murder conviction in November 1983. Kindler escaped in September, 1984, during the pendency of his post-trial motions and before his formal sentencing which did not take place until October, 1991, following his re-capture and return from Canada. On both direct appeal and under the Pennsylvania Post Conviction Relief Act, (PCRA), the Pennsylvania Supreme Court upheld the trial court's findings that Mr. Kindler had waived his right to raise any issues of trial error and allegations of ineffective assistance of counsel as a response to his escape from custody and flight from the Commonwealth of Pennsylvania. In response to Kindler's Petition for Writ of Habeas Corpus in the District Court, the Commonwealth argued that all of his claims were procedurally defaulted by virtue of his having escaped and fled thereby failing to give the Pennsylvania state courts the opportunity to address and possibly correct the alleged constitutional errors in his conviction and sentencing and those errors caused by ineffective assistance of counsel.
In resolving this issue, we examined how the Pennsylvania state courts applied the fugitive forfeiture rule as of the date of Kindler's escape on September 20, 1984, and whether it was strictly and regularly applied at that time. Our examination was made considerably easier by the Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996) decision, in which the Third Circuit, after surveying Pennsylvania Supreme and Superior Court jurisprudence up through June, 1986, when Doctor escaped, determined that the fugitive forfeiture rule was neither firmly established nor regularly applied. The Doctor decision described Pennsylvania's fugitive forfeiture rule as follows:
[I]f the defendant is returned to custody while his appeal is pending, an appellate court has the discretion to hear the appeal, but if the defendant is returned to custody after the appeal is dismissed, an appellate court lacks the discretion to reinstate and hear the appeal.
Doctor, 96 F.3d at 685, citing Commonwealth v. Jones, 388 Pa. Super. 22, 564 A.2d 983, 986 (1989) and Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984).
The Commonwealth sought to distinguish Kindler from Doctor because Kindler's escape resulted in the dismissal of post-verdict motions that were pending when he fled, arguing that the dismissed post-verdict motions were analogous to a dismissed appeal, but the Third Circuit rejected this contention. Looking to Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975), the Third Circuit noted that the Pennsylvania Supreme Court in that case had reinstated supplemental post-verdict motions that had been dismissed pursuant to the fugitive forfeiture rule because once the defendant was apprehended, he was returned to the jurisdiction of the court and would therefore be responsible for and subject to, the court's judgment. Reasoned the Court:
Galloway thus underscores a critical distinction between dismissed post-verdict motions and a dismissed final appeal. That distinction arises from the fact that after an appeal is dismissed, a court no longer retains jurisdiction. However, appellate courts can exercise jurisdiction after post-verdict motions are dismissed and they therefore can exercise discretion to hear the claims of defendant's appeal. Thus, Galloway fatally undercuts the Commonwealth's attempt to distinguish Kindler's situation from Doctor's based upon differences in the procedural posture at the time of their respective escapes. When Kindler escaped in 1984, Galloway had not been overruled. Accordingly, we conclude that, under Doctor, Pennsylvania's fugitive waiver law did not preclude the district court from reviewing the merits of the claims raised in Kindler's habeas petition.
Kindler, 542 F. 3d at 79-80.
Roger Judge escaped from custody in June, 1987, one full year after Gary Doctor escaped in June, 1986, and nearly three years after Joseph Kindler escaped in September, 1984. Although we can discern no change in Pennsylvania's application of its fugitive forfeiture law during this one-year period, we do note that, unlike Mr. Kindler who was returned following the denial of his post-verdict motions and before his formal sentencing in 1991, Mr. Judge was not returned to Pennsylvania until after his direct appeal had been dismissed. This case is further unique in that this petitioner escaped a mere two days after the summary dismissal of his post-trial motions and formal sentencing and before the time for filing an appeal expired. Indeed, it appears that because this was a capital case, the Philadelphia County Clerk of Courts automatically certified this matter for direct appeal to the Pennsylvania Supreme Court in keeping with Pennsylvania state law. See, 42 Pa. C.S. §9711(h); Pa.R.A.P. 1941. Petitioner was subsequently apprehended in Canada in early 1988 and convicted of two robberies there for which he was sentenced to two concurrent 10 year terms of imprisonment.
It was after Petitioner's apprehension, conviction and sentencing in Canada that the Pennsylvania Supreme Court acting sua sponte, issued its December 22, 1989 per curium order limiting the issues to be considered on appeal to the propriety of petitioner's death sentence and the sufficiency of the evidence to convict him. In so doing, the Pennsylvania Supreme Court acknowledged that it at that time possessed the discretion*fn5 to entertain the merits of Petitioner's appeal. It was not until 1992 that the Pennsylvania Supreme Court issued its decision on Mr. Judge's direct appeal, finding that the evidence was sufficient to convict him of the murder charges and that the sentence of death was appropriate.
Thus, while Mr. Judge's case does not fall within the technical definition of Pennsylvania's fugitive waiver law as articulated by the Court in Doctor, we do not believe that this distinction makes a difference. This is because, regardless of how the forfeiture law is defined, it was applied to this petitioner when the Pennsylvania Supreme Court chose to exercise its discretion to limit its consideration of his appeal to the propriety of the death sentence and the sufficiency of the evidence against him because he had fled from the jurisdiction. And although we cannot find that the Pennsylvania Supreme Court abused its discretion, that is neither our function nor the question before us. Again, the threshold question is whether the fugitive forfeiture rule was "firmly established, readily ascertainable and regularly followed at the time of the purported default." Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007), quoting Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001).
This we cannot find. For one, it appears that Mr. Judge's case was the first time that the Pennsylvania Supreme Court had applied the fugitive forfeiture law in a capital case. Additionally, and as noted by Judge Debevoise in his dissent in Lines v. Larkin, 208 F.3d 153, 169 (3d Cir. 2000), "[d]uring and after the time frame encompassed by these proceedings, Pennsylvania's fugitive forfeiture rule, as interpreted by Pennsylvania's Supreme Court went through a series of transformations." A quick survey of Pennsylvania jurisprudence throughout this time frame is indeed additionally indicative of the irregularity with which its courts utilized and applied the fugitive forfeiture doctrine.
In Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988), the Supreme Court in a per curium order effectively held for the first time that the Passaro forfeiture analysis could apply to a defendant who escaped and returned to custody during the pendency of his appeal. See also, Doctor, 96 F.3d at 686. In his dissent in that case, Justice Zappala observed that:
[T]he majority's per curium reversal of the Superior Court's order without analysis of the underlying issue is unfortunate. It lends no guidance to the lower courts as to their authority to reinstate appeals. I conclude that our decision in Passaro neither deprives a tribunal of such authority nor dictates such a result. Consistent with this Court's prior decision in Commonwealth v. Galloway, supra., which was cited in Passaro, I would hold that the lower courts have the inherent discretion to refuse to hear the appeal of a fugitive and the discretion to reinstate such an ...