United States District Court, E.D. Pennsylvania
E.K. PRATTER UNITED STATES DISTRICT JUDGE
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.
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.
Trial Background 
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.
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
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.
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
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,
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").
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
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.
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.
Section 2254 Deference
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;
(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,
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.
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).
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. 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.
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.
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.
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.
Ex Post Facto Aggravating Circumstances
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.
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.
Relevant Procedural History
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.
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
Legislative Amendment to Aggravating Circumstances
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,
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
[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
Judicial Interpretation Shift
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.
Ex Post Facto Standard
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.
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
four categories are:
 Every law that makes an action done before the passing of
the law, and which was innocent when done, criminal; and
punishes such action.
 Every law that aggravates a crime, or makes it greater
than it was, when committed.
 Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when
 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).
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.
Section 2254 Arguments
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.
Commonwealth's Ex Post Facto Analysis
threshold matter, the Commonwealth does not attempt to rely
on the state court's reasoning to dispute Mr.
Fisher's petition. 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.
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.
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
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.
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.
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).
State Court's Ex Post Facto Analysis
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. 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).
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.
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. 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.
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.
State Court Argument Resting on State Law
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
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.
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).
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.
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 ...