On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 99-cv-00005E) District Judge: Honorable Maurice B. Cohill, Jr.
The opinion of the court was delivered by: Barry, Circuit Judge
Before: McKEE, Chief Judge, AMBRO and BARRY, Circuit Judges
The Commonwealth appeals the order of the District Court granting David Copenhefer habeas relief from his sentence of death, and Copenhefer cross-appeals the District Court's denial of habeas relief with respect to his conviction. We will reverse to the extent that the District Court vacated Copenhefer's sentence of death, and affirm to the extent that it otherwise denied Copenhefer relief.
In March 1989, David Copenhefer was convicted in the Court of Common Pleas, Erie County, Pennsylvania, of first-degree murder, kidnapping, unlawful restraint, attempted robbery, attempted theft by extortion, and terroristic threats. The penalty phase began shortly thereafter, with the jury finding, as to the murder conviction, two aggravating circumstances and no mitigating circumstances. Based on the jury's finding, a sentence of death was mandatory under Pennsylvania law. At the subsequent sentencing hearing, the court imposed the death sentence fixed by the jury, and consecutive sentences totaling twenty to forty years on the remaining counts. On appeal, the Supreme Court of Pennsylvania affirmed the conviction and sentence. Commonwealth v. Copenhefer, 587 A.2d 1353, 1354-55 (Pa. 1991). Copenhefer then filed a petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA). The trial court denied the petition, and the Supreme Court again affirmed. Commonwealth v. Copenhefer, 719 A.2d 242 (Pa. 1998).
In December 1999, Copenhefer filed a petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania. He withdrew a second PCRA petition after the Commonwealth agreed to waive the exhaustion of state court remedies with respect to the claims in his § 2254 petition, and a third PCRA petition was dismissed as untimely.
The Magistrate Judge, in an extensive Report and Recommendation (App. 42-157), recommended denying relief with respect to the conviction, but granting relief from the sentence of death on the ground that the trial court failed to instruct the jury that it was required to find that Copenhefer's lack of a prior criminal record constituted a mitigating circumstance. The District Court, finding the objections of the parties to be without merit, adopted the Report and Recommendation as the Opinion of the Court, vacated Copenhefer's sentence of death, and denied relief with respect to his conviction. Both parties appealed. We granted Copenhefer a certificate of appealability with respect to his claim that trial counsel rendered ineffective assistance by failing to challenge the Commonwealth's theory that the victim lingered before dying and his claim that the Commonwealth exercised peremptory strikes to remove female jurors in violation of J.E.B. v. Alabama, 511 U.S. 127 (1994).*fn1
III. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. § 2254, and we have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because the District Court did not hold an evidentiary hearing, our review of its legal conclusions is plenary. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et. seq., habeas relief cannot be granted on a claim that was adjudicated on the merits in state court unless the adjudication resulted in a decision that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d). If the state court did not reach the merits of a claim, these deferential standards do not apply. Holloway v. Horn, 355 F.3d 707, 718 (3d Cir. 2004).
In affirming the conviction and sentence on direct appeal, the Supreme Court of Pennsylvania accurately summarized the complicated facts of the kidnapping/murder scheme now before us, and the overwhelming evidence that supported the verdict:
On June 16, 1988, Sally Weiner received a telephone call purportedly from a congressman's office asking that she meet with the caller to discuss arrangements for the presentation of a civic award to her husband. The next day, around noon, she drove to the agreed meeting place, parked her car, and was never seen again alive. Several hours later, her husband, Harry, manager of the Corry office of Pennbank, received a telephone call playing a recorded message from his wife telling him she had been kidnapped and that the kidnapper demanded ransom money from the bank. Mr. Weiner was directed to retrieve a duffel bag from the parking lot outside his bank; the bag contained additional threats and instructions. Mr. Weiner called a vice president of the bank, as well as the bank's security office, local police, state police, and the FBI. Mr. Weiner never received the additional radio instructions necessary to follow the directions contained in the duffel bag and therefore did not comply with the kidnapper's demands.
Sally Weiner's body was discovered two days later on June 19, 1988, in a rural area north of her home. She had died as the result of a gunshot wound to the back of her head.
Initial investigations by the FBI, state police, and local police resulted in the discovery of a series of computer-generated notes and instructions, each one leading to another, which had been concealed at various hiding places in and around Corry, Pennsylvania. The investigation also produced several possible suspects, including appellant, David Copenhefer, who owned a nearby bookstore, had had unproductive transactions with Mr. Weiner's bank, and apparently had bad personal relations with the Weiners.
An examination of trash discarded from appellant's store revealed drafts of the ransom note and directions. Subsequent search warrants resulted in seizure of incredibly comprehensive evidence against appellant. This included evidence tying appellant's fingerprints, computer, weapons and ammunition, clothing, automobile, and materials from his home and office to the victim or the murder site.
His fingerprints appeared on the original ransom note and on some of the hidden notes. Police discovered rough drafts of the ransom note, a map of the hidden notes, as well as the notes and directions themselves in apellant's handwriting, some of which bore his fingerprints. Appellant had a collection of guns, including two which might have fired the fatal bullet. He also had glazier ammunition, a nonstandard composition designed to fragment on impact so that after entering a body it will not exit and injure another person, of the type used to murder Mrs. Weiner. A metal rod from his home had been used to secure one of the hidden notes. Crepe paper torn from a roll at his store had been used to help secure another note. Human female skin tissue was found on his clothing. Tread marks matching appellant's automobile tires were found at one hiding place and at the murder scene. Finally, appellant's computer contained a series of drafts and amendments of the texts of the phone call to Mrs. Weiner on Thursday, the phone call to Mr. Weiner on Friday, the ransom note, the series of hidden notes, and a twenty-two point plan for the entire kidnapping scheme.
Copenhefer, 587 A.2d at 1354-55.
A. The Commonwealth's Appeal
Adopting the Report and Recommendation of the Magistrate Judge, the District Court concluded that the stipulated fact that Copenhefer had no prior criminal record constituted a mitigating circumstance as a matter of law, and the failure of the trial court to so instruct the jury and the jury to find it as such violated the Eighth Amendment. The District Court vacated the sentence of death, and the Commonwealth appeals. We will reverse.
At the outset, we set forth the rather extensive background of what brings us to this point. At the start of the penalty phase, the trial court gave preliminary instructions to the jury with respect to aggravating and mitigating circumstances, describing in a general sense what they are- those things, for example, about the murder and the murderer that make the case more terrible or less terrible and more or less deserving of the death penalty-and also those specific aggravating and mitigating circumstances at issue in this case that are listed in the Pennsylvania Sentencing Code. As relevant here, "[m]itigating circumstances spelled out in the Statute ," the court told the jury, "would be when the killer has no significant history of prior criminal convictions." App. 4456; see 42 Pa. C.S. § 9711(e)(1) ("mitigating circumstances shall include . . . [that] the defendant has no significant history of prior criminal convictions."). Also, the jury was told, it may consider "any other evidence of mitigation concerning the character and record of the defendant and the circumstances of the offense." Id. Defense counsel and the Commonwealth then orally advised the jury that they had entered into a stipulation that Copenhefer had no prior criminal convictions.
Mrs. Copenhefer and the Copenhefers' son took the stand and testified as to their relationships with Copenhefer and his involvement in the church and community. Counsel thereafter gave their closing arguments, with defense counsel arguing that several mitigating circumstances had been established: Copenhefer's relationship with his son, his relationship with his wife, that he did not abuse drugs or alcohol, that he had never physically abused his wife, the importance of religion to him, his intelligence and ability to assist other inmates, that he helped his parents with their meat business, his good behavior during trial, and the value of his life to his family. With respect to the lack of a criminal record, counsel argued:
Now, with regards to the one mitigating circumstance, which we've already referred to, the fact that he has no prior convictions, [the prosecutor] stood up and stipulated to that, and I suggest to you that speaks for itself. In other words, we have established that clearly that mitigating circumstance exists. And that, therefore, you should take that directly into consideration in making your determinations.
App. 4471. Relying on the evidence presented at trial, the Commonwealth sought to establish the aggravating factors that Mrs. Weiner was held for ransom and the murder was committed during the course of a felony. See 42 Pa. C.S. § 9711(d)(3) &(6).
Following the closing arguments of counsel and in anticipation of the final instructions it would give the jury, the trial court discussed with counsel whether it should or should not direct the jury to find as a matter of law that the stipulated fact that Copenhefer had no prior record was a mitigating circumstance. The Commonwealth argued that the weight of the fact that Copenhefer had no prior record, i.e. whether that fact rose to the level of a mitigating circumstance, remained for the jury to decide-the stipulation that there was no prior record was not, it was argued, a stipulation that no prior record constituted a mitigating circumstance. Defense counsel argued that whatever the weight of the fact of no prior record, it was a proven mitigating circumstance by virtue of the stipulation. The trial court agreed with the Commonwealth, and proceeded to give its final instructions to the jury, clearly and thoroughly explaining, among other things, what, if proven in accordance with the appropriate standard of proof, would constitute aggravating and mitigating circumstances including, as relevant here, "the following matters" under the Sentencing Code: "First, the defendant has no significant history of prior criminal convictions; and, second, any other evidence of mitigation concerning the character and record of the defendant and the circumstances of the offense." App. 4507. There were no objections to the instructions, nor any suggestions for corrections or additions.
We quote at some length from the trial court's final instructions, and particularly its thorough explanation of mitigating circumstances, to provide context for the legal analysis to which we will shortly turn our attention.
[A] mitigating circumstance may arise from any of the diverse frailties of mankind. Mitigating circumstances are any facts relating to the defendant's character, education, environment, mentality, life and background, or any aspect of the crime itself which may be considered extenuating, or as reducing his moral culpability, or making him less deserving of the extreme punishment of death. You may consider as mitigating circumstances any circumstance which tends to justify the penalty of life imprisonment.
In this case, under the Sentencing Code, the following matters, if proven to your satisfaction by a preponderance of the evidence, can be mitigating circumstances:
First, the defendant has no significant history of prior criminal convictions; and, second, any other evidence of mitigation concerning the character and record of the defendant and the circumstances of the offense.
[E]ach of you is free to regard a particular mitigating circumstance as present despite what other jurors may believe. This difference treatment of aggravating and mitigating circumstances is one of the law's safeguards against unjust death sentences. It gives a defendant the full benefit of any mitigating circumstances.
You must consider all evidence of mitigation. The weight which you give to a particular mitigating circumstance is a matter for your moral, factual, and legal judgment. However, you may not refuse to consider any evidence in mitigation which has been proven to your satisfaction by a preponderance of the evidence. I charge you that you must consider the mitigating circumstances offered by the defendant. This does not mean that you must accept them as mitigating circumstances, for you shall only do that if one or more of you determines that those mitigating circumstances have been proven by a preponderance of the evidence.
The list of mitigating circumstances offered cannot limit your deliberations, since you are free to consider any aspect of the crime or of the character of the defendant as mitigating in your sole discretion.
The jury commenced its deliberations, reaching its verdict a few hours later. Prior to the announcement of the verdict, the trial court reviewed the verdict form, and noted that it had not been filled out correctly, twice handing it back to the foreman for correction. When the form was initially reviewed, the words "first offense" had been written in by the jury in response to the question of whether a mitigating circumstance had been found by one or more of the jurors. The form was, however, missing a check mark in the box indicating whether the aggravating circumstances unanimously found outweighed that one mitigating circumstance, and the form was, therefore, returned to the foreman. The foreman crossed out "first offense," but mistakenly placed the check mark in the "weighing" box where, given the crossout indicating that no mitigating circumstance had been found, it should not have been placed. The form was again corrected and, as finally returned, clearly showed, and the foreman announced, that the jury found the sentence to be death on the basis that there was at least one aggravating circumstance and no mitigating circumstance. Each juror, when polled, agreed. The verdict mandated a sentence of death under 42 Pa. C.S. § 9711(c)(1)(iv) ("the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance.").
Relying only on Pennsylvania caselaw and statutes, Copenhefer argued on direct appeal that the trial court erred by refusing to instruct the jury that his lack of a prior record was a mitigating circumstance as a matter of law. However, the Supreme Court of Pennsylvania found:
The verdict slip . . . indicates clearly that the jury did consider evidence of mitigation--viz., that appellant had no significant history of prior criminal convictions. Any apparent confusion in the proceedings has to do with filling out the verdict slip, and the colloquy which occurred when the jury returned its verdict did not clarify the process. But it is readily apparent that the jury did follow the court's instructions in considering appellant's lack of a prior record during its deliberations.
Copenhefer, 587 A.2d at 1360. The Court addressed the issue as a matter of state law, and concluded that the sentence was not the product of passion, prejudice, or any arbitrary factor.
In Commonwealth v. Rizzuto, 777 A.2d 1069 (Pa. 2001), however, the Supreme Court of Pennsylvania overruled its decision in Copenhefer and held that where the absence of prior convictions is not in dispute, the jury has no discretion not to find that absence as a mitigating circumstance. The Court noted that
[i]f we would grant the jury discretion to ignore stipulations of fact, we would be granting the right to arrive at a sentencing verdict in an arbitrary and capricious fashion. Such a conclusion would undercut the very purpose of the death penalty sentencing scheme as developed by our General Assembly. A sentence of death cannot be "the product of passion, prejudice or any other arbitrary factor."
42 Pa.C.S. § 9711(h)(3)(i).
Id. at 1089. Copenhefer filed a third PCRA petition and raised a state law claim based on Rizzuto, a petition denied as untimely. The Court affirmed the denial, stating: "[W]e used the 'arbitrary and capricious' language in Rizzuto to indicate the danger of 'undercut[ting] the very purpose of the death penalty sentencing scheme as developed by our General Assembly.' We did not expressly discuss the United States Constitution or any constitutional rights." Commonwealth v. Copenhefer, 941 A.2d 646, 650 n.7. (Pa. 2007) (citation omitted). Thus, Copenhefer's third PCRA petition did not fit into the exception to the PCRA's limitations period for newly created, retroactively applied constitutional rights. Id. at 650. *fn2
The District Court reviewed the Eighth Amendment claim de novo after concluding that on direct appeal the Supreme Court of Pennsylvania had not even mentioned any such claim, much less decided one on the merits. We agree with the District Court that review of this claim is de novo given that the only claim on direct appeal was based solely on state law. The federal claim was not, however, defaulted because the Commonwealth waived exhaustion.
The Commonwealth argues that the jury initially found the mitigating circumstance of Copenhefer's lack of a prior record when it wrote on the verdict form, though later crossed out, "first offense," and that any confusion occurred only when the trial court tried to clarify the form. Whatever merit there may be to that argument and whether confusion may have preceded the jury's ultimate announcement that no mitigating circumstance was found, we are bound by that finding. Even on that understanding, however, there was no constitutional error.
Buchanan v. Angelone, 522 U.S. 269, 272-73 (1998), which held that the Eighth Amendment does not require a capital jury to be instructed on the concept of mitigating evidence generally or on particular statutory mitigating factors, resolves the issue before us. In Buchanan, the jury was instructed that if it found that petitioner's conduct in committing the murders was outrageously vile, it could sentence him to death. If, however, it believed from all the evidence that the death penalty was not justified, it could sentence him to life imprisonment. Petitioner requested additional instructions on four mitigating factors that were specifically listed in the Virginia Code. The trial ...