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Fahy v. Horn

United States District Court, E.D. Pennsylvania

August 26, 2014

MARTIN HORN, Commissioner, Pennsylvania Department of Corrections; CONNER BLAINE, JR, Superintendent of the State Correctional Institution at Greene; and JOSEPH P. MAZURKIEWICZ, Superintendent of the State Correctional Institution at Rockview


NORMA L. SHAPIRO, District Judge.

The Court of Appeals has remanded the petition for writ of habeas corpus of Henry Fahy ("Fahy"). The Court of Appeals affirmed this court's decision to deny Fahy's habeas claims on the guilt phase of his capital trial, vacated its grant of relief on the sentencing phase claims and remanded the action for consideration of unaddressed sentencing-phase claims. See Fahy v. Horn, 516 F.3d 169, 175-76 (3d Cir. 2008). This court had denied the remaining sentencing phase claims as moot because a Mills violation entitled Fahy to re-sentencing. See Mills v. Maryland, 486 U.S. 367 (1988) (a sentencing scheme is unconstitutional when it requires the jury to disregard mitigating factors not found unanimously). While this court's decision was on appeal, the United States Supreme Court decided Beard v. Banks, 542 U.S. 406 (2004). In Beard, the Supreme Court held that Mills was not retroactively applicable on collateral review.

On remand, the Court of Appeals specifically instructed this court to consider whether trial and appellate counsel were ineffective for failing to object to a constitutional violation at sentencing. Fahy's petition for writ of habeas corpus will be granted, but not for counsel's failure to object to what would later be recognized as unconstitutional, the so-called Mills violation. The petition will be granted for: (1) ineffective assistance of trial counsel for failing to develop and present available and compelling mitigating evidence and for suggesting Fahy would likely be released on parole; and (2) the erroneous jury charge that prevented the jury from considering non-statutory mitigating evidence.


On January 24, 1983, Fahy was tried before a jury with the Honorable Albert F. Sabo, Court of Common Pleas of Philadelphia County, presiding.[1] The prosecution presented evidence that on January 9, 1981, Fahy entered the home of twelve year-old Nicoletta ("Nicky") Caserta, a neighbor's daughter, had forced sexual intercourse with her and dragged her to the basement. Nicky's corpse was discovered later that day by her stepfather. The jury, returning guilty verdicts on all counts, convicted Fahy of first-degree murder, rape, burglary, and possession of instrument of crime.

Immediately following the conviction, Judge Albert F. Sabo, allowing no time for preparation, held the penalty phase trial. In determining that Fahy should receive a sentence of death rather than life imprisonment, the jury found three statutory aggravating circumstances: (1) "The defendant committed a killing during the perpetration of a felony"; (2) "The defendant has a significant history of felony convictions involving the use or threat of violence to the person"; and (3) "The offense was committed by means of torture."[2] Two mitigating circumstances were found: (1) "The defendant was under the influence of extreme mental or emotional disturbance"; and (2) "The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired."[3]

Fahy's sentence was affirmed on direct appeal. Commonwealth v. Fahy, 516 A.2d 689 (Pa. 1986) ( Fahy-1 ). Fahy filed a petition under Pennsylvania's Post Conviction Hearing Act, 42 Pa. Cons. Stat. § 9541 (superseded and replaced by the Post Conviction Relief Act ("PCRA") in 1988) ("first PCRA petition"). Judge Sabo dismissed the petition without prejudice because of procedural defects.

The Governor of Pennsylvania signed a death warrant. Judge Sabo denied Fahy's application for a stay of execution. Fahy appealed; the Pennsylvania Supreme Court granted the stay and remanded Fahy's second PCRA petition to Judge Sabo. Commonwealth v. Fahy, 645 A.2d 199 (Pa. 1994) ( Fahy-2 ).[4] Judge Sabo affirmed the death sentence. Commonwealth v. Fahy, Nos. 2283-2289 (Phila. C.C.P. Dec. 8, 1992). Fahy appealed but the Pennsylvania Supreme Court affirmed. Commonwealth v. Fahy, 645 A.2d 199 (Pa. 1994) ( Fahy-3 ). The United States Supreme Court denied certiorari. Fahy v. Pennsylvania, 513 U.S. 1086 (1995).

The Governor then signed a second death warrant and the Pennsylvania Supreme Court granted a stay of execution to permit Fahy to file his third PCRA petition. That petition was denied by Judge Sabo on October 25, 1995, Findings of Fact and Conclusions of Law ("1995 Opinion"). Fahy appealed again to the Pennsylvania Supreme Court. During the appeal's pendency, Fahy moved to waive his rights to all appellate proceedings and collateral relief. The Pennsylvania Supreme Court ordered Judge Sabo to determine whether Fahy fully understood the consequences of such a waiver. Fahy appeared before Judge Sabo, who found him competent and granted the waiver. Twelve days later, Fahy's attorneys advised the Pennsylvania Supreme Court that Fahy no longer wished to waive his rights. The Pennsylvania Supreme Court unanimously affirmed Judge Sabo. See Commonwealth v. Fahy, 700 A.2d 1256 (Pa. 1997) ( Fahy-4 ).

On November 12, 1997, Fahy's counsel filed a fourth PCRA petition. Judge Sabo dismissed this petition because it was time-barred and failed to state a prima facie case that a miscarriage of justice had occurred. The Pennsylvania Supreme Court affirmed. Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999) ( Fahy-5 ).[5]

Fahy filed a motion for a stay of execution and an amended habeas petition in federal court. The district court, granting the stay, ruled the amended habeas petition should be treated as a first federal petition because the prior federal habeas petition had been dismissed without prejudice. Chief Judge Giles, writing for the district court, held that despite the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), Fahy's petition was timely because of statutory and equitable tolling. The Court of Appeals affirmed on equitable tolling grounds:

If we refuse to equitably toll the statute, then we would deny [Fahy] federal review of his claims. Fahy diligently asserted his claims and the strategic choices he made during the appeal process were reasonable. When state law is unclear regarding the operation of a procedural filing requirement, the petitioner files in state court because of his or her reasonable belief that a [habeas] petition would be dismissed as unexhausted, and the state petition is ultimately denied on these grounds, then it would be unfair not to toll the statute of limitations during the pendency of that state petition up to the highest reviewing state court. We will therefore equitably toll the AEDPA's statute of limitations. We elect to exercise this leniency under the facts of this capital case[] where there is no evidence of abuse of the process.
We therefore affirm the order of the District Court, albeit on equitable tolling grounds and not on statutory tolling grounds.

Fahy v. Horn, 240 F.3d 239, 245-46 (3d Cir. 2001).

The Court of Appeals refused to hear the action en banc, and the United States Supreme Court denied certiorari. Horn v. Fahy, 534 U.S. 944 (2001). Fahy's habeas petition was returned to the district court. The court found Fahy competent to have waived his appellate and collateral review rights, but ruled that Fahy's "waiver... was not knowing and voluntary." Fahy v. Horn, No. 99-5086, 2003 WL 22017231, at *57 (E.D. Pa. Aug. 26, 2003).

The court then denied all Fahy's claims of constitutional error in the guilt phase, but granted Fahy's habeas petition for the penalty phase violation of Mills v. Maryland, 486 U.S. 367 (1988):

Fahy's fourth claim, in which he argues he is entitled to relief [under Mills v. Maryland ] because the penalty phase jury instructions and verdict sheet unconstitutionally indicated to [the] jury that it had to find unanimously any mitigating circumstance before it could give effect to that circumstance, is meritorious, and Fahy's death sentence will be vacated.

Fahy, 2003 WL 22017231, at *57. The court declined to address the remaining penalty phase claims as moot. Both Fahy and the Commonwealth appealed.

Before the Court of Appeals ruled on the pending appeal, the United States Supreme Court decided Beard v. Banks, 542 U.S. 406 (2004). In Beard, the Supreme Court held in a 5-4 decision that Mills was not retroactively applicable on collateral review because it announced a new rule of constitutional criminal procedure not falling within the exceptions to nonretroactivity set forth in Teague v. Lane, 489 U.S. 288 (1989). Beard, 542 U.S. at 420. The Court of Appeals subsequently vacated the grant of habeas relief under Mills and held: (1) Fahy's waiver of appellate and collateral review was invalid because the state trial court judge refused to allow petitioner's counsel to present evidence of coercion; (2) Fahy's claims were not otherwise procedurally defaulted; and (3) Fahy was not entitled to relief on claims of constitutional error in the guilt phase. Fahy, 516 at 186-89.[6] The Court of Appeals directed the court on remand to "consider whether trial and appellate counsel were ineffective for failing to object to and litigate the Mills violation" and the remaining sentencing-phase claims, previously denied as moot. Id. at 205.

The parties submitted supplemental memoranda and replies concerning the issues the Court of Appeals remanded. Fahy's supplemental memorandum addressed eight claims:

Claim A: Trial Counsel Was Ineffective at the Sentencing Phase for Failing to Reasonably Prepare for Capital Sentencing and Failing to Develop and Present Available and Compelling Mitigating Evidence;
Claim B: Trial and Appellate Counsel Were Ineffective for Failing to Object to and Litigate the Claim that the Penalty Phase Instructions Unconstitutionally Precluded Jurors from Weighing Mitigating Factors Unless the Unanimous Jury First Found Those Factors;
Claim C: Fahy's Death Sentence Violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution Because the Jury Was Not Permitted to Consider and Give Effect to the Non-statutory Mitigating Evidence that Was Presented;
Claim D: Trial Counsel Was Ineffective During the Sentencing Phase for Suggesting Fahy Would Likely Be Released on Parole and for Failing to Object or Request an Appropriate Instruction in Response to the Prosecutor's Argument that Fahy Would Likely Be Released and Commit Violent Acts Unless Sentenced to Death;
Claim E: The Prosecutor Misleadingly Diminished the Jury's Sense of Responsibility for Imposing Sentence upon Fahy, in Contravention of Caldwell v. Mississippi , and in Violation of His Rights under the Sixth, Eighth, and Fourteenth Amendments;
Claim F: Fahy's Sentence Must Be Vacated Because of Prosecutorial Misconduct During the Sentencing Phase of His Capital Trial, in Violation of His Rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution;
Claim G: Fahy's Sentence Must Be Vacated Because the Jury Was Unconstitutionally Instructed on the "Torture" Aggravating Circumstance in Violation of His Rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution;
Claim H: Fahy Is Entitled to Relief from His Death Sentence Because Pennsylvania's (D)(9) "Significant History" of Violent Felony Convictions Aggravating Circumstance Is Unconstitutionally Vague in Violation of the Eighth and Fourteenth Amendments to the United States Constitution.

See Pet.'s Supp. Memorandum of Law Following Remand, paper no. 87.[7] The issues not argued in Fahy's supplemental memorandum have been waived.[8] The court will grant Fahy's petition for a writ of habeas corpus as to Claims A, C and D. Although the remaining claims are moot based on this grant, the court will address each in turn on remand, as instructed by the Court of Appeals.


A federal court has jurisdiction over a petition for a writ of habeas corpus challenging state confinement in violation of the United States Constitution. AEDPA, 28 U.S.C. §§ 2241, 2254.


Before seeking habeas relief in federal court, a petitioner must exhaust all available remedies in state court in accordance with the state's firmly established procedural rules. See 28 U.S.C. §§ 2254 (b), (c); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Here, the Court of Appeals affirmed this court's conclusion that neither default by waiver nor the PCRA time-bar were firmly established or regularly followed rules as of the date Fahy's default occurred. They cannot be considered "adequate" state procedural rules barring consideration of Fahy's claims. See Fahy, 516 F.3d at 188-89.

AEDPA mandates deference to a state court's adjudication on the merits of a federal claim, unless the state court's decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " or was "contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. §§ 2254(d)(1), (2). A state court's factual determinations are presumed correct; the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A state court decision is "contrary to" Supreme Court precedent if the state court reached a "a conclusion opposite to that reached by [the] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000).[9]

This court in its last opinion found "Judge Sabo's 1995 opinion constitutes an adjudication on the merits' of the claims considered therein.... Judge Sabo's October 25, 1995, Findings of Facts, Conclusions of Law, Adjudication are entitled to deference under the AEDPA."[10] Fahy, 2003 WL 22017231, at *34. The Court of Appeals affirmed this finding. Fahy, 516 F.3d at 197. The claims the Pennsylvania Supreme Court considered will also be reviewed under this deferential standard.[11]

When the state court adjudication does not reach a claim's merits, "the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of AEDPA." Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). The claims raised for the first time in the fourth PCRA petition will be reviewed de novo because the fourth PCRA petition was not decided on the merits.[12] Id.


A. Ineffective Assistance of Counsel (Claims A, B, and D)

The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. A petitioner claiming ineffective assistance must demonstrate counsel performed deficiently and petitioner was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 2006). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. The court, making every effort to eliminate the distorting effects of hindsight, must decide whether counsel acted in an objectively reasonable manner in accordance with professional norms. Id. at 688-90; Outten, 464 F.3d at 414. Judicial scrutiny is highly deferential to counsel. Strickland, U.S. 466 at 689-90.

Even if counsel's representation were deficient, counsel was not ineffective under Strickland unless counsel's conduct prejudiced the client. Id. at 691-92; Outten, 464 F.3d at 414. When a petitioner challenges a death sentence, prejudice is established if, but for counsel's deficiency, at least one juror would have probably balanced the mitigating and aggravating circumstances favorably to petitioner.[13] See Wiggins v. Smith, 539 U.S. 510, 537 (2003) ("Had the jury been able to place petitioner's excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance."); Strickland, 466 U.S. at 695.

In Claim A, Fahy contends trial counsel's representation was deficient because counsel failed to investigate mitigating evidence of Fahy's mental illness and organic cognitive impairments. Trial counsel knew Fahy was physically and sexually abused as a child, suffered head injuries in an automobile accident, experienced hallucinations and seizures, and made numerous suicide attempts. N.T. 10/12/95 at 6-7, Resp't Ex. 2. Trial counsel also knew of, but failed to review, mental health evaluations Fahy received in connection with his prior convictions. Id. at 5-6. Trial counsel chose not to consult a mental health expert or further investigate the mitigating evidence.

Fahy contends a reasonable attorney would have thoroughly investigated and developed a meaningful penalty phase defense by using the records, prior evaluations, and mental health testimony specifically addressing the mitigating evidence. He contends the evidence would have corroborated his testimony about his mental health and rebutted the prosecutor's argument that Fahy's testimony was self-serving and manipulative. The evidence also would have explained the severity and behavioral consequences of Fahy's cognitive impairment, mitigated his moral culpability, and weakened the aggravating circumstances the prosecution argued. Fahy argues this evidence would certainly have led at least one juror to strike a different balance between aggravating and mitigating circumstances.

The Commonwealth contends trial counsel was not deficient, but made reasoned, strategic decisions in the penalty phase defense. Trial counsel presented extensive evidence from Fahy, corroborated by his mother, of his troubled family background and his mental and emotional difficulties. Counsel presented evidence that led the jury to find two mitigating circumstances: Fahy "was under the influence of extreme mental or emotional disturbance"; and Fahy's capacity "to appreciate the ...

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