Thomas v. Horn

• Citation: 570 F.3d 105
• Decision Date: 01 July 2009
• Docket Number: No. 05-9008.,No. 05-9006.,05-9006.,05-9008.
• Parties: Brian THOMAS, Appellant v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; Donald T. Vaughn, Superintendent of the State Correctional Institution at Graterford; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview; the District Attorney of Philadelphia County, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

570 F.3d 105

Brian THOMAS, Appellant v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; Donald T. Vaughn, Superintendent of the State Correctional Institution at Graterford; Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview; the District Attorney of Philadelphia County, Appellants.

No. 05-9006.

No. 05-9008.

United States Court of Appeals, Third Circuit.

Argued May 1, 2009.

Filed: July 1, 2009.

Maureen Kearney Rowley, Billy H. Nolas (Argued), Victor Abreu, David Wycoff, Federal Community Defender Office for the Eastern District, of Pennsylvania, Philadelphia, PA, Attorneys for Brian Thomas.

David Curtis Glebe (Argued), Thomas W. Dolgenos, Ronald Eisenberg, Arnold H. Gordon, Lynne Abraham, Robert M. Falin, Philadelphia, PA, Attorneys for Martin Horn, Donald Vaughn, Joseph Mazurkiewicz, and the District Attorney of Philadelphia County.

Before: McKEE, SMITH, and STAPLETON, Circuit Judges.

OPINION

SMITH, Circuit Judge.

In 1986, Brian Thomas was convicted in the Court of Common Pleas of Philadelphia of murder in the first degree, burglary, involuntary deviate sexual intercourse, and rape. The jury sentenced him to death. Thomas was unsuccessful on direct appeal, see Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699 (1989) (hereinafter "Thomas I"), and in his state court petition for post-conviction relief, see Commonwealth v. Thomas, 560 Pa. 249, 744 A.2d 713 (2000) (hereinafter "Thomas II"). Thomas then petitioned the District Court for habeas relief pursuant to 28 U.S.C. § 2254. Thomas v. Beard, 388 F.Supp.2d 489 (E.D.Pa.2005) (hereinafter "Thomas III"). The District Court granted Thomas sentencing relief based on his trial counsel's ineffectiveness, but denied his guilt-phase claims. Id. at 536. Both Thomas and the Commonwealth¹ appealed. For the reasons that follow, we will affirm the District Court's guilt-phase determinations, but will vacate the District Court's order for sentencing relief, and remand for an evidentiary hearing concerning the extent, if any, of trial counsel's pre-sentencing investigative efforts to obtain mitigation evidence.

I.

On August 9, 1985, one of Linda Johnson's roommates walked into their Philadelphia apartment and found Johnson's dead body lying face-down on a broken box-spring in her room. Johnson's eyes and face were swollen, and her nose and right temple were bleeding. She had a bite mark on her cheek and bruises on her arms and thighs. She was naked from the waist down, and blood was seeping from her vagina and rectum. A blood-encrusted crutch was found near her body. It was also determined that a television set and a can containing about twenty-nine dollars in change were missing from the apartment.

An autopsy of Johnson revealed that she had three fractured ribs and a twenty-three inch tear inside her body that reached from her vagina to her chest cavity. A shirt also had been inserted into her rectum, through her intestinal wall, and into her abdominal cavity with a blunt instrument while she was still alive. Additionally, sperm was found inside her vagina.

Three days after the discovery of Johnson's body, the Commonwealth arrested Thomas for her rape and murder, and for burglarizing her apartment. At trial, three witnesses testified that they had seen Thomas and Johnson together at or near her apartment within hours of the discovery of her body. The Commonwealth also introduced medical evidence that: the sperm found in Johnson's vagina was deposited around the time that Thomas and Johnson were last seen together; the sperm was deposited by a non-secretor (one who does not secrete traces of blood in bodily emissions); Thomas was a non-secretor; blood found on Thomas' boxer shorts was human blood; and the bite mark on Johnson's cheek matched Thomas' teeth. Finally, the Commonwealth introduced evidence that Thomas was in possession of both the missing television and the twenty-nine dollars in change.

On February 6, 1986, the jury found Thomas guilty of murder in the first degree, rape, involuntary deviate sexual intercourse, and burglary. During the penalty phase, which began later that day, the Commonwealth offered evidence of three aggravating circumstances to support its request for the death penalty: 1) killing while perpetrating another felony, namely rape; 2) killing by means of torture; and 3) a significant history of violent felony convictions. See 42 Pa. Cons.Stat. § 9711(d)(6), (8), (9). The Commonwealth relied on trial evidence already presented to establish the first two aggravating circumstances. To establish the third, the Commonwealth offered evidence of Thomas' 1978 conviction for felonious aggravated assault and indecent assault on a three-year old, which caused injuries to the child's rectum and intestines, and Thomas' 1984 conviction for criminal trespass where Thomas unlawfully entered a neighbor's bedroom while she was sleeping.

At the close of the Commonwealth's penalty-phase evidence, Thomas' court-appointed counsel informed the court that Thomas would not be presenting any mitigating evidence. The court determined that Thomas should be colloquied regarding the decision to present no mitigating evidence. After this colloquy, Thomas, through his counsel, declined the Commonwealth's offer to stipulate to his age and to the fact that he graduated from high school. As a result, Thomas presented no evidence of mitigating circumstances during the penalty phase. Nonetheless, in its penalty-phase charge to the jury, the court recited all the mitigating circumstances listed in Pennsylvania's sentencing statute for first-degree murder, 42 Pa. Cons.Stat. § 9711(e), and told the jury that "you may consider anything as a mitigating circumstance."

The jury found the three proposed aggravating circumstances and no mitigating circumstances. Accordingly, Thomas was sentenced to death on the first-degree murder conviction and to consecutive terms of imprisonment of up to fifty years for the burglary, rape, and involuntary deviate sexual intercourse convictions.

Thomas, represented by new court-appointed appellate counsel, unsuccessfully challenged his conviction and sentence on direct appeal to the Pennsylvania Supreme Court. Thomas I, 561 A.2d at 710. His subsequent petition for relief under Pennsylvania's Post-Conviction Relief Act, 42 Pa. Cons.Stat. § 9541 et. seq. (hereinafter "PCRA"), was also denied. Thomas II, 744 A.2d at 717. Thomas then petitioned the District Court for habeas relief pursuant to 28 U.S.C. § 2254, raising twenty-three grounds for relief. Thomas III, 388 F.Supp.2d at 495-96 & n. 1. The District Court denied Thomas' petition as to his guilt-phase claims. Id. at 536. The District Court, however, determined that Thomas' trial counsel was ineffective at sentencing under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because counsel failed to investigate and present mitigating evidence of Thomas' mental health. Thomas II, 388 F.Supp.2d at 505-11. The District Court also determined that Thomas did not knowingly and intelligently waive his right to present mitigating evidence because the nature of the proceedings were not adequately explained to him, so the purported waiver could not cure the prejudice resulting from counsel's deficiencies. Id. at 513-16.² Accordingly, the District Court vacated Thomas' death sentence. Id. at 536.³

Thomas filed a timely appeal, and the District Court issued a certificate of appealability for three of Thomas' claims. The Commonwealth filed a cross-appeal alleging that the District Court's decision to vacate Thomas' sentence was in error.

II.

The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254, and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Since the District Court ruled on Thomas' habeas petition without an evidentiary hearing, our review of its decision is plenary. See Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002). This means that we review the state courts' determinations under the same standard that the District Court was required to apply. Id.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "federal courts are to review a state court's determinations on the merits only to ascertain whether the state court reached a decision that was `contrary to' or involved an `unreasonable application' of clearly established Supreme Court law, or if a decision was based on an `unreasonable determination' of the facts in light of the evidence presented." Fahy v. Horn, 516 F.3d 169, 189 n. 20 (3d Cir.2008). But when "the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA ... do not apply." Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001). "In such an instance, the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of AEDPA." Id. A state court's factual determinations, however, "are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence." Id.

III.

We will first address the three claims before us on Thomas' appeal: 1) the trial court's "reasonable doubt" instruction to the jury was unconstitutional; 2) the Commonwealth's closing argument at sentencing was unconstitutional, and Thomas' counsel was ineffective for not objecting to it; and 3) Thomas' counsel was ineffective for failing to life-qualify the jury.

A.

At the outset, the parties contest whether AEDPA deference pursuant to Section 2254(d) applies to Thomas' claims. Section 2254(d) "applies only to claims already `adjudicated on the merits in State court proceedings.'" Appel, 250 F.3d at 210 (quoting 28 U.S.C. § 2254(d)). Here, the PCRA court ruled on the merits of two of Thomas' claims-his closing argument and life—qualification claims—but did not address the third—his...