Abu–jamal v. * Sec'y

• Decision Date: 26 April 2011
• Docket Number: No. 01–9014.,01–9014.
• Citation: 643 F.3d 370
• Parties: Mumia ABU–JAMAL, a/k/a Wesley Cookv.* SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; Conner Blaine, Superintendent, SCI Greene; District Attorney for Philadelphia County; the Attorney General of the State of Pennsylvania, Appellants.* Pursuant to Fed. R.App. P. 43(c).
• Court: U.S. Court of Appeals — Third Circuit

643 F.3d 370

Mumia ABU–JAMAL, a/k/a Wesley Cook

v.* SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; Conner Blaine, Superintendent, SCI Greene; District Attorney for Philadelphia County; the Attorney General of the State of Pennsylvania, Appellants.* Pursuant to Fed. R.App. P. 43(c).

No. 01–9014.

United States Court of Appeals, Third Circuit.

Argued May 17, 2007.Decided March 27, 2008.Certiorari Granted, Judgment Vacated and Remanded from the Supreme Court of the United States Jan. 19, 2010.Argued on Remand from the Supreme Court of the United States Nov. 9, 2010.Filed: April 26, 2011.

Hugh J. Burns, Jr., Esquire, (argued), Ronald Eisenberg, Esquire, Office of District Attorney, Philadelphia, PA, for Appellants.Judith L. Ritter, Esquire, (argued), Widener University School of Law, Wilmington, DE, for Appellee.Before: SCIRICA, AMBRO and COWEN, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Mumia Abu–Jamal was convicted of first-degree murder in state court and sentenced to death. After exhausting state appeals, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. A divided panel of this court affirmed the denial of Abu–Jamal's petition insofar as it challenged his conviction. See Abu–Jamal v. Horn, 520 F.3d 272 (3d Cir.2008). Our court denied his petition for rehearing en banc, and the Supreme Court of the United States denied his petition for a writ of certiorari seeking review of his conviction, Abu–Jamal v. Beard, ––– U.S. ––––, 129 S.Ct. 1910, 173 L.Ed.2d 1062 (2009) (mem.). Abu–Jamal's conviction for first-degree murder stands.

On his death penalty challenge,¹ the District Court found the Pennsylvania Supreme Court's order denying post-conviction relief involved an unreasonable application of United States Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). We affirmed the District Court's grant of habeas relief on the sentence, see Abu–Jamal, 520 F.3d at 304, and our court denied the petition for rehearing en banc. The Commonwealth of Pennsylvania then petitioned the United States Supreme Court for a writ of certiorari, challenging our affirmance of the District Court's grant of habeas relief on the sentence.

On January 19, 2010, the United States Supreme Court granted the Commonwealth's petition for a writ of certiorari, vacated our judgment as to Abu–Jamal's sentence, and remanded for further consideration. Beard v. Abu–Jamal, ––– U.S. ––––, 130 S.Ct. 1134, 175 L.Ed.2d 967 (2010) (mem.). The Supreme Court directed that we reconsider our holding in light of intervening authority, Smith v. Spisak, 558 U.S. ––––, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010).

After further review, we conclude the Pennsylvania Supreme Court unreasonably applied Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), requiring Abu–Jamal's death sentence to be vacated. Our decision is required by Mills and consistent with Spisak. Accordingly, we will affirm the District Court's grant of habeas relief on Abu–Jamal's mitigation instruction claim.

I.

In 1982, a Pennsylvania jury convicted Abu–Jamal of the murder of Philadelphia Police Officer Daniel Faulkner. See Abu–Jamal, 520 F.3d at 274–76 (providing a full factual history). The jury returned, and the judge imposed, a sentence of death.

The Pennsylvania courts denied Abu–Jamal's claims on direct appeal and collateral review. Commonwealth v. Abu–Jamal, 521 Pa. 188, 555 A.2d 846 (1989); Commonwealth v. Abu–Jamal, 524 Pa. 106, 569 A.2d 915 (1990) (per curiam); Commonwealth v. Abu–Jamal, No. 1357, 1995 WL 1315980, at *128 (C.P.Ct.Phila.Cty. Sept. 15, 1995); Commonwealth v. Abu–Jamal, 553 Pa. 485, 720 A.2d 79 (1998); Commonwealth v. Abu–Jamal, 574 Pa. 724, 833 A.2d 719 (2003). The United States Supreme Court denied Abu–Jamal's petition for a writ of certiorari on October 1, 1990, Abu–Jamal v. Pennsylvania, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 175 (1990) (mem.) (on direct review), his petition for rehearing on November 26, 1990, Abu–Jamal v. Pennsylvania, 498 U.S. 993, 111 S.Ct. 541, 112 L.Ed.2d 551 (1990) (mem.), a second request for rehearing on June 10, 1991, Abu–Jamal v. Pennsylvania, 501 U.S. 1214, 111 S.Ct. 2819, 115 L.Ed.2d 991 (1991) (mem.), and a second and third petition for a writ of certiorari on October 4, 1999, Abu–Jamal v. Pennsylvania, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999) (mem.) (on collateral review), and May 17, 2004, Abu–Jamal v. Pennsylvania, 541 U.S. 1048, 124 S.Ct. 2173, 158 L.Ed.2d 742 (2004) (mem.) (same), respectively.

Having exhausted state court remedies, Abu–Jamal filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania. He challenged the validity of his criminal conviction, his capital sentence, and the sufficiency of post-conviction review. He argued, among other things, that the sentencing phase of his trial violated the United States Constitution because the jury instructions and verdict sheet required jury unanimity in its findings with respect to the existence of mitigating circumstances. The District Court denied the petition as to the conviction and post-conviction proceedings but accepted Abu–Jamal's mitigation instruction claim. See Abu–Jamal v. Horn, No. Civ. A. 99–5089, 2001 WL 1609690, at *1 (E.D.Pa. Dec. 18, 2001). The court concluded the Pennsylvania Supreme Court unreasonably applied United States Supreme Court precedent in finding otherwise and affirming the Court of Common Pleas of Philadelphia County's denial of post-conviction relief. See id. at *126. Consequently, the District Court granted a writ of habeas corpus on this claim and ordered the Commonwealth to conduct a new sentencing hearing or sentence Abu–Jamal to life imprisonment. Id. at * 130. The Commonwealth appealed the order of the District Court granting the writ as to the sentencing and Abu–Jamal cross-appealed the denial of the writ with respect to the conviction. As noted, we affirmed the judgment of the District Court in its entirety. Abu–Jamal, 520 F.3d at 274.² Abu–Jamal subsequently filed a petition for panel rehearing and rehearing en banc, which was denied.

Thereafter, the parties filed cross-petitions for writs of certiorari in the Supreme Court of the United States. The Supreme Court denied Abu–Jamal's petition seeking review of his conviction, see Abu–Jamal v. Beard, –––U.S. ––––, 129 S.Ct. 1910, 173 L.Ed.2d 1062 (2009) (mem.), but granted the Commonwealth's petition, vacated the portion of our judgment regarding Abu–Jamal's sentence, and remanded for further consideration in light of new authority, see Beard v. Abu–Jamal, ––– U.S. ––––, 130 S.Ct. 1134, 175 L.Ed.2d 967 (2010) (mem.).

Our review on remand is limited to whether the Pennsylvania Supreme Court unreasonably applied United States Supreme Court precedent in finding no constitutional defect in the jury instructions and verdict form employed in the sentencing phase of Abu–Jamal's trial. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Pursuant to the Supreme Court's order, we consider this question in light of Spisak and will examine whether the verdict form and jury instructions in the present case are distinguishable from those at issue in Spisak such that, taken together, they clearly brought about a “substantial probability” the jury believed it was precluded from considering any mitigating circumstance not found unanimously. Mills, 486 U.S. at 384, 108 S.Ct. 1860.

II.

Under the standard for habeas relief established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state prisoner's application for a writ of habeas corpus will be denied unless the adjudication of a claim in state court proceedings “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

Under the first clause of § 2254(d)(1), “a state-court decision is contrary to [Supreme Court] precedent if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law,” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Court's].” Williams, 529 U.S. at 405, 120 S.Ct. 1495. Here, the Pennsylvania Supreme Court correctly identified Mills as the applicable Supreme Court precedent, and the facts at issue are not “materially indistinguishable” from those in Mills. The Pennsylvania Supreme Court's decision was consequently not “contrary to” Mills. See Williams, 529 U.S. at 405, 120 S.Ct. 1495.

Accordingly, we consider only the second clause of § 2254(d)(1), and must determine whether the Pennsylvania Supreme Court's decision to deny Abu–Jamal's mitigation instruction claim “involved an unreasonable application of [ ] clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), in Mills. “Under § 2254(d)(1)'s ‘unreasonable application’ clause ... a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411, 120 S.Ct. 1495; see Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.”). The Supreme Court has instructed that, in making this inquiry, we ...