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            Title Rompilla v. Horn

 

            Date 2004

            By Alito

            Subject Misc

                

 Contents

 

 

Page 1

LEXSEE 355 F3D 233

RONALD ROMPILLA v. MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS Martin Horn, Appellant/Cross-Appellee

Nos. 00-9005, 00-9006

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

355 F.3d 233; 2004 U.S. App. LEXIS 788

May 22, 2002, Argued

January 13, 2004, Filed

SUBSEQUENT   HISTORY:              Rehearing   denied   by, Rehearing,  en  banc,  denied  by  Rompilla  v.  Horn,  359

F.3d 310, 2004 U.S. App. LEXIS 3664 (3d Cir. Pa., 2004) US Supreme Court certiorari granted by, Motion granted by Rompilla v. Beard, 159 L. Ed. 2d 857, 125 S. Ct. 27,

2004 U.S. LEXIS 5009 (U.S., 2004)

Reversed by Rompilla v. Beard, 2005 U.S. LEXIS 4846

(U.S., June 20, 2005)

PRIOR   HISTORY:             **1        On   Appeal   From   the United  States  District  Court  For  the  Eastern  District of Pennsylvania. (D.C. Civ. No. 99-cv--00737). District Judge:   Honorable  Ronald  L.  Buckwalter.   Rompilla  v. Horn,  2000  U.S.  Dist.  LEXIS  9620  (E.D.  Pa.,  July  11,

2000)

DISPOSITION: Affirmed.

LexisNexis(R) Headnotes

COUNSEL:  AMY  ZAPP,  (Argued),   Senior  Deputy Attorney General, Office of Attorney General, Harrisburg, PA, Counsel for Appellant/Cross-Appellee.

BILLY  H.  NOLAS,  (Argued),  DAVID  W.  WYCOFF, MICHAEL            WISEMAN,           Defender                Association           of Philadelphia,  Federal Court Division, Philadelphia,  PA, Counsel for Appellee/Cross-Appellant.

JUDGES:               Before:    SLOVITER,            ALITO,   AND STAPLETON,   Circuit   Judges.   SLOVITER,   Circuit Judge, dissenting.

OPINIONBY: ALITO

OPINION:

*235   OPINION OF THE COURT

ALITO, Circuit Judge:

The Commissioner of the Pennsylvania Department of Corrections (hereinafter "the Commonwealth") appeals from a District Court order granting the petition for a writ of habeas corpus that was filed by Ronald Rompilla,  a Pennsylvania prisoner who was sentenced to death. The District Court ordered that Rompilla be released unless he is either resentenced to life imprisonment or a new penalty phase trial is held. Rompilla cross-appeals from the denial of his petition insofar as it challenged his conviction. We conclude that the Pennsylvania **2    Supreme Court's decision regarding Rompilla's sentencing proceeding was not contrary to and did not involve an unreasonable ap- plication of clearly established Supreme Court precedent, and therefore we reverse the decision of the District Court with respect to Rompilla's sentence. We affirm the deci- sion of the District Court with respect to his conviction. By separate order, however, we have granted Rompilla's application to file a successive petition for a writ of habeas corpus so that he will be able to assert his claim that, un- der Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335,

122 S. Ct. 2242 (2002), he may not be executed because of mental retardation.

*236   I.

In 1988, Rompilla was tried for the murder of James Scanlon.  Scanlon's  body  was  found  lying  in  a  pool  of blood  in  his  bar,  the  Cozy  Corner  Cafe  in  Allentown, Pennsylvania. Scanlon had been stabbed repeatedly and set  on  fire.  There  were  no  eyewitnesses  to  the  killing, but  the  Commonwealth  introduced  substantial  circum- stantial  evidence  of  Rompilla's  guilt.  In  its  opinion  on direct  appeal,  the  state  supreme  court  summarized  the prosecution's evidence as follows:

Appellant was seen in the Cozy Corner Cafe on  January  14,  1988,  from   **3    approx- imately 1:00 a.m. to 2:00 a.m. During that time, he was observed going to the bathroom

355 F.3d 233, *236; 2004 U.S. App. LEXIS 788, **3

Page 2

approximately ten times. A subsequent po- lice  investigation  determined  that  the  win- dow in the men's bathroom was used as the point of entry into the bar after it had closed. When   questioned   by   an   investigat- ing  detective  from  the  Allentown  Police Department,  Appellant  stated  that  he  had been in the Cozy Corner Cafe on the night of the murder and left between 2:00 a.m. and

2:30 a.m. because he had no money. He stated that he had only $2.00 to buy breakfast at a lo- cal diner. A cab driver testified that he picked up Appellant at the diner and drove him to two different hotels where Appellant was un- able  to  rent  a  room.  The  driver  then  took Appellant to the George Washington Motor Lodge  where  he  was  able  to  rent  a  room. Appellant paid the cab fare of $9.10.

Appellant rented a room for two nights at the George Washington Motor Lodge. In do- ing so, he paid $121.00 in cash and flashed a  large  amount  of  cash  to  the  desk  clerks. Appellant  also  used  a  false  name  when  he checked in.

The police secured a search warrant for Appellant's  motel  room  and  seized  several items, including Appellant's sneakers.   **4  These sneakers matched a footprint in blood that was discovered near the victim's body. In addition, the blood found on the sneakers matched the victim's blood type.

The         Commonwealth     also         presented other  circumstantial  evidence  that  linked Appellant   with   the   robbery   and   murder of   James   Scanlon.   First,   Mr.   Scanlon's wallet  was  found  by  a  groundskeeper  in the  bushes,   six  to  eight  feet  outside  the room   that   Appellant   had   rented   at   the George  Washington  Motor  Lodge.  Second, Appellant's fingerprint was found on one of the two knives used to commit the murder. Finally, there were numerous inconsistencies between what Appellant had told the police concerning his activities on January 14 and

15,  1988,  and  the  testimony  of  other  wit- nesses.

Commonwealth v. Rompilla, 539 Pa. 499, 653 A.2d 626,

629 (Pa. 1995). The jury found Rompilla guilty of first degree murder and other related offenses.

At the penalty phase of the trial, the prosecution at-

tempted  to  establish  three  aggravating  factors:  (1)  that Rompilla  committed  the  murder  while  perpetrating  a felony,  42  Pa.  C.S.  §  9711(d)(6),  namely,  the  burglary and robbery of the bar;  (2) that he committed the mur- der by means **5   of torture, 42 Pa. C.S. § 9711(d)(8); and (3) that he had a significant history of felony con- victions  involving  the  use  or  threat  of  violence  to  the person,  42  Pa.  C.S.  §  9711(d)(9).  To  establish  torture, the Commonwealth called Dr. Isidore Mihalakis, a foren- sic pathologist, who testified to the multiple wounds in- flicted on Scanlon   *237   and opined that Scanlon was conscious and alive when many of those wounds were in- flicted. App. 698-707. Based on the nature of the wounds, Dr. Mihalakis also opined that Scanlon's killer had delib- erately attempted to inflict pain before Scanlon died. Id. at 707-08. To show the defendant's prior history of vio- lent felonies, the Commonwealth proved that he had been convicted in 1976 of rape, burglary, and theft. App. 651-

52. Commonwealth v. Rompilla, 250 Pa. Super. 139, 378

A.2d 865 (Pa. 1977). The testimony of the rape victim, which  was  read  into  the  record,  showed  that  Rompilla had burglarized a bar after closing and had raped the bar owner and slashed her with a knife. App. 662-696.

The  defense  presented  the  testimony  of  five  mem- bers  of  the  Rompilla  family.  Rompilla's  older  brother, Nicholas,  and  his  wife,  Darlene,  testified  that   **6  Rompilla had lived in their home with their children for the three and one-half months before the killing. Nicholas testified that he and the defendant had grown up together, that the defendant had worked for him as a house painter before his arrest, and that the defendant had also helped out around the house. App. 738-41. Nicholas said that he had visited his brother frequently in prison and that they had a good relationship. Id. at 739. Nicholas added that he did not think that his brother had killed Scanlon, whom he had known for about 10 or 11 years, and that his heart went out to the Scanlon family. Id. at 740. He concluded his testimony by asking the jury to have mercy on his brother. Id. at 741.

Darlene Scanlon testified that her children were "very attached"  to  the  defendant  and  that  he  "was  very  good in our house." App. 734-35. Darlene said that he helped out in the home and that "he was a good family member" who felt "strongly about family" and "respected the family very well." Id. at 735. While the defendant was in prison, Darlene testified,  he frequently wrote to her and spoke about "family, his son, his wife, his brothers and sisters." Id. She stated **7   that the defendant's relationship with his son was good. Id. at 736. Like her husband, Darlene testified that she had known Scanlon, that she did not be- lieve that the defendant had killed him, and that she felt for the Scanlon family "very, very much." Id. Weeping, she concluded her testimony by telling the jury:  "We go

355 F.3d 233, *237; 2004 U.S. App. LEXIS 788, **7

Page 3

to bed crying, we wake up crying, it's been very hard on my children . . . . We want Ron alive even if it's in jail, we want him alive." Id.

Another brother, Bobby, also took the stand. Bobby testified that during the time when the defendant was out of prison they had an "excellent relationship" and were

"very close." App. 745. Before then, according to Bobby, he had visited the defendant in prison and the defendant had written him letters in which he expressed great con- cern for his son and other family members. Id.

The defendant's sister,  Sandra Whitby,  testified that she had grown up with the defendant. App. 754. Crying, she said that she loved him very much and that she thought that he was a "good person." Id. at 755. Asked what things were important for the defendant, she answered: "Family, his son, his wife, things my children were doing,   **8  my brothers." Id. She testified that she was praying for the Scanlon family and for her brother's life. Id. at 756. She added:  "We're not God, and we can't take people's lives

(crying) . . . I love my brother. Taking one life is never going to replace another life." Id.

Finally, Aaron Rompilla, the defendant's 14-year old son testified. He said that after his father's release from prison they had regular visits, which he enjoyed, that his father was proud of him, that he loved his father, and that he would visit him if he was sentenced to prison. Id. at

757-59. He said that he did not think it would be   *238

"right" to sentence his father to death, and when he was asked whether there was anything else he wanted to tell the jury, he simply cried. Id. at 759.

In her closing argument, defense counsel made an im- passioned plea for Rompilla's life. Her closing appears to have had three major themes. First, she repeatedly stressed that, although the jury had found the defendant guilty, they must have had at least some lingering doubt about what had happened, and therefore they should not sentence him to death, which "is final, irreversible." Id. Second, she re- minded the **9    jury of the good qualities mentioned by Rompilla's family members. She argued that Rompilla was "more than this act that you have found him to have committed," id. at 769, and she emphasized the love of Rompilla's family members. Id. at 773. She particularly asked the jury to keep in mind the defendant's 14 year old son, who had come to court to ask the jury "not to kill his father." Id. Third, she pled for mercy and warned the jury:

"I tell you this from the bottom of my heart, if you order death, it will take a part of your life away. Don't stain your hands and your souls with this man's blood, don't do it please." Id. at 772.

After  deliberating,  the  jury  unanimously  found  all three  of  the  aggravating  circumstances  alleged  by  the

prosecution, and the jury stated that one or more members found two mitigating factors under the "catchall" provi- sion  of  42  Pa.  C.S.  §  9711(e)(8),  i.e.,  "Rompilla's  son being  present  and  testifying"  and  the  possibility  of  re- habilitation. The jury found that the aggravating circum- stances outweighed the mitigating factors and sentenced Rompilla to death.

The Pennsylvania Supreme Court affirmed the con- viction  and  sentence.  Commonwealth  v.  Rompilla,  539

Pa.  499,  653  A.2d  626  (Pa.  1995)   **10    (hereinafter

"Rompilla-1"). n1 In December 1995,  Rompilla filed a petition  under  the  Pennsylvania  Post-Conviction  Relief Act ("PCRA"). After an evidentiary hearing, the PCRA denied the petition, and the Pennsylvania Supreme Court affirmed. Commonwealth v. Rompilla, 554 Pa. 378, 721

A.2d 786 (Pa. 1998) (hereinafter "Rompilla-2").

n1 While the case was pending  on direct ap- peal, Rompilla filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The District Court dismissed  the  petition  without  prejudice  for  lack of exhaustion. Rompilla v. Love, No. 94-cv--4196

(E.D. Pa.).

Rompilla  then  filed  a  petition  for  a  writ  of  habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District  Court  for  the  Eastern  District  of  Pennsylvania. Rompilla's petition raised 11 claims.  Rompilla v. Horn,

2000 U.S. Dist. LEXIS 9620, No. Civ.A.99-737,2000 WL

964750 (E.D. Pa. July 11, 2000). n2 The District Court denied  relief   **11    as  to  the  guilt  phase  but  granted relief as to the penalty   *239    phase based on its con- clusion that counsel had been ineffective in failing to in- vestigate and present mitigating evidence. 2000 U.S. Dist. LEXIS 9620 WL  at *14. The District Court thus ordered that a writ of habeas corpus would be granted unless the Commonwealth conducted a new sentencing hearing or resentenced  Rompilla  to  life  imprisonment.  2000  U.S. Dist. LEXIS 9620 WL  at *21. The Commonwealth ap- pealed, and Rompilla cross-appealed. Three questions are presented on appeal: (1) whether Rompilla's trial counsel was constitutionally ineffective during the penalty phase;

(2) whether the trial court committed constitutional er- ror in giving an accomplice liability instruction; and (3) whether the trial court erred in failing to instruct the jury that "life imprisonment" under Pennsylvania law meant life without the possibility of parole. n3

n2 The claims as identified by the District Court were as follows:

(1)  Trial  counsel  were  ineffective  at

355 F.3d 233, *239; 2004 U.S. App. LEXIS 788, **11

Page 4

the capital sentencing phase for failing to investigate, develop and present sig- nificant mitigating evidence related to petitioner's traumatic childhood, alco- holism,  mental  retardation,  cognitive impairment and organic brain damage;

(2) Petitioner is entitled to relief from his conviction and death sentence be- cause of the trial court's improper in- struction on accomplice liability;

(3)   The   trial   court's   failure   to   in- struct the jury that "life imprisonment" means  life  without  possibility  of  pa- role,  even  after  the  jury  repeatedly asked about parole eligibility; and the trial court's provision,  instead,  of in- accurate and misleading information, violated petitioner's Sixth, Eighth and Fourteenth Amendment rights;

(4) Petitioner is entitled to relief from his death sentence because the (d)(8) aggravating circumstance was uncon- stitutionally obtained;

(5) Petitioner is entitled to relief from his death sentence because the (d)(9)

"significant history" of felony convic- tions aggravating circumstance is un- constitutionally  vague;   the  jury  in- structions did not cure this vagueness; and the jury instructions, to the extent they provided guidance at all, directed a finding of this aggravating circum- stance;

(6) Petitioner is entitled to relief from his death sentence because of improper prosecutorial argument at the penalty phase;

(7) Petitioner is entitled to relief from his  death  sentence  because  the  trial court improperly allowed the prosecu- tor to read to the jury the inflammatory and prejudicial testimony of the victim of a prior rape and counsel were inef- fective  for  failing  to  cite  controlling authority  that  would  have  prevented the  introduction  of  the  inflammatory and prejudicial evidence;

(8) The seating of the juror who vis- ited the scene of the crime ten times, including,  during  the  trial  proceed- ings, who knew the victim of the of- fense and the victim's son, who knew an employee of the prosecutor's office and who expressed substantial doubts regarding  the  presumption  of  inno- cence;  and  trial  counsel's  failure  to challenge this juror for cause, violated petitioner's sixth, eighth and fourteenth amendment rights;

(9) Petitioner's death sentence should be vacated because the arbitrary "pro- portionality review" performed by the Pennsylvania Supreme Court violated his Eighth Amendment and Fourteenth Amendment rights;

(10) Petitioner is entitled to an eviden- tiary hearing on his claim that the pros- ecution  violated  his  due  process  by introducing  false  and  misleading  ev- idence; and

(11) Petitioner is entitled to relief be- cause of cumulative prejudicial effects of errors in this case.

Rompilla, 2000 U.S. Dist. LEXIS 9620, 2000 WL

964750.

**12

n3  A  certificate  of  appealability  was  not  re- quired for the Commonwealth's appeal of the in- effective assistance of counsel claim. Fed. R. App. P. 22(b)(3). The District Court granted a certificate of appealability as to the parole ineligibility claim, Rompilla, 2000 U.S. Dist. LEXIS 9620, 2000 WL

964750, at *21, and we granted a certificate of ap- pealability as to the accomplice liability instruction claim. 28 U.S.C. § 2253(c).

II.

Because  the  District  Court  did  not  conduct  an  evi- dentiary hearing,  our review of that Court's decision is plenary. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied,  534 U.S. 919,  122 S. Ct. 269,  151 L. Ed.

2d 197 (2001). However,  our review of the decision of the Pennsylvania Supreme Court is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996

355 F.3d 233, *239; 2004 U.S. App. LEXIS 788, **12

Page 5

("AEDPA"). See Hartey v. Vaughn, 186 F.3d 367, 371 (3d Cir. 1999). Under AEDPA, a federal court may not grant habeas relief on any claim adjudicated on the merits in state court unless the adjudication **13

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as deter- mined 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   *240   presented in the State court proceeding.

28 U.S.C. § 2254(d). Under the "contrary to" clause of §

2254(d)(1), relief may be ordered if the state court arrived at "a conclusion opposite to that reached by the Supreme  Court on a question of law" or if the state court decided

"a case differently than the Supreme  Court has on a set of materially indistinguishable facts." Williams v. Taylor,

529 U.S. 362, 412-13, 146 L. Ed. 2d 389, 120 S. Ct. 1495

(2000). Under the "unreasonable application" clause of §

2254(d)(1), relief may be awarded if the state court iden- tified the correct governing legal principle from Supreme Court decisions but unreasonably applied that principle to the facts of the case, id., or was "unreasonable in refus- ing to extend the governing legal principle to a context in which the principle should have controlled." Ramdass v. Angelone, 530 U.S. 156, 166, 147 L. Ed. 2d 125, 120 S. Ct. 2113 (2000). **14    Relief may not be granted un- der the "unreasonable application" clause merely because the federal court "concludes in its independent judgment that the relevant state-court decision applied clearly es- tablished federal law erroneously or incorrectly. Rather, that  application  must  also  be  unreasonable."  Williams,

529 U.S. at 411. See also Bell v. Cone, 535 U.S. 685, 122

S. Ct. 1843, 1850, 152 L. Ed. 2d 914 (2002) ("The focus .

. . is on whether the state court's application of clearly es- tablished federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one."). Furthermore, a federal court "must presume that the factual findings of both state trial and appellate courts are correct." Everett v. Beard,

290  F.3d  500,  508  (3d  Cir.  2002)  (citing  28  U.S.C.  §

2254(e)(1)). This presumption may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III.

Rompilla  claims  that  his  trial  attorneys  were  inef- fective at the penalty phase. First, Rompilla alleges that his  attorneys  were  derelict  in  failing   **15    to  obtain

school,  hospital,  court,  and prison records that reveal a number of IQ test results in the mentally retarded range, low achievement scores, placement in special education classes, childhood neglect, problems with alcohol, and an alcoholic mother. Second, he faults his attorneys for fail- ing to provide such records to the psychologist and the two psychiatrists whom they retained to examine him and for allegedly failing to communicate adequately with these experts. Third, he alleges that his attorneys were negli- gent in interviewing members of his family. He criticizes trial counsel because they did not interview two sisters who did not testify at the penalty phase, and because they did not ask sufficiently specific questions when they inter- viewed other family members. Fourth, Rompilla charges that  his  attorneys  were  derelict  in  failing  to  investigate the possible effects on Rompilla of childhood trauma and alcoholism.

A.

Rompilla  was  represented  by  two  public  defend- ers,  Frederick  Charles,  who  was  then  the  Chief  Public Defender for Lehigh County, and Maria Dantos, a full- time assistant public defender. App. 1055-56, 1059. Both testified at length at the PCRA hearing. For present **16  purposes, two aspects of these attorneys' preparation for the penalty phase are most pertinent:  first, their efforts to  obtain  information  about  Rompilla's  childhood  and schooling  and,  second,  their  communications  with  the three mental health professionals whom they consulted.

*241   Both Charles and Dantos explained that the defense had questioned Rompilla and numerous members of his family about his childhood, schooling, and back- ground and had asked for any information that might be helpful at sentencing. According to their testimony, how- ever,  neither  Rompilla  himself  nor  any  family  member even hinted at the problems on which Rompilla's ineffec- tive assistance  claim is based. Dantos testified that she had developed a good relationship of trust with Rompilla, that she felt that she had gotten to know him, and that she had a lot of discussions with Rompilla "about who he was and his life." App. 1073, 1163. When she asked Rompilla about school,  Dantos recounted,  he told her "that there was nothing unusual about it." Id. at 1197. Dantos also said that she specifically asked Rompilla about drinking and that he responded that he sometimes drank but "could handle it" and was not an alcoholic.   **17   Id. at 100-

01. On the night of the killing, Rompilla told her, he had consumed three or four beers over the course of the entire evening. Id. at 1101.

Charles added that Rompilla had responded to ques- tions about his background by saying that nothing was wrong:

355 F.3d 233, *241; 2004 U.S. App. LEXIS 788, **17

Page 6

"Is there anything that happened? What was it  like  growing  up?   Is  there  anything  you can tell us that could help us?" And he said,

"No, there was nothing wrong." He was very, very, smooth about it. It wasn't that he was reluctant  to  talk  about  anything.  He  said,

"Your conversations about the possibility of the death penalty bore me." . . .

There was no indicator from anything he told us that would send us searching for . . . any kind of records. He said everything was fine. He had a normal childhood. There was nothing there. . . .

. . . I remember Dantos  specifically go- ing one by one and talking to him. 'Is there anything  you  can  tell  me?   Tell  me  about yourself. Tell by about your background.' She was, you know, meticulous to cover points.

App.  1303.  Both  Dantos  and  Charles  said  that  nothing in  their  discussions  with  Rompilla  ever  suggested  that he was mentally retarded, id. at 1181, 1393, and **18  Charles elaborated that Rompilla did not have difficulty in understanding what was said to him or in expressing his feelings. Id. at 1393.

Dantos  and  Charles  also  testified  that  members  of Rompilla's  family  provided  no  hint  that  Rompilla  had mental  problems,  had  suffered  child  abuse,  or  was  an alcoholic.  Dantos  stated  that  she  spoke  with  three  of Rompilla's siblings, his sister-in--law Darlene Rompilla, and his ex-wife and that she had formed a "very close" relationship with the family. App. 1092, 1065. She said that they had discussed the importance of mitigation evi- dence but that no one had provided any useful information about Rompilla's background. She testified that she had

"spent hours with these family members," that they had

"discussed  the  family  dynamics  and  what   Rompilla's  family relationship was with his parents," and that there was no indication "that there was any sort of abuse within the family." Id. at 1097 Likewise, she stated that "there was nothing exceptional presented to her  about drink- ing within the family." Id. Charles added that although the family members said that they did not know Rompilla well because he had spent so many years behind **19  bars, the family was a "constant source of information." Id. at 1303, 1384.

Charles  was  questioned  repeatedly  and  extensively by Rompilla's attorneys about the failure of the defense to look for   *242   school, prison, and medical records, and Charles explained his strategy as follows:

I would investigate by asking my client, "how was your childhood?  Were there any prob- lems that you suffered?  Any kind of abuse?

. . . Is there anything that sticks out?  Don't think whether it's important or not. You just tell us, and then we'll determine whether or not  we  can  use  it."  Investigate  it  that  way. Would I send somebody to the person's ele- mentary school to talk to the teacher to see if they remember him from 25 years or 40 years before. No. I didn't have those resources in the  office.  .  .  .  I  had  two  investigators  and

2,000 cases. . . . I will talk to the client, talk to the family, and see if anything developed from there.

Id. at 1293-94. If these inquiries provided any hint that records  would  be  helpful,  he  added,  he  would  go  any- where to get the records. Id. at 1307.

With  respect  to  the  development  of  mitigation  ev- idence  regarding  Rompilla's  mental  condition,  Charles

**20   said that he had sent Rompilla to "the best foren- sic psychiatrist around here, to another  tremendous psy- chiatrist and a fabulous forensic psychologist" and that he  relied  on  them  to  detect  any  mental  problems  that might  be  useful  to  the  defense  and  to  request  that  the defense provide them with any records that they might need.  App.  1307-08.  He  elaborated  that  when  he  sent Rompilla to the psychologist,  he expected the psychol- ogist  to  administer  "a  Reitan  battery  test  to  determine if  there  was  any  brain  damage,"  n4  a  personality  test such as "the Minnesota Multiphasic Personality Inventory

("MMPI")", n5 a Rorschach test, n6 and an IQ test. Id. at 1323. He stated that he also expected that the results of this testing would be available to the psychiatrists. Id. If the mental health professionals needed any records or other information, he said, he expected them to ask for them, and he would have tried to provide whatever they sought. Id. He said that he also thought that the mental health professionals would interview Rompilla and that they would detect whether Rompilla's denial of anything unusual in his background seemed suspicious. Id. at 1308-

09.

n4 "The Reitan Battery measures organic im- pairment by means of a variety of exercises testing concentration,  coordination,  memory,  motor con- trol, abstract abilities and other cognitive and phys- ical functions." Barker v. Secy of Health and Human Services, 882 F.2d 1474, 1476 (9th Cir. 1989).

**21

355 F.3d 233, *242; 2004 U.S. App. LEXIS 788, **21

Page 7

n5   The   Minnesota   Multiphasic   Personality Inventory   or   "MMPI"   is   "one   of   the   best known   and   widely   used   personality   assess- ment   tests."   Richard   Sloane,   THE   SLOANE- DORLAND  ANNOTATED  MEDICAL-LEGAL DICTIONARY   -- 1992   SUPPLEMENT   522

(1992).

n6  The  Rorschach  test  is  "a  projective  psy- chological   test   in  which  the  subject  reveals  his or her attitudes,  emotions,  and personality by re- porting  what  is  seen  in  each  of  10  inkblot  pic- tures."  STEDMAN'S  MEDICAL  DICTIONARY

1808 (27th ed. 2000).

All three of the mental health professionals to whom Rompilla  had  been  sent  by  the  defense  testified  at  the PCRA  hearing  either  in  person  or  by  deposition.  All three  stated  that  they  had  examined  Rompilla  and  had found  nothing  useful  to  the  defense,  but  as  Rompilla now stresses, all three also testified that, if they had been provided with Rompilla's school and other records, they would have done additional testing.

Dr. Gerald Cooke, an experienced clinical and foren- sic psychologist, no longer possessed records regarding his examination of Rompilla other than the letter that he had sent to the public defender's **22   office after com- pleting the examination, but he was able to state with "99 percent" certainty   *243   what he would have done in a case of that type. App. at 1797. In a death penalty case, he testified that one of the questions in his mind would have been whether the defendant "showed any mental ill- ness,  emotional disturbance,  or other sorts of problems that might be a psychological mitigating circumstance." App.  at  1808.  He  would  have  administered  an  MMPI,

"an Incomplete Sentence Blank, n7 the Rorschach inkblot technique, and two or three subtests of the verbal subscale of the Wexler Adult Intelligence WAIS Revised." n8 Id. at 1797. Dr. Cooke testified that he knew that the IQ test that he would have administered to Rompilla had not pro- duced a score in the mentally retarded range because, in that event, he would have given further tests. Id. at 1810. He explained that he had not prepared a report regarding his examination because it was his practice to discuss the results of an examination orally with the referring attor- ney and to leave it to the attorney to decide whether he should prepare a report. Id. at 1816. He interpreted the letter that he wrote in this case to mean that **23    he

"didn't have anything that he  felt could be helpful." Id. n7 The Rotter Incomplete Sentences Blank Test tests maladjustment by providing the beginning of sentences (e.g., "I feel . . .", "My nerves . . .") that are

completed by the subject. See www.cps.nova.edu/- cpphelp/ROTTER.hrml.

n8  The  Wechsler  Adult  Intelligence  WAIS Revised   is   a   test   that   measures   general   in- telligence   in   adults.   STEDMAN'S   MEDICAL DICTIONARY, supra, 1596.

Dr.  Robert  Sadoff,  an  experienced  board-certified forensic psychiatrist, also had no records about Rompilla but testified that in a case of that type he would have exam- ined the defendant for competency to stand trial, criminal responsibility, and mitigating circumstances. App. 1841,

1859. He would have questioned and observed the defen- dant and would have requested psychological testing if he thought it was necessary. Id. From the letter that he sent to the Public Defender's Office, he said, it was fair to infer that he had found no mitigating evidence. Id **24   . at

1859.

A  second  psychiatrist,  Paul  K.  Gross,  also  testified that  he  had  examined  Rompilla  prior  to  his  trial  at  the request of the Public Defender's office to determine his mental status at the time but was not asked to look for mit- igating factors. App. 1504, 1506, 1549. Dr. Gross stated that Rompilla "denied any abuse as a child, by either par- ent." Id. at 1517. According to Dr. Gross, Rompilla said that he had "a good relationship with his father" and a

"fairly normal childhood except for the fact that he didn't like school, which he left in the ninth grade." Id. at 1517. Dr. Gross's conclusion at the time was that, although there was some evidence of antisocial behavior, "there was no other evidence for underlying psychiatric or mental disor- der." Id. at 1540. He added that he did not see anything in the materials shown to him by Rompilla's attorneys at the PCRA hearing that would have changed his opinion. Id. at

1539-40. Dr. Gross also reported that although Rompilla denied it,  there was a possibility that he could become violent while under the influence of alcohol.

In  the  PCRA  proceedings,  Rompilla  presented  tes- timony  of  three  family  members:   two  sisters,  Barbara

**25  Harris and Randi Rompilla, who testified that they were  not  interviewed  before  sentencing,  and  Nicholas Rompilla,  who  had  testified  at  the  sentencing  hearing. These family members stated, among other things, that their  parents  were  alcoholics;  that  their  mother  drank while pregnant with Rompilla; that their father was phys- ically  abusive  to  the  children  and  their  mother;   that Rompilla   *244    was  locked  in  an  outdoor  dog  pen; and that Rompilla was told he was stupid and would not amount  to  anything  and was  a very  nervous  child who kept everything inside. Nicholas testified that during the pre-sentencing  interview  he  was  asked  only  about  the three months prior to the offense and was not asked about

355 F.3d 233, *244; 2004 U.S. App. LEXIS 788, **25

Page 8

Rompilla's childhood. App. 1462-63, 1467-71, 1477-78. Rompilla also presented evidence from two psychol- ogists,  Carol  L.  Armstrong  and  Barry  Crown,  both  of whom  had  evaluated  and  tested  Rompilla  after  he  was convicted  and  sentenced.  These  psychologists'  evalu- ations  included  neuropsychological  testing,  review  of Rompilla's school, medical, and prison records, and re- view of post-sentencing declarations by Barbara Harris, Darlene Rompilla, and Nicholas Rompilla. The psychol- ogists  stated  that  the  low   **26    IQ  and  achievement test results documented in Rompilla's school records, his medical history, and his abusive background were all "red flags" indicating that further objective evaluation was nec-

essary. App. at 1692, 1739, 1743.

Drs.  Armstrong  and  Crown  opined  that  Rompilla suffers  from  organic  brain  damage,  an  extreme  mental disturbance significantly impairing several of his cogni- tive functions. They expressed the view that Rompilla's problems  relate  back  to  his  childhood  and  were  likely caused  by  fetal  alcohol  syndrome,  and  they  concluded that Rompilla's capacity to appreciate the criminality of his conduct or to conform his conduct to the law was sub- stantially impaired at the time of the offense. See Rompilla Br. at 58-61.

B.

In  evaluating  Rompilla's  ineffective  assistance  of counsel claim,  the PCRA court noted that Strickland v. Washington,  466  U.S.  668,  80  L.  Ed.  2d  674,  104  S. Ct. 2052 (1984), requires proof of deficient performance and prejudice. App. 2027. The court then observed that Pennsylvania cases employ a three-pronged test:

First, a defendant must demonstrate that his claim is of arguable merit. In the event this threshold  requirement  is  satisfied,  a  defen- dant **27   must show that counsel had no reasonable  basis  for  the  act  or  omission  in question. Finally a defendant must establish that but for counsel's act or omission, the out- come  of  the  proceedings  would  have  been different.

App. 2028 (quoting Commonwealth v. Buehl, 540 Pa. 493,

658 A.2d 771 (Pa. 1995).

Applying  this  standard,  the  PCRA  court  concluded that  Rompilla  satisfied  the  first  prong  because  he  was

"entitled to have relevant information of mental infirmity" presented to the jury, but the court held that the second prong was not met because "counsel had a reasonable ba- sis for proceeding as they did during the penalty phase."

App. 2028. The court made the following findings:

. Drs. Cooke and Sadoff, are "recognized ex- perts in the field of psychiatry and psychol- ogy."

. "These experts administered tests, evaluated Mr. Rompilla, and reported back to defense counsel."

. They found "no organic brain damage" and

"nothing that could be used in mitigation."

. They diagnosed Rompilla as a "sociopath," and this evidence "would not have been of benefit to Mr. Rompilla's case."

. The defense attorneys provided Drs. Cooke and Sadoff "with whatever **28  they asked for," and Drs. Cooke and Sadoff did not re- quest the records later unearthed by PCRA counsel.

*245  . Trial counsel "also obtained an eval- uation  by  Dr.  Paul  Gross,  a  well  respected Lehigh  Valley  psychiatrist,"  and  Dr.  Gross

"found nothing that would have been benefi- cial in the penalty phase."

. Rompilla did not provide trial counsel with

"any indication of mental problems or alco- holic  blackouts"  or  anything  else  that  was

"particularly useful."

. Trial counsel "spoke with members of the family in a detailed manner," and the family did not reveal the family background infor- mation adduced in the PCRA proceeding.

.  The  family  members'  testimony  at  the

PCRA hearing was not credible insofar as it

"attempted to contradict what defense coun- sel indicated was asked of them during nu- merous communications prior to trial."

App. 2028-2029.

Based on these findings, the PCRA concluded:

. "Given the fact that the  three health care professionals retained by trial counsel , all of whom were experienced forensic experts, had provided opinions . . ., and none of them asked for more information, it was hardly un-

355 F.3d 233, *245; 2004 U.S. App. LEXIS 788, **28

Page 9

reasonable or ineffective for defense counsel

**29   to have relied upon their opinions."

. Trial counsel was not ineffective in ques- tioning   family   members   because   family members were questioned "in a detailed man- ner,"  and  contrary  testimony  at  the  PCRA hearing was rejected.

. "Defense counsel was reasonable in believ- ing  that  the  only  avenue  available  to  them was to ask the jury to show mercy upon Mr. Rompilla." "Under the circumstances of this case, this strategy was not only an appropri- ate one, but the only one reasonably available to counsel."

On appeal, the Pennsylvania Supreme Court also held that Rompilla's ineffective assistance claim lacked merit. The Court agreed with the PCRA court "that trial counsel was effective with respect to their investigation and pre- sentation of mitigating evidence." Rompilla-2, 721 A.2d at 790. Noting that trial counsel employed three experts to evaluate Appellant" and that "the experts found noth- ing helpful to Appellant's case," the Court added:  "We agree with the PCRA court that under the facts of this case, counsel reasonably relied upon their discussion with Appellant and upon their experts to determine the records needed to evaluate his mental health and other potential

**30   mitigating circumstances." Id.

In the habeas proceeding, the District Court not only disagreed with the decisions of the PCRA court and the state supreme court on the ineffective assistance issue, but the District Court found that those decisions were unrea- sonable. Rompilla, 2000 U.S. Dist. LEXIS 9620, 2000 WL

964750, at *14. However, the Court stated that its decision was "a very close call . . . because trial counsel performed so admirably according to my review of the record" and further commented that its review of the record revealed that "trial counsel were intelligent, diligent and devoted to their task of representing Rompilla ." 2000 U.S. Dist. LEXIS 9620, WL  at *8, *12.

The District Court found two omissions in the opin- ions of the PCRA court and the state supreme court. First, the  District  Court  stated,  the  prior  opinions  lacked "an in depth analysis of what the duty to investigate consists of in a case of this nature." 2000 U.S. Dist. LEXIS 9620,

WL  at *8. In particular, the District Court faulted the state courts for failing to "include a reference to the ABA Standards for Criminal Justice." Id. Second, the District Court found the state court opinions deficient for failing to discuss alcoholism. 2000 U.S. Dist. LEXIS 9620, WL  at *8.   *246   Observing **31   that it appeared that trial

counsel  "thought  they  could  rely  on  the  experts  to  de- termine Rompilla's  general mental ability or capacity," the Court opined:  "It seems to me on balance that trial counsel  were obliged to go a bit farther to fulfill their duty to investigate." 2000 U.S. Dist. LEXIS 9620, WL  at *9, *12. Concluding that trial counsel's performance at the penalty phase had been inadequate and that Rompilla had been prejudiced,  the Court held that Rompilla was entitled to habeas relief with respect to his sentence. 2000

U.S. Dist. LEXIS 9620, WL  at *14. IV.

Strickland is the Supreme Court precedent governing ineffective  assistance  of  counsel  claims,  Williams,  529

U.S. at 391, and in order to show ineffective assistance under Strickland, a defendant must demonstrate (1) that counsel's "representation fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688; and (2) that "there is a reasonable probability that, but for coun- sel's unprofessional errors,  the result of the proceeding would have been different." Id. at 694. "Judicial scrutiny of a counsel's performance must be highly deferential," and "every effort must  be made to **32   eliminate the distorting effects of hindsight, to reconstruct the circum- stances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at

689. "There is a 'strong presumption' that counsel's perfor- mance was reasonable." Jermyn v. Horn, 266 F.3d 257,

282 (3d Cir. 2001). Thus,  "a defendant must overcome the presumption that, under the circumstances, the chal- lenged action might be considered sound trial strategy." Bell, 122 S. Ct. at 1852 (quotations omitted).

"The test for ineffectiveness is not whether counsel could  have  done  more;  perfection  is  not  required.  Nor is  the  test  whether  the  best  criminal  defense  attorneys might  have  done  more. Instead  the  test is  . . .  whether what counsel  did was within the 'wide range of reason- able professional assistance.'" Waters v. Thomas, 46 F.3d

1506, 1518 (11th Cir. 1995) (en banc) (quoting Strickland,

466 U.S. at 689). Ultimately, the issue is not what conduct is "prudent or appropriate, but only what is constitution- ally compelled," Burger v. Kemp, 483 U.S. 776, 794, 97

L.  Ed.  2d  638,  107  S.  Ct.  3114  (1987)   **33    (quot- ing United States v. Cronic, 466 U.S. 648, 665 n.38, 80

L.  Ed.  2d  657,  104  S.  Ct.  2039  (1984)),  and  the  Sixth Amendment  "simply  .  .  .  ensure s   that  criminal  defen- dants receive a fair trial," Strickland, 466 U.S. at 689. See also Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir.

1997) ("The sixth amendment does not guarantee success or entitle defendants to the best available counsel or the most  prudent  strategies.  .  .  .  The  Constitution  is  satis- fied when the lawyer chooses a professionally competent strategy  that  secures  for  the  accused  the  benefit  of  an

355 F.3d 233, *246; 2004 U.S. App. LEXIS 788, **33

Page 10

adversarial trial.") V.

In this appeal, the Commonwealth contends that the state courts reasonably applied the Strickland ineffective assistance standard to the facts of this case. According to the Commonwealth, the District Court erred by essen- tially considering the ineffective assistance issue as if it were conducting a de novo review --  that is, by making its own independent application of the Strickland test to the facts rather than considering only whether the state supreme court's application of that test was reasonable. Rompilla  of  course  disagrees,  but  he  also  goes  further

**34   and argues that we need not reach the unreason- able application   *247   issue at all for two reasons: first, because the Pennsylvania Supreme Court did not render a

"decision" within the meaning of 28 U.S.C. § 2254(d)(1), and, second, because the state supreme court's decision is

"contrary to" Strickland. We discuss each of these argu- ments below.

A.

Rompilla argues that the Pennsylvania Supreme Court did not render a "decision" on his Sixth Amendment claim because "the Pennsylvania Court's opinion lacks any real Sixth Amendment analysis." Rompilla Br. at 98. Rompilla criticizes the state supreme court for applying the three- pronged test set out in its own cases rather than the two- pronged Strickland test. Id. He contends that the relation- ship between the three-part Pennsylvania formulation and the Strickland test is "not clear," and he faults that state supreme  court  for  supposedly  failing  to  address  either prong of the Strickland test. Id. at 98-99. He asserts that the state supreme court mistakenly thought that his federal claim was that trial counsel did not conduct any investiga- tion at all, whereas his actual claim was that trial counsel

**35   did not conduct a sufficiently "thorough" investi- gation. Id. at 100. Finally, he criticizes the state supreme court for failing "to render a 'decision' at all on critical as- pects of this claim," viz., the prejudice prong of Strickland and his arguments regarding alcoholism and intoxication. Id.

In  order  to  address  these  arguments,  we  must  first explain  the  critical  difference  under  the  habeas  statute between,  on  the  one  hand,  the  failure  of  a  state  court to  adjudicate  a  federal  claim  on  the  merits  (something that  may  occur  if  the  state  court  misconstrues  the  fed- eral claim) and, on the other, the failure of a state court to hand down an opinion that discusses every argument, sub-argument, and legal authority offered by the habeas petitioner. For purposes of the habeas statute, a failure to decide affects the standard of review; a failure to discuss

(either at all or to the satisfaction of the habeas petitioner

or the federal court) is irrelevant.

Under  the  habeas  statute,  as  previously  noted,  if  a claim  was  "adjudicated  on  the  merits"  in  a  state  court proceeding, relief may not be granted "unless the adju- dication of the claim . . . resulted in a decision **36  that  was  contrary  to,  or  involved  an  unreasonable  ap- plication of, clearly established Federal law." 28 U.S.C.

§ 2254(d)(1)(emphasis added). An "adjudication on the merits" "has a well settled meaning: a decision finally re- solving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261

F.3d 303, 311 (2d Cir. 2001). See also Neal v. Puckett, 286

F.3d 230, 235 (5th Cir. 2001) ("adjudication 'on the merits' is a term of art that refers to whether a court's disposition of the case was substantive as opposed to procedural"), cert. denied, 537 U.S. 1104, 154 L. Ed. 2d 772, 123 S. Ct.

963 (2003).

In Chadwick v. Janecka,  312 F.3d 597,  605-07 (3d

Cir. 2002),  cert. denied,  538 U.S. 1000,  155 L. Ed. 2d

828, 123 S. Ct. 1914 (2003), we discussed this issue in detail and reviewed both pertinent Supreme Court prece- dent and our own prior decisions in Everett v. Baird, 290

F.3d 500, 507-08 (3d Cir. 2002), cert. denied, 537 U.S.

1107, 154 L. Ed. 2d 777, 123 S. Ct. 877 (2003);  Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001); **37    and Hameen v. Delaware, 212 F.3d 226, 248 (3d Cir. 2000). We noted that under Weeks v. Angelone,  528 U.S. 225,

237,  145 L. Ed. 2d 727,  120 S. Ct. 727 (2000),  a state court may render an adjudication or decision on the mer- its of a federal claim by rejecting the claim without any discussion whatsoever.   *248    Chadwick,  312 F.3d at

606. We explained that if an examination of a state court opinion reveals that the state court did not decide a federal claim on the merits, the deferential standards of review set out in § 2254(d)(1) do not apply. Id. at 605-07. But if the state court decided the claim, the § 2254(d)(1) standards govern -- regardless of the length, comprehensiveness, or quality of the state court's discussion. Id. See also Sellan,

261 F.3d at 312 (a state court adjudicates a claim on the merits when it "(1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment. . . . even if the  state  court  does  not  explicitly  refer  to  .  . .  relevant federal case law."); Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir. 2000) (en banc) (section 2254(d) "does not require that a state court cite to **38   federal law in order for a federal court to determine whether the state court deci- sion is an objectively reasonable one."), cert. denied sub nom., Bell v. Beck, 534 U.S. 830, 122 S. Ct. 74, 151 L. Ed. 2d 39 (2001);  Aycox v. Lytle,  196 F.3d 1174,  1177

(10th Cir. 1999) ("The focus is on the state court's de- cision  or  resolution  of  the  case.");  Wright  v.  Secretary for Dep't of Corrections, 278 F.3d 1245, 1255 (11th Cir.

355 F.3d 233, *248; 2004 U.S. App. LEXIS 788, **38

Page 11

2002) (section 2254(d)(1) "focuses on the result, not on the reasoning that led to the result") cert. denied, 538 U.S.

906, 155 L. Ed. 2d 225, 123 S. Ct. 1511 (2003).

Here,  it  is  abundantly  clear  that  the  state  supreme court adjudicated Rompilla's Sixth Amendment claim on the merits. Although the state supreme court referred to its  own  three-pronged  ineffective  assistance  test  rather than the two-pronged Strickland test,  the Pennsylvania Supreme Court has explicitly held that the state standard is "the same" as Strickland's and that Pennsylvania law does not provide "any greater or lesser protection" than the Sixth Amendment. Commonwealth v. Pierce, 515 Pa. 153,

527 A.2d 973, 976-77 (Pa. 1987). **39   As we put it in Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) cert. denied, 532 U.S. 980, 149 L. Ed. 2d 483, 121 S. Ct. 1621

(2001), the Pennsylvania Supreme Court has "opined that the Pennsylvania standard judging ineffectiveness claims

is  identical to the ineffectiveness standard enunciated by the United States Supreme Court in Strickland." Since the brief filed in the state supreme court on Rompilla's behalf in the PCRA appeal left no doubt that the ineffectiveness claim asserted was based on federal law,  it is perfectly clear that the state supreme court adjudicated that federal claim on the merits but simply chose to address the claim within the framework of its own, familiar three-part test, which it regards as "the same" as Strickland.

Moreover, it is apparent that this essentially stylistic choice on the part of the state supreme court had no effect on its decision. The state supreme court held that the sec- ond prong of the state formulation -- requiring a showing that "counsel had no reasonable basis for the act or omis- sion in question," Rompilla-2, 721 A.2d at 789 -- had not been met because Rompilla's trial "counsel acted **40  reasonably" "with respect to their investigation and pre- sentation of mitigation evidence." Id. at 790. The second prong of the state formulation is substantively indistin- guishable from the first prong of Strickland -- which re- quires a showing that counsel's "representation fell below an objective standard of reasonableness". Strickland, 466

U.S. at 688. Rompilla argues that the significance of the first Pennsylvania prong is unclear n9 and that   *249   the third Pennsylvania prong differs from Strickland's preju- dice prong, n10 Rompilla Br. at 98-99, but because the state  supreme  court  held  that  Rompilla  failed  the  sec- ond state prong, which is indistinguishable from the first Strickland prong, these arguments are entirely beside the point.

n9 Rompilla takes exception with the first prong of  the  Pennsylvania  formulations  --  whether  the underlying claim has arguable merit. Although the question of the merit of an underlying claim is not an explicit step under Strickland, we have held that

it is a determinative factor in the "deficient perfor- mance" prong of the Strickland analysis in at least some contexts. See Parrish v. Fulcomer, 150 F.3d

326, 328 (3d Cir. 1998) (counsel not ineffective for failing to raise meritless claims).

**41

n10 Rompilla notes that the third Pennsylvania prong,  as  stated  by  the  Pennsylvania  Supreme Court's  opinion,   asks  whether  counsel's  act  or omission "would have" produced a different out- come,  not  whether,  as  stated  in  Strickland,  there is a reasonable probability of a different outcome. Strickland, 466 U.S. at 694. Since neither the de- cision of the state supreme court nor our decision in this appeal turns on the issue of prejudice,  we have no occasion to explore the question whether in practice prejudice is analyzed differently under these two standards.

Rompilla's  remaining  arguments  on  the  question whether the state supreme rendered an "adjudication" or

"decision"  on  the  merits  of  his  federal  ineffectiveness claim require little additional discussion. There is plainly no merit to Rompilla's argument that the state supreme court mistakenly thought that his Sixth Amendment claim was  that  counsel  failed  to  conduct  any  investigation  at all regarding the matters at issue and did not appreciate that  his  claim  was  that  counsel  did  not  conduct  a  suf- ficiently  thorough  investigation.   **42    Although  the state supreme court did use the phrase "failed to investi- gate," 721 A.2d at 790, it seems clear that this was simply a  shorthand  way  of  referring  to  the  claim.  The  court's discussion of the various steps that counsel took and its conclusion that counsel acted "reasonably" make it clear that the court did not think that any investigation at all would suffice but instead understood that the extent of the investigation had to be "reasonable."

What  we  have  said  about  the  relationship  between the  Pennsylvania  formulation  of  the  test  for  ineffective assistance  and  the  Strickland  formulation  is  sufficient to  dispose  of  Rompilla's  criticism  of  the  state  supreme court for failing to discuss Strickland in so many words. Rompilla's criticism of the state supreme court for failing to decide whether the prejudice prong of Strickland was satisfied  is  further  flawed  because,  in  light  of  the  state supreme court's holding that counsel's performance was reasonable, the court had no need to address the issue of prejudice. See Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim to . . . address both **43   components of the inquiry if the defendant makes an insufficient showing on one.");

355 F.3d 233, *249; 2004 U.S. App. LEXIS 788, **43

Page 12

Sistrunk v. Vaughn, 96 F.3d 666, 673 n.8 (3d Cir. 1996)

(if counsel's performance is objectively reasonable, there is no need to decide prejudice).

Finally, Rompilla's complaint that the state supreme court "failed to discuss any aspect" of his arguments re- garding evidence of alcoholism and intoxication goes to the  style  of  the  state  court's  opinion,  not  the  question whether the state court rendered an adjudication on the merits. There are many different theories about how ju- dicial opinions should be written. While some opinions make a point of specifically addressing every argument and every significant legal authority offered by counsel, others favor brevity and comment on only those points that the court finds most important. Because the state supreme court in this case rendered an "adjudication on the mer- its"  of  Rompilla's  Sixth  Amendment  claim,  Rompilla's criticisms of the state court's opinion cannot   *250   free him from the restrictive standards of review set out in 28

U.S.C. § 2254(d)(1). B.

There is similarly no merit in Rompilla's contention that the decision **44   of the state supreme court was

"contrary to" Strickland because it did not "identify and apply actual Sixth Amendment standards." Rompilla Br. at 101. A decision is "contrary to" a Supreme Court hold- ing if the state court "contradicts the governing law set forth in the Supreme Court's  cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different  result." Williams, 529 U.S. at 405-06.

In this case, the critical standard applied by the state supreme  court  --  whether  trial  counsel  had  a  "reason- able  basis  for  the  act s   or  omission s   in  question" -- did not contradict Strickland but rather, as we have ex- plained, was entirely consistent with Strickland. In Werts v. Vaughn, 228 F.3d at 202-04, as noted, we compared Pennsylvania's  ineffective-assistance  test  with  the  test enunciated in Strickland, and we found that a state court decision that applied the Pennsylvania test did not apply a rule of law that contradicted Strickland and was thus not

"contrary to" established Supreme Court precedent. Id. at

204. In the **45    instant case,  the state court applied the  same  state  test.  Accordingly,  here,  as  in Wertz,  the state court's application of that test does not mean that its decision is "contrary to" established Supreme Court precedent.

Rompilla also argues that the state court decision is contrary to Strickland because counsel's failure to obtain records,  without  knowing  the  contents  of  the  records,

"cannot  be  deemed  a  reasonable  strategy/tactic,  as  a matter  of  Sixth  Amendment  law,"  and  because  "Sixth

Amendment law does not condition the  obligation to obtain records  in any way on counsel's duties with re- gard  to  expert  evaluations."  Rompilla  Br.  at  106,  108

(emphasis in original). Rompilla is essentially challeng- ing the manner in which the state court applied the law to the facts, and thus this argument must be analyzed un- der the "unreasonable application" clause of § 2254(d)(1). See Williams, 529 U.S. at 406 (a "run-of--the-mill state court decision" that is "in accord with . . . Strickland as to the legal prerequisites for establishing an ineffective- assistance claim . . . may be contrary to the federal court's conception of how Strickland ought **46   to be applied in that particular case" but is not contrary to Strickland itself). For these reasons, we reject Rompilla's arguments under the "contrary to" clause of § 2254(d)(1).

VI.

We now turn to the 'unreasonable application' clause of  §  2254(d)(1).  To  obtain  relief  under  this  clause, Rompilla

must do more than show that he would have satisfied Strickland's test if his claim were be- ing analyzed in the first instance, because un- der § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment,  the  state-court  decision  applied Strickland incorrectly. Rather, he must show that the state court  applied Strickland to the facts of his case in an objectively unreason- able manner.

Bell, 122 S. Ct. at 1852 (citation omitted). In other words, Rompilla  must  demonstrate  that  "the  state  court  deci- sion,  evaluated  objectively  and  on  the  merits,  resulted in an outcome that cannot reasonably be justified under Strickland." Werts, 228 F.3d at 204.

*251      We  hold  that  the  Pennsylvania  Supreme Court's conclusion that trial counsel acted reasonably and rendered effective assistance was not an **47  unreason- able application of Strickland. The findings of the PCRA court  and  uncontradicted  testimony  at  the  PCRA  hear- ing  establish  that  trial  counsel  conducted  an  extensive investigation for mitigating evidence. According to their testimony, trial counsel got to know Rompilla well during the course of their representation and established a good relationship with him. Rompilla was questioned about his background but provided no useful information or leads. Trial counsel also spoke to three of Rompilla's siblings, as well as a sister-in--law and Rompilla's ex-wife. Family members were questioned "in a detailed manner," but they did not allude to any of the new evidence adduced at the

355 F.3d 233, *251; 2004 U.S. App. LEXIS 788, **47

Page 13

PCRA proceeding.

Trial  counsel  retained  three  well-qualified  mental health experts to examine Rompilla. Dr. Cooke,  a psy- chologist,  testified that in a case of this type he would have looked for mitigating evidence and would have per- formed a battery of tests, including an IQ test. Based on his letter to the Public Defender's office, he concluded that Rompilla's IQ test must not have shown mental retardation and that his evaluation must not have revealed any abnor- malities  that  would  have  been  useful  in   **48    show- ing  mitigation.  Dr.  Sadoff,  a  psychiatrist,  interviewed Rompilla and evaluated him for the presence of mitigating factors, but Dr. Sadoff inferred that he also found noth- ing  useful.  A  second  psychiatrist,  Dr.  Gross,  was  also retained  but similarly  found  nothing  useful. In  view of this record, we cannot say that the Pennsylvania Supreme Court unreasonably applied Strickland in concluding that trial counsel's investigation regarding mitigating evidence relating to Rompilla's family background and mental con- dition did not fall below the Sixth Amendment floor.

Rompilla criticizes many aspects of trial counsel's per- formance at the penalty phase, but we see no ground for relief under the habeas statute. Rompilla faults his trial attorneys  for  failing  to  interview  two  sisters  who  testi- fied at the PCRA hearing --  Barbara Harris,  the oldest of Rompilla's siblings, and Randi Rompilla, the second youngest. But trial counsel did interview three other sib- lings,  including  two  who  were  a  few  years  older  than Rompilla  (Nicholas  Rompilla  and  Sandra  Whitby)  and one Robert Rompilla, who was younger. At least some of the siblings who were interviewed must have been aware of the lurid conditions **49    in the family home that were portrayed at the PCRA hearing, but they never men- tioned anything about these matters to trial counsel despite being interviewed "in a detailed manner." It was thus not constitutionally ineffective for trial counsel to fail to antic- ipate that interviewing Barbara Harris or Randi Rompilla would have yielded important new information about the family home.

Rompilla  also  criticizes  his  trial  attorneys  for  al- legedly failing to ask sufficiently specific questions when interviewing family members and for allegedly failing to ask Nicholas Rompilla about any time period other than the three and one-half months just before the murder. This argument is defeated by findings of fact made by the state courts. The PCRA found that trial counsel "spoke with members of the family in a detailed manner." App. 2028. The PCRA court also rejected Nicholas Rompilla's tes- timony insofar as it contradicted "what defense counsel indicated was asked . . . during numerous conversations prior to trial." Id. at 2030. Testimony at the PCRA hearing supports these findings. See, e.g., id. at 1303 ("I remember

Dantos   *252  specifically going one by one and talking to him. 'Is **50   there anything you can tell me? Tell me about yourself. Tell by about your background.' She was, you know, meticulous to cover points."). The state courts' findings must be presumed to be correct, and Rompilla has not rebutted that presumption "by clear and convinc- ing evidence." 28 U.S.C. § 2254(e)(1). We accordingly reject Rompilla's argument regarding the interviewing of family members.

Rompilla  contends  that  trial  counsel  should  have sought out school,  medical,  police,  and prison records, but this argument also falls short of meeting the AEDPA standard.  With  the  benefit  of  hindsight,  we  know  that these records contain useful information about Rompilla's childhood home environment, his mental problems, and his problems with alcohol, but trial counsel had grounds for believing that if there was any mitigating evidence of this sort to be found, at least a hint of its availability would be disclosed in the interviews with Rompilla and his fam- ily members or in the testing and evaluations performed by the three mental health experts whom they retained. Charles, the lead trial attorney who had the final say on  every  issue  in  the  case,  App.  1258,  explained  why

**51    these records were not sought out. He testified that  he  would  have  done  whatever  was  needed  to  get records if there had been any indication from the inter- views  or  from  the  information  provided  by  the  mental health  experts  that  such  records  would  be  helpful.  Id. at 1307. But since these interviews and evaluations sug- gested that Rompilla's home environment, schooling, and mental condition were not promising avenues of investi- gation in the search for mitigating evidence, he did not think that obtaining those records would have represented a sound allocation of his office's resources. Id. at 1293-

94.

This explanation provides a reasonable basis for coun- sel's decision not to seek the records. Defense counsel was permitted to rely on statements made by their client in de- ciding on the extent of the investigation that should be conducted  in  particular  areas.  See  Strickland,  466  U.S. at 691 ("The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions."); id. ("When a defendant has given counsel reason to believe that pursuing certain in- vestigations would be fruitless or even harmful, counsel's

**52  failure to pursue those investigations may not later be challenged as unreasonable."). As noted counsel's in- terviews with Rompilla himself and with family members provided no indication of Rompilla's abusive childhood or  mental  problems.  See  Thomas,  144  F.3d  at  515  ("if the client and his family and friends throw the lawyer off the scent . . . by denying the existence of psychological

355 F.3d 233, *252; 2004 U.S. App. LEXIS 788, **52

Page 14

problems that might have provided an alternative theory of mitigation, the lawyer cannot be faulted for failing to go down the path thus closed off "). "The right to counsel does  not  require  that  a  criminal  defense  attorney  leave no stone unturned and no witness unpursued. Although  it does require a reasoned judgment as to the amount of investigation the particular circumstances of a given case require ,  an attorney need not fully investigate every po- tential avenue if he or she has reasonable grounds for not doing so." Berryman v. Morton, 100 F.3d 1089, 1101 (3d Cir. 1996). See also Thomas v. Gilmore,  144 F.3d 513,

515 (7th Cir. 1998) ("A reasonable investigation is not .

. . the investigation that the best criminal defense lawyer in  the  world,   **53    blessed  not  only  with  unlimited time and resources but also with the inestimable benefit of hindsight, would   *253   conduct.") cert. denied, 525

U.S. 1123, 142 L. Ed. 2d 905, 119 S. Ct. 907 (1999).

It was likewise not unreasonable for trial counsel to rely on its mental health experts to detect whether there was any basis for further pursuit of mitigating evidence relating to their client's mental condition. Trial counsel retained no fewer than three highly qualified experts. Dr. Cooke and Dr. Sadoff looked for any evidence that could be used as mitigation but found none. A battery of tests was  performed  but  yielded  no  indication  of  mental  re- tardation  or  anything  else  that  would  have  been  useful for mitigation. Although all three of the experts testified that the records that PCRA counsel subsequently obtained would have caused them to do further investigation, none of  the  experts  asked  for  records  or  suggested  that  any further testing be done.

In view of these circumstances, it was not unreason- able for the state courts to conclude that trial counsel did not fall below the constitutionally mandated level of rep- resentation by failing to search out the records at issue and by failing **54   to provide those records to their mental health experts. This was not a case where counsel knew of the defendant's mental health or other problems and failed to inform or provide the experts with the information. See Caro v. Calderon, 165 F.3d 1223, 1228 (9th Cir. 1999)

("A lawyer who knows of but does not inform his expert witnesses about . . . essential pieces of information going to the heart of the case for mitigation does not function as

'counsel' under the Sixth Amendment.") cert. denied, sub nom, Woodford v. Caro, 527 U.S. 1049, 144 L. Ed. 2d 811,

119 S. Ct. 2414 (1999). Despite counsel's attempts to find out otherwise, counsel had no knowledge of Rompilla's problems and/or childhood abuse. n11

n11  For  this  reason,  the  authority  cited  by

Rompilla is inapposite. See Jermyn, 266 F.3d at 275

(counsel knew that expert was willing to testify re- garding defendant's abusive childhood and its mit-

igating effects on the defendant's adult life); Profitt v. Waldron, 831 F.2d 1245, 1246-49 (5th Cir. 1987)

(counsel knew defendant escaped from mental hos- pital shortly before the crime); Beavers v. Balkcom,

636 F.2d 114, 115-16 (5th Cir. 1981) (counsel knew of defendant's prior hospitalization in mental insti- tution); Glenn v. Tate, 71 F.3d 1204,1208 (6th Cir.

1995) (counsel knew defendant had received men- tal health counseling) cert. denied, 519 U.S. 910,

136 L. Ed. 2d 196, 117 S. Ct. 273 (1996); Antwine v. Delo, 54 F.3d 1357, 1365-66 (8th Cir. 1995) (coun- sel  knew  that  defendant  was  acting  "odd"  prior to the offense) cert. denied sub nom, Bowersox v. Antwine, 516 U.S. 1067, 133 L. Ed. 2d 700, 116 S. Ct. 753 (1996); Hill v. Lockhart, 28 F.3d 832, 838-

40,  845  (8th  Cir.  1994)  (counsel  knew  of  defen- dant's prior hospitalization); Kenley v. Armontrout,

937  F.2d  1298  at  1300,  1304-06  (counsel  knew of  but  failed  to  contact  a  doctor  who  had  previ- ously treated the defendant);  Clabourne v. Lewis,

64 F.3d 1373, 1377, 1388 (9th Cir. 1995) (counsel knew defendant was mentally impaired at the time of the offense, and had "displayed a broad spectrum of psychiatric and emotional disorders"); Wallace v.  Stewart,  184  F.3d  1112,  1114,  1116  (9th  Cir.

1999)  (counsel  knew  from  first  sentencing  hear- ing of defendant's "chaotic upbringing," substance abuse,  and  mother's  mental  illness)  cert.  denied,

528 U.S. 1105, 145 L. Ed. 2d 713, 120 S. Ct. 844

(2000).

**55

In Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990), the court addressed an argument very similar to Rompilla's ar- gument regarding trial counsel's failure to provide records to their mental health experts. In Card, a capital case, the mental health expert spoke to members of the defendant's family and was provided copies of pre-trial reports in- dicating that the defendant was competent to stand trial. Id. at 1512. The expert testified at the sentencing hearing that the defendant suffered from a sociopathic personal- ity disorder and that his abusive childhood was consistent with  the  development  of  the  disorder.  Id.  at  1508.  The defendant claimed that   *254    counsel was ineffective in failing to provide the expert with various school, incar- ceration, army, and medical records and information from family members. Id. at 1512. This information, the defen- dant argued, would have enabled the expert to diagnose the defendant as suffering from organic brain damage and schizophrenia, rather than merely a sociopathic person- ality. Id. at 1512-13. The Eleventh Circuit rejected this argument observing that

355 F.3d 233, *254; 2004 U.S. App. LEXIS 788, **55

Page 15

there **56   is no indication that the experts felt incapable of basing their conclusions on the information they obtained through their own testing and examinations. Nor is there any reason that, after receiving the experts' reports, counsel was obligated to track down every record that might possibly relate to the defendant's  mental health and could affect a diagnosis.

Id. at 1512.

We find this reasoning persuasive. As in Card, there was  no  indication  in  the  present  case  that  Drs.  Cooke, Sadoff, and Gross "felt incapable of basing their conclu- sions on the information they obtained through their own testing and examinations." Card, 911 F.2d at 1512. Thus, it was not unreasonable for counsel to rely on the exper- tise and experience of the mental health professionals in determining the need for any records. Such deference to the legitimate role of experts is well within the wide range of reasonable professional assistance.

Furthermore,  it was permissible for Charles to con- sider  his  office's  limited  investigative  resources  in  de- termining the extent of the investigation that should be conducted with respect to Rompilla's childhood, family, and mental **57   condition. See McWee v. Weldon, 283

F.3d 179, 188 (4th Cir. 2002) ("the reasonableness of an investigation . . . must be considered in light of the scarcity of counsel's time and resources in preparing for a sentenc- ing hearing"), cert. denied, 537 U.S. 893, 154 L. Ed. 2d

158, 123 S. Ct. 162 (2002); Mahaffey v. Page, 151 F.3d

671,  685  (7th  Cir.)  ("A  'reasonable  investigation'  does not mandate a 'scorch-the--earth strategy,' a requirement that would fail to consider the limited time and resources that defense lawyers have in preparing for a sentencing hearing.")  (citations  omitted),  vacated  in  part  on  other grounds, 162 F.3d 481 (7th Cir. 1998); Rogers v. Zant, 13

F.3d 384, 387 (11th Cir. 1994) (the focus on whether a decision not to conduct a particular investigation was rea- sonable "reflects the reality that lawyers do not enjoy the benefit of endless time, energy or financial resources"). Rompilla argues that his trial attorneys were deficient because they did not provide adequate information or in- structions  to  Drs.  Cooke,  Sadoff,  and  Gross.  Rompilla maintains  that  his  attorneys  should  have  instructed  Dr. Cooke **58   to test for brain damage, but Charles tes- tified that he relied on the experts to do whatever testing was appropriate. App. 1307-08. Dr. Cooke was aware of the  need  for  mitigating  evidence.  He  testified  that  in  a capital case he would have looked for indications of "any mental  illness,  emotional  disturbance,  or  other  sorts  of problems  that  might  be  a  psychological  mitigating  cir-

cumstance," and he performed the battery of tests that he felt was called for. Id. at 1808-09. He stated that if the results of some of those tests had provided a reason to do a "neuropsyche test," he would have done so. Id. at

1809. Thus, Rompilla is in effect faulting his trial attor- neys for failing to instruct an expert to do a test that the expert apparently did not think was warranted under the circumstances. This argument demands much more than the Sixth Amendment requires.

*255   Rompilla criticizes his trial attorneys for al- legedly failing to educate Dr. Sadoff about the meaning of mitigating evidence. Based on a snippet of Dr. Sadoff's testimony, Rompilla suggests that Dr. Sadoff thought that

"mitigating evidence was limited to evidence about the offense itself," Rompilla Br. at 87 (citing **59    App.

1874),  whereas  under  the  law,  "mitigation  is  anything that 'might serve as a basis for a sentence less than death' and need 'not relate specifically to the defendant's  cul- pability for the crime he committed.'" Rompilla Br. at 88

(quoting Skipper v. South Carolina, 476 U.S. 1, 4-5, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986)) (emphasis and brackets in original). There are at least three weaknesses in this argument.

First, in light of Dr. Sadoff's background -- which in- cluded extensive experience relating to the criminal jus- tice system (see App. 1876-1892) --  it is far from clear that trial counsel had a constitutional obligation to brief him on the meaning of exculpatory evidence. n12 Second, it also is not clear that Rompilla's argument accurately rep- resents what Dr. Sadoff said. Asked by Rompilla's PCRA attorney whether he thought that evidence was mitigat- ing only "if it relates to the defendant's state of mind at the time of the commission of the offense," Dr. Sadoff answered:  "It relates to that and the kind of person he is. . . ." App. 1874. (emphasis added). He continued that in the past he had not "used irrelevant material that had nothing to do with the crime itself **60   as a mitigating factor. It had to be something that would have impacted on the defendant's  state of mind at the time." Id. Thus, Dr. Sadoff did not say that he thought that mitigating ev- idence had to be evidence "about the offense." Rompilla Br. at 87 (emphasis in original removed). Rather, he said that the mitigating evidence that he had used in the past was evidence of something that had an impact on the de- fendant's mind at the time. App. at 1874. It is not apparent that mental health evidence is likely to be persuasive for mitigation purposes if it cannot have had any impact on a murderer's mind at the time of offense.

n12 Both Drs. Sadoff and Cooke had previously testified in criminal proceedings. See, e.g., United States v. Green, 544 F.2d 138, 144 (3d Cir. 1976)

(Sadoff and Cooke); New Jersey v. Zola, 112 N.J.

355 F.3d 233, *255; 2004 U.S. App. LEXIS 788, **60

Page 16

384, 548 A.2d 1022, 1030 (N.J. 1988) (Sadoff and

Cooke); Commonwealth v. Comitz, 365 Pa. Super.

599, 603-04, 530 A.2d 473 (Pa. Super. Ct. 1987)

(Sadoff); Commonwealth v. Stark, 363 Pa. Super.

356, 526 A.2d 383 (Pa. Super. Ct. 1987) (Sadoff). They had also previously testified in capital cases. See, e.g., New Jersey v. Pitts, 116 N.J. 580, 562 A.2d

1320,  1325-27  (N.J.  1989)  (Sadoff  and  Cooke);

Commonwealth  v.  Aulisio,  514  Pa.  84,  522  A.2d

1075, 1087 (Pa. 1987) (Cooke); Commonwealth v. Terry,  513 Pa. 381,  521 A.2d 398,  405,  409 (Pa.

1987)  (Cooke);  Commonwealth  v.  Whitney,  511

Pa. 232, 512 A.2d 1152, 1157 (Pa. 1986) (Cooke);

Commonwealth v. Terry, 501 Pa. 626, 462 A.2d 676

(Pa. 1983) (Sadoff and Cooke).

**61

Third and most important, even assuming for the sake of argument that Dr. Sadoff's understanding of the range of mental health evidence that can be mitigating was un- duly narrow, we see absolutely no reason to believe that Dr. Sadoff's understanding contributed in any way to his failure to detect the conditions that Rompilla now claims. Rompilla argues that he "suffers from organic brain dam- age,  including damage to the frontal lobes and parietal area"  and  that  these  impairments,  among  other  things, prevent  him  from  "adequately  controlling  and  guiding his behavior," "emotions," and "impulses." Rompilla Br. at 58. He argues that these conditions "substantially im- pair  his capacity to appreciate criminality of conduct or conform conduct to the requirements of law." Id. at 96. Accordingly, these impairments surely would have "im- pacted" his mind at the time of the Scanlon murder and thus fall squarely   *256   within the scope of the sort of mitigating evidence to which Dr. Sadoff referred.

Rompilla argues that his trial attorneys were ineffec- tive because they did not ask Dr. Gross to look for miti- gating evidence. Rompilla Br. at 65 (citing App. 1535-36,

1545). However, Drs. Cooke and **62   Sadoff did look specifically for mitigating evidence, and the scope of Dr. Gross's evaluation encompassed at least some mitigating evidence.  He  stated:  "I  was  looking  to  see  if  he  knew what he was doing, whether he was suffering from any kind of psychiatric disorder, whether he may have been intoxicated, exactly what his emotions and cognitive pro- cesses were." App. 1506. In light of what Drs. Cooke and Sadoff were asked to do and in fact did,  trial counsel's instructions to Dr. Gross do not show that trial counsel were ineffective.

Finally,  Rompilla argues that trial counsel were in- effective in failing to do further investigation relating to Rompilla's alcohol use. Rompilla never explains exactly

what alcohol-related mitigation argument he believes his trial attorneys should have made, but he refers to infor- mation suggesting that there is a history of alcohol-abuse in the Rompilla family, that he is an alcoholic,  that his alcoholism was caused by his traumatic childhood, that he suffers from alcohol-induced blackouts,  and that he was intoxicated on the night of the murder. While these elements can be woven into an attractive mitigation ar- gument, most of the elements are based on information

**63    in the records that trial counsel was not, for the reasons we have explained, constitutionally obligated to obtain. This includes evidence of drinking in the Rompilla family,  Rompilla's  abusive  childhood  home,  blackouts, and Rompilla's alcoholism.

The  only  alcohol-related  mitigation  argument  that trial counsel could have made without obtaining the pre- viously discussed records --  namely, that Rompilla was so intoxicated at the time of the Scanlon murder that his judgment was impaired --  would not have been partic- ularly compelling. Moreover, while evidence to support this argument was available, n13 the argument would have to have been made without the support of testimony from Rompilla, who did not take the stand at either phase of the trial and denied intoxication or alcohol problems. We cannot say that it was objectively unreasonable for trial counsel not to put on such a defense.

n13  As  Rompilla  points  out,  police  reports on the Scanlon case indicated that "Rompilla was drinking heavily and was intoxicated and incoher- ent around the time of the offense." Rompilla Br. at

92.

**64

Finally, Rompilla argues that the Supreme Court's re- cent decision in Wiggins v. Smith, 539 U.S. 510, 156 L. Ed.

2d 471, 123 S. Ct. 2527 (2003), shows that his trial attor- neys conducted an unreasonably abbreviated investigation of potential mitigating factors, but there is a sharp con- trast between the conduct of the attorneys in Wiggins and those in this case. In Wiggins, the trial attorneys claimed that they made a tactical decision not to present mitigating evidence but instead to pursue the alternative strategy of attempting to prove that someone other than the defen- dant actually killed the victim. Id. at 2533. Accordingly, they made little effort to investigate the defendant's back- ground although they had reason to believe that such an investigation would have been fruitful.

The Supreme Court found that defense counsel's in- vestigation  of  their  client's  background  was  based  en- tirely on the presentence investigation report (PSI) and documents from the Baltimore City Department of Social

355 F.3d 233, *256; 2004 U.S. App. LEXIS 788, **64

Page 17

Services (DSS). Id. at 2540. Although funds were avail- able  for   *257    the  preparation  of  a  social  history  of the defendant, counsel did not commission such a report. Id. at 2536.   **65   But even the limited documents that counsel reviewed contained information that should have alerted counsel that an expanded investigation into their client's  background  was  likely  to  yield  mitigation  evi- dence. The PSI reported that the defendant had spent most of his childhood in foster care and quoted the defendant as describing his background as "disgusting." Id. at 2536. The DSS records disclosed that the defendant's "mother was a chronic alcoholic; Wiggins was shuttled from fos- ter home to foster home and displayed some emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mother left him and his siblings alone for days without food." Id. at

2537.

Wiggins's trial counsel nevertheless failed to follow these leads. Counsel moved for bifurcation of the penalty phase trial so that they could first attempt to show that their client did not kill the victim by his own hand and then, if that defense was rejected, offer evidence in miti- gation. Id. at 2532. When bifurcation was denied, defense counsel made a brief reference in her penalty phase open- ing to the defendant's "difficult life" but "introduced no evidence **66    of his  life history." Id. And although counsel proffered some evidence that would have been in- troduced if the bifurcation had been allowed, no evidence of the defendant's life history or family background was included. Id. After the defendant was sentenced to death, new  counsel  commissioned  the  preparation  of  a  social history. Id. at 2532. A social worker interviewed Wiggins and family members, obtained additional documents, and compiled evidence of severe physical and sexual abuse by Wiggins's mother. Id. at 2532, 2542.

Faced with these facts, the Supreme Court held that it was objectively unreasonable for counsel not to conduct a further investigation for mitigating evidence regarding Wiggins's background. Id. at 2541. The Court stated that

"any reasonably competent attorney" would have realized that it was necessary to follow the leads in the PSI and DSS documents before making a choice among potential defenses. Id. at 2537. The Court stressed that "counsel uncovered no evidence in their investigation to suggest that . . . further investigation would have been fruitless." Id. The Court also emphasized that Strickland does not re- quire counsel **67  to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Id. Instead, the Court reiterated that " a  decision not to investigate

. . . 'must be directly assessed for reasonableness in all the circumstances.'" Id. (quoting Strickland, 466 U.S. at

691).

There are critical differences between the conduct of Wiggins's  and  Rompilla's  trial  attorneys.  Wiggins's  at- torneys were presented with leads that "any reasonably competent attorney" would have realized were promising. Rompilla's attorneys had no comparable leads. Wiggins described  his  childhood  as  "disgusting";  Rompilla  in- sisted that his was "normal." In Wiggins, postconviction interviews  with  Wiggins  himself  and  with  members  of his  family  produced  evidence  of  severe  abuse.  123  S. Ct. at 2542. In the present case, Rompilla's attorneys in- terviewed their client and numerous family members in detail  before  the  penalty  proceeding  but  discovered  no mitigating evidence. Wiggins's attorneys "uncovered no evidence  in  their  investigation  to  suggest  that  .  .  .  fur- ther investigation would have been fruitless." Id **68

. at 2537. Rompilla's trial attorneys had a body of evi- dence that suggested that a   *258   further investigation into Rompilla's family background would not have been productive. Not only did Rompilla's attorneys probe their client for mitigating evidence, but they interviewed nu- merous  members  of  his  family,  including  siblings  who bracketed  him  in  age.  At  least  one  of  these  siblings, Nicholas Rompilla, later revealed that he knew about the conditions in the home on which Rompilla now relies, but he never provided that information to trial counsel, and although he now claims that trial counsel never asked him about any period of time other than the months immedi- ately preceding the murder, the PCRA court found that this testimony was not believable.

In short, the attorneys in Wiggins did little to inves- tigate their client's background although they possessed information  that  should  have  prompted  them  to  do  so. Rompilla's attorneys conducted a much greater investiga- tion, but their interviews with their client and his family provided a reasonable basis for concluding that additional investigation would not have represented a wise alloca- tion of limited resources. In our view, Wiggins is **69  critically different from the present case.

Rompilla  asserts  that  Dr.  Gross's  report  "explic- itly recommended that counsel investigate alcoholism," Rompilla Br. at 66, but this is not exactly what Dr. Gross wrote. Dr. Gross said that "the possibility does remain .

. . that Mr. Rompilla while under the influence of alco- hol,  can become prone to violent behavior although he himself strongly denies this." Dr. Gross added: "My rec- ommendation is that this area should be further evaluated before any definitive conclusions are drawn." (emphasis added). Thus, Dr. Gross did not say that further evaluation was  likely  to  produce  evidence  that  Rompilla  becomes violent  when  drunk,  only  that  this  was  a  "possibility." Nor did he recommend further evaluation as a promising strategy for the defense. Instead, he merely said that "no definitive conclusions" should be drawn about this possi-

355 F.3d 233, *258; 2004 U.S. App. LEXIS 788, **69

Page 18

bility unless there was a further evaluation. And finally, it should be noted that he referred to a further "evaluation"

(a term that suggests a psychiatric examination), not an

"investigation." Rompilla's brief repeatedly uses the term

"investigate" in an apparent attempt to suggest that Dr. Gross recommended that **70   trial counsel search for evidence such as the records discussed above. The use of this term obscures the fact that trial counsel did precisely what Dr. Gross recommended:  they had Rompilla "eval- uated" further, i.e., examined by another psychiatrist, Dr. Sadoff.

In conclusion, it appears to us that Rompilla is now ar- guing that his trial counsel were constitutionally derelict in failing to take all the steps that might have been pursued by the most resourceful defense attorneys with bountiful investigative  support.  But  while  we  may  hope  for  the day when every criminal defendant receives that level of representation, that is more than the Sixth Amendment de- mands. See Strickland, 466 U.S. at 689 ("the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, al- though that is a goal of considerable importance to the legal  system");  Burger,  483  U.S.  at  794  ("The  record at  the  habeas  corpus  hearing  does  suggest  that   coun- sel  could well have made a more thorough investigation than  he  did.  Nevertheless,  in  considering  claims  of  in- effective assistance of counsel,  'we address not what is prudent **71    or appropriate, but only what is consti- tutionally compelled.'") (quoting Cronic, 466 U.S. at 665 n.38) (alteration in original). The Sixth Amendment is sat- isfied when "counsel's conduct falls within the wide range of reasonable professional assistance," thereby "ensuring that  criminal   *259    defendants  receive  a  fair  trial." Strickland, 466 U.S. at 689. n14 See also Waters, 46 F.3d at 1512 ("The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done . . . . We are not interested in  grading  lawyers'  performances;  we  are  interested  in whether the adversarial process at trial, in fact, worked adequately.") (quoting White v. Singletary, 972 F.2d 1218,

1220-21 (11th Cir. 1992)). Here, the state court's deter- mination that counsel acted reasonably was not "contrary to" or an "unreasonable application" of Strickland.

n14 In finding the state courts' analysis unrea- sonable,  the  District  Court  relied  in  part  on  the absence of any "in depth analysis" of the duty to investigate, including the lack of any reference to the ABA Standards for Criminal Justice. Rompilla,

2000  U.S.  Dist.  LEXIS  9620,  2000  WL  964750, at *9. Three important observations must be made about the District Court's treatment of this point. First, the state court's failure to discuss these stan-

dards does not mean that the standards themselves or the principles they embody were not considered. Second, we see nothing in the quoted portions of the ABA standards that dictates that records of the sort at issue here must always be sought. Third, although the ABA standards are important guides, they can- not be viewed as a codification of the requirements of the Sixth Amendment. In Strickland, the Supreme Court recognized that "prevailing norms of practice as reflected in American Bar Association standards and  the  like  .  .  .  are  guides  to  determining  what is  reasonable."  Strickland,  466  U.S.  at  688  (em- phasis added). See also Williams, 529 U.S. at 396. However, the Supreme Court has made it clear that the ABA standards

are only guides. No particular set of de- tailed rules for counsel's conduct can satisfactorily take account of the vari- ety of circumstances faced by defense counsel or the range of legitimate deci- sions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the consti- tutionally  protected  independence  of counsel and restrict the wide latitude counsel must have in making tactical decisions. . . . The purpose of the effec- tive assistance guarantee of the Sixth Amendment is not to improve the qual- ity  of  legal  representation,  although that  is  a  goal  of  considerable  impor- tance to the legal system. The purpose is  simply  to  ensure  that  criminal  de- fendants receive a fair trial.

Strickland, 466 U.S. at 688-89 (citation omitted).

See also Roe v. Flores-Ortega, 528 U.S. 470, 481,

145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000) (the Court has  "consistently  declined  to  impose  mechanical rules  on  counsel --  even  when  those  rules  might lead to better representation").

**72  VII.

Rompilla  advances  three  claims  related  to  the  trial court's response to the jury's questions about accomplice liability.  First,  Rompilla  argues  that  his  federal  consti- tutional  right  to  due  process  was  violated  because  the court instructed the jury on accomplice liability without providing "notice or fair warning that he might be sub- jected to liability as an accomplice." Rompilla Br. at 14.

355 F.3d 233, *259; 2004 U.S. App. LEXIS 788, **72

Page 19

Second, he contends that his federal constitutional right to  due  process  was  abridged  because  the  accomplice- liability comments did not state that "accomplice liability must be proven beyond a reasonable doubt and that con- viction  for  murder,  even  based  on  accomplice  liability, required proof of a specific intent to kill." Id. at 20. Third, he maintains that his rights under the Sixth, Eighth, and Fourteenth Amendments were violated because the trial judge's remarks prevented the jury "from considering and giving exculpatory and mitigating effect to evidence that someone other than Rompilla was the killer." Id. at 22

(emphasis in original removed). A.

Under 28 U.S.C. § 2254(b)(1), a state prisoner's ap- plication for a writ of   *260    habeas corpus "shall not be granted **73   unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State" or the case falls within one of two exceptions to the exhaustion requirement, i.e., "there is an absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." Moreover, under 28 U.S.C. § 2254(b)(3), a state may not be deemed to have waived exhaustion or be estopped from relying on exhaustion "unless the State, through counsel,  expressly waives the requirement." In order to exhaust state remedies, a habeas petitioner must present the petitioner's federal claim in the state courts. See Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). It is not enough for a petitioner to advance a similar state- law claim. Duncan v. Henry, 513 U.S. 364, 366, 130 L. Ed.

2d 865, 115 S. Ct. 887 (1995). Rather, a petitioner must

"present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn,

172 F.3d 255, 261 (3d Cir. 1999).

Three sections of **74    Rompilla's brief on direct appeal to the state supreme court raised claims concern- ing the accomplice liability instruction. First,  Rompilla argued that the judge erred in giving the instruction be- cause  the  defense  had  no  prior  notice  that  this  theory of  liability  was  in  the  case  and  because  the  judge  re- fused a defense request that "the jury be specifically in- structed that under an accomplice theory every element must be proven beyond a reasonable doubt." Appellant's Br.  at  11,  Commonwealth  v.  Rompilla,  Supreme  Court of  Pennsylvania,  Philadelphia  District,  No.  53  Capital Appeal  Docket  (hereinafter  "Rompilla  Direct  Appeal Br."). Although this section of Rompilla's brief did refer to the requirement of proof beyond a reasonable doubt -- something demanded by both the federal Constitution and Pennsylvania law n15 --  the brief made no reference to the federal Constitution and did not cite any federal au-

thorities. Second, Rompilla argued that the judge erred in refusing to poll the jury as to whether the guilty verdict was based on the theory of accomplice liability. Rompilla Direct Appeal Br. at 15-17. This contention was based ex- clusively on state law. Third, Rompilla repeated the **75  argument that the trial judge erred in refusing to give the requested  defense  instruction  to  the  effect  that  convic- tion as an accomplice required proof beyond a reasonable doubt. Id. at 17-18. Only state authorities grounded on state law were cited.

n15  See  Commonwealth  v.  Bonomo,  396  Pa.

222, 151 A.2d 441, 446 (Pa. 1959).

Based on our examination of Rompilla's brief to the Pennsylvania Supreme Court, it is not clear that Rompilla properly presented any federal constitutional claim to that court. n16 Moreover, even if Rompilla's brief to the state supreme court is read as having raised the federal claim that the trial judge erred in refusing to give the requested instruction  on  the  requirement  of  proof  beyond  a  rea- sonable doubt, it seems clear that the remaining federal constitutional claims advanced by Rompilla in this appeal were not presented to the state supreme court. Rompilla's argument in the state supreme court concerning the lack of prior notice was based solely on state authorities,   **76  and the argument that Rompilla has made to us that the trial   *261   judge's instruction effectively prevented the jury  from  considering  exculpatory  and  mitigating  evi- dence was never made,  either as a state-or federal-law claim, in Rompilla's direct appeal brief.

n16 On direct appeal, the state supreme court described Rompilla's argument as follows:

by being instructed on an accomplice theory and then being told to disregard it, the jury might have been confused and convicted Rompilla  as an accom- plice.

Rompilla-1, 653 A.2d at 631.

In view of these deficiencies, if Rompilla could still return to the state courts and present the federal consti- tutional claims that he has made here, we would proba- bly be obligated to regard those claims as unexhausted. It  is  clear,  however,  that  Rompilla  can  no  longer  raise those  claims  in  state  court,  42  Pa.  Cons.  Stat.  Ann.  §

9545(b), and therefore it appears that those claims are ex- hausted but are probably procedurally defaulted.   **77  See Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001). The Commonwealth has not raised the defense of procedural

355 F.3d 233, *261; 2004 U.S. App. LEXIS 788, **77

Page 20

default, but we have the discretion to do so in appropri- ate circumstances. See Sweger v. Chesney, 294 F.3d 506,

520 (3d Cir. 2002) cert. denied,  538 U.S. 1002,  155 L. Ed. 2d 830, 123 S. Ct. 1902 (2003). Nevertheless, we do not rely on the doctrine of procedural default in deciding this appeal. Assuming for the sake of argument that our consideration of those claims on the merits is not barred, we find that the claims do not provide a basis for habeas relief.

B.

When language in jury instructions is challenged, the language in question "must be considered in the context of the instructions as a whole and the trial record." Estelle v. McGuire, 502 U.S. 62, 72, 116 L. Ed. 2d 385, 112 S. Ct.

475 (1991). We then consider "'whether there is a reason- able likelihood that the jury has applied the challenged in- structions in a way' that violates the Constitution." Smith v. Horn, 120 F.3d 400, 411 (3d Cir. 1997) (quoting McGuire,

502 U.S. at 72.))  Under these standards, the trial judge's comments about accomplice **78   liability did not vio- late Rompilla's constitutional rights.

1.

Since there were no eyewitnesses to the killing, the Commonwealth's case was based almost entirely on the previously noted circumstantial evidence. See Rompilla-

1,  653  A.2d  at  629.  The  defense  argued  that  someone other than Rompilla was the actual assailant.

During jury deliberations in the guilt phase, the jury asked:

If   Defendant   was   an   accomplice   to   the Charge  of  Criminal  Homicide,  can  he  be charged with Murder in the First Degree?

App. at 585. In response, the trial judge began by inform- ing the jury that the Commonwealth had not proceeded on the theory that Rompilla was liable for the murder as an accomplice and that no instruction on accomplice liability had been given. The judge stated:

Well,  preliminarily,  let  me  say  this.  If  you recall, the Court, in its  Charge, at no time referred to any theory of accomplice in this case. It is not the Commonwealth's theory in this case that the Defendant was an accom- plice. I'm not quite sure what prompted the question.  If  it  arose  because  of  something that  was  argued  by  Counsel  in  the  closing speeches,  if  you  recall,  I  indicated   **79  that  you  are  to  give --  and  you  should  be guided  by  each  Lawyer's  arguments  to  the

extent they're supported by the evidence and in so far as they aid you in applying your own reason and common sense. However, you are not required to accept the arguments of ei- ther Lawyer. It is for you alone --  you and you alone to decide this case based on the evidence as it was presented from this wit- ness stand and in accordance   *262    with the  instruction  which  the  Court  gave  you. Now, again, as I say, I'm not quite sure what prompted the question, but you did ask the question, and I assume you want an answer, is that correct?

Id. at 585-86 (emphasis added). The jury foreman nod- ded in the affirmative, and the trial court then attempted to explain when an accomplice could be held liable for a crime committed by another. Id. at 586-87. The court concluded, however, with the following comments:

I can only say this to you, that you should de- termine this case based on the Charge of the Court as it had given you originally. There was no evidence in this case with regard to the question as posed but a simple clear answer to the question is yes, you could be **80  charged with, and you could be convicted of Murder in the First Degree if, indeed, you're an accomplice, but it requires other proof or findings on your part that were not a part of this case nor were they made a part of this case, all right.

Id. at 587-88 (emphasis added).

On direct appeal, the state supreme court did not de- cide whether the trial judge's comments about accomplice liability were flawed but instead held that any error was cured by the judge's admonition to the jury that it should not consider that theory of liability. Id. n17 The District Court -- presented with arguments notably different from those  advanced  in  the  state  supreme  court --  went  be- yond the state supreme court in holding that the judge's explanation of accomplice liability was incomplete, but the  District  Court  agreed  with  the  state  supreme  court that any flaw was cured by the trial court's admonition that  the  theory  of  accomplice  liability  was  not  before the  jury  in  this  case.  Rompilla,  2000  U.S.  Dist.  LEXIS

9620, 2000 WL 964750, at *14. Similarly, we conclude that, even assuming arguendo that the challenged com- ments were constitutionally flawed, there is no basis for habeas **81   relief. The state supreme court's decision that  any  defect  in  the  challenged  comments  was  cured by the judge's admonition that the jury was not to con-

355 F.3d 233, *262; 2004 U.S. App. LEXIS 788, **81

Page 21

sider the theory of accomplice liability did not "involve an unreasonable application of Federal law," 28 U.S.C.

§ 2254(d)(1),  namely,  the rule that jury instructions do not violate the Constitution unless there is a reasonable probability that they were applied in a way that abridged constitutional rights. Moreover, even under a standard of plenary review, we would find no constitutional violation.

N17  In  the  PCRA  appeal,   Rompilla  again attempted  to  challenge  the  trial  judge's  instruc- tion on accomplice liability, but the state supreme court held that relief was unavailable because the claim had already been litigated on direct appeal. Commonwealth v. Rompilla, 554 Pa. 378, 721 A.2d

786, 793 (Pa. 1999).

In the federal habeas proceeding,  the District Court also found that the instruction did not pre- vent  consideration  of  exculpatory  and  mitigating evidence and that Rompilla's claim that there was evidence of an accomplice was not supported by the record. Id.

**82

Here, the clear thrust of the trial court's response to the jury's question was that the Commonwealth was not relying on the theory that Rompilla was liable as an ac- complice and that the jury should not consider that theory as  a  possible  basis  for  conviction.  As  noted,  when  the judge first responded to the jury's question, the judge be- gan by reminding the jury that the court's instructions "at no time referred to any theory of accomplice in this case. It is not the Commonwealth's theory in this case that the Defendant  was  an  accomplice."  App.  585-86.  In  addi- tion,  the judge told that jury that they were required to decide the case "in accordance   *263   with the instruc- tion which the Court gave you." Id. Since "the instruction which the Court gave the jury " "at no time referred to any theory of accomplice in this case," id. at 585-86, the judge's comments meant that the jury was to decide the case without relying on the theory of accomplice liability. The judge's final statements regarding accomplice liabil- ity  made  exactly  the  same  point.  The  judge  stated:   "I can only say this to you, that you should determine this case based on the Charge of the Court as it had given you originally.   **83    " Id. at 587. Jurors are presumed to follow the court's instructions. Richardson v. Marsh, 481

U.S. 200, 211, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987). In view of the instructions given here, it is not reasonably likely that the jury interpreted the judge's comments to mean anything other than that they were not to consider accomplice liability as a possible ground for conviction. Once the meaning of the judge's comments is under-

stood, it is apparent that there is no merit in Rompilla's argument that his right to due process was violated be- cause he did receive prior notice that he might be subjected to liability as an accomplice or in his argument that the judge's explanation of accomplice liability was constitu- tionally flawed. Since the trial judge told the jury that it was to decide the case without relying on the theory of accomplice liability, these arguments fail.

Rompilla contends that the trial court told the jury that it should not consider accomplice liability because no ev- idence was presented during the trial to support such a finding. Rompilla Br. at 16. Rompilla then maintains that the trial judge gave contradictory instructions in that, on the  one  hand,  he  told  the   **84    jury  not  to  consider accomplice  liability  because  there  was  no  evidence  to support  such  a  finding  and,  on  the  other  hand,  he  told the jury that it was the sole factfinder and its recollec- tion of the evidence should therefore control. According to  Rompilla,  the  jury  was  left  with  two  irreconcilable options --  either  to  disregard  the  theory  of  accomplice liability because the trial court believed there was no ev- idence to support the theory or to consider the theory if the jury, as sole factfinder, believed, as suggested by its question, that there was evidence of an accomplice.

This elaborate argument rests on the faulty premise that the trial judge instructed the jury that the reason why the theory of accomplice liability was not in the case was because there was no supporting evidence. In fact, how- ever,  the  judge  never  made  such  a  statement.  The  trial judge did state that "there was no evidence in this case with regard to the question as posed," but he did not state that this was why the theory was not in the case. Rather, as noted, the judge twice told the jury that they were not to consider accomplice liability because it was not in the original charge, and the judge also noted **85   that "it

was  not the Commonwealth's theory in this case that the

Defendant was an accomplice."

Rompilla's remaining argument (that the trial judge's statements prevented the jury from considering exculpa- tory and mitigating evidence) entirely misconstrues the judge's words. The judge did not, as Rompilla contends, say that there was no evidence that another person was involved. Rather, the judge stated that "there was no evi- dence in this case with regard to the question as posed." The "question as posed" was:  "If Defendant was an ac- complice to the Charge of Criminal Homicide, can he be charged with Murder in the First Degree?" Thus, the judge essentially said that there was no evidence to support a conviction under an accomplice liability theory; the judge did not say that there was no evidence that might justify

*264   reasonable doubt, or residual doubt for purposes of sentencing mitigation,  as to whether Rompilla com-

355 F.3d 233, *264; 2004 U.S. App. LEXIS 788, **85

Page 22

mitted the killing with the requisite intent. Accordingly, nothing  that  the  judge  said  foreclosed  consideration  of exculpatory or mitigating evidence.

In sum, after considering all of Rompilla's arguments regarding  accomplice  liability,  we  see  no  ground  for habeas **86   relief.

VIII.

Rompilla contends, finally, that his future dangerous- ness was put at issue during the sentencing phase of his trial and that therefore, under Simmons v. South Carolina,

512 U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), the trial court was required to inform the jury that "life" imprisonment under Pennsylvania law means "life with- out parole." We agree with the District Court, however, that the Pennsylvania Supreme Court's rejection of this claim cannot be disturbed under the narrow standard of review prescribed by AEDPA.

A.

Rompilla maintains that the state supreme court's de- cision was "contrary to" and represented "an unreason- able  application"  of  Simmons.  n18  The  actual  holding in  Simmons,  however,  as  set  out  in  Justice  O'Connor's controlling opinion, is narrower than Rompilla acknowl- edges.

eligibility and told the **88   jury that life imprisonment and  death  were  to  be  understood  in  their  plain  and  or- dinary meaning. Id. Shortly thereafter, the jury returned with a sentence of death. Id.

The  United  States  Supreme  Court  held  that,  under these circumstances, due process required the trial judge to inform the jury that the defendant would not have been eligible for parole if sentenced to imprisonment for life. The plurality opinion endorsed by four Justices reasoned that

the jury reasonably may have believed that petitioner  could  be  released  on  parole  if he  were  not  executed.  To  the  extent  this misunderstanding  pervaded  the  jury's  de- liberations,  it  had  the  effect  of  creating  a false  choice  between  sentencing  petitioner to death and sentencing him to a limited pe- riod of incarceration. This grievous   *265  misperception  was  encouraged  by  the  trial court's refusal to provide the jury with accu- rate information regarding petitioner's parole ineligibility, and by the State's repeated sug- gestion  that petitioner  would pose  a future danger to society if he were not executed.

n18 Simmons applies here because it was de- cided  before  Rompilla's  conviction  became  final upon conclusion of his direct appeal in 1995. Cf. O'Dell v. Netherland, 521 U.S. 151, 156-57, 138 L. Ed. 2d 351, 117 S. Ct. 1969 (1997).

**87

In Simmons, the defendant was convicted of capital murder for the killing of an elderly woman. Simmons, 512

U.S. at 156. The defendant had a history of assaulting el- derly women, and both defense and state witnesses agreed that the defendant posed a continuing danger to elderly women. Id. at 157. During the penalty phase,  the state argued that the question for the jury was "what to do with

the defendant  now that he is in our midst." Id. The state also urged that a death sentence would be "a response of society to someone who is a threat. Your verdict will be an act of self-defense." Id. The defendant sought to rebut the state's argument by presenting evidence that his dan- gerousness was limited to elderly women and that there was no reason to expect acts of violence once he was in a prison setting. Id. The trial court denied defense counsel's request for a parole ineligibility instruction. Id. at 158-

60. During deliberations, the jury asked if a life sentence included  the  possibility  of  parole.  Id.  at  160.  The  trial court instructed the jury not to consider parole or parole

Id.  at  161-62  (plurality)(emphasis  added).  The  plural- ity found that the jury was then "left to speculate **89  about . . . parole eligibility when evaluating petitioner's fu- ture dangerousness, and was denied a straight answer . . . even when it was requested." Id. at 165-66. Consequently, the plurality stated that "where the defendant's future dan- gerousness is at issue, and state law prohibits the defen- dant's  release  on  parole,  due  process  requires  that  the sentencing jury be informed that the defendant is parole ineligible." 512 U.S. at 156 (plurality)(emphasis added). Id. at 161-62. n19

n19  Justice  Souter's  concurring  opinion,   in which Justice Stevens joined, was phrased in seem- ingly broader terms. See 512 U.S. at 172 (Souter, J., concurring)("at least when future dangerousness is an issue . . . ."). The Simmons dissenters interpreted the plurality opinion as apparently requiring admis- sion of parole ineligibility even when the prosecu- tion does not argue future dangerousness. Id. at 183

(Scalia, J., joined by Thomas, J., dissenting).

**90

The   controlling   opinion   in   Simmons   --   Justice O'Connor's  concurrence  in  the  judgment,  in  which  the Chief  Justice  and  Justice  Kennedy  joined  --  seemed

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Page 23

to phrase the holding more narrowly. Justice O'Connor stated that a "defendant should be allowed to bring his parole ineligibility to the jury's attention . . . in cases in which the only available alternative sentence to death is life imprisonment without possibility of parole and the prosecution argues that the defendant will pose a threat to society in the future." Id. at 177 (O'Connor,  J.,  con- curring in the judgement) (emphasis added). Other pas- sages in Justice O'Connor's opinion pointed in the same direction. She referred to cases "'where the prosecution specifically relies on a prediction of future dangerousness in  asking  for  the  death  penalty,'"  id.  at  175  (emphasis added)(citation omitted)(brackets in original) and cases where  "the  State  seeks  to  show  the  defendant's  future dangerousness." Id. 177. See also id. at 176 ("the State sought to show that petitioner is a vicious predator who would pose a continuing threat to the community"); id. at

177 **91   ("The prosecutor in this case put petitioner's future dangerousness in issue").

In short, whereas the Simmons plurality opinion may be read to state that the Simmons rule applies whenever a defendant's future dangerousness is "at issue" (whether or  not  the  prosecution  makes  that  argument),  Justice O'Connor's  controlling  opinion  may  be  read  more  nar- rowly to hold that the rule governs only where the prose- cution actually "argue s " that a defendant poses a future threat.  Neither  position,  of  course,  has  perfectly  clear boundaries. There is a sense in which future dangerous- ness  is  "at  issue"  at  the  penalty  phase  of  virtually  all capital cases. The possibility that a first-degree murderer will kill again is likely to be present in the jurors' mind in all cases except those where the defendant committed the murder for which he or she was convicted only be- cause of unusual circumstances that are very unlikely to occur again even if the defendant is released from prison. As the Chief Justice has put it, "it is difficult to envision a capital sentencing hearing where the State presents no evidence from which a juror might make an inference of

*266   future dangerousness to society ."   **92   Kelly v. South Carolina, 534 U.S. 246, 122 S. Ct. 726, 735, 151

L. Ed. 2d 670 (2002)(Rehnquist, C.J., dissenting). Thus, read liberally, the plurality's position in Simmons would mandate that the jury be informed about parole ineligibil- ity in almost all capital cases in which the only possible sentences are death or life without parole.

On the other hand, the fine line that Justice O'Connor's opinion seemed to draw --  between cases in which the prosecution "argue s " future dangerousness and cases in which future dangerousness is inferred by the jury from the evidence that is brought to its attention -- is difficult to police and arguably superficial. A prosecutor may encour- age a jury to think about future dangerousness without expressly referring to that concept.

Last year, in Kelly v. South Carolina, 534 U.S. 246,

122 S. Ct. 726, 151 L. Ed. 2d 670 (2002), n20 the Court arguably broadened the holding in Simmons. In Kelly, the state told the jurors in its opening at the penalty phase:

"I hope you never in your lives again have to experience what you are experiencing right now. Being some thirty feet away from such a person. Murderer.   **93   " Kelly,

122 S. Ct. at 729. The state then presented evidence that while in prison, Kelly had made a knife, had attempted to escape from prison, and had planned to hold a female guard as a hostage. Id. The state also brought out evidence of "Kelly's sadism at an early age, and his inclination to kill anyone who rubbed him the wrong way." Id. (citation omitted). During closing arguments, the state referred to Kelly as "the butcher of Batesburg," "Bloody Billy," and

"Billy  the  Kid."  Id.  The  state  also  told  the  jurors  that

"Kelly doesn't have any mental illness. He's intelligent . .

. He's quick-witted. Doesn't that make somebody a little more dangerous . . . . for this lady . . . doesn't that make him more unpredictable for the victim  . . . . murderers will be murderers. And he is the cold-blooded one right over there." Id. at 729-30. The trial court did not give a parole ineligibility instruction. Id. at 730.

n20 Kelly was decided after briefing was com- pleted  and  before  oral  argument  in  this  case. Rompilla  submitted  a  Notice  of  Supplemental Authority, pursuant to Fed. R. App. P. 28(j). After oral argument both parties submitted supplemental memoranda addressing the issue of whether Kelly was applicable to the instant matter.

**94

The Supreme Court held that Kelly's future danger- ousness was sufficiently put at issue that he was entitled to a parole ineligibility instruction. Id. at 731, 733-34. In the body of its opinion, the Court stated that "evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its rele- vance to that point does not disappear merely because it might support other inferences or be described in other terms." Id. at 732. The Court recognized that "it may well be that the evidence in a substantial proportion, if not all, capital cases will show a defendant likely to be dangerous in the future," but the Court declined to address the issue of whether a defendant is entitled to a parole ineligibility instruction when the state's evidence shows future dan- gerousness but the prosecutor does not argue it. Id. at 732 n.4. The Court concluded that "the prosecutor accentu- ated the clear inference of future dangerousness raised by the evidence and placed the case within the four corners of Simmons." Id. at 732.

The  Kelly  dissenters,  including  two  of  the  Justices

355 F.3d 233, *266; 2004 U.S. App. LEXIS 788, **94

Page 24

who had joined Justice O'Connor's opinion in Simmons

**95   , argued that the Court had improperly extended Simmons's reach. See id. at 735 (Rehnquist, C.J., joined by Kennedy, J., dissenting) ("the test is no longer whether the State argues *267  future dangerousness to society ,

as the Court found in Simmons ; the test is now whether evidence was introduced at trial that raises an 'implica- tion' of future dangerousness to society") and id. at 737

(Thomas, J., joined by Scalia, J., dissenting) ("the Court dilutes the Simmons test, now requiring that a parole ineli- gibility instruction be given where the prosecution makes arguments that have a 'tendency to prove dangerousness in the future.'").

Even if Kelly broadened Simmons, however, Kelly can- not aid Rompilla here. Under 28 U.S.C. § 2254(d)(1), our review is limited to deciding whether a state court deci- sion is "contrary to" or an "unreasonable application" of Supreme Court precedent "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412 (empha- sis added). The state court decisions in this case preceded Kelly. Accordingly, regardless of whether Kelly expands the circumstances when **96   future dangerousness is at  issue  for  purposes  of  requiring  a  parole  ineligibility instruction, the case is not applicable to the instant mat- ter.  We  are  limited  to  deciding  whether  the  state  court decisions in this case were contrary to or an unreason- able application of the holding in Simmons itself -- which is to say Justice O'Connor's controlling concurrence. We must thus determine whether the Pennsylvania Supreme Court was reasonable in concluding that the prosecutor in the present case did not "argue " that Rompilla would present  a  future  danger  if  not  sentenced  to  death.  We therefore turn to the relevant events at the penalty phase of Rompilla's trial.

B.

During  the  penalty  phase,  the  Commonwealth  at- tempted to establish the aggravating factor that Rompilla had a "significant history of felony convictions" as spec- ified  in  423  Pa.  C.S.  §  9711(d)(9).  In  doing  this,  the Commonwealth  read  into  the  record  the  testimony  of J.M., a female bar owner whom Rompilla had previously robbed, slashed with a knife, and raped. During closing arguments, the Commonwealth argued:

The woman that was raped, was raped pretty brutally. She was raped at knife point. . . . Isn't it frightening, **97   the similarity between that case and this case. I mean, it is absolutely astounding. Both take place around the bar. The Defendant gets in after closing or right before closing. . . . On both occasions, a knife was used. Steals money both times. Isn't it

frightening the similarities in those crimes. Takes a taxi away from J.M.'s  Bar, takes a taxi the night of this crime. He slashes J.M.  in  the  breast  with  a  knife.  He  uses  a  knife on Jimmy Scanlon. It's absolutely frighten- ing to think of the similarities in those two crimes. But there is one difference, one ma- jor difference,   J.M.  lived through her ex- perience. Jimmy Scanlon didn't. . . . I keep wondering, why did the Defendant wait till Jimmy  Scanlon  left  the  Bar?   He  knew  he was closing up. Why didn't he just wait until he had left to break in and steal the money, no  problem,  nobody  gets  hurt?   You  have to  ask  yourselves,  why  didn't  he  wait  for Jimmy Scanlon to leave?   Was it his intent to  kill  right  from  the  start?   Was  it  his  in- tent to do serious bodily injury right from the start? Because if he had waited maybe a half hour,  an  hour  later,  Jimmy  Scanlon  would have been gone. This wouldn't be a homicide case. Jimmy Scanlon **98    would still be living. I think the Defendant learned a lesson from J.M.  in that case, that Rape case. That lesson was, don't leave any witnesses. Don't

*268   leave anybody behind that can testify against you.

App. at 779-80.

During deliberations the jury asked:

If a life sentence is imposed, is there any pos- sibility of the Defendant ever being paroled?

Id. at 802. The trial judge answered:

I'm sorry to say, I can't answer that question. That's not before you as such. The only mat- ter that you can consider in the Sentencing Hearing is the evidence that was brought out in the course of the Hearing and the Law with respect to the Court's Charge. That's the only consideration you have, I'm sorry to say. I-- if there were other alternatives that you should consider, we would have outlined them in the Charge, all right.

Id. at 802-03.

Several hours later, the jury asked to see the docket entries for Rompilla's prior convictions for the purpose of ascertaining Rompilla's prior sentence. The judge denied the request, and the following exchange took place:

355 F.3d 233, *268; 2004 U.S. App. LEXIS 788, **98

Page 25

Juror No. 3: . . . we want to know if it was -- the sentence was -- if he got released **99  on behavioral --

Foreman:  It was commuted in any way, the original sentence.

Court: Well, that we can't give you.

Prosecutor: You can't tell them.

Id. at 823-24.

The next day,  after two more hours of deliberation, the jury asked:

Was the Defendant offered any type of reha- bilitation either while in prison or after his release from prison?

Id. at 842. The following colloquy then occurred: Court:   Well,  I'm  sorry  to  say,  I  can't  an- swer  that.  I  can  only  tell  you  that  you're going to have to make your decision based upon  the  evidence  that  was  presented  and in accordance with the Law with respect to Sentencing  Hearing.  First  of  all,  I  couldn't even answer it if I wanted to or if I could, I don't know.

Foreman: Could I change the question to the point that is -- isn't rehabilitation available in prison?

Court:  Well, again, I would like to even an- swer that, and I can't. You're going to have to rely upon your own knowledge of that as- pect if, indeed, that is a part that troubles the area that you're interested in. The penology system,  I'll  be  quite  frank  with  you,  is  not an issue before -- before you with respect to the Law that **100   it's a decision that you must make. I can understand your interest, however, as I say, we're constrained to, you know,  comply with whatever evidence that was put on in the hearing and then your de- cision must be based upon whatever the Law says and whatever you may find. All right.

Id. at 842-43. Three hours later the jury returned a sen- tence of death.

The PCRA court found that Simmons did not apply because the prosecutor did not argue future dangerous-

ness.  App.  at  2025.  The  District  Court  similarly  found that a "fair reading of the prosecutor's summation  leads to the conclusion that the state's reasoning for the death penalty was not based upon future dangerousness," but rather upon Rompilla's "despicable, savage and cowardly beating" of the victim. Rompilla, 2000 U.S. Dist. LEXIS

9620, 2000 WL 964750, at *15. The District Court con- cluded  that  although  a  "close  issue,"  the  state  supreme court's decision was not an unreasonable application of federal law. Id. *269

C.

As noted, Rompilla relies on both the "contrary to"

and  "unreasonable  application"  prongs  of  28  U.S.C.  §

2254(d)(1). We will discuss each prong separately.

1.

A result is "contrary to"   **101    a Supreme Court holding if the state court "contradicts the governing law set  forth  in   the  Supreme  Court's   cases"  or  if  it  "con- fronts a set of facts that are materially indistinguishable from a decision of the  Supreme  Court and neverthe- less arrives at a different  result." Id. at 405-06. Williams v.  Taylor,  529  U.S.  362,  412,  146  L.  Ed.  2d  389,  120

S. Ct. 1495 (2000). This prong is not met here because the Pennsylvania Supreme Court applied the holding of Simmons and because the facts of Simmons and the present case are materially distinguishable.

Rompilla argues that the state supreme court's deci- sion is "contrary to" Simmons because the state supreme court did not inquire whether there was "a 'reasonable like- lihood' that parole and future dangerousness affected the sentencing decision." Rompilla Br. at 42 (citing Simmons,

512  U.S.  at  170).  We  reject  this  argument.  Neither  the Simmons  plurality  nor  Justice  O'Connor's  concurrence stated  that  the  test  for  entitlement  to  an  instruction  on parole ineligibility hinges on whether there is a reason- able likelihood that future dangerous might figure in the jury's  verdict.  Rather,  the  Simmons   **102                plurality opinion referred to the concept of "reasonable likelihood" in considering a different question -- whether, once future dangerousness was put at issue, there was a "reasonable likelihood"  that  a  jury  instruction  "directing  juries  that life imprisonment should be understood in its 'plain and ordinary' meaning" dispelled any misunderstanding that the jurors might have had as to the meaning of life im- prisonment. Simmons, 512 U.S. at 169-70 (citing Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 110

S. Ct. 1190 (1990)).

Rompilla  contends  that  the  prosecution  necessarily put his future dangerousness at issue by presenting evi- dence of his prior criminal conduct to establish the ag- gravating factor that he had a significant history of felony

355 F.3d 233, *269; 2004 U.S. App. LEXIS 788, **102

Page 26

convictions.  According  to  Rompilla,  the  state  supreme court rendered a decision that was "contrary to" Skipper v.  South  Carolina,  476  U.S.  1,  90  L.  Ed.  2d  1,  106  S. Ct. 1669 (1986) and Ramdass v. Angelone, 530 U.S. 156,

147 L. Ed. 2d 125, 120 S. Ct. 2113 (2000), when it re- jected this argument on the "formalistic" ground that this aggravator concerns past conduct rather than future be- havior. Rompilla Br. at 42. This **103   argument is also meritless.  It  overlooks  the  scope  of  Justice  O'Connor's Simmons concurrence,  which,  as noted,  can reasonably be read as focusing on the prosecution's arguments, not the inferences that arise from the facts that are proven. On this view,  proving past crimes that may cause jurors to worry about future dangerousness is quite different from arguing that a defendant presents a future threat.

In addition, Skipper does not hold or even state that proving prior felony convictions is tantamount to argu- ing that a defendant presents a future threat for Simmons purposes. In Skipper, the Court held that the capital de- fendant's right to present all relevant mitigating evidence at the sentencing stage of the trial was violated by the state court's refusal to admit evidence that the defendant had made a good adjustment to jail during the time between his arrest and the trial. Thus, Skipper had nothing to do with an instruction   *270   on parole ineligibility. n21

n21 Rompilla refers to the Skipper Court's state- ment that "consideration of a defendant's past con- duct as indicative of his probable future behavior is an inevitable and not undesirable element of crim- inal  sentencing."  476  U.S.  at  5.  If  this  dictum  is true --  that people will inevitably draw inferences of probable future behavior from evidence of past conduct --  it  may  argue  against drawing  the  line suggested in Justice O'Connor's Simmons concur- rence between cases in which the prosecution ar- gues that a defendant presents a future danger and cases in which the facts give rise to an inference of future dangerousness. But that plainly does not make  the  decision  of  the  Pennsylvania  Supreme Court in this case "contrary to" Skipper, which was not even a Simmons case.

**104

Rompilla's  reliance  on  Ramdass  is  also  misplaced. Not  only  does  Ramdass  post-date  the  decision  of  the Pennsylvania Supreme Court, but Ramdass does not ad- dress the question of when future dangerousness is suffi- ciently put in issue to require an instruction on parole in- eligibility. In Ramdass, the prosecution expressly argued future dangerousness as an aggravating circumstance, and thus that point was not disputed. Ramdass,  530 U.S. at

161. Instead, the issue in Ramdass was whether the de-

fendant was eligible for parole at the time that was relevant for Simmons purposes. See id. at 166-68.

Third,  Rompilla  argues  that  his  case  is  "materially indistinguishable"  from  Simmons,  but  we  disagree.  In Simmons, as noted, the prosecution expressly argued that the defendant posed a future threat, stating that "a verdict for death would be 'a response of society to someone who is a threat. Your verdict will be an act of self-defense.'" Simmons, 512 U.S. at 157. In this case, by contrast, the Commonwealth made no specific references to any pos- sible future conduct by the defendant. We thus hold that the decision of **105   the Pennsylvania Supreme Court was not "contrary to" Simmons.

2.

Rompilla next contends that the state supreme court's decision  represents  an  "unreasonable  application"  of Simmons, but while we agree with the District Court that the  application  of  Simmons  to  the  present  case  would be "close" if we were exercising plenary review, we are convinced that the state supreme court's decision was rea- sonable.

Rompilla maintains that the state supreme court's de- cision was unreasonable because its opinion did not dis- cuss all of evidence on which he relies in arguing that his future dangerousness was sufficiently put at issue during the penalty phase of his trial. Rompilla Br. at 45. As we have already explained, however, 28 U.S.C. § 2254(d)(1) calls upon us to decide whether the adjudication of a claim on the merits in state court "resulted in a decision" that

"involved an unreasonable application of . . . clearly es- tablished Federal law." This standard applies even when a claim is adjudicated on the merits without any discussion at all. See Weeks, 528 U.S. at 237; Chadwick v. Janecka,

312 F.3d at 606. Accordingly, we must **106   look to the reasonableness of what the state supreme court de- cided, not the detail included in its opinion.

Rompilla  argues  that  the  prosecution  raised  the  is- sue of future dangerousness in its closing by stating that Rompilla  had  "learned  a  lesson"  from  the  prior  rape, namely, that he should not leave any witnesses and by re- peatedly asking the jury whether the similarities between the rape and his murder of Scanlon were not "frightening." Rompilla contends that these comments painted a picture of him as a "hardened, frightening, violent recidivist who, if ever released, would commit   *271   additional violent crimes and would not 'leave any witnesses.'" Rompilla Br. at 34-35.

We have given this argument careful consideration, but in the end it does not persuade us that the difficult stan- dard of § 2254(d)(1) is met. Reading the Commonwealth's remarks in the context of the entire sentencing proceed-

355 F.3d 233, *271; 2004 U.S. App. LEXIS 788, **106

Page 27

ings,  it  appears  to  us  that  the  Commonwealth  did  not argue future dangerousness. In her emotional closing ar- gument at the penalty phase, defense counsel argued over and over that, although the jury had found the defendant guilty,  they must have had some doubts about his guilt in  view  of  the  evidence   **107    and  that  they  should therefore not impose a sentence of death. She stated:

You, as a Jury, convicted him of First Degree Murder. You convicted him, in your minds, beyond  a  reasonable  doubt,  but  you  must have some doubt. There has got to be some doubt  there  with  no  eye  witness,  with  cir- cumstantial evidence . . . .

So I know that you have to have some doubt as to what actually happened that night. We may never know what actually happened that night . . . .

Don't you want to be sure before you con- demn that man to die because don't fool your- selves. A death sentence is death. . . . No more questions after that. . . .

I saw you all struggling  with this. I saw it Monday night at 10:00 o'clock when we let you go for the evening. You looked tired, you looked nervous, and you looked like you've been struggling. . . . If you're struggling with it, the fact that you had some doubt should also stay in your mind, now. If there was any doubt, and I submit to you that there has to be some doubt. There has to be. You don't know what happened. You'll never know ex- actly what happened. There's got to be some doubt here. . . .

What  if  you're  wrong?   Can  you  live  with that? .   **108   . . .

You've rendered what you felt was a just ver- dict. I have no quarrel with you, that was your job, you came back with a verdict but none of you can tell me that you have no doubts and if you have a doubt, then you better think very, very, carefully about what you're going to do here. . . .

Don't take a chance that you may be mak- ing a wrong decision that you can't live with. Please, spare his life, thanks.

App. 767-774.

The prosecutor's remarks upon which Rompilla now relies came in response to these defense comments sug- gesting that the jury should still have doubts about the defendant's guilt. Seeking to dispel any such doubts, the prosecutor's obvious point in stressing the similarities be- tween the circumstances of the rape for which Rompilla had previously been convicted and the Scanlon murder was to convince the jury that the same man had commit- ted both crimes. Although the prosecutor at times termed the similarities between the two crimes "frightening," it seems clear that he did not use this term to suggest that Rompilla was "frightening" in the sense that he posed a future threat, but simply that the similarities were, as he more aptly put it at another **109   point, "astounding." That his argument did not go to future dangerousness is illustrated  by  the  fact  that  many  of  the  features  of  the two crimes that he highlighted -- both occurred at a bar, both took place at around closing time, and in both in- stances the perpetrator used a taxi -- are not features that naturally suggest future dangerousness. The prosecutor's further comment that Rompilla had learned a lesson from the rape, i.e.,   *272    that he should not leave any wit- nesses, came immediately after this litany of similarities, and the comment seems to have had two likely purposes: to explain why there was no eyewitness to the most recent crime and to explain why the two crimes differed in the important respect that one involved a killing and the other did not.

In any event, even if this interpretation of the prosecu- tor's comments is incorrect and even if they were meant to imply that Rompilla would present a future danger if he was ever released from prison, the fact remains that the prosecutor never actually argued that Rompilla presented a future threat. Concluding that these facts did not bring the case within the holding of Simmons, as set out in the controlling concurrence,   **110   is by no means "unrea- sonable." Particularly in view of the fact that the Justices who endorsed the controlling concurrence in Simmons ap- parently felt that it was important to draw the line where they did, rather than approving the arguably broader reach of the plurality, the state court's failure to extend Simmons to situations in which the prosecution does not argue fu- ture dangerousness was not an "unreasonable application" of Simmons. n22

n22 Rompilla points to the testimony regard- ing his parole status and the lack of rehabilitative services  as  indicating  that  his  future  dangerous- ness was an issue for the jury. This evidence was brought  out  by  defense  counsel  on  direct  exami- nation of Rompilla's witnesses and was not argued by the Commonwealth. Rompilla also points to the jury's questions regarding parole and future danger-

355 F.3d 233, *272; 2004 U.S. App. LEXIS 788, **110

Page 28

ousness. Although the questions may demonstrate that  the  jury  did  not  know  the  meaning  of  "life" imprisonment, see Simmons, 512 U.S. at 170 n.10; id. at 178 (O'Connor, J., concurring); Rompilla-2,

721 A.2d at 795 (Flaherty, C.J., dissenting), a jury's uncertainty as to parole ineligibility is insufficient to require an instruction under Simmons.

**111

Rompilla also argues that the state supreme court's de- cision is an unreasonable application of Supreme Court law because it "flies in the face of " the state court's prior decisions regarding future dangerousness and prior crim- inal history and thus violates the Eighth and Fourteenth Amendment requirements that capital sentencing be ap- plied consistently and with an even hand (citing Eddings v. Oklahoma, 455 U.S. 104, 118, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1977), and Gardner v. Florida, 430 U.S. at 349,

361, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977). Rompilla Br. at 44. In making this argument,  Rompilla points to the passage in the state supreme court opinion addressing his argument that his future dangerousness was put at is- sue for Simmons purposes by the prosecution's effort to prove as an aggravating circumstance that he had a sig- nificant history of violent felony convictions. Rompilla-

2,  721 A.2d at 795. Rejecting this contention,  the state supreme court stated that "this aggravating circumstance only  addresses  Appellant's  past  conduct,  not  his  future dangerousness. Id. Rompilla attacks this reasoning on the ground that the underlying rationale for this aggravating circumstance is that **112   a history of violent felony convictions is a "barometer of future danger." Rompilla Br. at 44. He therefore contends that the state supreme court's holding in the present case violates the principle that a state must administer its death penalty statute even- handedly. There is no merit in this argument.

The constitutional principle on which Rompilla relies demands  consistency  in  a  state's  treatment  of  its  capi- tal cases, and we have not been presented with any evi- dence that Pennsylvania does not apply the Simmons stan- dard evenhandedly. On the contrary, it appears to us that Pennsylvania has uniformly required a Simmons   *273  instruction when the prosecutor specifically raised the is- sue  of  future  dangerousness,  see,  e.g.,  Commonwealth v.  Trivigno,  561  Pa.  232,  750  A.2d  243,  252-54  (Pa.

2000) (prosecutor asked jury to use prior convictions as a "weather vane looking into the future" and a "determi- nant  of  where   the  defendant   is  going,  not  just  where he's  been");  Commonwealth  v.  Chandler,  554  Pa.  401,

721  A.2d  1040,  1046-47  (Pa.  1998)  (prosecutor  asked jury  to  "stop   the  defendant   from  ever  killing  another woman  again"),  and  has  not  required   **113    the  in- struction  when  the  prosecutor  only  presented  evidence

of  prior  convictions.  E.g.,  Commonwealth  v.  Robinson,

554 Pa. 293, 721 A.2d 344, 355 (Pa. 1999) (prosecutor only made references to defendant's past dangerousness); Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 779

(Pa. 1998) (prosecutor only made reference to defendant's past violent acts); May, 710 A.2d 44 at 47, 551 Pa. 286

(prosecutor did not argue future dangerousness). See also Robinson,  721  A.2d  at  355  (recognizing  that  the  court requires a Simmons instruction only when future danger- ousness is "expressly implicated").

Rompilla does not dispute the fact that Pennsylvania applies the Simmons rule evenhandedly. Instead, his com- plaint  is  that  there  is,  in  his  view,  a  logical  inconsis- tency between the rationale for the aggravator in question and the Pennsylvania Supreme Court's interpretation of Simmons. This argument, however, is invalid for numer- ous reasons. First, the constitutional principle on which Rompilla relies concerns consistency in the treatment of cases,  not logical consistency in all aspects of a state's death penalty jurisprudence. Second,   **114   Rompilla has not identified a logical inconsistency. The Legislature may have adopted the aggravating circumstance in ques- tion wholly or partially for the purpose of retribution, not to protect the public from those defendants who are likely to pose a threat. Moreover, even if this aggravating cir- cumstance was intended solely to serve as a "barometer of future danger," there is nothing illogical about taking the position that,  while proof of a defendant's past his- tory of violence may tend to suggest that the defendant may pose a future danger if released, the jury should be instructed about parole only in those cases in which there is a particularly strong reason to think that concern about future danger will decisively influence the jury's sentence. Informing a jury about the correctional consequences of a verdict is an exception from usual practice, and it is not il- logical to confine this exception to narrow circumstances. Third, if there is a logical inconsistency, it flows from the fine line drawn by the controlling opinion in Simmons, not from the Pennsylvania Supreme Court. For all these reasons, Rompilla's argument is rejected.

IX.

For the reasons set out above,  the decision **115  of the District Court is reversed with respect to the inef- fective assistance of counsel claim and affirmed as to the accomplice  liability  instruction  and  parole  ineligibility claims.

DISSENTBY: SLOVITER

DISSENT: SLOVITER, Circuit Judge, dissenting.

I  respectfully  dissent  from  the  well-crafted  (albeit, in my view, flawed) decision of the Majority that, in ef-

355 F.3d 233, *273; 2004 U.S. App. LEXIS 788, **115

Page 29

fect,  reinstates  the  death  penalty  for  appellant  Ronald Rompilla. There are two claims that I believe warrant the grant of a writ of habeas corpus. One, which was the ba- sis for the District Court's grant of the writ requiring a new  sentencing  hearing,  is the  shocking  ineffective  as- sistance of counsel at the sentencing phase. Rompilla's trial  counsel  failed  to  obtain  Rompilla's  school,  medi- cal, court and prison records as part of their investigation and, as a result,   *274   failed to present to the jury any mitigating evidence regarding Rompilla's "childhood, al- coholism,  mental  retardation,  or  possible  organic brain damage." Rompilla v. Horn, 2000 U.S. Dist. LEXIS 9620,

2000 WL 964750, at *9. Counsel also failed to commu- nicate with two of Rompilla's siblings who lived nearby and would have advised counsel of evidence that Rompilla was raised by **116  alcoholic parents in a cold, violent, frightening and abusive home.

The standard for establishing ineffective assistance of counsel was set forth in the Supreme Court's seminal de- cision in Strickland v. Washington, 466 U.S. 668, 80 L. Ed.

2d 674, 104 S. Ct. 2052 (1984). Strickland was applied in Williams v. Taylor, 529 U.S. 362, 146 L. Ed. 2d 389,

120 S. Ct. 1495 (2000), to the issue of the investigation required of counsel at the penalty phase. Holding, in "a straightforward application of Strickland," that trial coun- sel was ineffective because he "failed to discover or failed to offer" certain mitigating evidence, id. at 393, the Court held  that  the  Virginia  Supreme  Court  decision  denying the requested writ of habeas corpus was both contrary to and involved an unreasonable application of Strickland. Id. at 391.

As I will discuss, the Pennsylvania Supreme Court's failure to grant relief to Rompilla because of trial counsel's grossly inadequate investigation also was both contrary to and involved an unreasonable  application of Strickland and  Williams.  The  Majority's  decision  overturning  the District Court's grant of a writ of **117    habeas cor- pus and rejecting Rompilla's claim of ineffective assis- tance of counsel is inexplicable in light of the Supreme Court's most recent application of Strickland in Wiggins v. Smith, 539 U.S. 510, 156 L. Ed. 2d 471, 123 S. Ct. 2527

(2003), under circumstances remarkably similar to those presented here.

The  second  ground  on  which  I  would  grant  a  writ of habeas corpus is the refusal of the trial judge to ad- vise  the  jury  as  to  the  meaning  of  a  life  sentence  in Pennsylvania, notwithstanding the jury's questions on that issue on three different occasions during its sentencing deliberations. As a result, the jury imposed a death sen- tence, rather than a life sentence, without ever being told by the trial court in response to the jury's question that a life sentence in Pennsylvania means life without parole.

The  Pennsylvania  courts'  rule  in  this  respect  is,  in  my judgment,  an  unreasonable  application  of  the  Supreme Court's decisions in Simmons v. South Carolina, 512 U.S.

154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), and Kelly v. South Carolina, 534 U.S. 246, 151 L. Ed. 2d 670, 122

S. Ct. 726 (2002). Because this appeal is literally, not fig- uratively, a matter of life or death,   **118   I elaborate on each of these grounds.

I.

Ineffective Assistance of Counsel

There  is  no  need  to  restate  the  facts  of  this  case and  its  procedural  history,  both  of  which  are  fully  and accurately  set  forth  in  the  majority  opinion.  The  inef- fective  assistance  of  counsel  claim  is  before  us  on  the Commonwealth's appeal.

The  applicable  legal  principles  are  not  in  dispute. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1),  the federal court may grant a petition for habeas corpus only if the state's adjudication resulted in a decision that is "contrary to,  or  involved  an  unreasonable  application  of,  clearly established Federal law,  as determined by the Supreme Court," or § 2254(d)(2), the state decision was based on an unreasonable determination of the facts. Both parties agree  that  it  is  section  2254(d)(1)  that  is  at  issue  here. Strickland   *275   supplies the standard for addressing a claim of ineffective assistance of counsel:

A  convicted  defendant's  claim  that  coun- sel's  assistance  was  so  defective  as  to  re- quire reversal of a conviction or death sen- tence has two components. First, the defen- dant **119   must show that counsel's per- formance was deficient. This requires show- ing that counsel made errors so serious that counsel  was  not  functioning  as  the  "coun- sel"  guaranteed  the  defendant  by  the  Sixth Amendment.  Second,   the  defendant  must show  that  the  deficient  performance  preju- diced the defense. This requires showing that counsel's errors were so serious as to deprive the  defendant  of  a  fair  trial,  a  trial  whose result is reliable.

466 U.S. at 687.

In Williams, the Supreme Court held that "the rule set forth in Strickland qualifies as clearly established federal law, as determined by the Supreme Court." 529 U.S. at

391 (internal quotation marks omitted). The Court further held that a state decision is "contrary to . . . clearly estab- lished" federal law if, inter alia, "the state court confronts

355 F.3d 233, *275; 2004 U.S. App. LEXIS 788, **119

Page 30

a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Id. at 406. As the decision in  Williams  made  clear,  relief  should  be  granted  under the "unreasonable application" clause "if the state court identifies the correct governing legal **120    principle from the Supreme Court's  decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.  at  413.  Williams  instructs  that  "clearly  established Federal law" refers "to the holdings,  as opposed to the dicta, of this Court's decisions as of the time of the rel- evant state-court decision." 529 U.S. at 412. The Court in Wiggins decided the ineffectiveness of counsel claim before it using the standards articulated in Strickland, not- ing that Williams did not create new law, but illustrated

"the proper application" of these standards. 123 S. Ct. at

2535. Because Williams fell squarely within Strickland, Williams, 529 U.S. at 390, and Wiggins was decided pur- suant to the same standards of Strickland, these two later cases demonstrate how Strickland should be applied.

Under  Strickland,  a  petitioner  seeking  to  prove  in- effective assistance of counsel must show that counsel's performance was deficient and that the deficiency prej- udiced  the  defense.  466  U.S.  at  687.  To  make the  req- uisite  showing  of  deficiency,  the  petitioner  must  show that counsel's **121   representation "fell below an ob- jective standard of reasonableness." Id. at 688. Among counsel's  responsibilities  with  regard  to  the  sentencing phase is the "obligation to conduct a thorough investiga- tion of the defendant's background." Williams, 529 U.S. at 396. Coincidentally, in both Williams and Wiggins, two of the principal Supreme Court cases dealing with inef- fective assistance of counsel, the Court found that a writ of habeas corpus was appropriate because the failure of counsel  to  conduct  the  requisite  thorough  investigation was objectively unreasonable and prejudicial.

In Williams,  the Court noted that counsel "failed to conduct an investigation that would have uncovered ex- tensive  records  graphically  describing  Williams'  night- marish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records." Id. at 395. The Court continued,

Had  they  done  so,   the  jury  would  have learned  that  Williams'  parents  had   *276  been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father,   **122   that he had been committed to the custody of the social services bureau for two years during his parents' incarcera- tion (including one stint in an abuse foster

home),  and then,  after his parents were re- leased from prison, had been returned to his parents' custody.

Id. (footnotes omitted). The Court, noting that mitigating evidence "may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death- eligibility case," id. at 398, concluded that "the Virginia Supreme  Court  rendered  a  'decision  that  was  contrary to,  or  involved  an  unreasonable  application  of,  clearly established Federal law,' thereby violating Williams' con- stitutional right to the effective assistance of counsel as defined in Strickland." Id. at 399.

Our  court  in  Jermyn  v.  Horn,  266  F.3d  257  (3rd Cir.  2001),  a  decision  following  Williams,  concluded that  Jermyn's  trial  counsel  was  ineffective  "because  he failed to conduct an investigation, failed to prepare ade- quately for the penalty phase of Jermyn's trial, and conse- quently, failed to present substantial mitigating evidence that  would  have  directly  undercut  the   **123     state's penalty-phase case." Id. at 306. We explained,

Counsel  failed  to  investigate  the  cir- cumstances surrounding Jermyn's childhood, even though counsel admitted at the PCRA hearing that he was aware that Jermyn had claimed  that  he  was  abused  as  a  child.  Dr. Phillips told counsel before the original trial that Jermyn had been abused as a child, and told counsel that the abuse was a critical com- ponent to understanding Jermyn's mental ill- ness.  Nonetheless,  counsel  did  not  attempt to locate any fact witness who witnessed the abuse and could testify about it specifically.

Id. at 306 (internal citation omitted).

We stated that if counsel had investigated further "he would have obtained powerful and,  as the PCRA court noted,  'credible,'  testimony"  from  witnesses  who  pre- sented testimony at the PCRA hearing that

was  replete  with  first-hand  accounts  of  in- stances  of  mental  and  physical  abuse  that Jermyn  suffered  at  the  hands  of  his  father.

. . . Counsel could have used that testimony to provide the jury with critical insight into the root of Jermyn's mental illness. The wit- nesses'  testimony also offered valuable in- sight into Jermyn's **124   mother's role in the household, and how she failed to inter- vene on Jermyn's behalf.

355 F.3d 233, *276; 2004 U.S. App. LEXIS 788, **124

Page 31

Id. at 306-07. Counsel in Jermyn "also did not seek to obtain records from the school which corroborate the fact that Jermyn was abused as a child, and that his mother did not intervene on his behalf." Id. at 307. Based on the ineffective assistance of counsel for this and other reasons set forth in that opinion, we affirmed the District Court's grant of a writ of habeas corpus.

With these cases as a background, we turn to the con- duct of Rompilla's trial counsel, informed by the Supreme Court's recent decision in Wiggins.

Counsel  in  this  case  were  two  public  defenders. Frederick Charles, the senior of the two, was a veteran attorney with significant criminal trial experience as a de- fense lawyer, who never before tried a capital case. His role here was as the principal counsel for Rompilla at the guilt phase. His colleague,  Maria Dantos,  who   *277  was two and a half years out of law school at the time of the trial, App. at 1060-61, 1065-67, was given the respon- sibility of handling the penalty phase. She had the role of making the arguments and presenting **125   witnesses at the penalty phase, under Charles' supervision. This was her first capital case and first homicide trial. Counsel's de- votion to Rompilla's cause has not been challenged. They impressed the District Court as "intelligent, diligent and devoted to their task of representing Rompilla ." 2000

U.S. Dist. LEXIS 9620, 2000 WL 964750, at *9. It is their competence and effectiveness that are at issue.

The PCRA court determined that "counsel had a rea- sonable basis for proceeding as they did during the penalty phase," Maj. Op. at 17 (quoting App. at 2028), because counsel retained three health professionals, two of whom, Drs.  Cooke  and  Sadoff,  are  "recognized  experts  in  the fields of psychiatry and psychology," id., who adminis- tered tests, evaluated Rompilla and reported back to de- fense counsel that they found that nothing could be used in mitigation. Counsel also obtained an evaluation by a local psychiatrist, Dr. Paul Gross, who found nothing that would have been beneficial in the penalty phase.

In affirming the PCRA court's determination reject- ing, inter alia, Rompilla's claim of ineffective assistance of counsel, the Supreme Court of Pennsylvania concluded that counsel "reasonably **126  relied upon their discus- sions with Rompilla  and upon their experts to determine the records needed to evaluate mental health and other potential  mitigating  circumstances."  Commonwealth  v. Rompilla, 554 Pa. 378, 721 A.2d 786, 790 (Pa. 1998).

In accepting the Pennsylvania courts' conclusions, the Majority also concludes that "trial counsel conducted an extensive investigation for mitigation evidence," Maj. Op. at 27, because trial counsel retained three well-qualified mental health experts to examine Rompilla. The Majority

recognizes that counsel failed to seek out school,  med- ical,  police,  and  prison  records,  which  they  recognize

"contain useful information about Rompilla's childhood home environment,  his mental problems,  and his prob- lems  with  alcohol,"  Maj.  Op.  at  29.  Nevertheless,  the Majority characterizes counsel's decision as "reasonable" because Charles, who "had the final say on every issue in the case," Maj. Op. at 29, "did not think that obtaining those records would have represented a sound allocation of his office's resources." Maj. Op. at 29. The question be- fore us is not whether we believe counsel's explanation for his failure to obtain the relevant **127   records, some of which were available across the street from the trial and others in the same building as the trial, was "reason- able" but whether his failure to take such action to save money was objectively reasonable and consistent with his obligation to conduct a thorough investigation.

A comparison of counsel's actions in this case with those of counsel in Wiggins,  where the Supreme Court concluded that counsel was ineffective, is instructive. Wiggins,  who  was  represented  by  two  public  de- fenders,  was  convicted  of  capital  murder  in  1989  by  a Maryland judge, and the jury sentenced him to death the same afternoon. A divided Maryland Court of Appeals affirmed. He filed a motion for post-conviction relief in which he challenged the adequacy of his representation at  sentencing,  "arguing  that  his  attorneys  had  rendered constitutionally defective assistance by failing to investi- gate and present mitigating evidence of his dysfunctional background." Wiggins, 123 S. Ct. at 2532. At the PCRA hearing,  a  licensed  social  worker  testified  regarding an elaborate social history in which he chronicled Wiggins'

"bleak  life  history"  based  on  state   *278    social  ser- vices,  medical  and   **128    school  records  and  inter- views with Wiggins and numerous family members. Id. at 2533. His mother, a chronic alcoholic, frequently left him and his siblings alone for days, forcing them to beg for food and to eat paint chips and garbage. Her abusive behavior  included  beating  the  children  and  having  the children present while she engaged in her active sexual life. Wiggins suffered severe physical and sexual abuse at  the  hands  of  his  mother  and  father  and  while  in  the care of a series of foster parents. The father in his second foster home repeatedly molested and raped him. In one foster home, he was gang raped on more than one occa- sion and was sexually abused by his supervisor on a job corps program. Id.

Wiggins'  counsel  decided  to  focus  their  request  for post-conviction  relief  on  retrying  the  factual  case  and disputing  Wiggins'  direct  responsibility  for  the  murder. Notwithstanding that counsel, as a practical matter, did not compile a social history of Wiggins, the state post-

355 F.3d 233, *278; 2004 U.S. App. LEXIS 788, **128

Page 32

conviction court concluded that when the decision not to investigate is a matter of trial tactics, there is no ineffective assistance of counsel. Wiggins, 123 S. Ct. at 2533. The Maryland **129   Court of Appeals affirmed the denial of relief on the ground that trial counsel, although they knew of Wiggins' unfortunate childhood and had available both the presentence investigation report and the more de- tailed social service records, "made a reasoned choice to proceed with what they thought was their best defense." Id. at 2533-34.

In holding that Wiggins' trial counsel provided con- stitutionally  ineffective  assistance  of  counsel  and  that the  Maryland  Court  of  Appeals  unreasonably  applied Strickland in failing to so conclude, the Supreme Court specified why counsel's conduct was defective. The Court noted that trial counsel had limited their investigation to two sources. One was the presentence investigation report

(PSI) prepared by the Division of Parole and Probation,

"which included a one-page account of Wiggins' 'personal history' noting his 'misery as a youth,' quoting his descrip- tion of his own background as 'disgusting,' and observing that he spent most of his life in foster care," 123 S. Ct. at

2536 (quoting PSI). The other source counsel examined was the records kept by the Baltimore City Department of Social Services (DSS) documenting Wiggins'   **130  various placements in the state foster care system. The Supreme Court noted that counsel chose not to expand their investigation beyond those records even though the Public Defender's Office made funds available for the re- tention of a forensic social worker. Id. The Supreme Court thus concluded that, "counsel abandoned their investiga- tion of Wiggins'  background after having acquired only rudimentary knowledge of his history from a narrow set of sources." Id. at 2537.

The Supreme Court characterized the Maryland Court of  Appeals'  application  of  Strickland's  governing  legal principles as "objectively unreasonable." Id. at 2538. That court merely assumed that counsel's investigation was ad- equate and failed to focus on counsel's failure to engage in further investigation, despite the information in the DSS records with respect to Wiggins' mother's alcoholism, his shuttling from foster home to foster home, and his lengthy absences from school. Further investigation would have discovered the sexual abuse that was later revealed during state post-conviction proceedings. Id.

The investigation by Rompilla's lawyers, albeit differ- ent from that conducted by Wiggins'   **131    lawyers, was similarly defective. They did not present at the penalty phase evidence that was available, had they investigated thoroughly,  and  which  was  presented   *279    for  the first time at Rompilla's PCRA hearing. Rompilla's parents were  both  severe  alcoholics  who  drank  constantly.  His

mother drank during her pregnancy with Rompilla, and he and his brothers eventually developed serious drink- ing problems. His father, who had a vicious temper, fre- quently beat Rompilla's mother, leaving her bruised and black-eyed, and bragged about his cheating on her. His parents fought violently, and on at least one occasion his mother stabbed his father. App. at 1408, 1416-17, 1450,

1460, 1487, 1492, 1495-96. He was abused by his father who beat him when he was young with his hands, fists, leather straps, belts and sticks. All of the children lived in terror. There were no expressions of parental love, affec- tion or approval. Instead, he was subjected to yelling and verbal abuse. His father locked Rompilla and his brother Richard in a small wire mesh dog pen that was filthy and excrement filled. He had an isolated background, and was not allowed to visit other children or to speak to anyone on the phone.   **132   They had no indoor plumbing in the house, he slept in the attic with no heat, and the children were not given clothes and attended school in rags. These facts were not presented at the sentencing hearing because counsel did not know them and, more important for our purposes, failed to make the reasonable investigation that would have uncovered them.

Rompilla's counsel presented the testimony of three of Rompilla's siblings at the sentencing hearing but did not interview two of Rompilla's sisters,  Barbara Harris and Randi Rompilla,  both of whom lived nearby,  prior to sentencing, App. at 1422, 1436-37, 1489-90, and did not present their testimony. Further, Rompilla's brother, Nicholas  Rompilla,  Jr.,  who  had  briefly  testified  at  the sentencing hearing, claimed at the post-conviction hear- ing  that  Rompilla's  counsel  only  asked  him  about  the three  months  prior  to  the  offense  and  did  not  ask  him about Rompilla's childhood. App. at 1462-63. We must then  ask  whether  it  was  unreasonable  for  counsel  not to  have  interviewed  all  of  Rompilla's  siblings.  It  was these family members who testified at the PCRA hear- ing  that,  among  other  things,  their  parents  were  alco- holics  and  their  mother  drank  while   **133    pregnant with Rompilla. They detailed the physical abuse referred to above. Rompilla was told he was stupid and would not amount to anything; they also testified that Rompilla was a "very nervous child," who kept everything inside. App. at 1407-13, 1424, 1451, 1480-84, 1487-88.

It was Rompilla's PCRA counsel,  not trial counsel, who presented evidence from two mental health experts, Drs. Armstrong and Crown, both of whom evaluated and tested  Rompilla  post-conviction.  Their  evaluations  in- cluded neuropsychological testing, review of Rompilla's school, medical, and prison records (none of which had been examined by trial counsel), and review of declara- tions by Barbara Harris, Darlene Rompilla, and Nicholas Rompilla, Jr., App. at 1562-64, 1567, 1704, 1736, 1741,

355 F.3d 233, *279; 2004 U.S. App. LEXIS 788, **133

Page 33

1743,  1745;  Commonwealth  Response  to  Habeas  Pet., Exh. B, C, & Pet., Exh. B, C, & D. The doctors stated that Rompilla's low IQ and achievement test results docu- mented in his school records, his medical history, and his abusive background were all "red flags" indicating that further objective evaluation was necessary. App. at 1614,

1686, 1692-93, 1739, 1743, 1745-46.

These doctors determined that Rompilla suffers from organic brain **134    damage, an extreme mental dis- turbance significantly impairing several of his cognitive functions:  impulsivity,  reasoning and judgment,  ability to make sense out of experience, ability to draw conclu- sions, ability to accept long-term consequences of imme- diate behavior,   *280   emotional liability, concentration, mental flexibility, recalling and integrating information, controlling behavior,  and controlling motor movements

(hands). App. at 1572-74, 1577-79, 1581-84, 1617-18,

1707,  1717-18,  1721-22,  1726,  1728-33.  The  doctors believe Rompilla's problems relate back to his childhood, and were likely caused by fetal alcohol syndrome. App. at 1601-02, 1606, 1615. They concluded that Rompilla's capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired at the time of the offense. App. at 1616, 1687-88, 1735-

36.

The  PCRA  court,   applying  Pennsylvania's  three- prong  standard  for  ineffective  assistance  of  counsel claims,  stated  that  although  Rompilla's  claim  arguably had merit because he was "entitled to have relevant infor- mation of mental infirmity" presented to the jury, App. at

2028, "given the fact that three health care professionals, all **135   of whom were experienced forensic experts, had provided opinions to defense counsel,  and none of them asked for more information, it was hardly unreason- able or ineffective for defense counsel to have relied upon their opinions." App. at 2030.

The PCRA court accepted Rompilla's trial counsel's testimony that they had spoken to family members in de- tail and that the family had not revealed the information that  was  claimed  in  the  PCRA  hearing.  App.  at  2029-

30. The court also noted that Rompilla "made contradic- tory  statements"  to  counsel  during  their  representation, and that he had not indicated he had any mental problems or alcoholic blackouts. App. at 2029. The PCRA court concluded that counsel was reasonable in believing that seeking mercy was the only available strategy, and found that  there  was a  reasonable  basis  for  counsel's  actions. App. at 2029-30.

The  Pennsylvania  Supreme  Court,  also  citing  the state's three-prong test for ineffective assistance of coun- sel  claims,  agreed  with  the  PCRA  court's  conclusion that  counsel  was  effective,  concluding  without  discus-

sion that counsel acted reasonably. Rompilla, 721 A.2d at

789-90. The Court, relying on the conclusions **136  of the PCRA court, noted that counsel had investigated Rompilla's mental health by retaining three experts and reasonably relied on the experts and on their own discus- sions with Rompilla to determine the records needed to evaluate Rompilla, and it effectively adopted the PCRA court's credibility determination of trial counsel's conver- sations with family members, leading it to conclude that counsel had not failed to investigate. The Court rejected Rompilla's argument that the experts received inadequate information because of counsel's failure to investigate his background. Id.

An examination of the record shows that Rompilla's lawyers  did  less  investigation  into  mitigating  evidence than did counsel for Wiggins. The Pennsylvania Supreme Court, in affirming the decision of the PCRA court deny- ing post-conviction relief,  stated that there was no "ar- guable merit" in Rompilla's claim that trial counsel failed to investigate Rompilla's family background,  Rompilla,

721 A.2d at 790. The Court never referred to counsel's fail- ure to speak to two of Rompilla's siblings, Randi Rompilla and Barbara Harris, who lived nearby and who attended the trial. Dantos, when questioned **137   at the post- conviction hearing, said that she didn't remember whether she  spoke  to  those  sisters  or  not,  App.  at  1099-1100, but those sisters testified at the PCRA hearing that they would have testified at the penalty phase,  if asked,  and would have told counsel about Rompilla's dysfunctional background, if they had been asked.

*281  Counsel certainly had reason to inquire further as to the availability of other family members. Counsel was aware that the family members whom she interviewed did not know a great deal about Rompilla. Charles testi- fied  that  the  family  said  "they  hardly  know  him."  One said, "He was in a reformatory. He's been away the whole time. We didn't know him well." Even Dantos testified that  "The  overwhelming  response  from  the  family  was that they didn't really feel as though they knew him all that well since he had spent the majority of his adult years and some of his childhood years in custody. . . ," App. at 1094, and that the family had "limited knowledge of their brother." App. at 1098. Dantos stated that "it seemed pretty  clear  that   the  family  members  she  interviewed  didn't  feel  as  though  they  knew  Ron  very  well,"  App. at  1166.  It  is  thus  apparent  that  trial   **138    counsel had  sufficient  leads,  as  in  Wiggins,  to  investigate  fur- ther to find family members who did know more about Rompilla's youth. Counsel never explained why she did not interview the other sisters.

The   Pennsylvania   Supreme   Court,    in   rejecting

Rompilla's  PCRA  claim  that  counsel  did  not  obtain

355 F.3d 233, *281; 2004 U.S. App. LEXIS 788, **138

Page 34

records that would have aided the mental health experts who  evaluated  him,  agreed  with  the  PCRA  court  that counsel reasonably relied on their experts to determine the record needed to evaluate his mental health. Rompilla,

721 A.2d at 790. Counsel cannot so easily shed their con- stitutional obligations. Moreover, it appears that counsel directed the experts to the guilt phase, giving no or little attention to the penalty phase.

Rompilla's  lawyers  sought  opinions  from  the  men- tal health experts they hired primarily about Rompilla's

"mental infirmity or mental insanity for the guilt phase." App. at 1069-71. Although Dantos stated that she also instructed  the  experts  to  see  if  there  was  any  issue  "to possibly  use  in  mitigation  any  mental  infirmity,"  id.  at

1067, Dr. Gross' report says that counsel's instruction as to the evaluation was "to determine Mr. Rompilla's men- tal **139   state during the time of the alleged charges." Id. at 1069. That is supported by Dantos' own testimony that the mental health professionals employed by the de- fense  were  asked  to  look  into  Rompilla's  "mental  state at  the  time  of  the  commission  of  the  offense."  App.  at

1071. Counsel did not themselves investigate Rompilla's medical history, drug use, birth trauma or developmental delays; did not request or instruct the medical experts they retained to investigate those issues, and the medical ex- perts did not make any such investigation. Counsel did not provide Drs. Sadoff and Cooke, who saw Rompilla, with any of the records that would have shown Rompilla's long history of alcoholism and never themselves investigated the records that would have shown that history.

Rompilla's  counsel  did  not  seek  or  obtain  any  of Rompilla's school records and therefore did not learn that Rompilla was in special education, left school in the 9th grade, and that his abilities had not advanced beyond the third grade,  suggesting mental retardation because of a possible organic brain disorder. Rompilla, 2000 U.S. Dist. LEXIS 9620, 2000 WL 964750, at *4-*7. Because they did not obtain these records, they did not provide **140  them to the health experts they retained.

The PCRA court, on which the Pennsylvania Supreme Court relied,  did not explain its finding that the school records  were  "not  entirely  helpful"  beyond  noting  that Rompilla's IQ can "simply be part of the Bell Curve and a learning disability is not necessarily caused by an organic defect," a statement made by Dr. Cooke, one of the ex- perts retained by Rompilla's trial counsel. App. at 2029. Trial  counsel   *282    failed  to  investigate  further  into Rompilla's retarded level IQ scores. Indeed,  Dr. Cooke further  testified  at  the  PCRA  hearing  that  had  he  been provided with Rompilla's IQ scores at trial he would have done  testing  for  brain  damage,  looked  for  evidence  of prenatal damage to Rompilla's brain,  and looked at the

family situation, whether it was an abusive situation, or dysfunctional situation. App. at 1800-01.

Counsel   did   not   investigate   records   from   the Pennsylvania Department of Corrections where Rompilla was incarcerated for 14 years and therefore did not learn that his adult scores on achievement tests were very low, his spelling and arithmetic achievement scores were be- low 96% of the population, App. at 1009, and that psy- chological tests **141    performed showed serious ab- normalities on the schizophrenia, paranoia, neurosis and obsessive/compulsive scales. See App. at 1595-99. The court  records,  which  counsel  did  not  investigate,  were used  by  the  Commonwealth  as  an  aggravating  circum- stance and were in the same courthouse where Rompilla's case was tried. Because counsel failed to investigate into Rompilla's prior correctional experience, they did not pro- vide that information to the health experts they retained. In   Wiggins,                 the   Supreme   Court   quoted   from the   American   Bar   Association's   Guidelines   for   the Appointment  and  Performance  of  Counsel  in  Death Penalty Cases 11.4.1(C), p. 93 (1989), which provide that investigations into mitigating evidence "'should comprise efforts to discover all reasonably available mitigating ev- idence  and  evidence  to  rebut  any  aggravating  evidence that may be introduced by the prosecutor.'" 123 S. Ct. at

2537  (emphasis  in  original).  Because  Wiggins'  counsel abandoned the investigation of his background by failing to pursue evidentiary leads provided in the DSS records, they fell short of these "well-defined norms." Id.

As   shown   by   the   above,   the   investigations   by Rompilla's **142   counsel were no more thorough, per- haps less,  than those found inadequate by the Supreme Court in Wiggins. The Majority's attempt to reconcile its conclusion that Rompilla's counsel provided effective as- sistance of counsel with the conclusion in Wiggins that defendant's counsel were ineffective is nothing short of astonishing. The Majority states that "there are critical dif- ferences between the conduct of Wiggins's and Rompilla's trial attorneys." Maj. Op. at 38. It continues, "Wiggins's attorneys were presented with leads that 'any reasonably competent attorney' would have realized were promising. Rompilla's attorneys had no comparable leads." Id.

With due respect to my colleagues on the Majority, the  distinction  entirely  misses  the  point.  If  it  was  in- effective  for  Wiggins'  counsel  to  fail  to  follow  up  the leads they had, was it not even more ineffective, indeed inexcusable,  for  Rompilla's  attorneys  to  fail  to  investi- gate to find the leads that could have been used by the experts  they  retained  or  to  retain  experts  to  testify  at the penalty phase and present a viable case for mitiga- tion? At the brief sentencing hearing, trial counsel called only five witnesses, Rompilla's **143    sister Darlene,

355 F.3d 233, *282; 2004 U.S. App. LEXIS 788, **143

Page 35

older brother Nicholas, Jr., younger brother Robert, sis- ter Sandy Whitby and Aaron,  Rompilla's fourteen-year old son. The total examination covered about 26 pages of  notes  of  testimony.  The  witnesses  testified  in  gen- eral that Rompilla was a good family member and never had a problem. As described by the District Court,  the

"testimony was apparently presented to engender sympa- thy for Rompilla ." 2000 U.S. Dist. LEXIS 9620, 2000

WL  964750,  at  *4.  "It  seemed  to  be  designed  primar- ily  as  an  emotional  appeal  to  the  jury  to  show  mercy to Rompilla  --  he wasn't as bad as he seemed and his family loved him." Id. In lieu of the   *283    case trial counsel presented in mitigation, a case that the District Court  described  as  "unreasonably  brief  and  lacking  in real substance," 2000 U.S. Dist. LEXIS 9620, 2000 WL

964750, at *4, had they investigated they could have pre- sented a case such as that presented by the PCRA counsel. Rompilla's counsel shifted the responsibility for finding leads to the medical experts, and never even told their ex- perts that they had the responsibility for uncovering that information.

In Wiggins, trial counsel made the tactical decision to forego mitigating evidence of Wiggins' **144  dysfunc- tional background and mental health problems because they  believed  that  Wiggins'  "best  hope  of  escaping  the death penalty was for one or more jurors to entertain a reasonable doubt as to his criminal agency." Wiggins v. State, 352 Md. 580, 724 A.2d 1, 15 (Md. 1999), a deci- sion the Maryland Supreme Court termed a "deliberate, tactical decision" which, under Strickland, should not be second guessed. Id. at 15, 17-18. When the United States Supreme Court reviewed that decision under § 2254(d), it held that because counsel's investigation was inadequate, the state court's "subsequent deference to counsel's strate- gic decision . . . despite the fact that counsel based this alleged choice on what we have made clear was an unrea- sonable investigation, was also objectively unreasonable." Wiggins, 123 S. Ct. at 2538.

The PCRA court found that Rompilla's counsel "had a reasonable basis for proceeding as they did," App. at 2028, because they employed two experts and obtained an eval- uation  by  another  psychiatrist,  who  also  advised  coun- sel that he found nothing that would be beneficial in the penalty phase. The Pennsylvania Supreme Court agreed that   **145    "trial  counsel  was  effective  with  respect to their investigation and presentation of mitigation evi- dence." Rompilla, 721 A.2d at 790. Notwithstanding the decision in Wiggins, the Majority, applying § 2254(d)(1), holds  that  "the  state  court's  determination  that  counsel acted reasonably was not 'contrary to' or an 'unreasonable application' of Strickland." Maj. Op. at 41.

As noted above, I believe the Majority seriously errs.

It is clearly established by both Williams and Wiggins that counsel  or  counsel's  experts  cannot  make  a  reasonable decision at the penalty phase if they do not investigate the  relevant  facts  that  could  be  used  in  mitigation.  In holding that the Maryland Court of Appeals' application of Strickland's governing legal principles was objectively unreasonable,  Justice O'Connor,  in Wiggins,  stated that counsel's failure to thoroughly investigate made "a fully informed decision with respect to sentencing strategy im- possible." Wiggins, 123 S. Ct. at 2538. Therefore the state Supreme Court's holding "reflected an unreasonable ap- plication  of  Strickland."  Id.  What  was  true  in  Wiggins and before that in   **146   Williams is equally applicable here. It follows that the District Court properly determined that Rompilla's trial counsel did not meet the performance standards required under Strickland.

I believe that under the circumstances in which coun- sel  presented  an  inadequate  case  for  mitigation  at  the penalty phase of a capital sentencing hearing,  the prej- udice prong of constitutionally ineffective assistance of counsel is clearly met. The Pennsylvania Supreme Court did not reach this issue and therefore we may consider it de novo. A reasonable attorney, if aware of the evidence presented at the PCRA hearing following a thorough in- vestigation,  would  have  done  more  at  sentencing  than plead for mercy. As the Court stated in Wiggins, "had the jury been confronted with the  considerable mitigating evidence, there is a reasonable probability that it would have  returned  with  a  different   *284    sentence."  123

S. Ct. at 2543. Quoting from Williams, the Court stated,

"we must evaluate the totality of the evidence, both that adduced at trial, and the evidence adduced in the habeas proceeding." Wiggins, 123 S. Ct. at 2543, citing Williams,

529 U.S. at 397-98. **147   In Williams, the Court rec- ognized  that  the  graphic  description  of  the  defendant's childhood  "filled  with  abuse  and  privation,  or  the  real- ity that he was 'borderline mentally retarded' might well have  influenced  the  jury's  appraisal  of  his  morale  cul- pability." 529 U.S. at 398 (citation omitted). The Court further stated that "mitigating evidence unrelated to dan- gerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death- eligibility case." Id.

In  considering  prejudice  to  Rompilla  from  his  trial counsel's  performance,  we  should  look  at  the  totality of evidence adduced at trial as well as that adduced at the state post-conviction hearing where counsel, after a thorough investigation, found the evidence of Rompilla's abusive  background,  his  disfunctional  family  situation, his low IQ, his meager reading and understanding abil- ity found in the prison records, and the medical evidence of brain disfunction. The jury could certainly have con- sidered this matter as sufficiently mitigating to warrant a

355 F.3d 233, *284; 2004 U.S. App. LEXIS 788, **147

Page 36

different sentence. Therefore, I believe that the Supreme Court  of  Pennsylvania  failed  to  reasonably  apply  the Strickland **148   standard when it held that Rompilla had not shown ineffective assistance of counsel.

I therefore disagree with the majority and would af- firm the District Court's grant of a writ of habeas corpus because of trial counsel's ineffective assistance of counsel.

II.

Failure to Give a Simmons Instruction

Rompilla has cross-appealed from the District Court's denial of a writ of habeas corpus on Rompilla's claim that his  right  to  due  process  was  violated  by  the  state  trial court's refusal to inform the jury in response to the jury's inquiries that Rompilla was parole ineligible if sentenced to life imprisonment.

While the jury was deliberating Rompilla's penalty, life imprisonment or death, the jury asked in succession,

"If a life sentence is imposed, is there any possibility of the Defendant ever being paroled?" App. at 802. The trial court responded:

I'm sorry to say, I can't answer that question. That's not before you as such. The only mat- ter that you can consider in the Sentencing Hearing is the evidence that was brought out in  the  course  of  the  Hearing  and  the  Law with  respect  to  the  Court's  Charge.  That's the  only  consideration  you  have,  I'm  sorry to say.   **149   I--if there were other alter- natives that you should consider, we would have outlined them in the Charge, all right. Are there any other questions?

App. at 802-03.

The jury later requested to examine information with respect to Rompilla's prior sentence. The trial court re- fused because it was not entered into evidence. The jury foreman clarified that the jury wanted to know the sen- tence  from  Rompilla's  prior  conviction.  The  trial  court stated that he cannot give that. A juror then asked "if he got released on behavioral . . ." and the foreman added, "It was commuted in any way, the original sentence." App. at

823. As before, the trial court refused to give the requested information. App. at 824.

Finally, the next day, after more deliberation the jury asked, "Was the Defendant   *285  offered any type of re- habilitation either while in prison or after his release from prison?" App. at 842. Once again the trial court declined to answer, even after the foreman changed the question to ask "isn't rehabilitation available in prison?" App. at 842.

The trial court again refused to provide the information sought by the jury. It was only after the trial court declined to provide the information **150   requested by the jury time after time that the jury returned a sentence of death. On Rompilla's appeal from the denial of his PCRA petition,  the  Supreme  Court  of  Pennsylvania  rejected Rompilla's contention that due process required that the jury be instructed that in Pennsylvania "life imprisonment

means life," ruling as follows:

Under  the  current  state  of  the  law  in Pennsylvania, the jury must be told that life means life without parole only when the de- fendant's  future  dangerousness  is  at  issue. Commonwealth v. Clark,  551 Pa. 258,  710

A.2d 31, 35-36 (Pa. 1998). Appellant argues that his future dangerousness was at issue be- cause the Commonwealth argued the aggra- vating circumstance that he has a significant history  of  felony  convictions  involving  the use or threat of violence. The Court rejected this argument in Commonwealth v. May, 551

Pa. 286, 710 A.2d 44, 47 (Pa. 1998). As stated in  that  case,  this  aggravating  circumstance only addresses Appellant's past conduct, not his  future  dangerousness.  See  id.  Thus,  no relief is due. n 10

n 10 This author Justice Nigro  agrees with  the  dissent's  position  that  a  Simmons instruction should be given in all cases and has previously so stated. See Clark, 710 A.2d at  43-44  (Nigro,  J.,  concurring,  joined  by Flaherty,  J.  and  joined  in  relevant  part  by Zappala,  J.);  Commonwealth  v.  May,  710

A.2d 44 at 49, 551 Pa. 286 (Nigro, J., con- curring,  joined  by  Zappala,  J.).  Under  the current state of the law, however, Appellant's argument that he was entitled to the instruc- tion because the Commonwealth argued the aggravating circumstance identified above, is without merit. See May, 710 A.2d at 47.

Commonwealth v. Rompilla, 554 Pa. 378, 721 A.2d 786,

795  (Pa.  1998).  In  his  dissent,  Chief   **151    Justice

Flaherty wrote:

I believe the majority is in error in its treat- ment of the issue pertaining to the jury's ques- tion about the defendant's parole eligibility. Under Simmons v. South Carolina, 512 U.S.

154,  114  S.  Ct.  2187,  129  L.  Ed.  2d  133

(1994) and Commonwealth v. Clark, 551 Pa.

355 F.3d 233, *285; 2004 U.S. App. LEXIS 788, **151

Page 37

258, 710 A.2d 31, 35-36 (Pa. 1998), the court must  tell  a  jury  that  a  life  sentence  means life without parole, if the defendant requests the instruction and his future dangerousness is at issue. Here, during deliberations in the penalty phase, the jury asked, "If a life sen- tence is imposed, is there any possibility of the  Defendant  ever  being  paroled?"  I  view this  question  as  a  clear  expression  of  the jury's  concern  about  the  defendant's  future dangerousness.  I  would  therefore  hold  that the trial court's refusal to explain the meaning of  life  without  parole  constituted  error  un- der Commonwealth v. Clark, supra. I would therefore  reverse  the  order  of  the  court  of common pleas and remand for proceedings consistent with this opinion.

I would go further and require an explanation of the meaning of a life sentence in all capi- tal cases. There **152   can be no harm in instructing juries that in Pennsylvania appel- lant would be statutorily ineligible for parole if sentenced to life in prison, but that a life sentence might nonetheless be commuted by the governor. On the other hand, if we do not so instruct, a jury, erroneously believing that a prisoner sentenced to life may be paroled

*286   within a period of years, may impose the death penalty for reasons which are not based in law.

Id. at 795-96 (Flaherty, C.J., dissenting). n1 **153

n1 I find it difficult to glean much enlighten- ment from the two cases cited by the Pennsylvania Supreme  Court.  In  Commonwealth  v.  Clark,  551

Pa. 258, 710 A.2d 31 (Pa. 1998), the Court did not define what it meant to put future dangerousness

"at  issue"  because  the  question  did  not  arise.  (In Clark  it  was  not  the  Commonwealth  that  argued future  dangerousness;  rather,  the  defense  argued the opposite,  noting that chances of a commuted sentence in Pennsylvania were close to zero;  the court  gave  an  instruction  defining  life  imprison- ment.) As for Commonwealth v. May, 551 Pa. 286,

710 A.2d 44 (Pa. 1998), its proposition that "the ag- gravating circumstance of appellant's prior record for violent felonies addressed only appellant's past conduct, not his future dangerousness," is a mere unsupported assertion. Id. at 47.

I believe that the Pennsylvania Supreme Court's anal-

ysis of Rompilla's Simmons claim was an "unreasonable application"  of  Supreme  Court  precedent,  specifically Simmons  v.  South  Carolina,  512  U.S.  154,  129  L.  Ed.

2d  133,  114  S.  Ct.  2187  (1994),   **154    and  Kelly  v. South Carolina,  534 U.S. 246,  151 L. Ed. 2d 670,  122

S. Ct. 726 (2002), and therefore that it must be reversed under the standards of AEDPA.

In Simmons, the Supreme Court held that the defen- dant's due process right to answer an allegation against him requires the trial court to instruct the jury that the alternative to the death penalty is life without parole (in states where that is the alternative) if the prosecutor ar- gues that the defendant will pose a danger to others. As Justice  Blackmun,  who  authored  the  plurality  opinion, wrote:  "The State may not create a false dilemma by ad- vancing generalized arguments regarding the defendant's future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole." Simmons, 512 U.S. at 171. In Shafer v. South Carolina, 532 U.S. 36, 149 L. Ed. 2d 178, 121 S. Ct. 1263 (2001), the Supreme Court described Simmons as holding that when "a capital defendant's future danger- ousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant

'to **155    inform the jury of his  parole ineligibility, either by a jury instruction or in arguments by counsel.'" Id. at 39 (quoting Ramdass v. Angelone,  530 U.S. 156,

165, 147 L. Ed. 2d 125, 120 S. Ct. 2113 (2000) (plurality opinion)).

The Simmons plurality and Justice O'Connor, concur- ring, believed there was no question that the prosecutor had made an issue of Simmons's future dangerousness. As a result, the Court had no occasion to define what con- stitutes  making  an  issue  of  future  dangerousness.  That issue was directly addressed eight years later in Kelly, an opinion of the Court authored by Justice Souter.

In Kelly, the prosecutor stated that he would not argue future dangerousness and "that takes it out of Simmons anyhow." Kelly, 534 U.S. at 249. The trial court then de- nied Kelly's counsel's request for a Simmons instruction, saying that the State's evidence went to Kelly's charac- ter and characteristics, not to future dangerousness. The South  Carolina  Supreme  Court  affirmed  the  conviction and death sentence, holding that the Simmons instruction was not required because future dangerousness was not at issue.

In reversing,   **156    Justice Souter stated that the South  Carolina  Supreme  Court's  statement  that  Kelly's future dangerousness was not at issue "is unsupportable on  the  record  before  us."  Id.  at  252.  He  continued,  "It is not that the   *287    state court failed to pose the le-

355 F.3d 233, *287; 2004 U.S. App. LEXIS 788, **156

Page 38

gal issue accurately, for in considering the applicability of Simmons it asked whether Kelly's future dangerous- ness was 'a logical inference from the evidence,' or was

'injected into the case through the State's closing argu- ment.' " Id. at 252 (internal citations omitted). In support of the appropriateness of this statement of the legal is- sue, Justice Souter included the following citations and explanatory  parentheses:   "Shafer,   532  U.S.   at  54-55

(whether prosecutor's evidence or argument placed future dangerousness in issue) and  Simmons, 512 U.S. at 165,

171, (plurality opinion) (future dangerousness in issue be- cause 'State raised the specter of . . . future dangerousness generally' and 'advanced generalized arguments regarding the same ')." Kelly, 534 U.S. at 252.

In addressing the trial court's interpretation of the ev- idence, the Kelly Court explained **157   why the trial court erred:

To the extent that it thought that "evidence that Kelly took part in escape attempts and carried  a  shank  .  .  .  is  not  the  type  of  fu- ture  dangerousness  evidence  contemplated by  Simmons,"  .  .  .  it  overlooked  that  evi- dence of violent behavior in prison can raise a strong implication of "generalized . . . fu- ture dangerousness." Simmons, 512 U.S.  at

171. (And, of course, the state court's reason- ing says nothing about the evidence of the crime, or of Kelly's sadism generally, and his mercurial thirst for vengeance.) A jury hear- ing evidence of a defendant's demonstrated propensity for violence reasonably will con- clude that he presents a risk of violent behav- ior, whether locked up or free, and whether free as a fugitive or as a parolee.

Id. at 253-54 (emphasis added).

In language particularly relevant to this case, the Kelly Court stated, "The fallacy of the State Supreme Court's attempt to portray the thrust of the evidence as so unre- alistically limited harks back to a comparable mistake by the trial judge, who spoke of the evidence as going, not to future dangerousness, but 'to Kelly's  character and char- acteristics.   **158   '" Id. at 254. The Court continued,

The  error  in  trying  to  distinguish  Simmons this way lies in failing to recognize that ev- idence of dangerous "character" may show

"characteristic"  future  dangerousness,  as  it did  here.  This,  indeed,  is  the  fault  of  the State's more general argument before us, that evidence of future dangerousness counts un-

der Simmons only when the State "introduces evidence for which there is no other possible inference but future dangerousness to soci- ety." . . . Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its rele- vance to that point does not disappear merely because it might support other inferences or be described in other terms.

Id. (emphasis in original).

The Kelly Court thus made explicit what was implicit in Simmons: the prosecutor need not expressly and sepa- rately argue future dangerousness; rather, future danger- ousness can be made an issue through implication by or inference  from  arguments  addressing  such  independent matters as the defendant's character.

At  Rompilla's  sentencing  hearing,  the  prosecutor, who  was  seeking  the  death   **159     penalty,  focused on Rompilla's "significant history of felony convictions," as  that  is  one  of  the  statutory  factors  that  can  serve  as

"aggravators"  in  the  balancing  between       *288       mit- igating  factors  and  aggravating  factors  required  under Pennsylvania's death penalty law. 42 Pa. Cons. Stat. Ann.

§ 9711(d)(9). During his closing argument the prosecutor referred to Rompilla's prior offense, which involved the robbery, rape and slashing with a knife of a female bar owner, in the following terms:

Joe  Macrenna,  the  woman  that  was  raped, was  raped  pretty  brutally.  She  was  raped at  knife  point.  .  .  .  Isn't  it  frightening,  the similarity  between  that  case  and  this  case. I  mean,  it  is  absolutely  astounding.  Both take  place  around  the  bar.  The  Defendant gets in after closing or right before closing.

.  .  .  On  both  occasions,  a  knife  was  used. Steals  money  both  times.  Isn't  it  frighten- ing the similarities in those crimes. Takes a taxi  away  from  Joe's  Bar,  takes  a  taxi  the night  of  this  crime.  He  slashes  Joe  in  the breast with a knife. He uses a knife on Jimmy Scanlon. It's absolutely frightening to think of the similarities in those two crimes. But there   **160     is  one  difference,  one  ma- jor  difference,  Joe  Macrenna  lived  through her  experience.  Jimmy  Scanlon  didn't.  .  .  . I think the Defendant learned a lesson from Joe Macrenna in that case,  that Rape case. That lesson was, don't leave any witnesses. Don't leave anybody behind that can testify against you.

355 F.3d 233, *288; 2004 U.S. App. LEXIS 788, **160

Page 39

App. at 779-80 (emphasis added).

At  sentencing  the  jury  also  learned  via  testimony elicited  by  both  parties  that  the  instant  crime  occurred shortly after Rompilla had been released from prison, that there is a lack of rehabilitation services for prisoners, that Rompilla's children were initially frightened of him when he was released on parole, and that he had been paroled from his previous sentence only three weeks before the instant crime.

Rompilla argues that because the prosecutor placed Rompilla's future dangerousness at issue, the trial court was  required  under  Simmons  to  inform  the  jury  that Rompilla is parole ineligible. The PCRA court disagreed, reasoning that Simmons does not apply because the pros- ecutor  did  not  argue  future  dangerousness.  The  court stated, "The prosecution merely argued that Mr. Rompilla had  a  significant  history  of  felony  convictions  which

**161    was proper argument as an aggravating factor under Pennsylvania law." App. at 2025. The court did not find  the  jury's  question  concerning  whether  he  had  re- ceived rehabilitation supportive of Rompilla's argument:

"This question . . . relates more to the issues raised by the defense witnesses during the penalty phase who com- plained that Mr. Rompilla had not received rehabilitation while in prison and while on parole after his 1974 rape and burglary convictions. In fact, that was a mitigating fac- tor found by the jury rather than an aggravating factor." App. at 2026. The court did not address, perhaps did not recognize, the relevance of the jury's question concerning whether rehabilitation is available in prison to Rompilla's request for a Simmons instruction.

On  appeal,  the  Pennsylvania  Supreme  Court  sum- marized  the  facts  and  issue,  and  analyzed  Rompilla's Simmons claim in one paragraph which I quoted in full near  the  beginning  of  this  dissent.  The  Pennsylvania Supreme  Court  interpreted  Pennsylvania  law  as  requir- ing  a  Simmons  instruction  "only  when  the  defendant's future dangerousness is at issue," and expressly rejected Rompilla's argument that in presenting Rompilla's exten- sive **162    criminal history the prosecutor ipso facto made  future  dangerousness  an  issue.  The  Pennsylvania Supreme Court thus appears to have determined that fu- ture dangerousness must be argued expressly and sepa- rately   *289   and may not be implied by or inferred from other  arguments;  consequently,  the  prosecutor's  recita- tion of defendant's past criminal conduct cannot, without more, also amount to making an issue of future danger- ousness. It is unclear whether the Pennsylvania Supreme Court believes this principle to be consistent with or re- quired by Simmons.

When the Simmons issue was before the District Court on Rompilla's habeas petition, that court also gave the is-

sue only brief analysis and concluded:

The prosecutor's summation in this case cov- ers 16 pages of the notes of testimony n2 and a fair reading of it leads to the conclusion that the  state's  reasoning  for  the  death  penalty was  not  based  upon  future  dangerousness but on the despicable, savage and cowardly beating the Petitioner inflicted upon his vic- tim. This is a close issue,  however,  but the Supreme Court of Pennsylvania's decision in the PCRA case was not an unreasonable ap- plication of federal law.

Rompilla  v.  Horn,  2000  U.S.  Dist.  LEXIS  9620,  2000

WL 964750,   **163    at *15 (E.D. Pa. July 11, 2000). The  District  Court  appears  to  have  agreed  with  the Pennsylvania Supreme Court that if the prosecutor "based his argument on" the despicable nature of the defendant's actions, he could not at the same time have made an issue of Rompilla's future dangerousness for Simmons purposes without providing a separate, express argument to that ef- fect. The Majority appears to agree, as its opinion states:

"even if the prosecutor's comments  were meant to imply that Rompilla would present a future danger if he was ever released from prison, the fact remains that the prosecutor never expressly argued that Rompilla presented a future threat." Maj. Op. at 63-64.

n2 That is not accurate:  it covers eight pages.

See App. at 774-782.

I do not read Simmons as requiring an express argu- ment of future dangerousness. In Simmons, the prosecutor put future dangerousness "at issue" in a few brief com- ments in his closing argument. As the Simmons plurality opinion describes it:

In **164    its closing argument the prose- cution argued that petitioner's future danger- ousness was a factor for the jury to consider when fixing the appropriate punishment. The question  for  the  jury,  said  the  prosecution, was "what to do with petitioner  now that he is in our midst." . . . The prosecution further urged that a verdict for death would be "a re- sponse of society to someone who is a threat. Your verdict will be an act of self-defense."

512 U.S. at 157.

In his dissent, Justice Scalia takes issue with the con-

355 F.3d 233, *289; 2004 U.S. App. LEXIS 788, **164

Page 40

clusion  of  those  Justices  who  formed  the  majority  that the above statements constituted an argument for future dangerousness. n3 The language used in the   *290   var- ious opinions of the Justices who formed the Simmons majority  does  not  suggest  that  the  prosecutor  must  ex- pressly  argue  that  defendant  will  be  a  serious  threat  if not sentenced to death before the Court will hold that fu- ture dangerousness has been placed before the jury. For example, Justice Blackmun's opinion uses the following phrases  (emphases  added,  passim):   "where  the  defen- dant's future dangerousness is at issue," id. at 156; "the Due Process Clause does not allow the **165  execution of a person 'on the basis of information which he had no opportunity to deny or explain.'" Id. at 161; "the State's repeated suggestion that petitioner would pose a future danger  to  society  if  he  were  not  executed,"  id.  at  162;

"the State raised the specter of petitioner's future danger- ousness generally . . . ," id. at 165; "if the State rests its case for imposing the death penalty at least in part on the premise that the defendant will be dangerous in the future

. . . ," id. at 168-69;  "the State may not create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness . . . ," id. at 171.

n3 The dissent states:

Both  Justice  Blackmun  and  Justice O'Connor  focus  on  two  portions  of the prosecutor's final argument to the jury in the sentencing phase. First, they stress that the prosecutor asked the jury to answer the question of "what to do with petitioner  now that he is in our midst." That statement, however, was not made (as they imply) in the course of  an  argument  about  future  danger- ousness,  but  was  a  response  to  peti- tioner's  mitigating  evidence.  Read  in context, the statement is not even rel- evant to the issue in this case:

"The defense in this case as  to  sentence  .  .  .   is  a  diversion.  It's  putting the blame on society,  on his  father,  on  his  grand- mother,  on  whoever  else he  can,  spreading  it  out to avoid that personal re- sponsibility. That he came from   a   deprived   back- ground.   That   he   didn't have   all   of   the   breaks in  life  and  certainly  that

helps shape someone. But we   are   not   concerned about how he got shaped. We  are  concerned  about what to do with him now that he is in our midst.". .

. .

Both opinions also seize upon the pros- ecutor's  comment  that  the  jury's  ver- dict would be "an act of self-defense." That statement came at the end of ad- monition of the jury to avoid emotional responses and enter a rational verdict:

"Your verdict shouldn't be returned  in  anger.  Your verdict   shouldn't   be   an emotional catharsis. Your verdict  shouldn't  be  .  .  . a  response  to  that  eight- year-old   kid   testifying in  mitigation   and  really shouldn't be a response to the  gruesome  grotesque handiwork of petitioner . Your   verdict   should   be a  response  of  society  to someone who is a threat. Your verdict will be an act of self-defense." . . . .

This reference to "self-defense" obvi- ously alluded, neither to defense of the jurors' own persons, nor specifically to defense of persons outside the prison walls, but to defense of all members of society against this individual,  wher- ever  he  or  they  might  be.  Thus,  as  I read the record (and bear in mind that the trial judge was on the lookout with respect  to  this  point),  the  prosecutor did not invite the jury to believe that pe- titioner would be eligible for parole -- he did not mislead the jury.

Simmons, 512 U.S. at 181-182 (Scalia, J., dissent- ing) (emphasis in original).

**166

In  his  concurring  opinion,   Justice  Souter  writes,

"when future dangerousness is an issue in a capital sen-

355 F.3d 233, *290; 2004 U.S. App. LEXIS 788, **166

Page 41

tencing determination . . . ." Id. at 172 (emphasis added). Similarly, Justice O'Connor states, "When the State seeks to  show  the  defendant's  future  dangerousness,"  and  "a means of responding to the State's showing of future dan- gerousness."  Id.  at  177.  "Moreover,  the  prosecutor,  by referring to a verdict of death as an act of 'self-defense,' strongly implied that petitioner would be let out eventu- ally if the jury did not recommend a death sentence." Id. at 178 (emphasis added).

There  are  indeed  some  statements  that  can  be  read to refer to arguments expressly made by the State as to Simmons's future dangerousness, particularly in the con- curring opinion of Justice O'Connor, but even she uses the phrase "strongly implied." I therefore repeat my observa- tion that neither Justice O'Connor nor the other Justices forming the majority suggest that the instruction must be given only if the prosecutor makes express, explicit, ex- clusive arguments for future dangerousness. Rather, the Court was willing to infer a future **167    dangerous- ness argument from what was, on Justice Scalia's account,

*291   an argument about a different topic entirely (the merit of one of Simmons's mitigating factors). Nothing in the Justices' language supports the premise on which the Pennsylvania Supreme Court's decision turns. Any doubts on the matter were dispelled by the Supreme Court's sub- sequent  decision  in  Kelly  where  the  prosecutor  did  not expressly argue future dangerousness.

The  Majority  concedes  that  Kelly  "arguably  broad- ened the holding in Simmons," Maj. Op. at 51, and notes that  two  of  the  Justices  who  joined  Justice  O'Connor's concurring  opinion  in  Simmons  dissented  in  Kelly  be- cause "the test is no longer whether the State argues fu- ture dangerousness to society . . . but  whether evidence was introduced at trial that raises an 'implication' of fu- ture  dangerousness  to  society."  Kelly,  534  U.S.  at  261

(Rehnquist, C.J., joined by Kennedy, J., dissenting).

The Majority declines to apply Kelly in Rompilla's fa- vor, stating, "Even if Kelly broadened Simmons . . . Kelly cannot aid Rompilla here" because Kelly was decided af- ter the Pennsylvania Supreme Court's decision **168  in Rompilla's case. Maj. Op. at 53. The Majority notes that under Williams v. Taylor, 529 U.S. 362, 146 L. Ed.

2d 389, 120 S. Ct. 1495 (2000), federal review pursuant to section 2254(d)(1) is limited to the state court's appli- cation of federal law "as of the time of the relevant state- court decision." Id. at 412.

The Supreme Court does not interpret the unreason- able application of Supreme Court precedent prong of §

2254(d)(1) as narrowly as does the Majority. In Wiggins, the  Court  viewed  its  opinion  in  Williams  as  "illustra- tive of the proper application" of the Strickland standard, notwithstanding that "Williams had not yet been decided

at the time the Maryland Court of Appeals rendered the decision  at  issue  in  this  case."  Wiggins,  123  S.  Ct.  at

2535. Just as the Williams opinion noted that "the merits of Williams's  claim are squarely governed by our hold- ing in Strickland v. Washington," Williams,  529 U.S. at

390, so also the Court's opinion in Kelly represented an application of Simmons and did not make new law. There is no indication anywhere in the opinion that the Kelly majority thought **169   that they were doing anything other than applying Simmons. Rather, at every step of the way the Kelly majority cites Simmons. At one point, the Kelly majority states that the prosecutor "accentuated the clear implication of future dangerousness raised by the evidence  and   thereby   placed  the  case  within  the  four corners of Simmons." Kelly, 534 U.S. at 255. Therefore, even if Kelly "arguably" broadened Simmons, it is dispos- itive for present purposes that the majority of the Supreme Court believed otherwise.

To recapitulate, the Pennsylvania Supreme Court ap- plied an unjustifiedly narrow test for determining whether the prosecutor made an issue of Rompilla's future danger- ousness. That test represented an unreasonable applica- tion of Simmons, especially as Simmons was applied in Kelly.

In any event, I believe that the record shows that the prosecutor did make an issue of Rompilla's future dan- gerousness. It is noteworthy that the prosecutor referred to the similarities between this crime and Rompilla's pre- vious crime as "frightening" no less than three times. The similarities can be "frightening" only if the prosecutor was sending **170  the message that there is a possibility that Rompilla will repeat the crime. Similarly, the prosecutor's emphasis on the one major difference between this crime and his previous crime -- the murder of the victim -- and his statement to the jury that Rompilla had *292  learned not to leave any witnesses were tantamount to a warning about what would happen if Rompilla were allowed to commit another crime, i.e., that Rompilla would be dan- gerous. Moreover, as the Supreme Court has recognized, evidence of past criminal conduct may be indicative of future dangerousness. See Skipper v. South Carolina, 476

U.S. 1, 5, 90 L. Ed. 2d 1, 106 S. Ct. 1669 (1986).

The  Majority  urges  us  to  consider  the  prosecutor's comments in context, claiming he was merely responding to counsel's argument that the jury must have some doubt concerning Rompilla's guilt and that his comments were a rebuttal of that argument, not an argument for future dan- gerousness. The Majority states, "Seeking to dispel any such doubts, the prosecutor's obvious point in stressing the similarities between the circumstances of the rape for which Rompilla had previously been convicted and the Scanlon murder was to convince the jury that the **171

355 F.3d 233, *292; 2004 U.S. App. LEXIS 788, **171

Page 42

same man had committed both crimes." Maj. Op. at 63. The Majority's attempt to explain the remark is sheer conjecture. The prosecutor made his remarks in the course of outlining why three aggravating factors apply against Rompilla.  After  addressing  the  first  two --  torture  and murder while committing other crimes --  the prosecutor

said:

Commonwealth  has  more.  Commonwealth submits to you that the Defendant has a sig- nificant history of felony convictions involv- ing violence to the . . . person or the threat of violence to the person.

App. at 779. The prosecutor then described the previous rape with his above-quoted use of "frightening" and gave the State's explanation that Rompilla did not wait at the bar until Scanlon  closed up before breaking  in to steal because Rompilla did not want to leave any witnesses. App. at 780. This suggests dangerousness, not rebuttal.

It  is  plain  from  Simmons  and  Kelly  that  the  rea- sons  for  the  prosecutor's  statements  are  not  dispositive of whether they put future dangerousness at issue for the jury. They could have done so even if their principal thrust were to dispel doubt raised by the defense. After all, in Simmons the prosecutor's **172    remarks were made in response to defense counsel's mitigating evidence (see Justice Scalia's dissenting opinion, quoted above). Thus, even if the prosecutor in Rompilla's case did not make an express argument, Simmons is still applicable because, as explained above, Simmons does not require "express arguments."

The Majority also asserts that the prosecutor merely used the word "frightening" as a synonym for "astound- ing," a word that the prosecutor also used ("more aptly," as the Majority puts it). Maj. Op. at 63. Accepting arguendo the Majority's hypothesis, it does not negate the implica- tion of future dangerousness. The meaning of a word or phrase depends in part on the reasonable understanding of the listener, not merely the intent of the speaker.

The Majority also attempts to discount any future dan- gerousness implications in the prosecutor's statement that by the time of this crime Rompilla had learned to kill any eyewitnesses by explaining that "the comment seems to have had two likely purposes:  to explain why there was no eyewitness to the most recent crime and to explain why the two crimes differed in the important respect that one involved a killing and the **173    other did not." Maj. Op. at 63. Again, even if those were the prosecutor's pur- poses, it does not follow that he did not also thereby inject future dangerousness into the proceedings. The more im- mediate message learned by the jury   *293   was surely

that if they put Rompilla in a position from which he could commit another crime, the jurors had better not be among the witnesses. Their repeated questions to the judge con- cerning parole and rehabilitation suggests that they had learned that lesson. n4

n4   This   court   is   limited   to   reviewing   the Pennsylvania Supreme Court's opinion for its con- sistency  with  federal  law,  and  has  no  role  in  its application of state law. It is of interest, however, that there is disagreement among the Pennsylvania Supreme Court justices themselves as to whether the  jury  need  be  instructed  that  in  Pennsylvania the  jury  may  not  be  informed  that  life  imprison- ment  means  life  without  parole.  Pennsylvania  is one of only two states out of the 50 United States where life imprisonment means life without parole that  hold  that  the  jury  may  not  be  so  informed. South Carolina, the state that was the subject of the Supreme Court decisions in Simmons,  Kelly,  and Skipper, is the other such state.

The   Pennsylvania   rule   was   enunciated   in

Commonwealth v. Mills, 350 Pa. 478, 39 A.2d 572

(Pa. 1944), where the Pennsylvania Supreme Court stated that in a capital case the jury's only function was to decide whether the penalty should be life imprisonment or the death penalty. More recently, the Pennsylvania Supreme Court, in addressing the effect of Simmons on the rule announced in Mills, stated that "the per se rule announced in Mills that any  reference  to  the  possibility  of  parole  was  an improper consideration for the jury in their delib- eration  of  the  defendant's  guilt   has  been  super- seded by Simmons ." Clark, 710 A.2d at 36. The Pennsylvania Court then stated "that due process requires the court to instruct the jury on the law as it relates to the possibility of parole where that is- sue the defendant's future dangerousness  clearly arises from the arguments of either counsel in the penalty phase." Id. Justice Nigro concurred,  sug- gesting  "that  the  better  practice  and  policy  is  to require trial courts to give a Simmons instruction in all death penalty proceedings, regardless of whether counsel raises the issue of a defendant's potential future dangerousness during the penalty phase." Id. at 43. Justice Zappala concurred separately, agree- ing with Justice Nigro that a Simmons charge should be mandated. Id.

**174

Justice Souter, in his concurring opinion in Simmons, joined by Justice Stevens, wrote:

355 F.3d 233, *293; 2004 U.S. App. LEXIS 788, **174

Page 43

The Eighth Amendment entitles a defen- dant to a jury capable of a reasoned moral judgment  about  whether  death,  rather  than some lesser sentence, ought to be imposed. The Court has explained that the Amendment imposes a heightened standard "for reliabil- ity  in  the  determination  that  death  is  the appropriate punishment in a specific case," Woodson  v.  North  Carolina,  428  U.S.  280,

305,  49  L.  Ed.  2d  944,  96  S.  Ct.  2978

(1976) (plurality opinion of Stewart, Powell, and Stevens,  JJ.);  see also,  e.g.,  Godfrey v. Georgia, 446 U.S. 420, 427-428, 64 L. Ed.

2d  398,  100  S.  Ct.  1759  (1980);  Mills  v. Maryland,  486  U.S.  367,  383-384,  100  L. Ed. 2d 384,  108 S. Ct. 1860 (1988). Thus, it requires provision of "accurate sentencing information as  an indispensable prerequi- site to a reasoned determination of whether a defendant shall live or die," Gregg v. Georgia,

428 U.S. 153, 190, 49 L. Ed. 2d 859, 96 S. Ct.  2909  (1976)  (joint  opinion  of  Stewart, Powell,  and  Stevens,  JJ.),  and  invalidates

"procedural  rules  that  tend  to  diminish  the reliability of the sentencing determination," Beck v. Alabama, 447 U.S. 625, 638, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980). **175  That same need for heightened reliabil- ity also mandates recognition of a capital de- fendant's right to require instructions on the meaning of the legal terms used to describe the  sentences  (or  sentencing  recommenda- tions) a jury is required to consider, in mak- ing the reasoned moral choice between sen- tencing alternatives. Thus, whenever there is

a  reasonable  likelihood   *294    that  a  ju- ror  will  misunderstand  a  sentencing  term, a defendant may demand instruction on its meaning, and a death sentence following the refusal of such a request should be vacated as having been "arbitrarily or discriminato- rily" and "wantonly and . . . freakishly im- posed."  Furman  v.  Georgia,  408  U.S.  238,

249, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972)

(Douglas, J., concurring) (internal quotation marks omitted); id., at 310 (Stewart, J., con- curring).

Simmons, 512 U.S. at 172-73 (Souter, J., concurring).

In this case, the repeated questions by the jury as to the effect of a sentence by them of life imprisonment demon- strate unequivocally that the jury did not understand that under Pennsylvania law a life prison term means life with- out parole. I believe the rationale for requiring **176  that the jury be instructed about parole ineligibility when the prosecutor puts future dangerousness in issue -- i.e., to ensure that the jurors have accurate information as to the effect of their sentence -- is similarly applicable in a case, such as this one, where the jurors have requested accurate information. I do not understand the State to be arguing that the requested instruction was not legally accurate. The Majority has provided no rationale why the jury should not be informed of the applicable Pennsylvania law. Truth in advertising is now the byword of this generation. Truth in instructing the jury as to the effect of the sentence in a capital case is at least as important.

I would grant a writ of habeas corpus on this issue as well as on the ineffective assistance of counsel issue.

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