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Abdul-Salaam v. Secretary of Pennsylvania Department of Corrections

United States Court of Appeals, Third Circuit

July 12, 2018


          Submitted Pursuant to Third Circuit L.A.R. 34.1(a) March 12, 2018

          On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4-02-cv-02124) District Judge: Hon. John E. Jones, III

          Michael Wiseman, Esq. Law Office of Michael Wiseman Ayanna Williams, Esq. David L. Zuckerman, Esq. Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant

          David J. Freed, Esq. Jaime M. Keating, Esq. Charles J. Volkert, Jr., Esq. Cumberland County Office of District Attorney Counsel for Appellees

          Before: CHAGARES, GREENAWAY, JR., and SHWARTZ, Circuit Judges.


          CHAGARES, Circuit Judge.

         A jury found petitioner Seifullah Abdul-Salaam, Jr. ("Abdul-Salaam") guilty of first-degree murder, robbery, and conspiracy after a six-day trial in March 1995 in the Court of Common Pleas of Cumberland County, Pennsylvania. After a one-day penalty phase hearing in which Abdul-Salaam's counsel presented three mitigation witnesses, the jury sentenced Abdul-Salaam to death. Abdul-Salaam, after exhausting his state remedies, filed the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his sentence based on trial counsel's provision of ineffective assistance of counsel by failing to investigate adequately and to present sufficient mitigation evidence at sentencing. The United States District Court for the Middle District of Pennsylvania denied the petition. As explained more fully below, because trial counsel could not have had a strategic reason not to investigate Abdul-Salaam's background school and juvenile records, to acquire a mental health evaluation, or to interview more family members about his childhood abuse and poverty, counsel's performance was deficient. Further, because there is a reasonable probability that the un-presented evidence would have caused at least one juror to vote for a sentence of life imprisonment instead of the death penalty, Abdul-Salaam has met the prejudice prong of the ineffective assistance of counsel inquiry. Accordingly, we will reverse in part the Order of the District Court and remand to grant a provisional writ of habeas corpus directed to the penalty phase.



         At the guilt phase of Abdul-Salaam's trial, the Commonwealth presented evidence showing that on the morning of August 19, 1994, Abdul-Salaam, with Scott Anderson, attempted to rob a store in New Cumberland, Pennsylvania. Abdul-Salaam brandished a handgun during the robbery, then bound and assaulted the shop's owner. When Officer Willis Cole of the New Cumberland Police Department responded, Abdul-Salaam managed to escape but Anderson was caught. As Officer Cole prepared to handcuff Anderson, Abdul-Salaam reappeared with his gun drawn, sprinted toward Officer Cole, and fired at him. Officer Cole died of his gunshot wounds. The jury returned a guilty verdict on first-degree murder, robbery, and conspiracy charges.

         The penalty phase of the trial lasted one day. The jury was instructed about four statutory aggravating factors that the Commonwealth had to prove beyond a reasonable doubt.[1] The first two factors were established by virtue of the guilt-phase testimony, and the Commonwealth presented eight witnesses to establish the last two factors.

         The defense presented three witnesses: Abdul-Salaam's mother and two of his sisters. Mahasin ("Dovetta") Abdul-Salaam, Abdul-Salaam's mother, testified that Abdul-Salaam's father, Seifullah Abdul-Salaam, Sr., was "very abusive" to him, but stated multiple times that "most of the abuse was mental," such as by "inhibit[ing the children's] worth and their consideration of themselves." Appendix ("App.") 276-77. Dovetta added that Abdul-Salaam, Sr. would also physically abuse the children and that to discipline Abdul-Salaam, the father - who abused drugs and was homeless at the time of trial - would punch him in the chest "pretty hard" "until he took the breath out of him." App. 283- 84, 286. Dovetta added that as a child, Abdul-Salaam saw his father abuse her as well and often tried to protect her.

         Dovetta described the trouble that Abdul-Salaam experienced in school. Because he could not pay attention as a result of his "deficit disorder," Abdul-Salaam was placed in a special school. App. 278. In addition, when he was sixteen or seventeen, as a result of a juvenile adjudication, he was placed in an Alternative Rehabilitation Communities ("ARC") program. Dovetta insisted that she and her daughters love Abdul-Salaam and visit him in prison "every chance [they] get." App. 284.

         The next witness was Karima Abdul-Salaam, one of Abdul-Salaam's younger sisters. She "vaguely" remembered "spurts" of her father's drug addiction and abuse. App. 295- 96. She said that their father verbally degraded all of the children and she recalled her father hitting Abdul-Salaam, including one instance when she saw her father take an aluminum baseball bat into Abdul-Salaam's room and then heard her father hitting him with it. She recalled times as children when they could find no food in their house except for a can of beans.

         Safryah Abdul-Salaam, Abdul-Salaam's youngest sister, briefly testified that she loved her brother and wanted to visit him as often as she could. Although she was young at the time, Safryah remembered seeing her father throwing objects at their mother and hearing her father hitting Abdul-Salaam behind closed doors.

         At the close of the penalty phase, the trial court instructed the jurors that it was their task to weigh the aggravating factors against the mitigators and that they must issue a sentence of death if they found that the aggravating factors outweighed the mitigating factors. However, each juror was instructed to give "whatever weight you deem reasonable to mitigating factors." App. 333. The court added that a death sentence must be unanimous. The jury found all four charged aggravating factors and one mitigating factor, namely that "[t]he background that includes both physical and mental abuse does have a negative impact on a person's development and therefore his future behavior." App. 342; see also 42 Pa. Cons. Stat. § 9711(e)(8) (the "catchall" mitigating factor in Pennsylvania). The jury unanimously found that the aggravating factors outweighed the mitigating factor and sentenced Abdul-Salaam to death.


         Abdul-Salaam filed a direct appeal to the Pennsylvania Supreme Court but did not raise an ineffectiveness claim. That court affirmed the conviction and sentence, Commonwealth v. Abdul-Salaam, 678 A.2d 342, 355 (Pa. 1996), and the United States Supreme Court denied certiorari, Abdul-Salaam v. Pennsylvania, 520 U.S. 1157 (1997). Abdul-Salaam then filed a petition under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. §§ 9541-46, in which he raised the ineffective assistance of counsel claim. The PCRA court held six days of hearings, during which Abdul-Salaam presented institutional records, witnesses who testified about Abdul-Salaam's childhood, and mental health experts.


         The most substantial corpus of new evidence consisted of Abdul-Salaam's relatives' testimony providing significantly greater detail on Abdul-Salaam's difficult upbringing. At the PCRA hearing, Abdul-Salaam called ten such witnesses, all but two of whom - his sister Karima and half-brother Raymond Harris - had not been contacted by trial counsel prior to sentencing.[2]

         Harris, Abdul-Salaam's older half-brother by eight years, recalled his step-father as a "scary" figure from whom "anger . . . just came across." App. 384-85. Harris described in detail the ways in which Abdul-Salaam, Sr. was abusive toward him, his mother, and Abdul-Salaam. He testified that he and Abdul-Salaam repeatedly witnessed Abdul-Salaam, Sr. physically abusing their mother by punching her in the face or otherwise hitting her. When Harris attempted to intervene, Abdul-Salaam, Sr. punched him in the stomach, knocking him to the floor. Harris asserted that Abdul-Salaam, Sr. physically abused Abdul-Salaam on many occasions, including on several occasions by hitting Abdul-Salaam with a leather strap. He described a pattern in which the father would abuse their mother, Abdul-Salaam would try to protect her, and the father would then punch him until he fell and would continue the assault "until [Abdul-Salaam] just broke down and cried and submit[ted]." App. 389-90. When asked how many times this occurred, Harris said he had "seen it happen pretty often." App. 392. He added that the family was regularly evicted and that there often was no food for the children to eat in the house.

         Abey Abdul-Salaam, the petitioner's younger brother, testified that as a child there were times when there was no food in the house and that he would sometimes eat lozenges from the bathroom for sustenance. He remembered one time when he and Abdul-Salaam were playing basketball indoors and their father thought they were being too loud and so beat them both with an aluminum bat. Josephine Hall, Abdul-Salaam's maternal grandmother, testified that when she would see her grandchildren, they were hungry, withdrawn, and afraid of their father. When she visited her daughter's home there was almost no food in the house and she knew that the utilities were frequently turned off because the bills were not paid. Eddie Washington, Jr., Abdul-Salaam's first cousin on his mother's side, recalled one occasion when Abdul-Salaam was seven or eight years old, where he and Abdul-Salaam were sitting in the backseat of a car while Abdul-Salaam, Sr. was driving. The children were talking and Abdul-Salaam, Sr. "snapped" at them "be quiet or I will kill you." App. 521. Although he did not see Abdul-Salaam often, he recounted seeing him with a black eye on one of the numerous occasions when Dovetta brought the children over to Washington's family's house to get away from Abdul-Salaam, Sr. Whenever Abdul-Salaam's family would come over, he added, they were "very hungry" and that "all they wanted to do" was eat. App. 524.

         Florita Goodman, Abdul-Salaam, Sr.'s sister, testified vividly about the abuse:

[O]ne time I saw him take [Dovetta's] money . . . . And she was crying. And she wanted her money back. And he was taunting at her . . . and took the money and just ripped it up into shreds . . . and then threw it at her. And she was like picking up the money off the floor, but she didn't have any clothes on, and then . . . he beat her with a belt.

App. 453. She recalled seeing her brother force Abdul-Salaam to lick envelopes all night.

         Dana Goodman, Abdul-Salaam, Sr.'s younger brother, described Abdul-Salaam, Sr. as violent growing up and testified that as an adult his brother once tried to strangle him with an extension cord. Dana also said that when Abdul-Salaam was a child, Abdul-Salaam, Sr. gave all of the family's money to the Nation of Islam, leaving no money for food or rent. He said that when he saw the family together, Abdul-Salaam, ...

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