Blystone v. Horn

Decision Date22 December 2011
Docket Number05–9003.,Nos. 05–9002,s. 05–9002
Citation664 F.3d 397
PartiesScott Wayne BLYSTONE, Appellant v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; James S. Price, Superintendent of the State Correctional Institution at Greene; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution Rockview, Appellants.
CourtU.S. Court of Appeals — Third Circuit


Maureen Kearney Rowley, Esq., Samuel J.B. Angell, Esq. (Argued), Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, Robert Brett Dunham, Esq. (Argued), Federal Public Defender Office for the Middle District of Pennsylvania, Harrisburg, PA, Paul D. Boas, Esq., Pittsburgh, PA, Attorneys for Appellant/Cross–Appellee.

Linda L. Kelly, Esq., Richard A. Sheetz, Jr., Esq., Amy Zapp, Esq. (Argued), Stuart Suss, Esq., Office of the Attorney General of Pennsylvania, Harrisburg, PA, Attorneys for Appellee/Cross–Appellant.

Before: CHAGARES, NYGAARD, and ROTH, Circuit Judges.


CHAGARES, Circuit Judge.

In 1984, a jury sentenced Scott Wayne Blystone to death following his convictions in Pennsylvania state court for first-degree murder, robbery, conspiracy to commit murder, and conspiracy to commit robbery. After making several unsuccessful attempts to overturn his convictions and sentence in state court, Blystone filed the present petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania, alleging that both the guilt and penalty phases of his trial were infected with federal constitutional error and that he is entitled to a new trial or, at a minimum, a new sentencing hearing. The District Court denied relief on all guilt phase claims, but granted the writ as to Blystone's death sentence, finding that trial counsel was ineffective for failing to investigate, develop, or introduce expert mental health testimony and institutional records in mitigation, and that the state court's decision to the contrary was unreasonable. Accordingly, the District Court remanded the case for resentencing. Thereafter, Blystone filed a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment based on alleged newly discovered evidence of prosecutorial misconduct during the guilt phase of trial. The District Court denied the Rule 59(e) motion, concluding that the evidence submitted in support was not, in fact, “newly discovered.”

Blystone now appeals the District Court's denial of his Rule 59(e) motion. The defendants (collectively, the “Commonwealth”) cross-appeal the District Court's grant of penalty phase relief. Having approached this case with the utmost respect for the deferential standards of review that we are obligated to apply, we will affirm the judgment of the District Court.


On the morning of September 10, 1983, a passerby discovered the body of Dalton Charles Smithburger, Jr., lying near a road in Fayette County, Pennsylvania. Smithburger had sustained six gunshot wounds to the back of the head. “Blystone eluded detection as Smithburger's murderer for over three months. However, his associates eventually exposed him.” Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81, 84 (1988) (“ Blystone I ”). First to contact the police was Miles Miller. Miller told the police that he had information implicating Blystone in Smithburger's murder and agreed to wear a tape recorder and transmitter during a meeting with Blystone in the hopes of eliciting a confession. In the course of this meeting, Blystone admitted to robbing Smithburger of thirteen dollars and then shooting him.

At trial, the Commonwealth introduced portions of Blystone's taped conversation with Miller into evidence. The jury heard Blystone's “own voice bragging in vivid and grisly detail of the killing of [Smithburger.] Blystone I, 549 A.2d at 84. Blystone recounted that he had been out in his car with his girlfriend, Jackie Guthrie, his friend, George Powell, and Powell's girlfriend, Barbara Clark. In need of cash, Blystone picked up Smithburger, a hitchhiker, and asked him to contribute gas money. When Smithburger replied that he could only give him a few dollars, Blystone pulled out a gun and, in his own words, “almost splattered him right there in the car.” Blystone then stopped driving and told Smithburger to get out. Having first led Smithburger away from the car, Blystone searched his belongings and found thirteen dollars. Blystone took the money and then ran back to the car to tell his friends that he was going to kill the hitchhiker. Upon making this pronouncement, Blystone immediately returned to where Smithburger stood and asked him to describe Blystone's car. Smithburger accurately described the car, so Blystone said “goodbye” and “wasted him.” He proceeded to shoot Smithburger six times.

Barbara Clark's testimony at trial largely corroborated the story that Blystone recounted to Miller in the tape recorded conversation. She recalled that on September 9, 1983, Blystone offered Smithburger a ride and asked him for gas money. When Smithburger said he only had a couple of dollars, Blystone pulled out a gun on him. Clark heard six gun shots after the two men exited the car. Upon returning to the car, Blystone announced to his passengers that he had taken thirteen dollars from Smithburger. Jackie Guthrie's testimony corroborated Barbara Clark's in all respects.

Before resting its case, the Commonwealth also presented testimony establishing that the bullets retrieved from Smithburger's body were of the .22 caliber class, and that Blystone had stolen a .22 caliber pistol prior to the murder. Jackie Guthrie confirmed that the gun Blystone had stolen was the same gun he used to shoot Smithburger. Blystone called no witnesses and presented no evidence in his defense.

On June 13, 1984, a jury empaneled by the Court of Common Pleas of Fayette County, Pennsylvania, convicted Blystone of first-degree murder, robbery, conspiracy to commit murder, and conspiracy to commit robbery. Following the verdict, and outside of the jury's presence, Blystone's attorney, Jeffrey Whiteko, told the judge that Blystone wished to offer no evidence in mitigation at the penalty phase of the trial. Whiteko claimed to have had lengthy discussions with Blystone about the benefits of presenting a mitigation case. He asserted that he strongly objected to Blystone's decision and he expressed a desire to put Blystone and his parents on the stand at the sentencing phase of the trial.

Thereafter, the judge conducted a colloquy with Blystone in which he explained that the jury would determine the penalty and that the sentencing hearing was Blystone's only opportunity to present the jury with mitigating evidence. The judge explained the role that aggravating and mitigating circumstances would play in the jury's decision and informed Blystone that, while the prosecution had the burden of proving aggravating circumstances beyond a reasonable doubt, Blystone had the burden of proving mitigating circumstances by a preponderance of the evidence. The judge then listed the statutory mitigating circumstances.

Noting that Blystone had an absolute right to remain silent, the judge asked him to consider the effect of his failure to present any mitigating evidence, and explained that he could not later argue that he did not have an opportunity to offer testimony. After taking a moment to confer with Whiteko, Blystone had the following exchange with the judge:


Do you wish to testify yourself or to have your parents testify or to offer any other evidence in this case?

. . . . .

MR. BLYSTONE: I have no testimony and no witnesses.


Either through yourself or anyone else?


. . . . .


Can you state for the record why it is that you do not want to offer any testimony?

MR. BLYSTONE: I don't want anybody else brought into it.

. . . . .


Is that your only reason for not offering any testimony?



Of course, if you testify yourself that would not be bringing anyone into it except yourself, do you understand?


Appendix (“App.”) 970–72. At the conclusion of the colloquy, the judge stated for the record that he found Blystone to be an intelligent man who understood the consequences of his decision. The jurors then reentered the courtroom and the judge informed them that Blystone had chosen not to present mitigating evidence at sentencing. The judge reminded the jurors that Blystone had an absolute right to remain silent and instructed them to consider all evidence presented to them in the course of the trial to determine whether mitigating circumstances existed.

The Commonwealth argued that the jury should find, as an aggravating circumstance, that Blystone committed the murder in the perpetration of a felony, in accordance with the jury's verdict that Blystone was guilty of robbery. See 42 Pa. Cons.Stat. § 9711(d)(6). Whiteko argued against the penalty of death. The jury inevitably found one aggravating circumstance—that Blystone “committed a killing while in the perpetration of a felony,” id.—and no mitigating circumstances. Accordingly, the jury imposed a death sentence for the murder conviction, as required by Pennsylvania law under the circumstances. Id. § 9711(c)(1)(iv) ([T]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance[.]). The judge imposed an independent sentence of ten to twenty years of imprisonment for the robbery conviction.

The Pennsylvania Supreme Court affirmed the conviction and sentence on direct appeal. Blystone I, 549 A.2d at 81. Thereafter, Blystone appealed to the United States Supreme Court, which granted certiorari to decide whether the mandatory aspect of the Pennsylvania death penalty statute impermissibly limited the jury's discretion in...

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