Contents    Prev    Next    Last

            Title Bronshtein v. Horn

 

            Date 2005

            By Alito

            Subject Habeas Corpus

                

 Contents

 

 

Page 1

LEXSEE 404 F3D 700

ANTUAN BRONSHTEIN v. MARTIN L. HORN, Commissioner, Pennsylvania Department of Corrections, MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; * JAMES PRICE, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GREENE; JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW; ** GERALD J. PAPPERT, ATTORNEY GENERAL OF PENNSYLVANIA, Appellants, No. 01-9004

* (Pursuant to Rule 12(a), F.R.A.P.)

** (Amended in accordance with Clerk's Order dated 6/23/04) ANTUAN BRONSHTEIN, Appellant, No. 01-9005 v. MARTIN HORN, Commissioner, Pennsylvania Department of Corrections; * JAMES PRICE, SUPERINTENDENT OF

THE STATE CORRECTIONAL INSTITUTION AT GREENE; JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW; ** GERALD J. PAPPERT, ATTORNEY GENERAL OF PENNSYLVANIA

* (Amended in accordance with Clerk's Order dated 8/29/01.)

** (Amended in accordance with Clerk's Order dated 6/23/04.)

Nos. 01-9004 & 01-9005

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

404 F.3d 700; 2005 U.S. App. LEXIS 6158

April 22, 2003, Argued

April 14, 2005, Opinion Filed

PRIOR   HISTORY:             **1        ON   APPEAL   FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. No.

99-cv--02186). District Judge: The Honorable Lowell A. Reed,  Jr.   Bronshtein  v.  Horn,  2001  U.S.  Dist.  LEXIS

12190 (E.D. Pa., Aug. 16, 2001)

Bronshtein v. Horn,  2001 U.S. Dist. LEXIS 9310 (E.D. Pa., July 5, 2001)

LexisNexis(R) Headnotes

COUNSEL:  Patrick  J.  O'Connor,  Esq.  Peter  G.  Rossi, Esq. Cozen O'Connor, Philadelphia, PA; Louis M. Natali, Jr. Esq. (Argued) Turner & McDonald, P.C. Philadelphia, PA, Counsel for Appellee/Cross-Appellant.

Patricia   E.   Coonahan   (Argued),   Assistant   District Attorney  Captain,  Appellate  Division,  Mary  MacNeil Killinger,   Deputy  District  Attorney  Chief,   Appellate Division  Office  of  District  Attorney,  Norristown,  PA, Counsel for Appellants/Cross-Appellees.

JUDGES: Before:  ALITO, BARRY, and STAPLETON, Circuit Judges.

OPINIONBY: ALITO

OPINION:

*703   OPINION OF THE COURT

ALITO, Circuit Judge:

Antuan Bronshtein was convicted in a Pennsylvania court for first-degree murder and sentenced to death. After unsuccessful  post-trial  litigation  in  the  state  courts,  he filed the habeas petition now at issue. The District Court found  merit  in  some  but  not  all  of  Bronshtein's  claims and ordered that a writ of habeas corpus be granted un- less Bronshtein was retried within a specified time. The habeas respondent (hereinafter "the Commonwealth") ap- pealed, and **2   Bronshtein cross-appealed. We reverse the order of the District Court insofar as it required a new guilt-phase trial, but we affirm insofar as it required re-

404 F.3d 700, *703; 2005 U.S. App. LEXIS 6158, **2

Page 2

sentencing. I.

In  April  1994,  Antuan  Bronshtein  was  tried  in  the Court  of  Common  Pleas  of  Montgomery  County  on charges stemming from the robbery and shooting death of Alexander Gutman. The evidence at trial may be sum- marized follows. At about 5 p.m. on January 11, 1991, Montgomery County police investigated a robbery at a store called Jewelry by Alex in the Valley Forge Shopping Center. See Commonwealth v. Bronshtein, 547 Pa. 460,

691 A.2d 907, 911 (Pa. 1997), cert. denied, 522 U.S. 936,

139 L. Ed. 2d 269, 118 S. Ct. 346 (1997). The police dis- covered that the proprietor, Alexander Gutman, had been killed by two gunshot wounds to the face. Id. Investigators found three fingerprints and a palmprint on one of the in- tact display cases in the store, and these prints were later identified as Bronshtein's. Id.

On   February   27,                1991,        Bronshtein   contacted Philadelphia police investigators and said that he wanted to   discuss   the   murder   of   another   jeweler,   Jerome Slobotkin, who had been killed in Philadelphia on   *704  February 19, 1991.   **3   Bronshtein, 691 A.2d at 912. After  waiving  his  Miranda  rights,  Bronshtein  signed  a detailed  written  confession  admitting  to  the  Slobotkin murder, and in February 1992, he was convicted for that offense. Id.

About  a  month  after  Bronshtein  confessed  to  the Slobotkin murder, Montgomery County police met with Bronshtein, at his request, to discuss the Gutman murder. During this interview, Bronshtein denied killing Slobotkin and said that both Slobotkin and Gutman had been killed by a "Mr. X," whom Bronshtein described as a high-level member of the "Russian mafia." Id. During this interview, Bronshtein  did  not  disclose  Mr.  X's  name,  but  he  later identified him as Adik Karlitsky, another jeweler. Id. Although  Bronshtein  told  the  Montgomery  County police that he had not killed Gutman, Bronshtein admit- ted that he was acquainted with him and that he knew that he owned a jewelry store. Bronshtein, 691 A.2d at 912. However, Bronshtein denied knowing the location of the store or even that of the Valley Forge Shopping Center, and he claimed that he had not seen Gutman in more than

two years. Id.

At  trial,  however,  three  witnesses  identified   **4  Bronshtein  as  a  man  whom  they  had  seen  in  or  near Gutman's store on the day of his murder. Laura Sechrist stated  that  she  had  passed  the  store  at  approximately noon and had seen Bronshtein and another man talking to Gutman. Bronshtein, 691 A.2d at 912. Larry Bainbridge, a postal carrier, testified that he had walked by the store at

12:45 p.m. and had seen Bronshtein behind the counter.

Id.  Alexander  Daniels  testified  that  he  had  passed  the store at about 3:15 p.m. and had seen Bronshtein standing outside the store. Id.

Finally,  a  man  named  Wilson  Perez  testified  about an admission made by Bronshtein during January 1991. According  to  Perez,  he  and  Bronshtein  were  riding  in Bronshtein's car on Roosevelt Boulevard in Philadelphia when Bronshtein said that he had killed a man in a jew- elry store "out past the boulevard" and had taken his jew- elry. Bronshtein,  691 A.2d at 912. As the Pennsylvania Supreme  Court  noted,   Roosevelt  Boulevard  "runs  in a  northerly  and  southerly  direction  through  Northeast Philadelphia,"  and  "in  order  to  travel  to  Montgomery County from a large section of Northeast Philadelphia, it is necessary to cross . . . Roosevelt Boulevard.   **5   " Id. at 912 n.12. Perez further testified that Bronshtein had given unset gemstones to Perez's brother. Id. at 912.

The Commonwealth proceeded on the theory that, al- though a second person had probably been involved in the  robbery  of  Gutman's  store,  it  was  Bronshtein  who intentionally  shot  and  killed  Gutman.  Bronshtein,  on the other hand, contended that Adik Karlitsky shot and killed Gutman. According to Bronshtein, Karlitsky was a high-level member of a Russian organized crime group. Bronshtein  said that  he  worked  for Karlitsky as  a jew- elry  "fence"  and  had  merely  accompanied  Karlitsky  to Gutman's store without knowing that Karlitsky was going to kill him.

The  jury  convicted  Bronshtein  of  first-degree  mur- der, robbery, theft of movable property, and possession of an instrument of crime, as well as conspiracy to commit murder, robbery, and theft. At the penalty phase, the jury found  two  aggravating  circumstances:   that  Bronshtein had "committed the  killing while in the perpetration of a felony," 42 Pa. Cons. Stat. § 9711(d)(6),  and that he had "a significant history of felony convictions involving the use or threat of violence to the person." 42 Pa. Cons. Stat. § 9711(d)(9) **6   . The jury found three mitigating circumstances: extreme mental or emotional disturbance, poor childhood upbringing, and "a possibility that the de- fendant did not pull the   *705   trigger." App. VI at 1969; see 42 Pa. Cons. Stat. § 9711(e)(2),  (8) . However,  the jury found that the aggravating circumstances outweighed the mitigating circumstances and accordingly returned a sentence of death for the first-degree murder conviction. The trial court subsequently imposed the death sentence along  with  consecutive  terms  of  imprisonment  for  the other convictions. The Pennsylvania Supreme Court af- firmed, Commonwealth v. Bronshtein, 547 Pa. 460, 691

A.2d 907 (Pa. 1997), and the United States Supreme Court denied certiorari on October 20, 1997. 522 U.S. 936, 139

L. Ed. 2d 269, 118 S. Ct. 346 (1997).

404 F.3d 700, *705; 2005 U.S. App. LEXIS 6158, **6

Page 3

On December 3, 1997, the Center for Legal Education, Advocacy and Defense Assistance ("CLEADA") filed a

"pro se" Post-Conviction Relief Act ("PCRA") petition on Bronshtein's behalf ("pro se PCRA petition"). The peti- tion did not state any claim for relief;  it merely stated:

"This is not a counseled PCRA petition, but a request to initiate review,  filed pro se. A counseled petition **7  shall be filed later pursuant to the court's order." App. VII at 2126. The petition was signed by a CLEADA attorney, purportedly with Bronshtein's authorization.

Shortly after the "pro se" PCRA petition was filed, Bronshtein  personally  informed  the  trial  court  "that  he wished to waive his right to appeal and to terminate the PCRA proceedings so that the sentence of death could be carried out immediately." Id. at 2121. He later told the court that the CLEADA attorneys "had been misleading him and acting contrary to his instructions . " Id. at 2121 n.2. On January 26, 1999, after extensive litigation over Bronshtein's  competency  to  waive  his  rights  under  the PCRA, the trial court issued an order dismissing the "pro se" PCRA petition with prejudice. The court found that Bronshtein had "knowingly, intelligently and voluntarily" sought to withdraw the petition. Id. at 2125.

Bronshtein's mother and sister filed a next friend ap- peal  from  the  trial  court's  order.  On  April  16,  1999, the  appeal  was  denied  by  the  Pennsylvania  Supreme Court,   which  held  that  the  appellants  had  failed  to show that Bronshtein was incompetent. Commonwealth v. Bronshtein, 556 Pa. 545, 729 A.2d 1102 (Pa. 1999). **8  On April 23, 1999, Bronshtein's mother and sister filed a petition for a writ of habeas corpus in the District Court and asked the Court to issue a stay of execution. On April

29,  1999,  during  a  hearing  on  the  petition,  Bronshtein informed the District Court that he had changed his mind and wished to pursue post-conviction relief. The District Court stayed Bronshtein's execution,  appointed counsel for him,  and gave him 120 days to prepare and file his own federal habeas petition.

On  June  9,  1999,  Bronshtein  filed  with  the  state trial  court  a  petition  styled  as  an  "Amended  Petition For  Habeas  Corpus  Relief  Under  Article  I,  Section  14

Of The Pennsylvania Constitution And For Statutory Post Conviction Relief Under The Post Conviction Relief Act." The trial court treated the petition as a second PCRA peti- tion and dismissed it for lack of jurisdiction, holding both that Bronshtein had "irrevocably waived" his right to seek post-conviction relief and that the petition was untimely. App. VII at 2111-13. The Pennsylvania Supreme Court affirmed, stating that it "agreed with the PCRA court that

Bronshtein's  petition was  untimely, leaving it  with- out  jurisdiction  to  reach   Bronshtein's     **9    issues." Commonwealth v. Bronshtein, 561 Pa. 611, 752 A.2d 868,

871 (Pa. 2000). The Pennsylvania Supreme Court found that Bronshtein's "judgment became final on October 20,

1997, the date that the United States Supreme Court de- nied  certiorari."  Id.  at   *706    870.  The  state  supreme court  therefore  reasoned  that  Bronshtein  "was  required to file his petition for post-conviction relief within one year of October 20, 1997, that is by October 20, 1998, in order for his PCRA petition to be timely filed." Id. The Pennsylvania Supreme Court did not address the question whether Bronshtein had "irrevocably waived" his right to seek post-conviction relief, as the trial court had held. Bronshtein filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 27, 1999. The petition asserted 15 claims, but only seven are at issue in this appeal. The following claims (numbered as they

were in the petition) are before us:

I. The trial court violated due process by erro- neously instructing the jury that Bronshtein's specific intent could be inferred from the ac- tions of his co-conspirator.

III. Bronshtein's death sentence **10   vio- lates the Eighth Amendment because it was based in part on an aggravating circumstance

(42 Pa. Cons. Stat. Ann. § 9711(d)(6)) that the jury did not find beyond a reasonable doubt.

IV. The trial court violated Bronshtein's fed- eral constitutional rights by excluding mate- rial and relevant defense evidence.

V.  The  trial  court's  admission  of  "other crimes" evidence violated Bronshtein's fed- eral constitutional rights.

VI. Bronshtein's due process rights were vi- olated by repeated acts of prosecutorial mis- conduct.

VII.   The   prosecution   violated   Batson   v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), by exercising a peremptory strike  against  a  potential  juror  of  Russian- Jewish heritage.

IX.   The   trial   court   violated   the   Eighth Amendment by failing to inform the jury that a  life  sentence  in  Pennsylvania  means  life without the possibility of parole.

The District Court handed down a decision without holding an evidentiary hearing. See Bronshtein v. Horn,

2001 WL 767593, 2001 U.S. Dist. LEXIS 9310 (E.D. Pa.

404 F.3d 700, *706; 2005 U.S. App. LEXIS 6158, **10

Page 4

July 5, 2001). Before reaching the merits of Bronshtein's claims, the District Court first addressed **11    the is- sue of procedural default. Although some of Bronshtein's claims had been raised in the state courts for the first time in  the  second  PCRA  petition,  which  the  state  supreme court had found to be untimely,  the District Court held that these claims were not procedurally defaulted,  "be- cause  the  procedural  rule  that  the  Supreme  Court  of Pennsylvania relied upon in rejecting his claims was not clearly  established  or  regularly  followed  at  the  time  of his alleged default,   and  therefore was not sufficiently

'adequate' to bar federal habeas review." App. I at 3, 7-

21. Turning to the merits,  the District Court concluded that  the  trial  court's  instructions  on  co-conspirator  li- ability  had  violated  Bronshtein's  due  process  rights  by permitting the jury to convict Bronshtein of first-degree murder  without  finding  that  he  had  the  specific  intent to kill,  and the District Court found that this error was not harmless. See id. at 25-34. The District Court next concluded  that  the  trial  court  had  violated  Simmons  v. South Carolina,  512 U.S. 154,  129 L. Ed. 2d 133,  114

S.  Ct.  2187  (1994),  by  failing  to  inform  the  jury  that a Pennsylvania prisoner sentenced to life imprisonment may not be paroled.   **12    See id. at 35-41. Finally, the Court concluded that Bronshtein's death sentence vi- olated  the  Eighth  Amendment  because  it  was  based  in part on an invalid aggravating circumstance (42 Pa. Cons. Stat. § 9711(d)(6) (commission of the killing while in the perpetration of a felony)).

*707  The Court ordered that a writ of habeas corpus be issued if the Commonwealth did not retry Bronshtein within  180  days,  and  in  light  of  this  relief,  the  Court found it unnecessary to address the other claims raised in the petition. See App. I at 46 n.33. The Court stated that Bronshtein had not argued "that his convictions for rob- bery, theft, and conspiracy were constitutionally flawed," and the Court therefore did "not consider those convic- tions . " Id. at 47 n.35.

Bronshtein filed a motion to alter or amend the judg- ment pursuant to Fed. R. Civ. P. 59(e). He argued that his §

2254 petition did in fact raise claims - specifically, Claims IV, V, VI and VII - challenging his robbery, theft, and con- spiracy convictions. The District Court denied the motion and held that the "voluminous and carefully crafted sub- missions on Claims **13    IV, V and VI  can only be read to challenge the murder conviction." Bronshtein v. Horn,  2001 U.S. Dist. LEXIS 12190,  2001 WL 936702

(E.D. Pa. Aug. 16, 2001). However, the Court agreed with Bronshtein  that  Claim  VII  addressed  the  other  convic- tions, but the Court rejected that claim on the merits. Id. The Commonwealth has appealed the District Court's order granting relief on Claims I, III, and IX. Bronshtein

has filed a cross-appeal, and he requests a certificate of appealability on Claims IV, V, VI and VII. His request was referred to this panel and is now before us along with the Commonwealth's appeal.

II.

We first consider the claims (i.e.,  Claims I, III, and IX)  on  which  the  District  Court  granted  relief.  All  of these  claims  were  raised  for  the  first  time  in  the  state courts  in  the  second  PCRA  petition  and,  as  noted,  the Pennsylvania  Supreme  Court  affirmed  the  dismissal  of that  petition  on  the  ground  that  it  was  untimely.  The Commonwealth  therefore  contends  that  federal  habeas review  of  the  merits  of  these  claims  is  blocked  by  the doctrine of procedural default.

The  procedural  default  doctrine  precludes  a  federal habeas court from "review ing  a question of federal law decided by **14    a state court if the decision of that court rests on a state law ground that is independent of the  federal  question  and  adequate  to  support  the  judg- ment." Coleman v. Thompson, 501 U.S. 722, 729, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991) (emphasis added). The United States Supreme Court has employed a variety of tests to determine whether a state ground is "adequate." Among other things, state procedural rules have been held to be inadequate if they are not "firmly established and regularly followed," Ford v. Georgia, 498 U.S. 411, 424,

112 L. Ed. 2d 935, 111 S. Ct. 850 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51, 80 L. Ed. 2d 346, 104 S. Ct. 1830 (1984)); see also Barr v. City of Columbia, 378

U.S. 146, 149, 12 L. Ed. 2d 766, 84 S. Ct. 1734 (1964), or if they are "novel " and unforeseeable. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, 2 L. Ed. 2d 1488, 78

S. Ct. 1163 (1958); see also Ford, 498 U.S. at 424.

First, the test ensures that federal review is not barred unless a habeas petitioner had fair notice of the need to follow the state procedural rule. As we said in Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir. 1999), **15   "a peti- tioner should be on notice of how to present his claims in the state courts if his failure to present them is to bar him from advancing them in a federal court."

Second,  the  "'firmly  established  and  regularly  fol- lowed' test" prevents discrimination. "Novelty in proce- dural requirements," NAACP v. Alabama ex rel. Patterson,

357 U.S. at 457, can be used as a means of defeating claims

*708   that are disfavored on the merits. If inconsistently applied procedural rules sufficed as "adequate" grounds of decision, they could provide a convenient pretext for state courts to scuttle federal claims without federal review. The requirement of regular application ensures that review is foreclosed by what may honestly be called "rules" -- di- rections of general applicability -- rather than by whim or

404 F.3d 700, *708; 2005 U.S. App. LEXIS 6158, **15

Page 5

prejudice against a claim or claimant.

In this case, as noted, the District Court held that the state procedural rule on which the Pennsylvania Supreme Court based its decision was not "firmly established and regularly followed" at the relevant time. The Court's anal- ysis proceeded in three steps.

First, the Court identified the relevant rule as "the rule that § 9545(b)(1) operates **16  as an absolute, jurisdic- tional bar to hearing the merits of a late PCRA petition, and that no exceptions outside those in the statute may save  a  petition  filed  more  than  one  year  after  the  date judgment becomes final." App. I at 13. Second, the Court concluded that the relevant point in time was "the mo- ment petitioner violated the procedural rule; that is, at the time Bronshtein's one-year window under § 9545(b)(1) closed." Id. Since direct review of Bronshtein's convic- tion and sentence ended when the United States Supreme Court denied his petition for a writ of certiorari on October

20,  1997,  the  District  Court  concluded  that  the  critical date  was  October  20,  1998.  Finally,  the  Court  found that the state procedural rule applied by the Pennsylvania Supreme Court was not "firmly established and regularly followed" on that date.

We  agree  with  the  District  Court  that  the  rule  ap- plied by the Pennsylvania Supreme Court was not firmly established and regularly applied until after Bronshtein missed the PCRA's one-year filing deadline. To be sure, the pertinent statutory provision, 42 Pa. Cons. Stat. Ann. §

9545(b), which took effect on January 16, 1996, appears

**17    on its face to impose a one-year deadline in all cases except those falling within three categories (none of which is applicable here). n1 Nevertheless, as the District Court observed,  strict enforcement of the provision did not begin immediately.

n1 This provision states in relevant part:

(1)  Any  petition  under  this  subchap- ter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes fi- nal, unless the petition alleges and the petitioner proves that:

(i)   the   failure   to   raise the claim previously was the  result  of  interference by   government   officials with  the  presentation  of the  claim  in  violation  of the  Constitution  or  laws of this Commonwealth or

the  Constitution  or  laws of the United States;

(ii) the facts upon which the   claim   is   predicated were unknown to the peti- tioner and could not have been  ascertained  by  the exercise of due diligence; or

(iii)   the   right   asserted is  a  constitutional  right that  was  recognized  by the   Supreme   Court   of the       United     States        or the   Supreme   Court   of Pennsylvania                     after         the time  period  provided  in this section and has been held by that court to apply retroactively.

42 Pa. Cons. Stat. Ann. § 9545(b)(1).

**18

Well  before  the  enactment  of  this  provision,   the Pennsylvania Supreme Court had begun to apply a "re- laxed waiver rule" in capital cases. See Commonwealth v. McKenna,  476 Pa. 428,  383 A.2d 174 (Pa. 1978). In McKenna,  the Court stated that it bore a "duty to tran- scend  procedural  rules"  in  capital  cases  because  of  the

"overwhelming public interest" in preventing unconstitu- tional executions. Id. at 180-81. As we have observed, McKenna for a time "firmly established that a claim of constitutional error in a capital case would not be waived by a failure to preserve it." Szuchon v. Lehman, 273 F.3d

299, 326 (3d Cir. 2001).

*709   Twenty years later, on November 23, 1998, the state supreme court changed course in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (Pa. 1998). After noting that it had long been the Court's "'practice' to de- cline to apply ordinary waiver principles in capital cases," the Court stated that this rule had "in effect, virtually elim- inated any semblance of finality in capital cases." Id. at

700.  The  Court  concluded  that  the  "benefits  of  relaxed waiver  at  the  PCRA  appellate  stage"  were  greatly  out- weighed **19   by the need for finality and judicial effi- ciency, and the Court announced that the relaxed waiver rule would "no longer apply  in PCRA appeals." Id.

On December 21, 1998, the state supreme court held in Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638

404 F.3d 700, *709; 2005 U.S. App. LEXIS 6158, **19

Page 6

(Pa. 1998), that the PCRA time bar applies to capital cases and is not superceded by the relaxed waiver rule. Finally, on March 2, 1999, the state supreme court held unequivo- cally in Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374

(Pa. 1999), that the PCRA time limits are jurisdictional and thus not subject to judicial relaxation. Although one might argue that either Albrecht or Peterkin marked the point when it became firmly established that the PCRA time  limits  would  be  applied  literally  in  capital  cases, our opinion in Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.

2001), implies that the unavailability of judicially created exceptions  to  the  PCRA  time  limits  was  less  than  per- fectly clear until the state supreme court decided Banks. For present purposes, however, it is not necessary for us to decide whether Albrecht, Peterkin, or Banks marked the  critical   **20    point  in  time  because  Bronshtein's one-year deadline expired before the earliest of the three dates. As of October 20, 1998 --  the one-year anniver- sary  of  the  conclusion  of  direct  review  in  Bronshtein's case -- Bronshtein did not have fair notice that he would not be given the benefit of the "relaxed waiver" rule and that his failure to file his PCRA petition within the one- year statutory deadline would result in the dismissal of his petition. Moreover, holding Bronshtein strictly to the one-year deadline would have denied him the more le- nient  treatment  that  the  state  courts  had  allowed  other capital defendants up to that point. We thus agree with the District Court that the state procedural rule at issue in this case -- the rule strictly requiring a capital defendant to file a PCRA petition within one year after the end of direct review -- was not firmly established and regularly followed at the time in question.

Our  analysis  of  the  question  of  procedural  default would proceed along a different path if the Pennsylvania Supreme Court, when it abandoned the doctrine of "re- laxed waiver," had adopted what might be termed a "tran- sitional rule," i.e., a rule imposing a special filing deadline

**21   for those cases in which a PCRA petitioner's one- year filing period expired prior to the end of the "relaxed waiver" era. n2 Accordingly, it would have made sense for  the  state  supreme  court  to  have  adopted  a  rule  re- quiring such petitioners to file within some specified time after the termination of the doctrine of "relaxed waiver." However,  no  such  transitional  rule  was  invoked  by  the state supreme court in this case, and none has been called to our attention. The only state law ground that we may consider in deciding the issue of procedural default in this case is the general one-year deadline. Because this rule was not firmly established and regularly applied on the date   *710   when Bronshtein's time ran out, the doctrine of procedural default does not apply in this case. We thus turn to the merits of the claims on which the District Court granted relief.

n2   The   Pennsylvania   Supreme   Court   has adopted such a rule in at least one analogous con- text. See Commonwealth v. Lark, 560 Pa. 487, 746

A.2d  585  (Pa.  2000)(when  ground  for  filing  sec- ond PCRA petition arises while first petition is still pending, petitioner may file second petition within

60 days after final decision on first petition).

**22  III.

Bronshtein argues (Claim I) that the trial court's jury instructions violated his right to due process because they permitted the jury to convict him of first-degree murder on the theory of coconspirator liability without finding an essential element of the offense, viz., that he had the spe- cific intent to kill. Under Pennsylvania law, a defendant may not be convicted of first-degree murder under a co- conspirator liability theory unless the jury finds that the defendant personally had the specific intent to kill. See Smith v. Horn,  120 F.3d 400,  410 (3d Cir. 1997). "The general  rule  of  law   in  Pennsylvania   pertaining  to  the culpability of conspirators is that each individual mem- ber  of  the  conspiracy  is  criminally  responsible  for  the acts of his co-conspirators committed in furtherance of the conspiracy." Commonwealth v. Wayne, 553 Pa. 614,

720  A.2d  456,  463  (Pa.  1998).  However,  "to  be  guilty of  first  degree  murder,  each  co-conspirator  must  indi- vidually be found to possess the mental state necessary to establish first degree murder --  the specific intent to kill." Id. at 464 (emphasis in original). n3 This principle was settled **23   at the time of Bronshtein's trial. See Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961,

962 (Pa. 1994).

n3  Compare  Tison  v.  Arizona,  481  U.S.  137,

158, 95 L. Ed. 2d 127, 107 S. Ct. 1676 (1986) ("ma- jor participation in the felony committed, combined with reckless indifference to human life,  is suffi- cient to satisfy the Eighth Amendment  culpability requirement").

In   considering   whether   the   jury   instructions   in this  case  adequately  conveyed  this  critical  feature  of Pennsylvania homicide law, n4 we focus initially on the language  that  is  claimed  to  be  erroneous,  but  we  must view this portion of the instructions "in the context of the charge  as  a  whole."  See  Smith,  120  F.3d  at  411.  "The proper inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instructions in a way that violates the Constitution." Id. (emphasis in orig- inal, citations and internal quotation marks omitted); see Boyde v. California,  494 U.S. 370,  380,  108 L. Ed. 2d

404 F.3d 700, *710; 2005 U.S. App. LEXIS 6158, **23

Page 7

316, 110 S. Ct. 1190 (1990). **24

n4 We do not apply the deferential standards of review set out in 28 U.S.C. § 2254(d) because this claim was not "adjudicated on the merits" by the state supreme court.

In the present case, Bronshtein was charged, inter alia, with first degree murder and conspiracy to commit mur- der. As we hereafter explain, while the trial court's instruc- tions regarding the first degree murder charge were such that the jury could have convicted him of this charge with- out finding that he had a specific intent to kill Gutman, the court's instructions regarding conspiracy to commit mur- der and the jury's verdict of guilty on that charge demon- strate beyond a reasonable doubt that the jury made the required finding of specific intent. Accordingly, we con- clude that any error in the first degree murder instructions was harmless.

The  trial  judge  instructed  the  jury  that  Bronshtein could be found guilty of first degree murder based on any of three separate theories. First,  the trial judge charged the jury,   **25    Bronshtein could be found guilty as a principal if the jury found that "each and every element of the crime  was established as to him specifically . .

. ." App. V, Pt. 2 at 1692. The trial court then correctly instructed the jury that the three elements needed to con- vict Bronshtein for the first-degree murder of Alexander Gutman were (1) that Gutman   *711   was killed, (2) that the defendant killed him, and (3) that the defendant did so with the specific intent to kill. Id.

The trial judge also instructed the jury that Bronshtein could be found guilty as an accomplice of the person who actually killed Gutman but that, in order to do so, the jury would have to find that Bronshtein had the specific intent to kill. The judge stated:

A defendant is guilty of a crime if he is an accomplice of another person who commits the crime . . . .

He is an accomplice if and only if with the intent of promotion or facilitating commis- sion  of  the  crime  he  encourages  the  other person to commit it or aids, agrees to aid or attempts to aid the other person in planning or committing it . . . .

In order to find the defendant guilty of first- degree murder as an accomplice, you must find   **26    the Commonwealth has proven beyond  a  reasonable  doubt  that  the  defen-

dant shared a specific intent to kill Alexander Gutman with the active perpetrator and en- couraged or assisted the active perpetrator by comparable overt behavior.

Remember   when   we   talked   about   first- degree murder?  That's the one that requires that specific intent to kill? Yes, it is possible to  convict  the  defendant  as  an  accomplice to  that  even  if  he's  not  the  one  who  killed Mr. Gutman, but you'd have to find that he shared that specific intent to kill Alexander Gutman  before  you  can  find  him  guilty  as an accomplice, and that he assisted the ac- tive  perpetrator  by  some  comparable  overt behavior.

App. V, Pt. 2 at 1689-91 (emphasis added).

Finally, the trial court instructed the jury that it could find Bronshtein guilty of the various crimes with which he was charged under the theory of co-conspirator liability. The court stated:

You  may  find  the  defendant   guilty   of  ei- ther  the  crime  of  murder,  robbery  or  theft as a conspirator if you're satisfied beyond a reasonable doubt:  First,  that the defendant agreed with this John Doe or Mr. X that the defendant would aid John Doe or Mr. X in committing **27   either the crime of mur- der,  robbery  and/or  theft;  second,  that  the defendant so agreed with the intent of pro- moting or facilitating the commission of the crime;  third,  that  while  the  agreement  re- mained in effect, the crime of murder, rob- bery and/or theft was committed by this John Doe or Mr. X; and, fourth, that the crime of murder,  robbery  and/or  theft,  while  it  may differ from the agreed crime, was committed by John Doe or Mr. X in furtherance of his and the defendant's common scheme.

What am I saying to you?  If those four ele- ments have been established, then, if you find that the defendant is guilty of the conspiracy, he is also guilty of anything that John Doe or Mr. X did in furtherance of it . . . .

If you find those things, then, he can be found guilty of whatever acts the co-conspirator did in the furtherance of that agreement reached between them.

404 F.3d 700, *711; 2005 U.S. App. LEXIS 6158, **27

Page 8

Id. at 1687-89.

Unfortunately,   this   instruction   misleadingly   sug- gested  that  Bronshtein  could  be  found  guilty  of  first- degree murder even if he did not have the specific intent to kill. According to a literal reading of the instruction, the jury could find Bronshtein guilty of first-degree murder if it found **28    that he had conspired to commit the robbery and that another conspirator had killed Gutman in furtherance of the robbery. Compounding the error, the instruction went on to say that if the jury found that the four elements set out above were established, Bronshtein was "guilty of anything that John Doe or Mr. X did in furtherance of the conspiracy ."

*712   While the instructions on liability as a prin- cipal or accomplice stressed the need to find a specific intent to kill, these instructions did not cure the defect in the instructions on coconspirator liability. As the District Court put it:  "A reasonable jury could have understood the co-conspirator language to be an alternate means to establish first degree murder,  sans a finding of specific intent to kill."' Dist. Ct. Op. at 27.

For  similar  reasons,  the  flaw  in  the  co-conspirator liability instructions was not adequately cured by the sup- plemental instructions on first-degree murder that were given,  at the jury's request,  during its deliberations. n5

At  that  time,  the  trial  judge  gave  the  jury  the  follow- ing "summary on first-degree murder": "what sets first- degree murder  apart from second-and third-degree mur- der is that element **29    of the specific intent to kill either  personally,  if  you  find  that  he  did  the  act,  or  as a  co-conspirator  of  one  who  had  the  specific  intent  to kill . " App. V, Pt. 2 at 1725. Although these supplemen- tal  instructions  were  accurate,  they  did  not  specifically address the theory of co-conspirator liability. "Language that  merely  contradicts  and  does  not  explain  a  consti- tutionally  infirm  instruction  will  not  suffice  to  absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors ap- plied in reaching their verdict." Francis v. Franklin, 471

U.S. 307, 322, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985). See  also  Whitney  v.  Horn,  280  F.3d  240,  256  (3d  Cir.

2002). Viewing all of the first degree murder instructions together, we conclude that there is a reasonable probabil- ity that the jury, consistent with their terms, could have proceeded on the incorrect belief that a specific intent to kill was not needed in order to convict Bronshtein of first- degree murder on the theory of co-conspirator liability. We thus hold that the jury was improperly instructed on the theory of coconspirator liability.

n5  These  supplemental  instructions  on  first-

degree murder must be distinguished from the sup- plemental instruction on conspiracy, which we dis- cuss below.

**30

We further hold, however, that this error was harm- less. As we explained in Smith, 120 F.3d at 416-17, an error of the type present here is subject to harmless er- ror analysis. "In a collateral proceeding, the standard for harmlessness  is  'whether  the  error  had  substantial  and injurious effect or influence in determining the jury's ver- dict.'" Id. at 417 (quoting California v. Roy, 519 U.S. 2, 5,

136 L. Ed. 2d 266, 117 S. Ct. 337 (1996) (quoting Brecht v. Abrahamson,  507 U.S. 619,  637,  123 L. Ed. 2d 353,

113 S. Ct. 1710 (1993)). In Smith, we elaborated: The Supreme Court has held that if a habeas court  "is  in  grave  doubt  as  to  the  harm- lesssness of an error," habeas relief must be granted. O'Neal v. McAninch, 513 U.S. 432,

437, 130 L. Ed. 2d 947, 115 S. Ct. 992 (1995). Thus, if the court concludes from the record that the error had a "substantial and injuri- ous effect or influence" on the verdict, or if it is in "grave doubt" whether that is so, the error cannot be deemed harmless. See Roy,

519 U.S. at 5.

120 F.3d at 418 (parallel citations omitted).

Here,  the  jury's  verdict  finding  Bronshtein  guilty

**31    of  conspiracy  to  commit  murder  convinces  us that the error in the instructions on co-conspirator liabil- ity  was  harmless.  n6  After  stating  that  Bronshtein  was

*713   charged with conspiracy to commit murder, rob- bery and theft, the trial judge stated:

In order to find the defendant guilty of con- spiracy  to  commit  any  one  of  those  or  all of them, you must be satisfied initially that the two elements of a conspiracy have been proven beyond a reasonable doubt. What are they?  First, that the defendant agreed to aid another person. The Commonwealth merely defines that person or identifies that person as John Doe or Mr. X, meaning they don't know who it is.

That the defendant agreed to aid another per- son, whoever it was, in the planning or com- mission of the crimes of murder, robbery or theft; and, second, that the defendant did so with  the  intent  of  promoting  or  facilitating

404 F.3d 700, *713; 2005 U.S. App. LEXIS 6158, **31

Page 9

commission of the crimes of murder, robbery and/or theft. Those are the two elements.

Id.  at  1684-85.  The  most  reasonable  interpretation  of these instructions is that, in order to find Bronshtein guilty of  murder,  the  jury  had  to  find  that  he  had  "the  intent of  promoting  or  facilitating  commission  of  the   **32  crime  of murder." n7

n6 The jury specifically found Bronshtein guilty of conspiracy to commit murder, as well as conspir- acy to commit robbery and conspiracy to commit theft. Significantly, the jury's verdict did not "lump" the object offenses together:

Court  Clerk:          How  say  you  on

3279-93.5,   second   count,   criminal conspiracy, conspiracy to commit mur- der?

Presiding   Juror:   Court   Clerk: Guilty.

Presiding   Juror:   Court   Clerk: How  say  you  on  conspiracy  to  com- mit to robbery?

Presiding Juror: Guilty.

Court Clerk: How say you on con- spiracy to commit theft?

Presiding Juror: Guilty.

App. V, Pt. 2 at 1747.

n7 Bronshtein contends that these instructions

"lumped together the three offenses of murder, rob- bery and theft and created a reasonable likelihood that the jury would convict him  of conspiracy to commit all three offenses merely because he con- spired  to  commit  one  of  them  and  Karlitsky   or whoever the second individual at the store was  then committed  the  others."  Bronshtein's  Br.  at  58.  In other words, Bronshtein argues that the jury might have understood the instructions to mean that they could find Bronshtein guilty of conspiracy to com- mit  murder  if  they  found  merely  that  Bronshtein intentionally  aided  in  planning  or  carrying  out  a theft.  Such  a  reading  of  the  instructions  is  con- trary to common sense and, in our view, unlikely, but because the trial judge gave the supplemental instructions discussed above,  we need not decide whether these instructions standing alone would be sufficient to establish harmless error. We note that, although the District Court held that the error in the

co-conspirator liability instructions was not harm- less, the District Court did not consider the impact of the supplemental instructions on conspiracy to commit murder that were given during the jury de- liberations.

**33

This point was driven home with the supplemental in- structions on conspiracy to commit murder that the court gave during the jury deliberations. As the Supreme Court has  noted,  this  is  the  point  in  a trial  when  "one  would expect most of a jury's  reflection about the meaning of the instructions to occur . " Francis v. Franklin, 471 U.S. at 321 n.7. The trial judge in this case told the jury:

In order to find the defendant guilty of con- spiracy to commit murder, you must be sat- isfied  that  two  elements  of  the  conspiracy have been proven beyond a reasonable doubt: First, that the defendant agreed to aid another person, namely, this John Doe or Mr. X, in either the planning or the commission of the crime of murder. That's the first element. He agreed  to  aid  another  person  in  either  the planning or the commission of the crime of murder -- first element.

Second,  that  the  defendant  did  so  with  the intent of promoting or facilitating the com- mission of the crime of murder.

Id. at 1733-34.

After  receiving  these  instructions,  the  jury  found Bronshtein guilty of conspiracy to commit murder. In re- turning that verdict, *714  the jury presumably followed

**34   the court's instructions relating to that offense, see

Weeks v. Angelone, 528 U.S. 225, 234, 145 L. Ed. 2d 727,

120 S. Ct. 727 (2000), and therefore the jury must have found that Bronshtein participated in "the planning or the commission of the crime of murder" and that he "did so with the intent of promoting or facilitating the commis- sion of the crime of murder." In other words, the jury must have found that Bronshtein had the specific intent to kill. It follows that the error in the instructions on the theory of coconspirator liability cannot have affected the jury's verdict on the charge of first-degree murder. Even if the jury  based  that  verdict  on  the  theory  of  co-conspirator liability, and even if the jury proceeded on the erroneous belief that this theory did not require proof of a specific intent  to  kill,  the  jury's  guilty  verdict  on  the  charge  of conspiracy to commit murder shows that the jury found that Bronshtein had that intent.

404 F.3d 700, *714; 2005 U.S. App. LEXIS 6158, **34

Page 10

The Pennsylvania Supreme Court's decision in Wayne,

553 Pa. 614, 720 A.2d 456 (Pa. 1998), is instructive. In Wayne, the Court concluded that the defendant was not prejudiced by his counsel's failure to object to jury instruc- tions **35    that, like the ones here, permitted the jury to convict him of first-degree murder as a co-conspirator without finding that he had the specific intent to kill. See Wayne, 720 A.2d at 465. The Court reached this conclu- sion because the defendant was also convicted of conspir- acy to commit murder. See id. The Court explained:

A conspiracy to kill presupposes the delib- erate premeditated shared specific intent to commit murder. . . . In this case, the conspir- acy was a conspiracy to kill. The conspiracy had only one object, the deliberate decision to take a life. Once this jury determined that appellant was guilty of conspiracy, given the sole object of that conspiracy, the only logi- cal conclusion to reach is that this jury also determined, beyond a reasonable doubt, that appellant possessed the specific intent to kill.

Id.  (emphasis  in  original).  See  also  Commonwealth  v. Bailey, 463 Pa. 354, 344 A.2d 869, 877 n.16 (Pa. 1975)

("A conspiracy to commit murder would necessarily indi- cate that the killing was 'willful, deliberate, and premed- itated.'");  Commonwealth  v.  Stein,  401  Pa.  Super.  518,

585  A.2d  1048,  1050  n.6  (Pa.  Super.  Ct.  1991)   **36

(" T he  'intent'  element  required  to  be  proven  by  the Commonwealth  is  the  same  for  accomplice  liability  as for conspiracy."). n8 We agree with this analysis and hold that the error in the instructions on co-conspirator liability was harmless under the standard applicable in a federal habeas proceeding.

n8 By contrast, in Commonwealth v. Huffman,

536  Pa.  196,  638  A.2d  961,  963  (Pa.  1994),  the Pennsylvania Supreme Court found that an error in the jury instructions similar to the one in Wayne

(and the one here) was not harmless. However, in that case the defendant was convicted of conspiracy to commit burglary but not conspiracy to commit murder. See Wayne, 720 A.2d at 465 n.7. Obviously, conspiracy to commit burglary, unlike conspiracy to  commit  murder,  does  not  require  proof  of  an intent to kill.

Bronshtein contends that our decision in Smith shows that Wayne "does not control here," Bronshtein's Br. at 57, but Smith is readily distinguishable. There, the conspiracy

**37   instructions were so ambiguous that they created

the reasonable likelihood that the jury convicted the defen- dant of conspiracy to commit murder without finding that he had the intent to enter into the conspiracy to commit murder. See Smith, 120 F.3d at 412-13. Furthermore, the trial court's attempt to explain the ambiguous instructions actually made matters worse:  it "conveyed the impres- sion  that  Smith  was criminally  liable  for  conspiracy  to commit murder if he intended to enter into a conspiracy to  commit  robbery . "   *715    Id.  at  413  (emphasis  in original). In short, in Smith, unlike Wayne or the present case, it was reasonably likely that the jury did not find that the defendant had the intent to enter into a conspiracy to commit murder, i.e, a specific intent to kill. Here, as we have explained, the supplemental instructions were very clear in telling the jury that it could not find Bronshtein guilty  of  conspiracy  to  commit  murder  unless  it  found that he had that intent. For these reasons, we must reverse the decision of the District Court insofar as it relates to Bronshtein's first-degree murder conviction.

IV.

We   now   address   Bronshtein's   **38        argument

(Claim IX ) that the trial court violated his right to due pro- cess by failing to instruct the jury that under Pennsylvania law a defendant who is convicted of first-degree murder must receive either a sentence of death or a sentence of life imprisonment without the possibility of parole. The District Court held that this claim has merit. On appeal, the Commonwealth contests the District Court's holding on two grounds.

A.

The  Commonwealth's  first  argument,  as  we  under- stand it, is that Simmons v. South Carolina, 512 U.S. 154,

129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), the seminal Supreme Court case on which Bronshtein's claim is pred- icated -- is inapplicable because Simmons does not apply retroactively to cases in which direct review ended prior to that decision. See O'Dell v. Netherland, 521 U.S. 151,

138  L.  Ed.  2d  351,  117  S.  Ct.  1969  (1997).  However, the  District  Court  properly  rejected  this  argument  be- cause  Simmons  was  decided  long  before  the  judgment in  Bronshtein's  case  became  final  for  retroactivity  pur- poses on October 27, 1997, the date when the Supreme Court denied certiorari. See Beard v. Banks, 542 U.S. 406,

159 L. Ed. 2d 494, 124 S. Ct. 2504, 2510 (2004) **39

("State convictions are final 'for purposes of retroactiv- ity analysis when the availability of direct appeal to the state  courts  has  been  exhausted  and  the  time  for  filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.'") (citation omitted). Accordingly, the Commonwealth's argument is meritless.

B.

404 F.3d 700, *715; 2005 U.S. App. LEXIS 6158, **39

Page 11

The Commonwealth's remaining contention is that the prosecution's arguments and the testimony that it elicited at the penalty phase did not put the issue of Bronshtein's future dangerousness at issue in the way needed to trig- ger Simmons and the subsequent related cases of Shafer v. South Carolina, 532 U.S. 36, 149 L. Ed. 2d 178, 121

S.  Ct.  1263  (2001),  and  Kelly  v.  South  Carolina,  534

U.S.  246,  151  L.  Ed.  2d  670,  122  S.  Ct.  726  (2002). Because the Pennsylvania Supreme Court did not adjudi- cate this claim on the merits, the standards of review set out in 28 U.S.C. § 2254(d) are inapplicable. Furthermore, because  the  Commonwealth  does  not  argue  that  either Shafer or Kelly announced "new rules" within the mean- ing of Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334,

109 S. Ct. 1060 (1989), we need not and **40   do not decide whether such an argument would have merit, see Horn v. Banks, 536 U.S. 266, 271, 153 L. Ed. 2d 301, 122

S. Ct. 2147 (2002), and we consider Shafer and Kelly to be applicable in this appeal.

In Simmons, the prosecutor explicitly argued that the jury should impose a death sentence in order to protect society from the defendant. The prosecutor stated that a death sentence would be "a response of society to some- one who is a threat" and would be "an act of self-defense."

512 U.S. at 157.   *716    The Supreme Court held that under  these  circumstances  the  trial  judge  was  required to instruct the jury that the defendant,  if not sentenced to death, would have received a sentence of life impris- onment  without  the  possibility  of  parole.  The  plurality opinion stated that "where the defendant's future danger- ousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentenc- ing jury be informed that the defendant is parole ineligi- ble." Id. at 156 (emphasis added). However, as we noted in Rompilla v. Horn,  355 F.3d 233,  265 (3d Cir.),  cert. granted, 159 L. Ed. 2d 857, 125 S. Ct. 27 (2004), **41  Justice O'Connor's controlling concurrence may be read as adopting a narrower holding, namely, that the disposi- tive question is not whether a defendant's future dangerous is "at issue" but whether "the prosecution argues that the defendant will pose a threat to society in the future." 512

U.S. at 177 (O'Connor, J., concurring in the judgment). See also Shafer, 532 U.S. at 49.

As we also observed in Rompilla, 355 F.3d at 266, the holding  in  Simmons  was  arguably  broadened  in  Kelly. There the prosecutor stated in his penalty phase opening:

"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."  534  U.S.  at

248. The prosecution 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. See 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. at 248-49

(citation omitted). During its closing argument, the state

**42    referred to Kelly as "the butcher of Batesburg,"

"Bloody  Billy,"  and  "Billy  the  Kid."  Id.  at  249-50.  In addition, the prosecutor told the jury that "Kelly doesn't have any mental illness. He's intelligent . . . . He's quick- witted. Doesn't that make somebody a little more danger- ous . . . . 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 250.

The Kelly Court concluded that the trial judge had an obligation to give a parole ineligibility instruction. The Court stated that "the prosecutor accentuated the clear im- plication of future dangerousness raised by the evidence and placed the case within the four corners of Simmons." Id. at 255. The Court observed that "evidence of future dangerousness  under  Simmons  is  evidence  with  a  ten- dency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms." Id. at 254. The Court also acknowledged that "it may well be that the evidence in a substantial proportion,   **43  if not all,  capital cases will show a defendant likely to be dangerous in the future." Id. at 254 n.4. But the Court declined  to  decide  whether  a  defendant  is  entitled  to  a parole ineligibility instruction "when the State's evidence shows future dangerousness but the prosecutor does not argue it." Id.

In  the  present  case,  the  prosecution  not  only  put Bronshtein's future dangerousness "at issue" but "argued that the defendant would  pose a threat to society in the future." Simmons, 512 U.S. at 177 (O'Connor, J., concur- ring in the judgment). During its closing argument at the penalty stage,  the prosecutor made the following state- ments:

Ladies and gentlemen, the medical testimony in this case was significant because *717  it tells you something about the psyche or per- sona of this man. He can't conform to what is required in society. The doctors have told you that he's anti-social. He's prone to lying. He's prone to stealing. He's prone to living a life of crime.

Whatever the seeds were that got him there, they're  planted,  and  that  tree  has  grown. He's grown into a twenty-two-year--old per- son  now  regardless  of  how  the  seeds  were planted.   **44

404 F.3d 700, *717; 2005 U.S. App. LEXIS 6158, **44

Page 12

You have to take a look at what effect that has had and what effect it had at the time he committed  these  crimes.  The  doctors  have told you he's a man that can't conform to the needs of society.

App. VI at 1909-10 (emphasis added).

Even without considering "the medical testimony" to which the prosecutor referred, it is evident that these com- ments,  although  more  clinical  than  those  in  Simmons, conveyed the message that Bronshtein presented a threat of future lawlessness. We agree with the District Court's evaluation of these comments:

The  references  to  Bronshtein's  inability  to

'conform  to  what  is  required  in  society' and  the  fact  that  he  was  'anti-social,'  in the  context  of  the  present  and  the  future by  reference  to  what  Bronshtein  is  "going to"  and  "prone  to"  do,  make  clear  that  the Commonwealth  was  suggesting  to  the  jury that it should impose the death penalty be- cause of Bronshtein's inability to function in society in the future. The prosecutor's asser- tion  that   Bronshtein   was  "prone  to  living a  life  of  crime,"  when  placed  in  the  con- text of the stark choice of life in prison or death, would suggest to any juror that peti- tioner would pose a danger **45   to society if  he  was  released  from  prison.  The  none- too-subtle implication of these arguments is that  Bronshtien  should  be  put  to  death  be- cause if he were ever released, he could not

"conform to the needs of society,' and was

"going to" continue "living a life of crime"

and engaging in dangerous, violent conduct.

Dist. Ct. Op. at 36-37. Thus,  the import of the penalty phase closing in itself is clear enough.

When the "the medical testimony" to which the prose- cutor referred in the closing is also taken into account, the significance of the prosecutor's statements becomes even clearer.  At  the  penalty  phase,  Bronshtein  called  a  psy- chologist, Gerald Cooke, to testify to "psychological mit- igating factors." App. VI at 1835. Dr. Cooke testified that Bronshtein suffered from paranoid personality disorder, anti-social personality disorder, and depression. See id. at

1838, 1840. On cross-examination, the Commonwealth elicited  from  Dr.  Cooke  a  litany  of  dangerous  tenden- cies that persons with these disorders often exhibit. The questioning went as follows:

Q: One of the features of a person with an

anti-social personality disorder  is he tends to be irresponsible; correct?   **46

A:  Well,  one  of  the  features  of  anti-social personality  can  be  irresponsibility.  I  don't know if that's necessarily a criteria that fits him. He fits a number of the other criteria.

Q: It can be anti-social behavior; correct?

A: Absolutely.

Q: Including criminal activity; correct?

A: Correct. Q: Lying? A: Yes.

Q: Stealing?

A: Yes.

Q: Fighting?

A: Yes.

*718   Q: Being very aggressive; correct?

A: Yes.

Q: They can be prone to being irritable; cor- rect?

A: Yes.

Q: Prone to getting repeatedly into physical fights; correct?

A: Can be. . . .

Q: Failed to conform to social norms;  cor- rect?

A: That is true.

Q: Repeatedly can perform anti-social acts;

correct?

A: Yes. . . .

Q:  They  also  tend  to  express  no  remorse, don't they?

404 F.3d 700, *718; 2005 U.S. App. LEXIS 6158, **46

Page 13

A: That's true.

Q: No remorse about the effects of their be- havior on other people?

A: They often don't have insight to the effects of their behavior on themselves or on other people.

Q: In other words, a lot of people who have anti-social  personality  disorders  can't  play by the rules in a civilized society; correct?

A: True.

Id. at **47   1855-1858.

The prosecutor then questioned Dr. Cooke regarding

Bronshtein's paranoid personality disorder:

Q:  Dr.  Cooke,  with  regard  to  the  paranoid personality disorder, they're also people that can react quickly with anger; correct?

A: Yes.

Q: And are likely to counterattack if they feel threatened; correct?

A: They are likely to see themselves as being threatened, and many of them sort of follow the kind of attitude that the best defense is offense.

Q: In other words, they're more likely to feel threatened than the normal person; correct?

A:  True,   and  that's  what  being  paranoid means.

Q: Because they're more likely to feel threat- ened, they're more likely to counterattack be- cause of the threat they feel;

correct?

A: That is true.

Q: They can bear grudges for a long time;

correct?

A: True.

Q: And they can even get to the point where

they  never  forgive  different  insults  people have done to them; correct?

A: True.

Q: They're viewed as secretive?

A: Yes.

Q: Devious? A. Sometimes. Q: Scheming? A: Sometimes.

Q:  Have  great  difficulties  accepting  self- criticism?

A: That's true.

Q:   **48    Dr. Cooke, Mr. Bronshtein has a  combination  of  the  two --  paranoid  per- sonality disorder and anti-social personality disorder -- doesn't he?

A: And depression.

. . .

Q: Doctor,  it's certainly a potentially lethal combination of personality disorders, isn't it?

A: Could be.

Id. at 1858-1860.

The Commonwealth also presented rebuttal evidence through  its  own  mental  health  expert,  Dr.  Timothy  J. Michaels. The Commonwealth elicited the following tes- timony from Dr. Michaels:

Q: What is your agreement or disagreement with  the  diagnoses  which   Dr.  Cooke   has made?

*719    A:  .  .  .  I  certainly  agree  with  the anti-social  personality  disorder.  What  that means is, this young man has gotten in trou- ble throughout his life. He doesn't learn by experience. He's impulsive. He continues to get in trouble within the prison system. He acts out,  justifies his behavior. So even af- ter he has been incarcerated, there's ongoing

404 F.3d 700, *719; 2005 U.S. App. LEXIS 6158, **48

Page 14

difficulties.

. . . When you're anti-social,  you don't follow the rules. You don't learn by experi- ence. You think you're right and other people are wrong. . . .

I also agree with the paranoid personality disorder. . . .

He's  paranoid.  Basically,    **49    he's looking  over  his  shoulder.  He  doesn't  trust people, doesn't trust most people. . . .

This combination of not trusting people and then acting out, not following the rules is an explosive combination in my opinion.

. . . So I see that as a serious, very serious behavioral problem that this young man has.

. . .

Q: Dr. Michaels, what findings did you make with  regard  to  this  personality  disorder  or these  personality  disorders  with  having  re- morse?

A: . . . Individuals who are anti-social don't have remorse. They don't learn. They're not sorry  for  their  behavior.  They  don't  learn from experience. So they do this over again. And instead of being remorseful, unfor- tunately there is acceleration of behavior. I think I can get away with it -  even though you get caught. I can outsmart the people .

App. VI at 1869-71, 1874.

Taken  together,  the  testimony  of  Drs.  Cooke  and

Michaels  suggested  the  following:                that  Bronshtein's

"combination of personality disorders" could be "lethal" or "explosive";  that he was prone to lie,  scheme,  steal, fight, and act very aggressively; that he was much more likely  than  a  normal  person  to  distrust  others,   bear grudges,  feel  threatened,     **50    and  respond  with  a counterattack;  that he was unable to "play by the rules in a civilized society"; that he was probably remorseless, and  unlikely  to  learn  from  experience,  and  thus  prone to commit the same crimes "over again"; and that there would  probably  be  an  "acceleration"  of  his  anti-social behavior.

The  prosecution's  penalty  phase  closing  must  be viewed as incorporating these points. As noted, the pros- ecutor asked the jury to recall "the medical testimony," referred twice to what "the doctors" had told the jury, and summarized that testimony as saying that Bronshtein is

"anti-social," "prone to living a life of crime," and "can't conform to the needs of society." In any realistic sense of the concept, the prosecutor "argued that the defendant

would  pose a threat to society in the future." Simmons,

512  U.S.  at  177  (O'Connor,  J.,  concurring  in  the  judg- ment). And it goes without saying that the Bronshtein's future dangerousness was put at issue within the meaning of Kelly. In the words of that decision,  "the prosecutor accentuated the clear implication of future dangerousness raised by the evidence." 534 U.S. at 255. We thus reject the Commonwealth's **51   argument that the prosecu- tion's presentation at the penalty phase was insufficient to trigger the obligation imposed by Simmons, Shafer, and Kelly.

Having considered and rejected the Commonwealth's arguments regarding Simmons and its progeny, we have before us no ground for reversing the order of the District Court insofar as it held that Bronshtein's death sentence is  unconstitutional  under  those  precedents.  In  light  of

*720   our decision on this issue, we have no occasion to decide whether, as the District Court held, that sentence is unconstitutional for the additional reason that the jury was improperly instructed regarding the aggravating factor set out in 42 Pa. Cons. Stat. Ann. § 9711(d)(6) (commission of homicide while perpetrating felony) and that there was insufficient evidence to prove that factor. n9

n9 The law concerning § 9711(d)(6) is not in dispute  and,  now  that  the  specific  language  used by the trial court has been challenged, there is no reason to expect that the same instruction will be repeated if a new penalty-phase proceeding is held.

**52  V.

We  now  consider  the  claims  raised  in  Bronshtein's cross-appeal. As noted, Bronshtein asks us to issue a cer- tificate of appealability on these claims, and we must do so  if  he  has  made  "a  substantial  showing  of  the  denial of a constitutional right." 28 U.S.C. § 2253(c)(2). On the merits,  our review of the decision of the District Court is plenary, as the District Court relied exclusively on the state court record and did not hold an evidentiary hearing. Hartey v. Vaughn, 186 F.3d 367, 371 (3d Cir. 1999).

A.

Bronshtein   argues   that   the   prosecution   violated Batson  v.  Kentucky,   supra,   by  exercising  a  peremp- tory challenge based on religion and ethnic background. During  collective  voir  dire,  the  trial  court  asked  the prospective  jurors  whether  they  had  "any  moral,  reli- gious or other ethical beliefs which would prevent them

404 F.3d 700, *720; 2005 U.S. App. LEXIS 6158, **52

Page 15

from considering the imposition of the death penalty . " Bronshtein's  App.  II  at  293.  Ten  of  the  30  prospective jurors -- including Jan Eidelson -- responded in the affir- mative.

Later,   during  individual  voir  dire,   defense  coun- sel  asked  another  prospective  juror,   Nanette  Phyllis Honigman, whether **53   she was "of Jewish heritage," and she responded that she was not. App. II at 420-21. After Ms. Honigman was dismissed for cause on unrelated grounds, the trial judge raised the issue whether it was ap- propriate to ask potential jurors about their religions. Id. at

421. The judge suggested that such an inquiry would not be reasonable unless a juror expressed an unwillingness to consider a death verdict for religious reasons. Id. Defense counsel explained that his only reason for doing so "would be for the possible Batson issues, it's whether the juror was of the same Jewish heritage as Mr. Bronshtein." Id. The prosecutor seems to have taken the position that Batson does not apply to peremptory challenges based on reli- gion, while defense counsel and Bronshtein himself con- tended that striking a prospective juror because the person is Jewish would be a challenge based on "nationality" or

"race" and would thus fall within Batson. Id. at 423-24. The trial judge then stated that Judaism is "a religion, it's not a nationality" and ruled that a peremptory challenge based on Judaism did not present "a Batson issue." Id. at 424-25. However, because the judge **54    thought that an inquiry into a juror's religion might be justified for the limited reason of exploring whether the juror would be willing to consider a death sentence, the judge asked counsel  to  provide  advance  warning  before  asking  any questions along those lines. Id. at 425.

Immediately after this exchange, the prosecutor stated that  he  wanted  to  ask  Ms.  Eidelson  about  her  religion

"only because of the educational background" noted in her information sheet, namely, that she had written that she had attended a school called "Friends Central." App. II at 426. The trial judge responded that   *721   this in- quiry was legitimate because "it cannot be disputed that if someone is a Quaker they hold a religious belief that would prevent them, probably, from serving on this jury." Id.

When Ms. Eidelson came up for individual voir dire a short time later, the trial judge questioned her first. In response to the court's questions, she stated that she could vote to impose a death penalty but that "it would not be a comfortable thing" and "would not  be easy." App. II at 429, 435. She expressed reservations about being se- questered for the two weeks that the trial was expected to last, stating **55  that she "wouldn't want to be in a situa- tion where she  could not have contact with her  support system . " Id. at 429. She also stated that, although she

was a graduate of Friends Central High School, she was not a Quaker. Id. at 437. Finally, when the judge asked her whether she "would have any tendency to be biased or prejudiced against Bronshtein  because he is a Russian- Jew," Ms. Eidelson answered that she did not think that she would and added:  "Well, I need to let you know, my dad's parents came from Russia." Id. at 439.

Defense  counsel  questioned  Eidelson  next.  In  re- sponse to his questioning, she stated that her "dad's parents were Russian-Jews" and that her mother was Jewish. App. II at 440. The prosecutor then questioned Ms. Eidelson briefly and inquired only whether, if the jury voted for the death penalty and the jurors were polled, she would be able to stand up in open court and state that she had voted to impose that sentence. App. II at 443-45. She answered in the affirmative. Id. at 445.

After Ms. Eidelson left the courtroom, defense coun- sel stated that she was acceptable, but the prosecutor ex- ercised a peremptory strike against her. App.   **56   II at

445. Defense counsel objected, claiming that the prose- cution had exercised the strike in violation of Batson, but the trial judge rejected the objection without explanation. Id. at 446.

On  direct  appeal,  the  Pennsylvania  Supreme  Court found  it  unnecessary  to  resolve  the  question  whether

"'Russian-Jewish' is an ethnic classification for the pur- poses of a Batson claim . " Bronshtein, 691 A.2d at 915. First, the Court held that Bronshtein "failed to develop a record setting forth the race or ethnicity of the rest of the venire or the jurors eventually empaneled as required by

Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621

(Pa. 1995) ." Second, the Court stated:

The record reveals that the prospective juror equivocated on the death penalty on moral, religious and philosophical grounds and ex- pressed serious reservations about serving on the jury because it would entail being sep- arated  from  her  'support  group'  during  the anticipated two weeks of sequestration. . . . Reasons such as these have been found by this court to be a proper basis for exercising a peremptory challenge.

Id.

The  District  Court  discussed   **57              Bronshtein's claim in some detail. See Aug. 16,  2001 Mem. at 2-8. The District Court expressed disagreement with the state courts on three grounds. The District Court opined that

"it is likely that the trial judge was wrong on the issue of whether Jews were a cognizable group under Batson."

404 F.3d 700, *721; 2005 U.S. App. LEXIS 6158, **57

Page 16

Id. at 4. The District Court also disagreed with the state supreme court's view that Batson "requires a defendant

to   produce  evidence  of  the  race  of  all  venirepersons struck by the prosecutor,  the race of prospective jurors stricken  by  the  defense,  and  the  racial  makeup  of  the final  jury  selected."  Id.  at  8.  The  District  Court  "read Batson to be far less exacting in its evidentiary require- ments" and stated   *722    that "there are many eviden- tiary avenues a petitioner may travel to bolster his Batson claims." Id. Finally, the District Court disagreed with the state supreme court's approach in rejecting Bronshtein's claim on the ground that the record revealed legitimate grounds on which the strike of Ms. Eidelson could have been based. Id. at 6. The District Court wrote:

Batson requires the prosecutor to reveal her actual  reasons  for  striking  a  juror.   **58  Where   the   prosecutor   has   not   done   so, whether on her own initiative or because of the trial court's ruling, an appellate or habeas court  should  not  later  divine  reasons  that might have motivated the prosecutor,  how- ever tempting that may be, and regardless of how abundant or logical the possible reasons may seem.

Id. (emphasis in original).

The District Court nevertheless rejected Bronshtein's Batson claim on the ground that he had failed to make out a prima facie case. The Court noted that " t he only record evidence petitioner pointed to at trial" or in the fed- eral habeas proceeding was "the undisputed fact that the prosecutor used a peremptory challenge to exclude from the jury the only person in the venire who shared peti- tioner's Russian-Jewish ancestry." Aug.16, 2001 Mem. at

6-7. The District Court also noted that "it was petitioner's counsel, not the prosecutor, who asked two jurors whether they were Jewish" and that "nothing in the record indi- cated that the prosecutor was interested  in whether the jurors shared a common ethnic heritage with the defen- dant." Id. at 7-8.

Because one of the grounds given by the Pennsylvania Supreme Court for rejecting **59    Bronshtein's claim was his failure to develop the record in accordance with one  of  that  Court's  prior  decisions,  Commonwealth  v. Simmons,  541  Pa.  211,  662  A.2d  621  (Pa.  1995),  we begin by discussing the question of procedural default. We hold that consideration of Bronshtein's Batson claim is not barred for two reasons. First, the Commonwealth has not argued that the claim is procedurally barred, and we  are  not  required  to  raise  this  issue  sua  sponte.  See Smith v. Horn,  120 F.3d at 408-09. Second,  we under- stand Commonwealth v. Simmons to represent an inter-

pretation  of  what  Batson  requires,  not  an  independent state  procedural  rule.  In  Commonwealth  v.  Simmons, the Pennsylvania Supreme Court accurately summarized Batson's holding as follows:

To sustain a prima facie case of improper use of peremptory challenges, a defendant must establish the following: (1) the defendant is a member of a cognizable racial group and the prosecutor exercised peremptory challenges to remove members of the defendant's race from the venire; (2) the defendant can then rely on the fact that the use of peremptory challenges permits "those to **60   discrim- inate who are a mind sic  to discriminate; and, (3) the defendant, through facts and cir- cumstances, must raise an inference that the prosecutor excluded members of the venire on account of their race. . . .

662 A.2d at 631. The Court then continued:

This third prong requires defendant to make a record specifically identifying the race of all the venirepersons removed by the pros- ecution,  the  race  of  the  jurors  who  served and  the  race  of  jurors  acceptable  to  the Commonwealth who were stricken by the de- fense.

Id.   (emphasis   added).   It   thus   seems   clear   that   the

Commonwealth

v. Simmons procedural requirements represent an in- terpretation of Batson, not a state procedural rule.

We  therefore  proceed  to  the  merits  of  Bronshtein's claim. Because this claim was "adjudicated on the mer- its" in state   *723   court, the narrow standards of review set out in 28 U.S.C. § 2254(d) apply. We must thus de- cide whether the state supreme court's "adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly estab- lished Federal law, as determined by **61   the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (em- phasis added).

A state court adjudication is "contrary to" Supreme Court  precedent  if  it  results  from  the  application  of  "a rule that contradicts the governing law set forth" by the Supreme Court or is inconsistent with a Supreme Court decision  in  a  case  involving  "materially  indistinguish- able" facts. Williams v. Taylor, 529 U.S. 362, 405-06, 146

L.  Ed.  2d  389,  120  S.  Ct.  1495  (2000).  "A  state  court

404 F.3d 700, *723; 2005 U.S. App. LEXIS 6158, **61

Page 17

decision fails the 'unreasonable  application'  prong only

'if the court identifies the correct governing rule from the Supreme Court's cases but unreasonably applies it to the facts of the particular case or if the state court either un- reasonably  extends  a  legal  principle  from  the  Supreme Court's precedent to a new context where it should not apply or unreasonably refuses to extend the principle to a new context where it should apply.'" Rico v. Leftridge- Byrd, 340 F.3d 178, 181 (3d Cir. 2003) (citations omitted). Before applying these standards to the present case, we  note  that  we  agree  with  the  District  Court  that the Pennsylvania Supreme Court clearly misinterpreted Batson   **62    .  First,  Batson  does  not  invariably  de- mand  compliance  with  the  procedural  requirements  set out in Commonwealth v. Simmons,  662 A.2d at 631. It is noteworthy that Batson discussed what a criminal de- fendant  must  do  to  establish  a  prima  facie  case  with- out hinting that a defendant must always satisfy anything like the rigid Commonwealth v. Simmons requirements. More  important,  Batson's  specific  examples  of  how  a prima  facie  case  may  be  established  make  it  clear  that the Commonwealth  v. Simmons requirements need not always be met. Batson stated that "a 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination." 476 U.S. at 97. In other words, a stark pattern -  say, peremptorily strik- ing numerous African American jurors and no others - could suffice without the creation of a record regarding

"the  race  of  the  jurors  who  served  and  the  race  of  the jurors acceptable to the prosecution  who were stricken by the defense." Commonwealth v. Simmons, 662 A.2d at

631. Batson further stated that a "prosecutor's questions and statements during voir dire examination **63   and in exercising his challenges may support or refute an in- ference of discriminatory purpose." 476 U.S. at 97. Thus, in some circumstances, suspicious questioning, coupled with strikes that seem to implement the thrust of the ques- tioning, may be enough. In short, a prima facie case may be established by "all relevant circumstances." Id. at 96. While the factors noted in Simmons  are certainly rele- vant, in the words of the District Court, "there are many evidentiary avenues a petitioner may travel to bolster his Batson claims." Aug. 16, 2001 Mem. at 8.

Second, the Pennsylvania Supreme Court clearly mis- interpreted Batson insofar as it rejected Bronshtein's claim on the ground that the record suggested legitimate reasons that could have motivated the prosecutor to exercise the contested peremptory challenge. Under Batson, if the ob- jecting party establishes a prima facie case, the party exer- cising the challenge must state its actual reasons, and the trial judge must make a finding regarding the challenging party's motivation. See 476 U.S. at 97-98.

*724      In  light  of  our  conclusion  that  the  state supreme court misinterpreted **64    Batson,  we con- clude that the state supreme court's decision fails to sat- isfy the standards set out in 28 U.S.C. § 2254(d)(1). The

"contrary to" prong is violated because the state supreme court "applied a rule that contradicts the governing law set forth" by the Supreme Court, Williams, 529 U.S at 405. And the "unreasonable application" prong is also contra- vened because the state supreme court did not "identify the correct governing rule from the Supreme Court's cases." Rico, 340 F.3d at 181. It does not follow, however, that Bronshtein is entitled to relief.

A  state  prisoner's  federal  habeas  petition  may  be granted "only on the ground that he is in custody in vio- lation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Thus, if a petitioner's cus- tody does not in fact violate federal law -- i.e., if the peti- tioner's claims fail even de novo review -- the petitioner is not entitled to habeas relief regardless of the correctness of  the  state  court's  analysis  of  those  claims.  This  con- clusion follows naturally from the longstanding rule that federal courts will not entertain **65   habeas petitions to correct errors that do not undermine the lawfulness of a petitioner's detention. See McNally v. Hill, 293 U.S. 131,

135, 79 L. Ed. 238, 55 S. Ct. 24 (1934) (errors may not be attacked on one count of indictment where sentence was lawfully imposed after conviction on another count), overruled on other grounds, Peyton v. Rowe, 391 U.S. 54,

20 L. Ed. 2d 426, 88 S. Ct. 1549 (1968).

Our conclusion also follows naturally from the lan- guage of 28 U.S.C. § 2254(d). Under the "contrary to" prong  of  §  2254(d)(1),  it  is  the  state  supreme  court's

"decision," not its reasoning, that must be "contrary to" clearly established Supreme Court precedent. As we put it in Matteo v. Superintendent, SCI Albion, 171 F.3d 877,

888 (3d Cir. 1999) (en banc) (emphasis added), the "con- trary to" prong applies when "Supreme Court precedent requires the contrary outcome." Likewise, our decision in Werts  v.  Vaughn,  228  F.3d  178,  196-97  (3d  Cir.  1999)

(quoting O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir.

1998)) (emphasis added), glossed the "contrary to" lan- guage as entitling a petitioner to relief only if **66   the petitioner "shows that 'Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.'"

Accordingly, both the terms of the habeas statute and common sense dictate that Bronshtein cannot obtain re- lief on his Batson claim unless application of a correct interpretation of that decision leads to the conclusion that his rights were violated.

Applying plenary review, we agree with the District

Court that Bronshtein failed to make out a prima facie

404 F.3d 700, *724; 2005 U.S. App. LEXIS 6158, **66

Page 18

case.  n10 First,  it is relevant that Bronshtein's  claim is based on a single strike. We do not hold that a prima facie case always requires more than one contested strike, but the absence of a pattern of strikes is a factor to be consid- ered. In this connection, it is relevant (though not, as the state supreme court held, dispositive) that the record does not reveal whether the prosecutor passed up the opportu- nity to strike other prospective jurors who were Jewish or who had ancestors who once lived in Russia. See Simmons v. Beyer,  44 F.3d 1160,  1167 (3d Cir. 1995) (pattern of strikes and number of racial group members in   *725  panel relevant); United States v. Clemons, 843 F.2d 741,

747-48 (3d Cir. 1988) **67   (same).

n10 We therefore have no need to address the question whether Bronshtein would be entitled to relief  if  he  had  shown  that  the  peremptory  chal- lenge at issue was based on "religious affiliation," see  United  States  v.  DeJesus,  347  F.3d  500,  510

(3d Cir. 2003) (reserving decision on question), or ethnicity. See Rico v. Leftridge-Byrd, 340 F.3d 178,

182-84 (3d Cir. 2003).

Second,  the  nature  of  the  crime  did  not  provide  a reason for heightened suspicion about the prosecution's reason for striking Ms. Eidelson. See Simmons v. Beyer,

44 F.3d at 1167 (nature of crime and race of accused and victim relevant); Clemons, 843 F.2d at 748 (same). There was no suggestion that religion or ethnicity played any role in the murder, and the accused and the victim shared the same religion and ethnic background.

Third, the prosecutor's questions and statements dur- ing  voir  dire  did  not  suggest  that  Ms.  Eidelson  was peremptorily challenged because of her religion **68  or ethnicity. See Simmons v. Beyer, 44 F.3d at 1167 (pros- ecutor's  questions  relevant);  Clemons,  843  F.2d  at  748

(same).  It  was  defense  counsel  who  first  asked  a  juror whether she was Jewish. The prosecutor expressed an in- terest in whether Ms. Eidelson was a Quaker, not whether she was Jewish, and his only question to her concerned her ability to vote for the death penalty. We agree with the District Court that these facts are insufficient to make out a prima facie case, and we therefore reject Bronshtein's Batson claim on this ground. n11

n11 Bronshtein contends that the strike of Ms. Eidelson was suspicious because, immediately af- ter the trial judge ruled that Batson does not prohibit peremptory challenges based on religion, the pros- ecutor expressed an interest in asking about the reli- gion of a prospective juror "with a Jewish-sounding last  name."  Bronshtein's  Br.  at  84-86.  These  cir- cumstances  are  relevant,  but  particularly  in  light

of  the  reason  volunteered  by  the  prosecutor,  i.e., Ms. Eidelson's attendance at Friends Central High School,  we  are  not  persuaded  that  a  prima  facie case was established.

Bronshtein   also   contends   that   the   follow- ing  facts  support  a  prima  facie  case:      (1)  the Commonwealth   exercised   a   peremptory   strike against  a  non-Jewish  prospective  juror  who  had lived  for  some  time  in  a  predominantly  Jewish neighborhood and (2) the Commonwealth did not strike other venirepersons who shared some of Ms. Eidelson's characteristics, e.g., her marital and em- ployment status, educational background, and lack of  military  service.  See  Bronshtein's  Br.  at  86-

88. These factors provide slight support at best for

Bronshtein's position.

**69  VI.

We now consider two issues relating to the trial court's evidentiary rulings. First, Bronshtein argues that the trial court  violated  his  federal  constitutional  rights  to  a  fair trial,  to  present  a  defense,  to  due  process,  and  to  con- frontation  by  excluding  proposed  testimony  by  private investigator Alan Hart. Second, Bronshtein contends that the trial court violated his right to due process by admit- ting his confession to the Slobotkin murder for the limited purpose of showing the identity of the person who shot and killed Gutman.

A.

Before reaching the merits of these claims, we must consider whether review is precluded by non-exhaustion or  procedural  default.  Without  an  express  waiver  by the  state,  a  federal  court  is  allowed  under  28  U.S.C.  §

2254(b)(1)(A) to grant a state prisoner's habeas petition only  if  the  petitioner  has  exhausted  all  available  state remedies. In order to satisfy the exhaustion requirement, a federal habeas claim must have been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275,

30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). This means that a  petitioner  must  "present  a  federal  claim's  factual  and legal substance **70   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).

"It is not enough that all the facts necessary to support the federal claim were before the state   *726    courts," Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103

S. Ct. 276 (1982), and "mere similarity of claims is insuf- ficient to exhaust." Duncan v. Henry, 513 U.S. 364, 366,

130 L. Ed. 2d 865, 115 S. Ct. 887 (1995).

In this case, our review of the state court record reveals

404 F.3d 700, *726; 2005 U.S. App. LEXIS 6158, **70

Page 19

that the arguments that Bronshtein made with respect to these issues were based entirely on state, rather than fed- eral, law. n12 As a result, these claims were not properly exhausted. See Keller v. Larkins, 251 F.3d 408, 413-15

(3d Cir. 2001).

N12  See  Appellant's  Br.  at  14-20,   27-29,

32-37,  Commonwealth v. Bronshtein,  88 Capital

Appeal Docket, Pa. Sup. Ct., Eastern District.

Bronshtein  contends,   however,   that  these  claims

"were automatically **71    exhausted on direct appeal by virtue of the Pennsylvania Supreme Court's mandatory appellate review in capital cases." Reply And Mem. Of Law In Support Of Pet. For Writ Of Habeas Corpus at 11. Under 42 Pa. Cons. Stat. § 9711(h)(3)(i), the Pennsylvania Supreme Court is required to review the record in capi- tal  cases  to  determine  whether  "the  sentence  of  death was the product of passion, prejudice or any other arbi- trary factor . " Such review, Bronshtein asserts, "satisfies the exhaustion requirement for all record-based claims of constitutional error." Reply And Mem. Of Law In Support Of Pet. For Writ Of Habeas Corpus at 15. The District Court agreed, stating that " e ven when a petitioner fails to raise a particular constitutional issue,  the mandatory review of capital convictions and sentencings required in Pennsylvania is sufficient to exhaust fundamental consti- tutional  claims  of  the  kind  raised  here  by  Bronshtein." App. I at 22 n.19.

We must disagree with this analysis. First, neither 42

Pa. Cons. Stat. § 9711(h)(3)(i) nor any other Pennsylvania statute states that the Pennsylvania Supreme Court is ex- pected  to  try  to  identify   **72    and  then  assess  every

"record-based" federal constitutional argument that might possibly be made on behalf a capital defendant. Instead,

42 Pa. Cons. Stat. § 9711(h)(3)(i) imposes a much more limited, albeit important, obligation, i.e., to make sure that no death sentence is "the product of passion, prejudice or any other arbitrary factor."

Second,  we  see  no  evidence  that  the  Pennsylvania Supreme Court believes that it is required to engage in, or that it in fact engages in, the sort of boundless inquiry that Bronshtein thinks is required. See Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439, 454 n.12 (Pa. 1995)

("We decline counsel's invitation to scour the record for additional errors caused by counsel and sua sponte raise said issues; the request is inappropriate and nonsensical in that such advocacy would be beyond the scope of our appellate review.") The state supreme court's opinion on direct appeal in this case is illustrative. The state supreme court did not address any federal constitutional issue that Bronshtein did not raise; nor did the state supreme court

address the question whether Bronshtein's state-law ar- guments  would   **73    have  merit  if  recast  in  federal constitutional terms. It seems fanciful to suggest that, in every capital appeal, the state supreme court actually con- siders and rejects a host of federal constitutional claims without receiving briefing or argument on those claims from counsel and without even mentioning in the opinion of the court that the claims were entertained.

Third,  Bronshtein's  argument  is  inconsistent  with Pennsylvania's scheme of post-conviction review. Under the PCRA, a petitioner may not obtain relief on a claim

*727   that was "previously litigated," 42 Pa. Cons. Stat. Ann. § 9543(a)(3), and a claim is viewed as having been

"previously  litigated"  if  "the  highest  appellate  court  in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa. Cons. Stat. Ann. § 9544. Thus, if a Pennsylvania Supreme Court decision affirming a capital conviction and sentence on direct  review  is  deemed  to  signify  that  the  Court  con- sidered and rejected every possible federal constitutional argument that could be made based on the record, it would follow that no such claims could ever be asserted under

**74   the PCRA. See Holland v. Horn, 150 F. Supp. 2d

706, 720-21 (E.D. Pa. 2001); Banks v. Horn, 49 F. Supp.

2d 400, 406-07 (M.D. Pa. 1999). We are convinced that the Pennsylvania Legislature did not intend such a result. Fourth, Bronshtein's argument would frustrate impor- tant aspects of the federal habeas scheme. Under the fed- eral habeas statute, an applicant for federal habeas relief must show that "the applicant has exhausted" all avail- able state remedies. 28 U.S.C. § 2254(b)(1)(A) (emphasis added). In addition, a state is not "deemed to have waived the  exhaustion  requirement"  unless  it  "expressly"  does so, 28 U.S.C. § 2254(b)(3), and a federal habeas court's scope of review varies greatly depending on whether a particular claim was or was not "adjudicated on the mer- its" in the state courts. See 28 U.S.C. § 2254(d). Under Bronshtein's argument, however, the fiction that the state supreme court on direct review automatically considers all  possible  "record-based"  arguments  (and  tacitly  re- jects all those that it does not expressly endorse) essen- tially does away with these aspects **75   of the federal habeas scheme. The exhaustion requirement is rendered meaningless since all possible claims are deemed to be exhausted on direct review. Moreover, because an affir- mance on direct review is deemed to constitute an adjudi- cation on the merits of all possible record-based claims, it would seem to follow that all such claims are subject to the narrow scope of federal habeas review set out in 28

U.S.C. § 2254(d) regardless of whether the state supreme court in fact ever considered those claims.

For these reasons, we agree with the courts of appeals

404 F.3d 700, *727; 2005 U.S. App. LEXIS 6158, **75

Page 20

that have rejected arguments similar to Bronshtein's. See, e.g., Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Smith v. Moore, 137 F.3d 808, 821 (4th Cir. 1998); Nave v.  Delo,  62  F.3d  1024,  1039  (8th  Cir.  1995);  Julius  v. Johnson, 840 F.2d 1533, 1546 (11th Cir. 1988). We have considered the Ninth Circuit's decision in Beam v. Paskett,

3 F.3d 1301, 1305-07 (9th Cir. 1993), but that decision does  not  persuade  us  to  accept  Bronshtein's  argument here.

In Beam, the claim at issue concerned the constitu- tionality **76    of an aggravating factor set out in the Idaho  capital  sentencing  statute.  After  first  concluding that the habeas petitioner had fairly presented his federal claim to the Idaho Supreme Court, the Beam panel stated that the claim would not be procedurally defaulted even if the petitioner had not raised it in the state supreme court. The Beam panel noted that the Idaho Supreme Court was required by statute to review the entire record in a capi- tal case to make sure that the death sentence was not the result of an "arbitrary factor." Id. at 1306. The panel then predicted that the Idaho Supreme Court would interpret the state statute to mean that "affirmance of a capital sen- tence constitutes an implicit rejection of all specific claims falling within the subject of its mandatory review author- ity and that any claim covered by the mandatory review statute  must  be  deemed  resolved  against  the  defendant even if he did not raise that claim before the court and even if the court failed to address it in its   *728    opinion." Id.  at  1306.  Reasoning  that  reliance  on  the  sentencing factor at issue "would clearly constitute reliance on an ar- bitrary factor," the Beam **77  panel concluded that this claim fell within the specific terms of the Idaho Supreme Court's mandatory review authority and that therefore the state supreme court must have considered and rejected the claim. Id. at 1307.

Beam is distinguishable from the present case on sev- eral grounds. First, as noted, the petitioner there was held to  have  fairly  presented  his  claim  to  the  state  supreme court. Second, the relevant discussion in Beam was based on a prediction about how the Idaho Supreme Court would interpret its mandatory review authority, and we do not predict that the Pennsylvania Supreme Court would inter- pret its mandatory review authority in a similar fashion. Third, the relevant discussion in Beam was also predicated on the Court's view that the particular claim at issue, the constitutionality of a capital sentencing factor, fell within the list of specific questions that the Idaho Supreme Court was obligated to consider on direct review. The pertinent claims here are different, and even if we were bound by Beam - and of course we are not - it would not follow that the particular claims in question here fall within the scope of the Pennsylvania **78   mandatory review provision. However, to the extent that Beam's reasoning differs from

our analysis of Bronshtein's argument here, we find Beam unpersuasive. We thus hold that the claims under discus- sion were not properly exhausted.

Although Bronshtein has never properly exhausted the claims at issue, he is now "clearly foreclosed" from doing so by the PCRA time limit, see 42 Pa. Cons. Stat. Ann.

§  9545(b),  and  these  claims  are  therefore  procedurally defaulted. See Whitney, 280 F.3d at 250-52. As a result, we may not grant relief on those claims unless Bronshtein

"makes the standard showing of cause and prejudice or establishes a fundamental miscarriage of justice." Id. at

253 (citation and internal quotation marks omitted).

We would permit Bronshtein to attempt on remand to establish a reason to excuse his procedural default,  but we  find  it  unnecessary  to  do  so  because  it  is  apparent that the claims in question lack merit. Under 28 U.S.C.

§ 2254(b)(2),  we may reject claims on the merits even though  they  were  not  properly  exhausted,  and  we  take that approach here. We will discuss in turn **79    the two evidentiary rulings that Bronshtein contests.

B.

1. Hart's testimony. In his proffer of Hart's testimony at  an  in  camera  hearing  before  the  trial  judge,  defense counsel stated that Hart would testify that he had been hired by the New Jersey Jewelers' Association to conduct an  investigation  into  a  "scam"  that  Karlitsky  was  sus- pected  of  carrying  out.  App.  V  at  1376-77.  According to  the  proffer,  Hart  would  have  testified  that  jewelry that  had  been  reported  as  stolen  from  Karlitsky's  store had "ended up" at a downtown Philadelphia store owned by  Karlitsky's  cousin.  Id.  In  addition,  it  was  proffered that  Hart  would  have  testified  that,  "contrary  to  .  .  . the Commonwealth's testimony," the Philadelphia Police Department was involved in the investigation of this mat- ter.  Id.  Defense  counsel  asserted  that  Hart's  testimony would support the theory that Karlitsky gave some of the jewelry from a scam at the Leo Mall to Gutman to sell at his store and that a dispute between them motivated Karlitsky to kill Gutman. See id. at 1341-42.

Defense   counsel   acknowledged,   however,                that Karlitsky  was  never  charged  or  arrested  in  connection with the Leo Mall robbery "because **80   they couldn't get  enough             *729       evidence  to  arrest  him."  Id.  at

1377. Furthermore, defense counsel conceded that much of  Hart's  proffered  testimony  was  hearsay  and  that  the only  proper  testimony  that  Hart  could  have  given  was that  he  was  "working  with  the  Philadelphia  Police  in an investigation of Karlitsky." Id. at 1377-80. See also Commonwealth v. Bronshtein, 691 A.2d at 917 n. 18. The trial  court  excluded  this  testimony  on  the  ground  that evidence about the Leo Mall robbery was "entirely col-

404 F.3d 700, *729; 2005 U.S. App. LEXIS 6158, **80

Page 21

lateral to the proceedings," and the state supreme court held that this ruling was not an abuse of discretion be- cause Bronshtein "failed to offer any evidence that there was  any  logical  connection  between  the  Slobotkin  and Gutman  murders  and  this  dissimilar  case."  Bronshtein,

691 A.2d at 917.

"A  defendant's  right  to  present  relevant  evidence  is not unlimited, but rather is subject to reasonable restric- tions." United States v. Scheffer, 523 U.S. 303, 308, 140 L. Ed. 2d 413, 118 S. Ct. 1261 (1998). Here, the trial court apparently applied a familiar evidence rule allowing the exclusion of evidence if its probative value is outweighed by the danger of confusion **81   of the issues or need- less presentation of cumulative evidence. See Morrison v. Commonwealth, Dept. Of Pub. Welfare, 538 Pa. 122,

646 A.2d 565 (Pa. 1994); Commonwealth v. Boyle, 498

Pa. 486, 447 A.2d 250 (Pa. 1982); Pa. Rule of Evid. 403

(effective 1998). The trial court's ruling plainly did not rise to the level of a federal constitutional violation.

To begin, Hart's proffered testimony would have been largely  cumulative  since  evidence  about  the  Leo  Mall robbery had already been admitted. Montgomery County Detective Donald H. Rohner had testified that, according to  an  unnamed  source  (who,  unbeknownst  to  the  jury, was Bronshtein himself), Karlitsky was a suspect in the alleged robbery of his own store. Indeed, in an important respect, Rohner's testimony was actually more helpful to the defense than Hart's would have been. Although Hart could not have given competent testimony supporting the defense theory that some of the jewelry from the Leo Mall robbery had found its way to Gutman's store, Rohner tes- tified that, according to his source, jewelry from the Leo Mall robbery had "ended up somewhere else, at least one or more other places . " App. IV **82   at 898. n13

n13 It appears that Hart's testimony would have supplemented Rohner's in only one respect. While Rohnertestified that Karlitsky was a suspect in the Leo  Mall  robbery,  he  stated  that  he  did  not  re- ceive any information that the Philadelphia police considered  him  a  suspect,  and  Hart  would  have testified  that  the  Philadelphia  police  did  suspect Karlitsky.  This  additional  feature  of  Hart's  prof- fered testimony is far too slight to convince us that the trial court's ruling violated Bronshtein's federal constitutional rights.

Moreover,  even  if  Hart's  testimony  had  not  been largely  cumulative,  it  would  have  had  little  probative value. At best, Hart's testimony suggested that Karlitsky might have staged the robbery of his own store. This fact alone sheds no light on the identity of Gutman's killer.

Even if Hart's testimony is viewed in conjunction with Detective  Rohner's  statement  that  some  of  the  jewelry from the Leo Mall store "ended up" in other places, the ev- idence does little to show that one of those **83   places was  Gutman's  store,  much  less  that  a  dispute  over  this jewelry led Karlitsky to kill Gutman. This limited pro- bative value must be weighed against the likely danger that  the  evidence  would  sidetrack  the  proceedings  and confuse the jury. By admitting Hart's testimony, the court risked submerging the defendant's trial in collateral liti- gation over an unsolved and (at most) tangentially related crime committed by someone other than the accused. For these reasons, the trial judge's decision to exclude Hart's

*730   proffered testimony did not violate Bronshtein's federal constitutional rights.

2.  Confession  to  Slobotkin  murder.  As  previously noted,  Bronshtein  confessed  to  the  Philadelphia  police that  he  had  killed  Slobotkin,  but  when  Bronshtein  was questioned by the Montgomery County police about the Gutman murder he told them that Slobotkin and Gutman had been killed by the same man, namely, "Mr. X," whom Bronshtein later identified as Karlitsky. Bronshtein also said that he was afraid of Mr. X and that he had previously confessed to the Slobotkin murder only because he would have "walked out of the police station  a dead man" if he had not confessed. App. IV at 965-66.

The   trial   **84  judge   admitted   evidence   of Bronshtein's confession to the Slobotkin murder but in- structed the jury that it was permitted to consider this evi- dence solely in relation to Bronshtein's statement that the person who killed Slobotkin also killed Gutman. When the evidence was admitted, the trial court told the jury:

This evidence Bronshtein's confession that he killed Slobotkin  is not to be considered by you to the extent that one might conclude, well, if he did do this other crime for which we're not trying, then, he's a bad person, and that means he probably did this. No, it can't be used for that purpose. It comes in for a very limited and specific purpose, which is to say that if you believe that he made this statement, and if you believe that it was true, and  if  you  believe  that  he  made  the  other statement that has been entered into evidence

that the same person who killed Slobotkin also killed Gutman , and if you believe that is true,  then,  all of that may be considered by you as evidence as to the identity of the person who did, in fact, kill Mr. Gutman, the decedent who is the subject of this case. But it is for that specific and limited purpose only that you are being **85   permitted to hear

404 F.3d 700, *730; 2005 U.S. App. LEXIS 6158, **85

Page 22

this.

Id. at 1090-91. In its final charge, the trial court gave a similar warning. n14

n14 The trial judge stated:

You've   heard   evidence   tending   to prove  that  the  defendant  was  guilty of  an  offense  for  which  he  is  not  on trial,  and I am speaking again of the testimony to the effect that the defen- dant  made  a  statement  to  Detective Augustine  that  he  had  killed  a  jew- eler named Slobotkin. This evidence, as I instructed you at the time you first heard  it,  was  before  you  for  a  lim- ited  purpose,  that  is,  for  the  purpose of tending to show the identity of the killer  in  this,  the  Gutman  case,  and then only because the Commonwealth has put before you another statement allegedly from the defendant that the killer  of  Slobotkin  and  the  killer  of Gutman were one and the same man. In other words,  you were allowed to hear about the statement allegedly at- tributed to the defendant on a case un- related to this one only because if cou- pled with the other statement attributed to him and if believed by you, then, it goes to the question of the identity of the killer of Mr. Gutman, which is the issue in this case.

Now,  this  evidence  must  not  be considered  by  you  in  any  way  other than for the purpose I just stated. You must not regard this evidence, that is, the statement about killing Slobotkin, as showing that the defendant is a per- son of bad character or criminal ten- dencies from which you might be in- clined to infer his guilt. If you find the defendant  guilty,  it  must  be  because you are convinced by the evidence that he committed the crime in this case, the one charged, not because you believe he's wicked or has committed other of- fenses in other places at other times.

App. V, Pt. 2 at 1676-77.

**86

Admission  of  "other  crimes"  evidence  provides  a ground for federal habeas relief only if "the evidence's probative  value  is  so  conspicuously  outweighed  by  its inflammatory content, so as to violate a defendant's con- stitutional right to a fair trial." Lesko v. Owens, 881 F.2d

44, 52 (3d Cir. 1989). That is plainly not the case here.

*731    Other  crimes  evidence  is  routinely  admit- ted  when  it  is  relevant  n15  to  show  "identity."  See, e.g., Fed. R. Evid. 404(b); Pa. R. Evid. 404(b)(2). Here, Bronshtein's  confession  to  the  Philadelphia  police  that he  killed  Slobotkin  was  relevant  to  show  the  identity of  Gutman's  killer  because  Bronshtein  later  informed the  Montgomery  County  police  that  Slobotkin's  killer also  murdered  Gutman.  Bronshtein's  confession  to  the Slobotkin  murder  was  not  rendered  irrelevant  by  his subsequent  contradictory  statement  to the Montgomery County police that Karlitsky killed Slobotkin, as well as Gutman. Relevant evidence does not become irrelevant just  because  contradictory  evidence  exists.  Conflicting evidence presents a question of credibility for the trier of fact, not a question of relevance for the court, and **87  of course a trier of fact is under no obligation to accept or reject a party's admissions in toto. On the contrary, a trier of fact may believe some of the party's admissions and disbelieve others. Here, Bronshtein's statement that he killed Slobotkin and his statement to the Montgomery County police that Karlitsky was the killer were both rel- evant to show the identity of Gutman's murderer, and it was proper for the trial judge to admit both statements.

n15  In  this  context,  "relevant"  means  suffi- cient to support a finding that the other crime or wrong occurred and that the defendant was the ac- tor. Huddleston v. United States, 485 U.S. 681, 689,

99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988).

VII.

Bronshtein's final argument concerns comments made by the prosecutor in his guilt phase summation. In short, the prosecutor argued that,  although Bronshtein's attor- ney had suggested that Karlitsky was a major organized crime figure and that Karlitsky had killed Gutman,  the defense had not offered any significant evidence **88  to support this theory. According to the prosecutor, even the Leo Mall evidence was weak. n16

n16 The prosecutor stated:

And I suggest to you they would search high  and  low,   heaven  and  hell,   to try  and  get  somebody  in  this  court- room,  expert  or  otherwise,  that  can

404 F.3d 700, *731; 2005 U.S. App. LEXIS 6158, **88

Page 23

put Karlitsky somehow related to some scam -

. . . .

They would be more than happy to find somebody that would come in here and link Karlitsky  to some scam, link him to some involvement of the mob.

Ask  their  own  so-called  expert,  the man they're putting forth as the expert,

"Have you ever heard of Karlitsky?"

. . . .

Did you hear that question even posed to their expert? Did you hear he heard him Karlitskly  involved in anything?

What  is  this,  what  he  has  labeled, Nicky  Scarfo-like  head?   What's  his criminal  background?   No  robberies, like he said. No murders, like he said. Big  Nicky  Scarfo,  Daddy  Warbucks Scarfo,   headed  this  Russian  Mafia, Russian Mob, has a shoplifting arrest from 1990. That's where they got his fingerprints from, a shoplifting arrest. No other criminal history, nothing with robberies, nothing with murders .  . . . That's a smoke screen, ladies and gen- tlemen, you can conclude based on the evidence that's been presented to you.

That's something where they're trying to take your focus off the ball, trying to  get  your  attention  deflected  off  of what  you  can  conclude  based  on  the law and the evidence is the real truth in this case.

They want you to believe a Karlitsky. They   have   to   have   you   believe   a Karlitsky  if  their  defense  is  going  to apply, if their defense is going to work.

But          nobody   has          heard       of             him. Organized crime hasn't heard of him. He's  not  linked  to  any  scams,   not linked to any organized crime --

. . . .

Nothing.  No  links  whatsoever  that have been brought forward in this case no matter how many times he wants to object, but that's still the way it is. And that's still the facts in this case.

The only thing they even alluded to - and I suggest to you, they didn't even give you the whole picture - was they alluded to some Leo Mall store he had as  a  jeweler.  He  starts  talking  about this consignment stuff.

You  haven't  heard  one  word  about any   consignment   from   Leo   Mall. You  haven't  heard  word  one  about his  involvement  in  any  scam  from Philadelphia  Police  involved  in  the Leo Mall, not one iota about that; but they bring it forth and they argue it to you when they come here in closing to try and say, "Well, we'll infer he was involved in a scam here; so we'll take that and infer through our expert that Russian  Jews  are  involved  in  scams and a lot of organized crime. From that, they do scams, and so we'll link him from maybe being in a scam, from be- ing a Russian Jew to maybe working in scams they do. Wah-la. He's organized crime."

Think  of  the  step  that  takes.  Think of  the  leaps  they  take  when  they  try and take that to you and whether it's founded in any of the evidence that has been presented to you. Think of that, because that's the linchpin of their de- fense; because if this fear is dispelled, if this Karlitsky does not exist in terms of  doing  anything  in  this  case,  then, their defense goes down the tubes.

App. V, Pt. 2 at 1585-88.

**89

*732   Bronshtein claims that the prosecutor's state- ments violated his due process rights. He contends that the comments on the defense's failure to present evidence in support of the defense theory were improper because the prosecutor knew that, but for the trial court's preclusion of  Hart's  testimony,  the  defense  would  have  presented

"evidence that Karlitsky had previously committed jew-

404 F.3d 700, *732; 2005 U.S. App. LEXIS 6158, **89

Page 24

elry robberies and scams in support of the defense theory that Karlitsky . . . held the intent, motive and means for committing the instant offenses." Bronshtein's Br. at 104. Improper remarks by a prosecutor may "so infect  the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416

U.S. 637, 643, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974). Due process is violated where the misconduct "constitutes a 'failure to observe that fundamental fairness essential to the very concept of justice.'" Id. at 642. No such violation occurred here.

In    discussing    the    prosecutor's    comments,           the Pennsylvania  Supreme  Court  accurately  noted  that  the defense had not proffered any evidence that Karlitsky had staged  the  robbery  of  his  own  store,  only   **90    evi- dence that the police suspected him of involvement. See Bronshtein, 691 A.2d at 920. Moreover, there was no ev- idence linking Karlitsky to "the Russian 'mafia.'" Id. The Pennsylvania Supreme Court observed:

A  review of the transcript of an in camera discussion reveals that, although appellant's expert had personally investigated the possi- bility of Karlitsky's involvement in an alleged scam at the Leo Mall jewelry store, there had been  no  evidence  to  link  Karlitsky  to  any

such scam or to link any jewelry scam to the

Gutman murder . . . .

Trial counsel dedicated more than half of his sixty page closing argument to the the- ory that Karlitsky had committed the murder as part of a jewelry store scam involving the Russian "mafia," and that appellant had con- fessed to the Slobotkin murder out of fear of Karlitsky. Given that there was no evidence, either  at  trial  or  in  the  defense  proffer  on the substance of the excluded testimony, of Karlitsky's involvement in an alleged scam at the store or his connection to the Russian

"mafia," it was not improper for the prosecu- tion to ask the jury to draw an inference that no such evidence existed.

Id **91   .

We agree with the state supreme court's analysis of this  issue  and  hold  that  the  summation  did  not  violate Bronshtein's federal constitutional rights.

*733   VIII.

For the reasons set out above, we reverse the order of the District Court in part and affirm in part, and we remand for further proceedings consistent with this opinion.

	Contents    Prev    Next    Last