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Fisher v. Beard

United States District Court, E.D. Pennsylvania

July 25, 2018

ROBERT FISHER, Petitioner,
v.
JEFFREY BEARD, Commissioner, Pennsylvania Department of Corrections et al., Respondents.

          MEMORANDUM

          GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE

         "The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom." Boumediene v. Bush, 553 U.S. 723, 739 (2008). No. citizen may be held in violation of the Constitution - a notion that modern iterations of the Great Writ sought to codify. Before the Court is Robert Fisher's petition for a writ of habeas corpus in which he claims that he is unconstitutionally imprisoned by the Commonwealth of Pennsylvania. The Court finds that Mr. Fisher is being held in violation of the Constitution of the United States. Therefore, the Commonwealth must either grant a new trial for Mr. Fisher or, if it declines to pursue a new criminal trial, release Mr. Fisher within 180 days.

         Background Robert Fisher is currently on death row for the murder of his girlfriend, Linda Rowden. A brief background of the evidence presented at trial, followed by the post-trial procedural history, is outlined below.

         I. Trial Background [1]

         In the month preceding Ms. Rowden's death, Mr. Fisher was angry with her because he believed that she had gone to the police to implicate him in the murder of a man named Nigel Anderson. Mr. Fisher's anger grew over Ms. Rowden's willingness to cooperate with authorities, and, in turn, Ms. Rowden complained to the Norristown police that Mr. Fisher had assaulted her and was harassing her. The police took a report, prepared a complaint against Mr. Fisher, and advised him to stay away from Ms. Rowden.

         Even though the police intervened, the couple still spent time together. On July 10, 1980, Ms. Rowden was driving her car in Montgomery County with two passengers and the windows rolled down. A mutual friend, Richard Mayo, sat in the passenger seat; Mr. Fisher sat in the back seat. Mr. Mayo testified that Mr. Fisher and Ms. Rowden were arguing about her cooperation with the police investigation of the Anderson murder. The police suspected that Mr. Fisher had a hand in Mr. Anderson's death because Mr. Anderson was murdered before he could testify against Mr. Fisher in a federal drug possession trial.[2]

         Multiple witnesses testified that, while the car was still moving, Mr. Fisher leaned forward and shot Ms. Rowden twice. The vehicle swerved to the right and crashed into parked cars lining the street. Mr. Fisher got out of the back seat and walked quickly down a side street with the gun still in his hand. Mr. Mayo immediately got out and yelled for help. He then ran to an emergency phone and called the police. An autopsy confirmed that Ms. Rowden died as a result of the shooting.

         After Mr. Fisher fled the scene, he went to the apartment of his friend Denise Walker where he told Ms. Walker that he shot Ms. Rowden because she "was running her face to the detectives" about the Anderson murder. He then changed his clothes, told Ms. Walker he was leaving town, and fled the area. A subsequent search of Ms. Walker's apartment uncovered a set of Mr. Fisher's clothes and an opened box of bullets.

         Mr. Fisher remained at large for seven years. He was apprehended in 1987, when he was found in New York City and extradited to Pennsylvania to stand trial for Ms. Rowden's murder. During the jury trial, Mr. Mayo and other eyewitnesses testified that Mr. Fisher shot Ms. Rowden. In September 1988, the jury convicted Mr. Fisher of first degree murder and, following a penalty-phase hearing, imposed a sentence of death. Post-trial motions were eventually denied, and the trial court formally sentenced Mr. Fisher to death on May 3, 1989.

         II. Post-Trial History

         On direct appeal, the Supreme Court of Pennsylvania reversed the trial court and granted a new trial, holding that a question asked during voir dire of prospective jurors was prejudicial. See Commonwealth v. Fisher, 591 A.2d 710 (Pa. 1991) ("Fisher-1"), After retrial in August 1991, a jury again convicted Mr. Fisher of first degree murder and, following a penalty-phase hearing, imposed a sentence of death. In the direct appeal that followed, the Supreme Court of Pennsylvania affirmed the conviction, but vacated the death sentence and remanded for a new sentencing hearing because of improperly admitted victim-impact evidence. See Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996) ("Fisher-2").

         After a new sentencing hearing, in which a third jury determined that Mr. Fisher should be sentenced to death, the trial court formally sentenced him to death on July 23, 1997. On direct appeal, the Supreme Court of Pennsylvania affirmed the sentence of death. Commonwealth v. Fisher, 741 A.2d 1234 (Pa. 1999) ("Fisher-3"). In February 2000, the Supreme Court of Pennsylvania denied re-argument, and the U.S. Supreme Court denied certiorari. Fisher v. Pennsylvania, 531 U.S. 829 (2000). Mr. Fisher validly exhausted his state PCRA claims, Commonwealth v. Fisher, 813 A.2d 761 (Pa. 2002) (Fisher-4), and filed this petition for a writ of habeas corpus on December 3, 2003.

         In the petition, Mr. Fisher raised 22 separate claims. Here, however, the Court will assess only three of those claims, which the Court finds to be meritorious, to give guidance to the state court in a potential retrial. The Court declines to discuss the viability of the remaining claims, and expresses no view on their merit.

         Standard of Review

         The Great Writ is a longstanding check on executive power. Initially, "early courts were considered agents of the Crown, designed to assist the King in the exercise of his power." Boumediene, 553 U.S. at 740. But over time, "the writ was deemed less an instrument of the King's power and more a restraint upon it." Id. at 741. Today, the writ of habeas corpus is largely governed by the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2241 et seq. AEDPA tempers the review of federal claims by federal courts with deference to state court determinations of those claims fairly presented to the state court. Although most of Mr. Fisher's claims were fairly presented to the state court and deserve deference under 28 U.S.C. § 2254, Mr. Fisher argues that claims addressed in Fisher-4 require de novo review. The Court first discusses § 2254 deference before addressing Mr. Fisher's de novo review argument. Ultimately, the Court finds that all of the claims must be analyzed under § 2254.

         I. Section 2254 Deference

         For claims "adjudicated on the merits" in state court, a federal court may grant a writ of habeas corpus only if the state court adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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). A state court decision can be contrary to Supreme Court precedent in two ways: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 404-05 (2000).

         A state court decision involves an unreasonable application of Supreme Court precedent "if the state court identifies the correct governing legal rule from [the] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. "[F]or a reviewing federal court to find a state court's application of Supreme Court precedent 'unreasonable,' the state court decision must be 'more than incorrect or erroneous;' it must have been 'objectively unreasonable.'" Marshall v. Cathel, 428 F.3d 452, 462 (3d Cir. 2005) (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)). Furthermore, the law must have been clearly established at the time of the relevant state court decision. Williams, 529 U.S. at 412. This analysis of state court determinations is circumscribed to accord appropriate deference to the state court.

         AEDPA's deferential standards of review do not apply "unless it is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of federal law as established by the Supreme Court of the United States." Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005) (quoting Everett v. Beard, 290 F.3d 500, 508 (3d Cir. 2002)). If AEDPA provisions are inapplicable, "federal habeas courts apply pre-AEDPA standards of review." Id. This pre-AEDPA review requires "federal habeas courts [to] conduct[] a de novo review over pure legal questions and mixed questions of law and fact." Thomas v. Varner, 428 F.3d 491, 497 (3d Cir. 2005) (quoting Jacobs, 395 F.3d at 100).

         II. Fisher-4 Claims

         The Fisher-4 opinion denying Mr. Fisher's second PCRA claim never produced a majority opinion, with four separate concurrences and a partial dissent for the fractured court. See Commonwealth v. Fisher, 813 A.2d 761 (Pa. 2002). Mr. Fisher argues that this means the claims addressed there deserve a de novo review rather than deference under AEDPA.[3] He argues that, because there was only a plurality opinion, there is nothing to defer to. The Court disagrees and determines that Fisher-4 claims must be analyzed under § 2254.

         Deference under AEDPA is robust. Thus, a state court receives deference even when it has not issued an opinion. Harrington v. Richter, 562 U.S. 86, 99 (2011). Where "a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. at 98. Even when "a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99.

         The Supreme Court recently addressed a similar issue in Wilson v. Sellers, 138 S.Ct. 1188 (2018). The Court held that even in summary affirmances, the federal court must "look through" the state court opinion to the next highest state court to address the issue. Id. at 1190; see also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (unexplained orders upholding a judgment of a lower court are presumed to rest on the same ground). In those cases, the principles underlying AEDPA still require the Court to defer to the state courts who have not meaningfully addressed the issue.

         In the present case, the state court did far more than simply issue a summary affirmance. Instead, the court wrote a twenty-page decision addressing each issue in Mr. Fisher's PCRA petition. Fisher-4, 813 A.2d at 761. The fact that certain jurists within the court diverged on some questions is of no moment. The Court here must merely determine whether the state court adjudication was unreasonable. This case presents an issue of first impression. The Third Circuit Court of Appeals and Supreme Court have yet to address the precise question presented here, of how a federal court must grapple under AEDPA with a plurality opinion in the state court. However, the Supreme Court has held that deference is warranted even in cases that provide less reasoning than the present case. Therefore, the Court finds that deference under § 2254 is warranted for all claims here, including the Fisher-4 claims that only have a plurality opinion. The Court now turns to the sentencing phase claims before addressing the sole meritorious guilt phase claim.

         Sentencing Phase Claims

         I. Ex Post Facto Aggravating Circumstances

         Mr. Fisher first argues that his sentencing phase violated the Ex Post Facto Clause. Mr. Fisher was sentenced to death because a jury found that a sole aggravating factor outweighed a sole mitigating factor. But the statute providing for the sole aggravating factor was not enacted by the Pennsylvania legislature until well after Mr. Fisher's crime. In determining whether this retroactive application presented an ex post facto issue, the Supreme Court of Pennsylvania held that the new provision was substantially similar to an old provision in place when the crime was committed. The state court concluded that this similarity meant that there was no ex post facto issue. Fisher-3, 741 A.2d at 1240.

         Because there are substantial differences between the two statutory provisions, the Court concludes that (1) the state court's determination was an unreasonable application of established Supreme Court precedent regarding the Ex Post Facto Clause and (2) the state court opinion relying on state law is not a bar to relief. Therefore, as explained infra, the Court grants the writ on this ground regarding Mr. Fisher's sentencing phase.

         A. Relevant Procedural History

         Ms. Rowden was murdered in 1980. After seven years on the lam, Mr. Fisher was arrested in 1987 and convicted in 1991. After numerous sentencing appeals, he was sentenced to death in 1997 (17 years after the murder) on the basis of a sole aggravating factor, 42 Pa. Cons. Stat. §9711 (d)(15) (1989), which was enacted after the murder. The Supreme Court of Pennsylvania found that this statutory provision was substantially similar to 42 Pa. Cons. Stat. § 9711(d)(5) (1980), a factor that was in place at the time of the murder.

         These modifications were not the only changes in the relevant legal landscape. The Supreme Court of Pennsylvania also changed its interpretation of the original (d)(5) aggravating factor in a way that affects the validity of Mr. Fisher's sentence. Therefore, there are two questions the Court must answer. First, was (d)(15) applicable to Mr. Fisher? Second, if it was not, which (d)(5) interpretation should have been applied to him?

         I. Legislative Amendment to Aggravating Circumstances

         The Pennsylvania death penalty statute in place at the time of the murder set forth ten aggravating circumstances. See 42 Pa. Cons. Stat. § 9711(d) (1980). Nine years later, the statute was amended to include eight additional aggravating circumstances. See 42 Pa. Cons. Stat. § 9711(d) (1989). Mr. Fisher was sentenced under one of the new aggravating circumstances. In finding that there was no ex post facto issue, the Supreme Court of Pennsylvania found that the new aggravator, (d)(15) was "substantially similar" to the old aggravator, (d)(5).

         The relevant aggravating circumstance in place at the time of the murder required the prosecution to prove that:

[t]he victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses.

42 Pa. Cons. Stat. §9711(d)(5) (1980) (emphases added for comparison). In 1989, the legislature expanded the death penalty statute, adding a more expansive aggravating factor to the scheme. This new factor requires the prosecution to prove that:

[a]t the time of the killing, the victim was or had been a nongovernmental informant or had otherwise provided any investigative, law enforcement, or police agency with information concerning criminal activity and the defendant committed the killing ... in retaliation for the victim's activities as a nongovernmental informant or in providing information concerning criminal activity to an investigative, law enforcement, or police agency.

42 Pa. Cons. Stat. § 971 l(d)(15) (1989) (emphases added for comparison).

         2. Judicial Interpretation Shift

         In addition to this legislative amendment, the Supreme Court of Pennsylvania enlarged the scope of (d)(5) in 1988. Even though earlier cases had interpreted the factor to apply only to "pending" criminal cases, see Commonwealth v. Caldwell, 532 A.2d 813, 817 (Pa. 1987), the Court broadened its interpretation to include cases that did not have a pending criminal action. Commonwealth v. Appel, 539 A.2d 780, 784 n.2 (Pa. 1988). Significantly, this broadening happened after Ms. Rowden's murder, but before Mr. Fisher's sentencing. Mr. Fisher also argues that the (d)(5) factor must be interpreted the way it was interpreted in 1980.

         B. Ex Post Facto Standard

         The Ex Post Facto Clause "safeguards 'a fundamental fairness interest ... in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.'" Peugh v. United States, 569 U.S. 530, 544 (2013) (quoting Carmell v. Texas, 529 U.S. 513, 533 (2000)). "[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." United States v. Kruger, 838 F.3d 786, 790 (6th Cir. 2016).

         In 1798, the Supreme Court articulated four categories of retroactive legislation prohibited by the Ex Post Facto Clause. These categories still govern its reach. Stogner v. California, 539 U.S. 607, 611 (2003) (citing Colder v. Bull, 3 U.S. (3 Dall.) 386, 396 (1798)).

         The four categories are:

[1] Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
[2] Every law that aggravates a crime, or makes it greater than it was, when committed.
[3] Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
[4] Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.

Colder, 3 U.S. (3 Dall.) at 390-91; see also Stogner, 539 U.S. at 612; United States v. Brennan, 326 F.3d 176, 197 (3d Cir. 2003).

         The Supreme Court has clarified these four categories by creating three tests to determine if the Ex Post Facto Clause has been violated. A law is unconstitutional if it "(1) punishes as a crime an act that was innocent when done, or (2) makes more burdensome the punishment for a crime after its commission, or (3) deprives one charged with a crime of any defense available according to law at the time the act was committed." Helton v. Fauver, 930 F.2d 1040, 1045 (3d Cir. 1991) (citing Beazell v. Ohio, 269 U.S. 167, 170 (1925)). In this instance, the second test applies, because the aggravating factor makes the punishment of Mr. Fisher more burdensome.

         C. Section 2254 Arguments

         The state court relied on two strands of argument in determining there was no ex post facto issue. The first strand is a straightforward analysis of the Ex Post Facto Clause, which receives deference under § 2254(d). The second strand relies on state interpretations of state law, which is reviewed under a different standard. The Court will first address arguments deserving of § 2254 deference before moving on to the state interpretations of state law.

         1. Commonwealth's Ex Post Facto Analysis

         As a threshold matter, the Commonwealth does not attempt to rely on the state court's reasoning to dispute Mr. Fisher's petition.[4] Instead, it argues that aggravating factors are exempt from the Ex Post Facto Clause because aggravators are procedural changes rather than substantive ones. The Commonwealth is correct that "[t]he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed." Gibson v. Mississippi, 162 U.S. 565, 590 (1896). But a purportedly procedural change becomes substantive when it affects the "substantial personal rights" of the individual. Malloy v. South Carolina, 237 U.S. 180, 183 (1915). A defendant's substantial personal rights are violated if the change constitutes a "change in the quantum of punishment attached to the crime." Dobbert v. Florida, 432 U.S. 282, 294 (1977). Here, Mr. Fisher was sentenced to death - as opposed to life without parole - following this change. Therefore, this application of (d)(15) violates the Ex Post Facto Clause.

         The Commonwealth contends that the penalty for murder has always been prison or death, and that changing the aggravating and mitigating circumstances is merely tweaking the procedure for choosing the sentence without actually changing the penalties for murder. The Court rejects this attempt to play down the significance of the change. The Supreme Court's second definition of an ex post facto law is: "Every law that aggravates a crime, or makes it greater than it was, when committed." Colder, 3 U.S. (3 Dall.) at 390. That is precisely what has happened here.

         Adding an aggravating circumstance directly increases the possible penalties for Mr. Fisher. The Commonwealth argues that this is not so, because the statutory scheme always allowed a death sentence for the crime. This argument is disingenuous. For example, under the Commonwealth's reading, a state could make every crime carry a penalty that ranges from a monetary fine to a death sentence, and then simply alter the sentencing schemes for different crimes after the crimes have been committed. In that situation, under the Commonwealth's reading, even sentencing schemes that are changed after crimes are committed could be retroactively applied because they are merely "procedural changes." The Commonwealth argues that this would be permissible, because defendants were "always subject to death or life imprisonment as a penalty." Comm. Br. at 29. That type of semantic distinction or sleight of hand cannot be the rule under the Ex Post Facto Clause. Moreover, the statutory scheme requires that certain aggravators be proven beyond a reasonable doubt before an individual can be put to death, undercutting the Commonwealth's own assertion that aggravating factors are not substantive.

         Moreover, the Commonwealth's reasoning flies in the face of the entire rationale underpinning the Ex Post Facto Clause. The Ex Post Facto Clause was enacted in response to oppressive British laws that criminalized conduct retroactively, in an effort to advance corrupt ends. James Madison explained that "ex post facto laws ... are contrary to the first principles of the social compact and to every principle of sound legislation." The Federalist No. 44 (James Madison). The Clause was enacted as a "bulwark in favor of personal security and private rights." Id. The American colonists saw, "with regret and indignation, that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less informed part of the community." Id.

         In other words, the Framers perceived ex post facto laws as a threat, precisely because they could be a massive sword wielded via the whims of the legislature. The Framers knew that "the Parliament of Great Britain claimed and exercised a power to pass such [ex post facto and bill of attainder] laws," Calder, 3 U.S. (3 Dall.) at 389, and "viewed the prohibition on ex post facto legislation as one of the fundamental protections against arbitrary and oppressive government." California Dep't of Corr. v. Morales, 514 U.S. 499, 515 (1995). The Commonwealth's reading inherently contradicts this principle. Under the Commonwealth's reading, a disfavored "part of the community" is subject to the whims of "legislative interferences" with established law. The Federalist No. 44 (James Madison). Such a reading ignores the genesis of the Ex Post Facto Clause.

         Therefore, the Commonwealth's application of a new aggravating factor in Mr. Fisher's sentencing is an ex post facto application as defined in Calder, and the Commonwealth's argument here is without merit. To the extent the state court relied on this interpretation, it would be an unreasonable application of established Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

         2. State Court's Ex Post Facto Analysis

         The Supreme Court of Pennsylvania advances three main arguments for why the application of (d)(15) does not violate the Ex Post Facto Clause, each of which differ from the reading urged by the Commonwealth.[5] The first two rationales are outlined below and deserving of AEDPA deference. However, both explanations are ultimately unreasonable applications of established United States Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).

         First, the state court explains that, because Mr. Fisher's conviction was overturned and remanded for retrial after the law had been changed, the new law must be applied to the new trial. Fisher-3, 741 A.2d at 1241. This rationale directly contradicts Colder, which requires that the law at the time of the alleged offense apply at trial. Colder, 3 U.S. (3 Dall.) at 390-91. But the Supreme Court of Pennsylvania reasoned that the law at the time of trial governs. This reasoning runs counter to hornbook law; the Ex Post Facto Clause seeks to limit exactly that type of prosecution. Otherwise, states could enact laws that criminalize previously legal conduct between the commission of an offense and the trial.

         Second, in equating (d)(5) and (d)(15), the state court argued that because (d)(15) encompasses more situations than (d)(5), proof under (d)(15) necessarily means that the prosecution has proven (d)(5). Fisher-3, 741 A.2d at 1240.[6] The state court's logic is exactly backward. Consider an analogy: just as (d)(15) encompasses more situations than (d)(5), Pennsylvania encompasses more land than Philadelphia. It would be correct to say that, if you have proven (d)(5), you have proven (d)(15), just as it would be correct to say that if a someone is in Philadelphia, the person is necessarily in Pennsylvania. However, the state court flipped the order. The state court argued that by proving (d)(15), the prosecutor had necessarily proven (d)(5), which would be the same as claiming that, simply because a prosecutor proved someone was in Pennsylvania, the prosecutor proved that the person was in Philadelphia. This is patently untrue. The person could be in Harrisburg or Pittsburgh, or thousands of other places. This argument is wrong as a matter of elementary logic, much less established Supreme Court precedent.

         For these reasons, the state court determination that the use of (d)(15) did not violate the Ex Post Facto Clause was an unreasonable application of established Supreme Court precedent and does not survive § 2254(d) scrutiny. Were there no question of state law, this conclusion would end the matter and Mr. Fisher would be entitled to relief. However, the state court also decided the question by interpreting mitigating factor (d)(15) as substantially similar to (d)(5). This move effectively converted the remaining argument advanced by the state court into one that rested on an interpretation of state law. Therefore, the Court must analyze how to review a state court's interpretation of state law in the federal habeas context.

         D. State Court Argument Resting on State Law Interpretation

         Although the state court's first two arguments deserve AEDPA deference, the third does not. The third argument advanced by the state court was that (d)(15) is substantially similar to (d)(5), which meant that there was no ex post facto issue. This is an interpretation of state law. Given that the state evaluation of the ex post facto question rested on an interpretation of state law, the Court here is no longer assessing the state court opinion solely under the AEDPA rubric. The Court must presume that the state court's interpretation of its own state law is correct and merely determine whether that interpretation of state law, enunciated after the crime was committed, violates the Ex Post Facto Clause. Harris v. Reed, 489 U.S. 255, 262 (1989) (holding that the adequate and independent state law doctrine applies to federal habeas cases). Although the state court's determination of state law is for the state courts to determine, the federal court still must determine whether the change in state law wrought by the state court violates the Ex Post Facto Clause.

         In the ex post facto context, the question of whether a federal court must defer to the state court's statutory interpretation turns on whether the state court's interpretation was foreseeable. An "unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10 of the Constitution forbids." Bouie v. City of Columbia, 378 U.S. 347, 353 (1964). Thus, the relevant inquiry collapses into one question: was the state court interpretation foreseeable? If it was, the state determination controls. If it was not, Mr. Fisher's rights have been violated and Mr. Fisher must receive a new sentencing hearing.

         Here, the state court did not explicitly grapple with the issue of whether its determination of "substantial similarity" was foreseeable. The court simply concluded that the substantial similarity meant that there was no Ex Post Facto Clause violation. Although the state court did not explicitly say as much, the Court finds that the state court implicitly regarded its "substantial similarity" conclusion to be foreseeable. It would certainly be anomalous for a reasonable court to find that its own legal conclusion was unforeseeable. Thus, even though the state court did not discuss the issue of foreseeability outright, the Court "presume[s] that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richer, 562 U.S. 86, 99 (2011). Given that the question of foreseeability here is a federal law question, the Court finds that the Supreme Court of Pennsylvania unreasonably found that its 1999 holding was foreseeable to a potential criminal in 1980. 28 U.S.C. § 2254(d)(1).

         To further complicate the matter, the Supreme Court of Pennsylvania has interpreted (d)(5) in three different ways over the past 28 years. First, there was (d)(5) as interpreted when the crime was committed in 1980. Second, there was the changed judicial construction of (d)(5) in 1988 - after the crime, but before Mr. Fisher's sentence. Finally, there was the interpretation enunciated by the state court in the opinion addressing Mr. Fisher's PCRA petition, holding that (d)(15) is "substantially similar" to (d)(5). Fisher-3, 741 A.2d at 1240.

         Of the three different interpretations, the Court finds that the first two do not violate the Ex Post Facto Clause of the Constitution, but that the final interpretation - that (d)(5) is substantially similar to (d)(15) - violates the Clause. To arrive at that answer, the Court must answer two questions in turn: First, whether the 1988 judicial interpretation of (d)(5) was foreseeable in 1980 when the crime was committed; and second, whether the interpretation in this case - that (d)(15) is substantially similar to (d)(5) - was foreseeable in 1980. The Court finds that the answer to question (1) is yes - the 1988 interpretation is foreseeable - and the answer to question (2) is no - interpreting (d)(15) as the same ...


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