Banks v. Horn

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

10-31-2001

Banks v. Horn
Precedential or Non-Precedential:

Docket 99-9005

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Filed October 31, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-9005

GEORGE E. BANKS,
Appellant

v.

MARTIN HORN, Commissioner, PA Dept of Corrections;
JAMES PRICE, Superintendent of State Correctional
Institute Greene; RAYMOND J. COLLERAN,
Superintendent of State Correctional Institute Waymart;
COMMONWEALTH OF PENNSYLVANIA

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 99-cv-00438)
District Judge: Honorable James F. McClure, Jr.

Argued April 2, 2001

Before: SLOVITER, ROTH and RENDELL, Circuit Ju dges

(Filed: October 31, 2001)

Albert J. Flora, Jr., Esq. [ARGUED]
33 West South Street
Wilkes-Barre, PA 18701

William Ruzzo, Esq.
400 Third Avenue, Suite 109
Kingston, PA 18704
Counsel for Appellant
George E. Banks
 Scott C. Gartley, Esq. [ARGUED]
David W. Lupas, Esq.
Office of District Attorney
200 North River Street
Luzerne County Courthouse
Wilkes-Barre, PA 18711
Counsel for Appellee
Commonwealth of PA

Peter Goldberger, Esq.
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276
Counsel for Amicus-Appellant
PA Association of Criminal Defense
Lawyers

Louis M. Natali, Esq. [ARGUED]
Turner & McDonald
1725 Spruce Street
Philadelphia, PA 19103
Counsel for Amici-Appellants
PA Association of Criminal Defense
Lawyers and Louis M. Natali

OPINION OF THE COURT

RENDELL, Circuit Judge.

George Banks was convicted by a Luzerne County,
Pennsylvania jury of having committed thirteen murders,
and was sentenced to death. His direct appeals and filings
under the Pennsylvania Post-Conviction Relief Act ("PCRA")
failed. He sought habeas corpus relief in the District Court
under 28 U.S.C. S 2254, which was denied. He comes
before us now to appeal the District Court's ruling.

We have jurisdiction over this appeal pursuant to 28
U.S.C. SS 1291 and 2253. The District Court granted a
certificate of appealability as to whether the sentencing
phase instructions and forms violated Mills v. Maryland,
486 U.S. 367 (1988), under our precedent in Frey v.
Fulcomer, 132 F.3d 916 (3d Cir. 1997), cert. denied, 524

2
U.S. 911 (1998). By order entered June 27, 2000, we
agreed to expand the certificate of appealability to include
the issue of whether Banks failed to make a knowing,
intelligent, and voluntary waiver of his Sixth Amendment
right to counsel.

Because Banks's habeas corpus petition was filed after
April of 1996,1 the role of the District Court in reviewing the
state court proceedings was governed by AEDPA.2
Accordingly, the District Court's task was to determine
whether the state court's decision was either contrary to or
an unreasonable application of Supreme Court precedent.
The District Court found no basis on which to dispute the
state court's ruling. Because the question of whether the
District Court appropriately applied the AEDPA standard of
review is a question of law, we review its conclusions in
that regard de novo. Berryman v. Morton, 100 F.3d 1089,
1095 (3d Cir. 1996).

A. DISCUSSION

On September 25, 1982 in Wilkes-Barre, Pennsylvania,
Banks shot fourteen people with a Colt AR-15 semi-
automatic rifle, killing thirteen and wounding one. The AR-
15 is a civilian version of the military's M-16 rifle. Banks
began his deadly spree at his own home, where he shot and
killed three of his girlfriends and their five children, four of
whom Banks himself had fathered. Banks then left his
home clad in what appeared to be military fatigues. On the
street outside he happened upon a group of bystanders
who had heard the shots. Banks shot and killed one, a
_________________________________________________________________

1. We discuss our view of the applicability of AEDPA specifically at 6-7,
infra.

2. 28 U.S.C. S 2254(d) states:

(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim--

(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.

3
young man who had recognized him, and also shot and
seriously wounded another. Banks then carjacked a car
and drove to a trailer park, where he shot another
girlfriend, their son, a second boy, and the girlfriend's
mother. Two other boys survived the attack. After a stand-
off at a friend's house, Banks surrendered.

At trial, the defense offered psychiatric experts who
testified that Banks, who is bi-racial, suffered from
paranoid psychosis and was convinced that he was a victim
of a racist conspiracy. The theory was offered that he killed
his children to save them from suffering racism as he had.
Banks testified on his own behalf and insisted on referring
to graphic, gruesome pictures of the murders to try to show
that there was a government conspiracy against him.
Banks alleged that his shots had only wounded, not killed,
some of the victims, and that the police had fired the lethal
shots, after which some of the bodies were moved. He also
alleged that the medical examiner covered up some wounds
and enlarged or altered others to distort the information
presented to the jury. He sought throughout the trial to
exhume the bodies.

Banks was convicted by a state court jury of twelve
counts of first degree murder, one count of third degree
murder, criminal attempt to commit murder, two counts of
recklessly endangering another person, robbery and theft
by unlawful taking or disposition. In the penalty phase, the
jury sentenced Banks to death and imprisonment.

Banks filed direct appeals and sought collateral relief in
the state courts, as well as filing for federal habeas corpus
relief. We need not detail all these proceedings, except that
one aspect of the procedural posture of the case deserves
attention. The government had argued to the District Court
that Banks's habeas corpus petition was not filed in a
timely manner. Under AEDPA, Banks was required to file
his petition within one year of April 24, 1996, unless the
deadline was equitably tolled during the time a"properly
filed" state petition for relief was pending. The government
contended that because Banks's state court PCRA petition
was filed late, it should not be deemed to have been
"properly filed" for purposes of the tolling provisions under
the federal statute. See 28 U.S.C. S 2244(d)(2). The

4
government based its argument in part on Lovasz v.
Vaughn, 134 F.3d 146, 148 (3d Cir. 1998) ("We believe that
a `properly filed application' is one submitted according to
the state's procedural requirements, such as the rules
governing the time and place of filing.").

The government relied on the Pennsylvania Supreme
Court's ruling in 1999 that the requirement for timely filing
was "jurisdictional," rather than merely a statute of
limitations. See Commonwealth v. Banks, 726 A.2d 374,
376 (Pa. 1999) ("Banks VI"). The District Court did not
accept that argument, however, noting that Banks could
not be said to have been on notice prior to the Pennsylvania
Supreme Court's holding in Banks VI that the
Commonwealth would consider S 9545(b) to be
jurisdictional, and that, especially in light of relaxed waiver
in capital cases, and the policy of equitable tolling, Banks
should not be barred because he reasonably could have
construed the time requirement as procedural only. See
Banks v. Horn, 63 F. Supp. 2d 525, 533-34 (M.D. Pa. 1999)
("Banks VIII"). The District Court noted that since the
exceptions allowed courts to hear some untimely petitions,
not every provision in the statute could be jurisdictional,
and, absent clear jurisdictional language, it is"entirely
reasonable to conclude that S 9545(b) is a statute of
limitations rather than a jurisdictional provision." Id. at
533. In Banks VI, the Pennsylvania Supreme Court cited to
its decision in Commonwealth v. Peterkin, 722 A.2d 638 (Pa.
1998), petition for habeas corpus dismissed sub nom.
Peterkin v. Horn, 34 F. Supp. 2d 289 (E.D. Pa. 1998), which
states simply that the "General Assembly amended the
PCRA to require that, as a matter of jurisdiction, a PCRA
petition must be filed within one year of judgment," but the
statement was not the court's holding, and the court did
not elaborate on the reasoning underlying its conclusion.
Peterkin, 722 A.2d at 641. Banks VI was the first time the
Pennsylvania Supreme Court held that a court was
deprived of jurisdiction when the deadline was not met. As
the District Court noted, by concluding that the time
limitation was jurisdictional, the Pennsylvania Supreme
Court thought it was foreclosed from applying the relaxed
waiver standard in Banks's case. 63 F. Supp. 2d at 533.

5
Banks argues that, quite apart from the issue of how the
"properly-filed" requirement of 28 U.S.C.S 2244(d)(2) is
construed, we should consider his habeas petition as
properly before us. First, he urges that because his first
petition was filed pre-AEDPA he is not bound by AEDPA's
provisions. In the alternative, he takes the position that the
issue of timeliness of his habeas petition is not even before
us on appeal since the government has not challenged the
District Court's ruling in its counterstatement of issues,
and has failed to discuss the issue in its brief, except for its
conclusory reference to its position in a footnote.

Banks argues that his habeas petition was timely
because it was not governed by AEDPA's one-year limitation
period, but, rather, by pre-AEDPA law. In support of this
theory, Banks urges that the habeas petition he filed in the
District Court after AEDPA merely reasserted claims
previously filed pre-AEDPA, so that it "relates back to the
original filing date of Banks' pre-AEDPA petition." We
disagree. The applicability of AEDPA does not turn upon a
comparison of claims in successive petitions. It is, rather,
governed solely by the date of the petition's filing. See, e.g.,
Hull v. Kyler, 190 F.3d 88, 103 (3d Cir. 1999); Jones v.
Morton, 195 F.3d 153, 160-61 (3d Cir. 1999). Any petition
that is filed subsequent to AEDPA is governed by AEDPA
standards. In his argument, Banks relies on Coss v.
Lackawanna Cty. Dev. Auth., 204 F.3d 453 (3d Cir. 2000).3
But Coss involved a unique factual setting in which Coss's
petition was pending pre-AEDPA, and while it was pending,
Coss filed another petition solely to remove the claims that
the district court had held unexhausted. We thus viewed
the second petition as "tantamount to a further amendment
or clarification to the initial petition, filed at the direction of
the District Court. . . ." 204 F.3d at 461. We were
addressing the merits of his pre-AEDPA petition. If, instead,
Coss's petition had been dismissed, and he had then filed
either an identical petition or a petition absent the
unexhausted claims after AEDPA's effective date, we would
have been compelled to find that AEDPA controlled. Once a
_________________________________________________________________

3. The Supreme Court reversed and remanded on grounds not at issue
here. See Lackawanna Cty. Dist. Atty. v. Coss , 531 U.S. 923 (2001).

6
petition has been dismissed, a subsequent petition is a new
petition and is governed by AEDPA.

As to Banks's contention that the issue as to whether his
petition is time-barred is not before us because of the
government's failure to specifically raise and brief the issue
by way of cross-appeal, we believe that, in light of the
District Court's careful analysis of this issue and its
importance, and because the government did make
reference to the issue albeit in a footnote -- we should
examine whether the statutory filing requirements were
met. Silber v. United States, 370 U.S. 717, 717-18 (1962).4

Should Banks's second state court PCRA filed in January
1997 be deemed properly filed such that the one-year
AEDPA filing requirement did not begin to run until the
Pennsylvania Supreme Court finally ruled on it in March
1999? If so, then Banks's habeas petition was filed in time.
If not, then we need to decide whether the AEDPA one-year
period barred his petition or whether it should be equitably
tolled.5

It seems clear that, technically, Banks's filing of his
second PCRA in January 1997 was too late under
Pennsylvania law. This is because the Pennsylvania
legislature had enacted legislation in November 1995
requiring all petitions, including second or successive
_________________________________________________________________

4. Even if not raised, we believe we could consider this issue sua sponte.
"While ordinarily we do not take note of errors not called to the
attention
of the Court of Appeals nor properly raised here, that rule is not without
exception. The Court has `the power to notice a`plain error' though it is
not assigned or specified,' . . . `In exceptional circumstances,
especially
in criminal cases, appellate courts, in the public interest, may, of their
own motion, notice errors to which no exception has been taken, if the
errors are obvious, or if they otherwise seriously affect the fairness,
integrity or public reputation of judicial proceedings.' " Silber, 370
U.S.
717-18 (internal citations omitted) See also Acosta v. Artuz, 221 F.3d
117 (2d Cir. 2000); Kiser v. Johnson, 163 F.3d 326 (5th Cir. 1999).

5. We note that the Supreme Court's recent ruling in Duncan v. Walker
does not bear on this issue because here, unlike the situation in
Duncan, the time period was violated unless there is equitable tolling for
the state proceedings, even if the time during which Banks's first federal
habeas petition was pending is taken into account. ___ U.S. ___, 121 S.
Ct. 2120 (June 18, 2001).

7
petitions, to be filed within one year of the final order on
direct appeal unless certain exceptions were met. 6 42 Pa.
Cons. Stat. S 9545 (Act of November 17, 1995, Special
Session No. 1 P.L. 1118, No. 32, effective in 60 days).

However, was the petition therefore necessarily not
"properly filed"? While we could explore this concept under
the applicable Pennsylvania law and under the federal
habeas case law, see, e.g., Artuz v. Bennett, 531 U.S. 4
(2000), we need not do so, because we conclude that, even
were we to decide that the late filing of Banks's second
PCRA rendered it not "properly filed," the District Court
appropriately called on equitable principles to toll the one-
year AEDPA requirement given this unusual fact pattern.
Here, as the District Court points out, the state of the
Pennsylvania law regarding the nature of the filing
_________________________________________________________________

6. The text of the relevant statutory provision is:

(B) TIME FOR FILING PETITION.--

(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date
the
judgment becomes final, 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 petitioner 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.

(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have
been
 presented.

(3) For purposes of this subchapter, a judgment becomes final at
the
conclusion of direct review, including discretionary review in
the
Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the
review.

8
requirement was unclear, and Banks could reasonably have
viewed the state time limit as a mere statute of limitations
subject to equitable tolling, not, as the Pennsylvania
Supreme Court later held in Banks VI, a jurisdictional
requirement. The District Court noted that viewing this
later ruling as a bar would result in unfair forfeiture
without notice. Banks VIII at 534. This circumstance
provides a basis for us to call on equitable principles in
application of our own federal time parameters -- the one-
year AEDPA requirement.

We have recently had occasion to examine this issue. In
Fahy v. Horn, we described the state of the law at the time
of Fahy's fourth PCRA petition, which was also the time
period when Banks's petition was pending, as "inhibitively
opaque." 240 F.3d 239 (3d Cir. 2001), cert. denied, 2001
WL 825957 (October 1, 2001). We noted that in Banks, we
had required Banks to return to state court because even
we believed the relaxed waiver rule might well apply. How
can we expect Banks to have predicted the ultimate ruling
of the Pennsylvania Supreme Court when we could not?

In Fahy we stated:

When state law is unclear regarding the operation of a
procedural filing requirement, the petitioner files in
state court because of his or her reasonable belief that
a S 2254 petition would be dismissed as unexhausted,
and the state petition is ultimately denied on these
grounds, then it would be unfair not to toll the statute
of limitations during the pendency of that state petition
up to the highest reviewing state court.

Fahy v. Horn, 240 F.3d at 245.

The same rule applies here. The Pennsylvania Supreme
Court had denied Banks's first PCRA petition in March
1995, and he had filed his first habeas petition in February
1996. Thus, his federal action was pending when AEDPA
was passed in April 1996. Because the district court
determined that Banks's claims could be adjudicated and
the petition was not subject to dismissal as mixed, it was
not until the Third Circuit reversed that determination and
ordered the petition dismissed as mixed in September 1997
that it would be equitable to begin calculating a delay in

9
filing against Banks, and because he filed his second PCRA
petition while the appeal was still pending, there was no
delay whatsoever. Subsequently, here, as in Fahy , Banks
did not delay in seeking federal relief, filing his habeas
petition two weeks after his state collateral proceedings
were concluded. Thus, the equities are in his favor. Not
only is there "no evidence of abuse of the process" by
Banks, but it seems as clear as in Fahy's case that he
"diligently and reasonably asserted his claims." Id. at 244-
45. Accordingly, we conclude that the District Court was
quite correct in its resort to equitable principles, and
properly entertained Banks's petition on its merits, as we
will as well.

B. ISSUES ON APPEAL

We granted Banks a Certificate of Appealability regarding
two issues:

(1) Banks contends that the trial court erred in not
having explored whether he was making a knowing,
voluntary and intelligent waiver of his right to counsel
during the trial. However, the District Court concluded
that, by pursuing his own strategy at trial, Banks's
situation was one of hybrid representation, but that there
was no clear requirement under either United States
Supreme Court precedent, nor under our case law, that a
defendant "is entitled to an inquiry by the trial court before
it exercises its discretion to permit hybrid representation."
Banks VIII, 63 F. Supp. 2d at 543.

(2) Banks contends that the jury instructions and
verdict sheets during the penalty phase violated Mills v.
Maryland, and the Pennsylvania Supreme Court
unreasonably applied the Supreme Court precedent in
finding that his death sentence was not constitutionally
infirm.7 The District Court rejected Banks's challenge,
_________________________________________________________________

7. The District Court had granted a certificate regarding the Mills issue
and we enlarged it to include the Sixth Amendment issue. Ouska v.
Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). The Third
Circuit's Local Appellate Rules provide: "If the district court grants a
certificate of appealability as to only some issues, the court of appeals

10
reasoning that it was to evaluate whether Mills applied only
to Banks's trial and direct appeal, and concluded that it did
not, since Banks's conviction became final before Mills was
decided and Mills has not been made retroactive by the
United States Supreme Court. The District Court further
distinguished our holding in Frey v. Fulcomer , 132 F.3d 916
(3d Cir. 1997), reasoning that Frey involved a pre-AEDPA
petition. Id. at 543-44.

We will address these issues in turn.

(1) Waiver of Representation of Counsel

Banks urges that the trial court should have conducted
a colloquy with him, establishing that he knowingly and
voluntarily waived his right to counsel before allowing
Banks to engage in certain conduct during the trial,
contrary to the advice of his counsel. Banks was
represented throughout the proceeding, but he contends
that he took over certain "core functions" at times, such
that a colloquy was required.

Clearly, Banks and his counsel disagreed as to whether
he should testify, and as to the scope of the testimony.
Banks wanted to testify because he believed that it was
critical for him to expose the conspiracy that he urged
resulted in the deaths and in altered injuries to those he
was accused of killing. During his testimony, therefore,
Banks introduced the coroner's reports and photographs
that had been ruled inadmissible prior to trial. Although
counsel and the trial court warned Banks that the pictures
were inflammatory, and that his testimony about the
pictures and his showing them to the jury would allow the
prosecutors to use them as well, Banks insisted that he
was "forced into this," and that the pictures were "part of
my evidence to the fact that they've twisted everything
around."
_________________________________________________________________

will not consider uncertified issues unless petitioner first seeks, and
the
court of appeals grants certification of additional issues." 3d Cir. R.
22.1(b).

We note that the issue of Banks's competency to stand trial was
previously litigated on appeal and is not before us.

11
Banks also, and again contrary to the advice of counsel,
insisted that the medical examiners be questioned about
details and supposed inconsistencies in the photographs.
The colloquy between counsel and the trial court before the
recall of one of the medical examiners is telling:

Defendant: [T]hey're asking me to do the questioning.
I prefer not to, because I'm not qualified to do it.

The Court: Then I will ask you to consult with
counsel and I will ask counsel to prepare and ask the
questions.

[Defense counsel]: Your Honor, the three of us have
reviewed this, and we can't conceive of any questions
to ask the doctor.

The Court: Mr. Banks will discuss with you the
questions he proposes to ask, and I think counsel
should ask the questions.

Banks himself also cross-examined a deputy coroner and a
police officer.

There is no question that the defendant's testimony and
the introduction of the previously excluded photographs
were, as the Court predicted, inflammatory. There is also
no question that the testimony, the introduction of the
photographs, and the examinations of the witnesses were
contrary to the advice of counsel, and eroded the
protections counsel had secured for Banks prior to trial. We
note that the trial court warned Banks repeatedly of his
need to adhere to the rules of the court and insisted that
where the rules of evidence and procedure were concerned
it would "treat [Banks] like a lawyer," and that one could
infer from the court's phrasing that Banks was to some
extent acting as his own counsel. At no point, however, did
Banks request that counsel withdraw and that he be
allowed to proceed pro se.

The issue that Banks has presented to us is whether,
even absent an affirmative declaration of a desire to
proceed pro se, his actions were so contrary to counsel's
advice and involved such significant control over his
defense as to render him effectively unrepresented, and
whether, if we so find, the trial court should have

12
concluded that Banks was effectively proceeding pro se and
should have conducted a Sixth Amendment waiver inquiry
before allowing Banks to testify. The issue that we must
actually resolve, however, is much more circumscribed,
because of the scope of review under AEDPA. That is to say,
our analysis is limited to whether the court failed to apply,
or misapplied, clearly established U.S. Supreme Court
precedent. The first step in our analysis, therefore, is to
define whether any U.S. Supreme Court precedent
mandated -- either directly or by extension to these facts --
that the trial court personally ensure that Banks was
making a voluntary, intelligent, and knowing waiver of his
Sixth Amendment right to counsel in a setting such as this.
We note that the trial court did discuss certain rights with
Banks before he testified:

Mr. Banks, once again, I will preface my remarks by
saying this is not a lecture. This is a responsibility I
have as a trial judge, to be assured that you
understand the rights that you have and the rights, by
testifying, that you'll give up.

In the course of this discussion, the court advised Banks
that he had a right not to testify and that he could be
prejudiced if he disregarded counsel's advice by his
testimony and by introducing exhibits as part of his
testimony. But the court never specifically inquired as to a
waiver by Banks of his Sixth Amendment right to counsel:

You understand, do you not, that the procedure is
that counsel ask questions? May I suggest to you then
that I will give you some time. You will consult with
your counsel, so that you may give them the questions,
so that they can properly phrase them for you.

Let me caution you on another matter that might
come up. You understand if you propose to use any
exhibits, that you will be required to comply with the
rules of evidence concerning exhibits.

The court did inquire whether Banks understood that he
was not required to testify, that he had a constitutional
right to remain silent, and that by testifying he would give
up the right to remain silent. When Banks asked if he
could continue to rely on the Fifth Amendment, the court

13
explained to him that he could not, assuring Banks that "I
don't want you to do anything that will harm you." The
court further explained that the testimony might open
avenues for questioning that would otherwise remain closed
and urged Banks to follow counsel's advice. Throughout the
discussion, Banks remained adamant that he wanted to
testify. Thus, in evaluating the case law we are not
assessing the quality of the inquiry made by the trial court,
but only whether an inquiry specific to the waiver of
counsel was mandated.

The two Supreme Court opinions referenced by the
parties, Faretta v. California, 422 U.S. 806 (1975), and
McKaskle v. Wiggins, 465 U.S. 168 (1984), reh'g denied,
465 U.S. 1112, address situations that are different from
the case before us, not only on the facts, but also on the
principles that informed the Court's decisions. Faretta
recognizes that a defendant who indicates a desire to
represent himself and proceed without counsel has the
right to do so, as long as he knowingly and intelligently
waives his right to counsel. The defendant in Faretta
wanted to manage his own defense; he did not want
counsel to act on his behalf. The issue before the court was
the extent to which a defendant has the right to present his
own defense. The Court concluded that "the defendant . . .
must be free personally to decide whether in his particular
case counsel is to his advantage." 422 U.S. at 834. That
decision must be honored by the court, even if the choice
is detrimental, "out of `that respect for the individual which
is the lifeblood of the law.' " Id. (quoting Illinois v. Allen, 397
U.S. 337, 350-351 (1970), reh'g denied, 398 U.S. 915).

The Court recognized that managing one's own defense
results in the relinquishment of "the traditional benefits
associated with the right to counsel." 422 U.S. at 835. It is
the relinquishing of these benefits that triggers the
requirement of a knowing, voluntary, and intelligent waiver.
Id. at 835.

In McKaskle v. Wiggins, 465 U.S. 168 (1984), reh'g
denied, 465 U.S. 1112, the Supreme Court addressed the
scope of the right to conduct one's own defense, holding
that this right was not violated by the unsolicited
participation of standby counsel. Again, the focus of the

14
Court was on determining to what extent a court could
circumscribe a defendant's right to present his own
defense. The Court found that the appointment and limited
participation of standby counsel was not inconsistent with
the "dignity and autonomy of the accused." Id. at 177. The
Court noted that a "defendant does not have a
constitutional right to choreograph special appearances by
counsel." Id. at 183. The interest of the court in appointing
standby counsel is to assist the defendant to comply with
court rules and protocol and enable him to achieve"his
own clearly indicated goals." Id. at 184.

While McKaskle provides guidance to courts as to where
the line is crossed between the assistance or enabling of
standby counsel to an already pro se defendant and
impermissible intrusion, it does not provide any guidance
to courts for the reverse situation, i.e., when does a
defendant who is represented by counsel cross the line
from being represented to proceeding pro se? We cannot
say that either Faretta or McKaskle, both affirmations of the
liberty and autonomy rights of a defendant, define a line of
self-expression that defendants cannot cross without the
court's securing of a knowing, voluntary and intelligent
waiver.

Banks agreed to the continued representation by his
counsel throughout trial, and while he performed some
tasks contrary to counsel's advice, he never did so
unattended or unadvised by counsel. In fact, it is clear from
the record that he received counsel's advice on an ongoing
basis. A disagreement between counsel and a defendant is
not enough in itself to render a defendant pro se. Hakeem
v. Beyer, 990 F.2d 750, 765 (3d Cir. 1993). Accordingly, the
cases requiring a waiver colloquy when the defendant
indicates a desire to proceed pro se do not in themselves
dictate such a procedure here.

Moreover, to the extent that Banks has urged that the
right to testify on one's behalf -- which was perhaps the
most troubling of Banks's strategic decisions -- should be
somehow constricted if necessary to ensure Sixth
Amendment rights, this seems to run directly counter to
Faretta, and its focus on an individual's right to control his
defense. Faretta, 422 U.S. at 834. Further, we know of no

15
case that interposes a requirement of a colloquy in
connection with the right to testify on one's own behalf.8

The Pennsylvania Supreme Court's analysis focused
solely on Banks's decision as an exercise of his right to
testify on his own behalf. It did not view Banks's choices as
implicating his Sixth Amendment rights.9 Banks says that
this analysis is contrary to a line of cases that stand for the
proposition that such a colloquy is required when there is
"hybrid representation," that is, where an attorney and a
defendant each address the court or in other ways share
defense functions.10

In the typical hybrid representation, a trial court acts in
its discretion to appoint standby counsel for a pro se
defendant who later challenges the attorney's role as overly
intrusive under Faretta's right to self-representation. See,
e.g., McKaskle v. Wiggins, 465 U.S. 168 (1984), reh'g
denied, 465 U.S. 1112. Some federal courts have opined
that a colloquy should be conducted when the defendant
assumes "core functions" of the defense.

When the accused assumes functions that are at the
core of the lawyer's traditional role . . . he will often
undermine his own defense. Because he has a
_________________________________________________________________

8. In Boardman v. Estelle, the Ninth Circuit analogized a right to
allocution to the right to testify in one's own behalf and characterized
them as "entirely separate. . . . A defendant who elects representation by
counsel does not simultaneously waive his right to testify at trial." 957
F.2d 1523, 1528 (9th Cir.), cert. denied , 506 U.S. 904 (1992). Likewise,
the exercise of one's personal right to testify is not tantamount to
proceeding pro se.

9. The dissent in Banks II, however, both viewed the issue as raising
Sixth Amendment concerns and viewed the trial court as violating
Banks's Sixth Amendment rights. See discussion, infra at n. 11."

10. Interestingly, Banks's approach to this issue seems to have come full
circle and, at oral argument, his counsel argued the issue precisely as
the Pennsylvania Supreme Court had characterized it, namely, as a duty
to prevent Banks from testifying. And, in its brief, it quotes the
extensive
colloquy between Banks and the trial court before, and during, his
testimony, and urges that the court should have mentioned the right to
counsel and warned of inherent danger in waiving counsel. We find no
support for the proposition under Faretta or McKaskle, nor has any
Supreme Court case been referenced as authority for this proposition.

16
 constitutional right to have his lawyer perform core
functions, he must knowingly and intelligently waive
that right.

United States v. Kimmel, 672 F.2d 720,721 (9th Cir. 1982).
But see United States v. Leggett, 81 F.3d 220 (D.C. Cir.
1996) (cross-examination of some witnesses, asking of
questions of defense counsel, proposing questions for other
witnesses and delivering closing argument did not require
the trial court to give waiver warnings); see also Bontempo
v. Fenton, 692 F.2d 954, 960 (3d Cir. 1982), cert. denied,
460 U.S. 1055 (1983) (supplemental closing statement);
Robinson v. United States, 897 F.2d 903, 906-07 (7th Cir.
1990) (same).

As we have noted, under the standards of Williams v.
Taylor, 529 U.S. 362 (2000), we may challenge the state
court analysis only if it is contrary to or unreasonably
applies clearly established federal law. It is unclear whether
it must be stated in Supreme Court precedent, or whether
it may be derived from principles enunciated in Supreme
Court precedent. Id. at 408-09 ("Today's case does not
require us to decide how such `extension of legal principle'
cases should be treated under S 2254(d)(1)."). Regardless,
we conclude that the federal decisions do not apply so
directly to the facts at hand so as to constitute an
extension of principles enunciated in Supreme Court
precedent. The lack of clearly applicable principles in such
precedent is fatal to Banks's argument. While the decisions
Banks cites might inform our decision were we reviewing a
district court trial, we are not here engaged in"the broad
exercise of supervisory power" that we would possess over
a district trial court decision. Donnelly v. DeChristoforo, 416
U.S. 637, 642 (1974) (quoting from the appellate court
opinion, 473 F.2d 1236, 1238 (1st Cir. 1973)). See, e.g.,
United States v. Davis, 2001 WL 1173337 (5th Cir. October
4, 2001) (reversing the district court's handling of hybrid
representation situation).

The Supreme Court has never addressed a situation such
as this, let alone indicated that the situation would
implicate a Sixth Amendment right in the same way as
defendant's right to proceed without counsel, or the
prerequisites to a defendant's proceeding pro se. Banks did

17
not reject the assistance of counsel; he acted with counsel's
assistance, but chose to reject the advice of counsel.
Although we have found some federal decisions that have
adapted the case law to "hybrid" factual settings, we find
none of these rulings to be persuasive extensions of U.S.
Supreme Court precedent so as to constitute clearly
established law regarding Sixth Amendment violations in
such a fact pattern.11 Further, many of the decisions are
_________________________________________________________________

11. We note that Banks cites several Pennsylvania cases that he
contends bear on the issue before us: Commonwealth v. Bell, 276 A.2d
834 (Pa. 1971); Commonwealth v. McGrogan, 297 A.2d 456 (Pa. 1972);
Commonwealth v. Palmer, 462 A.2d 755 (Pa. Super. 1983). In one, the
Pennsylvania Supreme Court stated that the introduction of evidence is
a function that is allocated solely to counsel. Commonwealth v. Bell, 276
A.2d 834 (Pa. 1971). In Banks I, Chief Justice Nix dissented, and was
joined in his dissent by Justice Zappala, because he concluded that, in
accordance with Bell, Banks had assumed a function allocated to
counsel and "was acting as his own attorney and was representing
himself." 521 A.2d at 23. While Chief Justice Nix's interpretation of
Pennsylvania case law would require a waiver colloquy so as to afford
federal constitutional protections, his was not the majority opinion. None
of the Pennsylvania cases referred to us by Banks appears to be directly
on point. Further, it is not our province to determine whether the
Pennsylvania Supreme Court's decision was contrary to, or an
unreasonable application of, its own precedent, but, rather, of clearly
established federal precedent.

The three federal cases that Banks cites in addition to McKaskle and
Faretta as defining an "exclusive province of counsel" at trial are
inapposite. Jones v. Barnes, 463 U.S. 745 (1983) is concerned
exclusively with whether appellate counsel is obligated to raise all
nonfrivolous claims proffered by the appellant. See id. at n. 7. In Vess
v.
Peyton, 352 F.2d 325 (4th Cir. 1965), cert. denied, 383 U.S. 953 (1966),
the Fourth Circuit affirmed the district court's determination that there
was no error in appellant's not having been provided counsel at a
preliminary hearing (a determination that is no longer good law) and that
the record supported the conclusion that appellant's guilty plea was
knowingly and voluntarily offered. The court also rejected appellant's
contention that the failure to call certain witnesses suggested by the
defendant did not constitute inadequate representation of counsel.
Likewise, Buckelew v. United States, 575 F.2d 515 (5th Cir. 1978)
rejected a claim that an uncalled out-of-state witness constituted
ineffective assistance of counsel. None of these cases could be read to
mandate that a trial judge treat defendant's insistence upon testifying,
and his introduction of evidence as part of that testimony -- or even the
directing and conducting of the cross-examination-- as an assertion of
a right to proceed pro se.

18
unpublished and have no precedential value.12 Accordingly,
we agree with the District Court that Banks is not entitled
to habeas relief on this ground.

(2) Application of Mills v. Maryland in the Penalty
Phase

Banks contends that the Pennsylvania Supreme Court
determination regarding the jury instructions and verdict
slip during the penalty phase involved an unreasonable
application of Mills v. Maryland, 486 U.S. 367 (1988). The
District Court did not disturb the Pennsylvania Supreme
Court's ruling regarding the penalty phase, reasoning that
Mills v. Maryland was not retroactive, and also stating in
summary fashion that "Supreme Court precedent (in the
form of Mills and McKoy) did not require an outcome
contrary to that reached by the state courts." Banks VIII at
544. We disagree with both conclusions.

(a) Does Mills Apply?

We first note that the District Court apparently
misperceived the way in which the AEDPA standard applies
to the relevant state court proceeding. The Court stated
that the Mills decision was rendered in 1988, five years
after Banks's conviction and sentence.

However, the point in time at which the Supreme Court
jurisprudence must have been "clearly established" is at the
time that the state court makes the ruling on the federal
constitutional issue that is being scrutinized. The
Pennsylvania Supreme Court issued its opinion in Banks II,
construing Mills in 1995, eight years after Mills became law.
If the Pennsylvania Supreme Court had questioned whether
Mills was applicable to the trial court's conduct, we would
have needed to inquire whether Mills codified law that was
clearly established at the time of the trial. But that is not
the question before us. AEDPA defines the parameters of
federal court review of state determinations of federal law.
_________________________________________________________________

12. See, e.g., Robinson v. United States, 897 F.2d 903 (7th Cir. 1990);
United States v. Parker, 176 F.3d 486 (9th Cir. 1999) (unpublished);
Islam v. Miller, 166 F.3d 1200 (2d Cir. 1998) (unpublished); United States
v. Demeke, 152 F.3d 921 (2d Cir. 1998) (unpublished).

19
In the Pennsylvania Supreme Court opinion, it applied
Mills. We are being asked to determine whether that
application of Mills was contrary to, or an unreasonable
application of, clearly established federal law. To make that
determination, it is only the state court's decision that cited
to Mills and the law as it was clearly established then, in
1995, not the law at the time of Banks's sentencing, that
matters.

(b) Are We Compelled to Conduct a Retroactivity
Analysis under Teague?

The Commonwealth also argues that we should not apply
the lessons of Mills to Banks's case, because Banks's
conviction became final before Mills was decided, and
because the Pennsylvania Supreme Court has consistently
decided that Mills is not retroactive. Under Teague v. Lane,
489 U.S. 288, 300 (1989), reh'g denied, 490 U.S. 1031
(1989), retroactivity is a "threshold question," because it is
in that determination that a court establishes whether a
rule enunciated on the basis of a set of facts will apply only
prospectively or will be applied retroactively to all who are
similarly situated. See id. at 299-301. 13 Retroactivity
analyses can be complex, but here the analysis is not,
because we do not need to focus on anything other than
the reasoning and determination of the Pennsylvania
Supreme Court. We acknowledge that the Pennsylvania
Supreme Court has stated that it will not give retroactive
effect to "new rules" handed down after a conviction has
become final.14 We acknowledge further that the
_________________________________________________________________

13. Because we find Teague not to govern our analysis, our discussion of
its principles are limited to explaining why it is not controlling here,
despite the arguments of the parties. We note, however, that recent
decisions have called into question to what extent Teague has continued
force independent of AEDPA. See, e.g., Tyler v. Cain, 121 S.Ct. 2478,
2483-84 (June 28, 2001) (rejecting application of the Teague exceptions
to construe Cage, 498 U.S. 39 (1990) as retroactive under 28 U.S.C.
S 2244(b)(2)(A)).

14. "[A] new rule of law will not be applied retroactively `to any case on
collateral review unless that decision was handed down during the
pendency of appellant's direct appeal and the issue was properly
preserved there or . . . was nonwaivable.' " Commonwealth v. Cross, 726
A.2d 333, 338 (Pa. 1999) (quoting Commonwealth v. Gillespie, 516 A.2d
1180, 1183 (1986)).

20
Pennsylvania Supreme Court has specifically noted its
skepticism regarding the retroactive application of Mills to
cases other than non-final sentences, see, e.g. ,
Commonwealth v. Cross, 726 A.2d 333, 338 n. 4, (Pa.
1999), and that it disagrees with our ruling in Frey.15 See
Cross, 726 A.2d at 337.

However, the ruling in Banks II is what determines the
scope of our review, and in Banks II, the Pennsylvania
Supreme Court held that, following its previous rulings in
this area, the sentencing process did not violate Mills. To
determine whether the Pennsylvania Supreme Court's
ruling in Banks was contrary to, or involved an
unreasonable application of, Supreme Court precedent, we
do not need to undertake any retroactivity analysis,
because, notably, the Pennsylvania Supreme Court
undertook none. It examined the penalty phase on the
merits based on Mills, making no reference to any concerns
regarding Mills' applicability to the case. Banks II, 656 A.2d
470.

The government argues that if we are considering the
applicability of a new rule (assuming Mills is a new rule --
which is not at all clear16), we must be guided by Teague v.
_________________________________________________________________

15. The Pennsylvania Supreme Court has asserted that it has
"concurrent jurisdiction" with this court"as to federal constitutional
questions" and as such may "formulate its own interpretation of
Supreme Court precedent, which may be in opposition to that stated by
the lower federal courts." Cross, 726 A.2d at 338 n. 4. At the same time,
the United States Supreme Court has made it clear that a federal court
must apply independent judgment in its interpretation of federal law and
if, "after carefully weighing all the reasons for accepting a state
court's
judgment, a federal court is convinced that a prisoner's custody . . .
violates the Constitution, that independent judgment should prevail."
Williams, 529 U.S. at 389.

16. To the extent that Teague still provides the appropriate scheme for
analysis, see supra n. 13, we note that the Sixth Circuit has explicitly
found that Mills does not comprise a "new rule" under Teague. Gall v.
Parker, 231 F.3d 265, 322 (6th Cir. 2000), reh'g and reh'g en banc
denied; cert. denied, ___ U.S. ___, 121 S. Ct. 2577 (2001). Accord,
DeShields v. Snyder, 829 F. Supp. 676, 688 (D. Del. 1993). Other courts
have determined that it is immaterial whether Mills is a new rule,
because, whether or not the rule is new, it falls within the second

21
Lane, 489 U.S. 288 (1989), and O'Dell v. Netherland, 521
U.S. 151 (1997), and refuse to apply such new rule unless
one of the two narrow exceptions referenced in the case law
applies.17 However, we conclude that we need not explore
_________________________________________________________________

exception of Teague. See, e.g., Williams v. Dixon, 961 F.2d 448 (4th
Cir.),
cert. denied, 506 U.S. 991 (1992). The Fifth and the Eighth Circuit, in
contrast, have classified Mills as a new rule. See, e.g., Miller v.
Lockhart,
65 F.3d 676, 686 (8th Cir. 1995); Cordova v. Collins, 953 F.2d 167, 173
(5th Cir.), cert. denied, 502 U.S. 1067 (1992). Both of these cases are
distinguishable, however. In Cordova the Fifth Circuit summarily
concluded that Teague precluded it from applying a decision announced
after Cordova's conviction was final. The court supplied no analysis nor
explanation to support its conclusion. 953 F.2d at 173. In Miller, only
one of the four significant pre-Mills cases had been decided by the U.S.
Supreme Court prior to Miller's conviction, and that decision, Lockett v.
Ohio, 438 U.S. 586 (1978), was a plurality opinion whose fractured
opinions were considered in Miller not to" `compel' the further holding
that a unanimity requirement for mitigating circumstances is
unconstitutional." 65 F.3d at 686. The other three decisions--that were
decided prior to Banks's conviction becoming final--were Eddings v.
Oklahoma, 455 U.S. 104 (1982) (applying Lockett in a 5-4 decision with
two concurrences); Skipper v. South Carolina, 476 U.S. 1, 4 (1986)
(characterizing the rules that a sentencer may not be precluded from
considering any "aspect of a defendant's character or record and any of
the circumstances of the offense" and "that a sentencer may not refuse
to consider or be precluded from considering any relevant mitigating
evidence" as well established; there were six justices in the majority and
three concurring); Hitchcock v. Dugger, 481 U.S. 393 (1987)
(unanimously holding that mitigating evidence was wrongly excluded
from consideration).

17. The two exceptions are:

(1) "rules `forbidding criminal punishment o f certain primary conduct
[and] rules prohibiting a certain category of punishment for a class of
defendants because of their status or offense' " O'Dell v. Netherland, 521
U.S. 151, 157 (1997) (quoting Penry v. Lynaugh , 492 U.S. 302, 330
(1989));

(2) " `watershed rules' of criminal proce dure implicating the
fundamental fairness and accuracy of the criminal proceeding." O'Dell at
157 (quoting Graham v. Collins, 506 U.S. 461 (1993), reh'g denied, 507
U.S. 968.).

As noted in supra n. 16, the Fourth Circuit has found Mills to fall
within the second Teague exception.

22
the contours of Mills (and its predecessors) as to whether it
is "new;" nor do we need to consider, as the parties have
done, the applicability of the exceptions. This is because, as
the brief of amici curiae notes,18 resort to Teague is
misplaced. Teague teaches that the federal courts in habeas
corpus proceedings should be reluctant to apply new rules
of federal jurisprudence in state court cases decided before
such new rules were handed down. Principles of comity and
finality counsel that we maintain a circumscribed scope of
habeas review. Teague, 489 U.S. at 308. Here, however, as
we have noted, the Pennsylvania Supreme Court applied
Mills. We are examining the application of Mills, not
because we wish to impose a new rule not considered by
the Pennsylvania Supreme Court, but as the court in fact
did consider and apply it.19 In such a situation, Teague is
not implicated. Accordingly, we need ask only whether the
Pennsylvania Supreme Court's application of Mills should
be disturbed under the AEDPA standards.20

(c) The Pennsylvania Supreme Court's Application
of Mills

We disagree with the District Court's refusal to address
how the Pennsylvania Supreme Court applied Mills in
Banks II. We do, however, agree with the District Court
_________________________________________________________________

18. Brief of Amici Curiae, The Pennsylvania Association of Criminal
Defense Lawyers and Louis Natali, Esq., Supporting Appellants. We are
grateful to amici for their careful reasoning and research. Their brief
was
thorough and expertly written; more, it was genuinely helpful.

19. As we reference below, the precise holding of the Pennsylvania
Supreme Court was that "[n]either the jury instructions, the jury poll nor
the verdict slips in the instant matter contained language which would
violate the dictates of Mills." Banks II, 656 A.2d at 470.

20. The District Court never really addressed this issue because it
concluded that neither Mills nor Frey should apply. However, since the
parties have extensively briefed the issue before us, we will address it
and decide it, rather than remanding to the District Court. Hein v. FDIC,
88 F.3d 210, 221(3d Cir. 1996), cert. denied sub nom. Hein v. McNeil,
519 U.S. 1056 (1997) ("To the extent that we can decide these issues as
a matter of law without further factual development, we serve the
interests of judicial economy as well as the interests of the parties in
avoiding unnecessary re-litigation.")

23
that, in any event, our analysis would not be dictated by
Frey -- which was pre-AEDPA -- but by the AEDPA
standard. Thus, we must ask whether the Pennsylvania
Supreme Court determination regarding the
constitutionality of the instructions, verdict slip, and polling
of the jury involved an unreasonable application of Mills.

The Pennsylvania Supreme Court relied on its own
precedents to conclude that the sentencing proceedings in
Banks did not violate Mills, dismissing each of Banks's
contentions in turn. "This [jury] instruction, which mirrors
the language found in the death penalty statute of our
Sentencing Code, has previously been reviewed by this
Court and determined not to violate Mills." Banks II, 656
A.2d at 470. "The form of verdict slip employed in the
instant matter was virtually identical to that considered by
this Court in Commonwealth v. Frey and determined not to
infer to the jury a requirement of unanimity with respect to
mitigating circumstances." Id. (Citation omitted). "Nor do
the answers provided by the individual jurors during the
poll suggest in any manner that they believed unanimity
was required in finding mitigating circumstances." Id. The
court then concluded, "In sum, neither the instructions of
the court nor the printed instructions on the verdict slips
nor the questions and responses of the court and jury
during polling, standing alone or viewed in total, infer a
requirement of unanimity which would violate the dictates
of Mills." Id. at 471.

Consistently, the Pennsylvania Supreme Court relied on
its own prior determinations in upholding Banks's
sentencing proceedings. Our task is to review state court
proceedings not to ensure the consistency of the
Pennsylvania Supreme Court's application of its law, but,
rather, to assure proper application of United States
Supreme Court teachings. In Williams v. Taylor , the
Supreme Court approvingly quoted the Seventh Circuit:

Section 2254(d) requires us to give state courts'
opinions a respectful reading, and to listen carefully to
their conclusions, but when the state court addresses
a legal question, it is the law `as determined by the
Supreme Court of the United States' that prevails.

24
529 U.S. at 387 (quoting Lindh v. Murphy, 96 F.3d 856, 869
(7th Cir. 1996)).

The United States Supreme Court has provided ample
guidance in this area. There are two overarching themes in
Mills that are further clarified in Boyde v. California, 494
U.S. 370 (1990), reh'g denied 495 U.S. 924. First, if under
the sentencing scheme it is possible for jurors to agree that
mitigating circumstances exist, but, because of a lack of
unanimity as to which mitigating circumstances exist, to
conclude that they may not consider those circumstances,
the sentencing scheme is unconstitutional. Mills , 486 U.S.
at 374. Second, and related to the first, the critical question
is not whether a constitutional construction is possible, but
whether a reasonable jury could have interpreted the
instructions in an unconstitutional manner, that is, as
restricting them to finding only those mitigating
circumstances as to which all can agree. Id. at 375-76. We
conclude that the Pennsylvania Supreme Court failed to
analyze the penalty phase of Banks's trial in accordance
with these principles, and, as a consequence, unreasonably
applied Mills. As Judge Padova recently pointed out in
granting habeas relief in a very similar case, Hackett v.
Price, 2001 WL 884721 (E.D. Pa. Aug. 6, 2001), the state
court

misconstrue[d] the court's task in examining for Mills
error by focusing on the meaning of the statute rather
than on the issue of jury confusion. As Mills instructs,
it is the danger of jury misinterpretation of the
statutory scheme, rather than the existence of a
constitutional interpretation of the statute by the
courts, that creates the Mills problem.

Id. at *19.

We must conclude that the Pennsylvania Supreme Court
ruling involved an unreasonable application of Mills.21 In
_________________________________________________________________

21. Banks argues that, in fact, the determination was "contrary to" Mills,
because it violated Mills' dictates. We think the better analysis, since
the
Pennsylvania Supreme Court referenced Mills and seemed to be
considering how it impacted the Banks case, is to rely on the
"unreasonable application," which, in any event, is clearly evident.

25
fact, we conclude that the Pennsylvania Supreme Court
ruled that there was no Mills violation without ever really
applying the teachings of Mills, and by examining the
statute, not the potential for confusion by jurors in what
they were told to do. Further, as noted in Hackett, Mills
itself involved a situation in which the statute had been
interpreted to be constitutional, but the Supreme Court
vacated the sentence based on the risk of confusion. Id. at
19.

We will examine each aspect of the Pennsylvania
Supreme Court's analysis of the jury's involvement in the
penalty phase -- the instructions themselves, the verdict
slip, and the polling of the jury following the sentencing
verdict.

i. Jury Instructions

In Banks II, the Pennsylvania Supreme Court quoted
three lines of the jury instructions:

The sentence you impose will depend upon your
findings concerning aggravating and mitigating
circumstances. The Crime[s] Code in this
Commonwealth provides that the verdict must be a
sentence of death if the jury unanimously finds at least
one aggravating circumstance and no mitigating
circumstance, or if the jury unanimously finds one or
more aggravating circumstances which outweigh any
mitigating circumstance or circumstances. The verdict
must be a sentence of life imprisonment in all other
cases.

656 A.2d at 470.

The court then opined that because the instruction
"mirrors the language found in the death penalty statute of
our Sentencing Code [that] has previously been reviewed by
this court and determined not to violate Mills " Banks's
claim was "without merit." Id.22 (citing Commonwealth v.
Hackett, 627 A.2d 719 (1993); Commonwealth v. Marshall,
_________________________________________________________________

22. Hackett, as noted above, was recently vacated by the Eastern District
of Pennsylvania. See 2001 WL 884721. Post-conviction relief was denied
in O'Shea in 1999 at 726 A.2d 376, cert. denied, 528 U.S. 1119 (2000).

26
633 A.2d 1100 (1993), rearg. denied (1994); Commonwealth
v. O'Shea, 567 A.2d 1023 (1989), cert. denied, 498 U.S. 881
(1990)).

In Hackett, the Pennsylvania Supreme Court had
attempted to distinguish Mills based on the Maryland
statute, reasoning that since the Maryland statute barred
consideration of mitigating evidence unless there was
unanimous agreement and the Pennsylvania statute
required unanimity as to the absence of a mitigating
circumstance, the Pennsylvania statute allowed individual
jurors to prevent death sentences but not to compel them.
See Hackett, 2001 WL 884721 at *19. The differences in the
statutes were not enough to render the Pennsylvania
statute constitutional, since the danger of jury
misinterpretation was present in both statutes, and the
Pennsylvania Supreme Court had examined only the
statute, not the possibility that the jury had been confused
by the instructions given. Boyde v. California , 494 U.S. 370
(1990), reh'g denied 495 U.S. 924, established that the jury
instructions must be considered in the context of the entire
proceeding, and the Pennsylvania Supreme Court's failure
to do so was contrary to clearly established federal law. Id.
at 21. Here, the Pennsylvania Supreme Court has
essentially ignored the teachings of Boyde and engaged the
same reasoning regarding the constitutionality of the
instructions as in Hackett -- itself constitutionally defective.

Proper application of Mills requires at the outset that the
reviewing court examine the entire jury instructions, posing
the "critical question" whether a reasonable jury could have
concluded from the instruction that unanimity was
required to find a mitigating circumstance. Mills, 486 U.S.
at 370. Also, the Boyde standard requires that the court
view the instruction in its totality, not examine in isolation
a few sentences that reference the Crimes Code. Boyde, 494
U.S. at 378.

In Boyde, the Supreme Court iterated the standard of
evaluating jury instructions as "whether there is a
reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence," Id. at
380, and it reiterates the Mills principle that jury

27
instructions must be carefully considered in their entirety.
Mills, 486 U.S. at 384. "[A] single instruction to a jury may
not be judged in artificial isolation, but must be viewed in
the context of the overall charge." Boyde, 494 U.S. at 378.
In Banks II, the Pennsylvania Supreme Court never
examined the jury instruction from that vantage point.
Rather, it looked at one part of the instruction and found
that it was acceptable because it tracked the permissible
statutory provisions and did not "infer" a requirement of
unanimity. 656 A.2d at 470. Its conclusion was based not
on how a juror might interpret its content, but on its own
previous statutory construction of the language at issue.
Here, even more starkly than in Hackett, the Pennsylvania
Supreme Court merely stated that the statutory language
had been reviewed and "determined not to violate Mills."
Banks II, 656 A.2d at 470. There was no further analysis.

We will juxtapose the instructions given by the trial court
with those we found in Frey to be constitutionally defective.

28
Frey Instructions Banks Instructions

Members of the jury, you Members of the jury, you
must now decide whether must now decide whether
this defendant should be the defendant in this case is
sentenced to death or life to be sentenced to death or
imprisonment. The sentence to life imprisonment on
will depend on your finding seach of the Informations
concerning aggravating and upon which you have
mitigating circumstances. returned a verdict of guilty
The Crimes Code provides of murder in the first
that the verdict must be a degree.
sentence of death if the jury
unanimously finds at least The sentence you will
one aggravating impose will depend on
circumstance and no your findings concerning
mitigating circumstance, or if aggravating and mitigating
the jury unanimously finds circumstances. The Crime
one or more aggravating Code in this Commonwealth
circumstances which provides that the verdict
outweigh any mitigating must be a sentence of death
circumstances. The verdict if the jury unanimously
must be a sentence of life in finds at least one
all other cases. Frey v. aggravating circumstance
Fulcomer, 132 F.3d 916, 922 and no mitigating
(3d Cir. 1997), cert. denied, circumstances, or if the jury
524 U.S. 911 (1998). unanimously finds one or
more aggravating
circumstances which
outweigh any mitigating
circumstance or
circumstances.

Remember that your verdict Remember, under the law of
must be a sentence of death this Commonwealth, your
if you unanimously find at verdict must be a sentence
least one aggravating of death if you unanimously
circumstances (sic) and no find at least one aggravating
mitigating circumstances, or circumstance and no
if you unanimously find mitigating circumstance,

29
one or more aggravating or if you unanimously find
circumstances which one or more aggravating
outweigh any mitigating circumstances which then
circumstances. In all other outweigh any mitigating
cases, your verdict must be a circumstances.
sentence of life
imprisonment. Id. In all other cases, your
verdict would be life
imprisonment.

Now, the Commonwealth has Once again, the
the burden of proving Commonwealth has the
aggravating circumstances burden of proving
beyond a reasonable doubt. aggravating circumstances
. . . The defendant has the beyond a reasonable doubt.
burden of proving mitigating The defendant has the
circumstances but only by a burden of proving
preponderance of the mitigating circumstances by
evidence. Id. at 923. a preponderance of the
evidence.

If, after conscientious and
thorough deliberations, you
are unable to agree on your
findings and your verdict,
you should report that to
me.

While, as we have noted, Frey does not control our
holding here, nonetheless our reasoning there regarding the
Mills implications of a very similar jury charge is instructive
and applicable.23 As we said in Frey:

Specifically, we must determine whether it is
reasonably likely that the jury could have understood
the charge to require unanimity in consideration of
mitigating evidence. We need not determine whether
the jurors did, in fact, understand the charge to
require unanimity in consideration of mitigating
evidence -- only whether it was reasonably likely. See
_________________________________________________________________

23. In his brief Banks sets out the jury instruction in Frey alongside
those given here, and notes that the instruction given here was even
more egregious than in Frey in terms of its import regarding the need for
the jurors to "agree" on their "findings." We agree.

30
Boyde, 494 U.S. at 380, 110 S. Ct. at 1197-98; Mills,
486 U.S. at 384, 108 S. Ct. at 1870.

Examining the language of the jury charge, we must
answer in the affirmative. First and foremost, read
in its entirety, the relevant portion of the jury
charge emphasizes the importance of a unanimous
finding, using the phrase frequently and in close
proximity to -- within seven words of -- the mitigating
circumstances clause. We describe the relevant portion
of the sentence: "if the jury unanimously finds at least
one aggravating circumstance and no mitigating
circumstance. . . ." Considering this close proximity --
the clause is, to the ear and to the mind, one sound
bite -- it is quite possible that a juror would,
regardless of other qualifying language, believe that
mitigating circumstances had to be found
unanimously.

. . . .

Thus, the unanimity language in the Frey charge could
only modify the term "find," and hence the jury could
reasonably have believed that unanimity was required
in both its ultimate and interim conclusions, especially
given the close proximity we have described.

. . . .

Other parts of the Frey charge were more likely to
increase the confusion rather than lessen it. As in
Zettlemoyer, the Frey trial court made a point of
instructing the jury on the relevant burdens of proof
relating to both aggravating and mitigating
circumstances.

. . . .

[But] Unlike Zettlemoyer, where the court specifically
instructed the jury that aggravating circumstances
must be proven "unanimously, beyond a reasonable
doubt," the trial court here did not stress that the
different burdens that attach to aggravating and
mitigating circumstances also entail different
unanimity requirements. A lay jury might plausibly
conclude, therefore, that aggravating and mitigating

31
 circumstances must be discussed and unanimously
agreed to, as is typically the case when considering
whether a burden of proof has been met. Such an
understanding, however, is plainly inconsistent with
the requirements of Mills, and adds to our concern that
the jury could have understood the charge to require
unanimity in consideration of mitigating evidence.

132 F.3d at 923-24.

These same concerns dictate the same result here. The
instruction here, like the one we examined in Frey, runs
afoul of Mills, and the Pennsylvania Supreme Court's
assessment of the instruction involved an unreasonable
application of Mills. The instructions are in themselves
ambiguous, allowing for a jury to infer that the requirement
of unanimity applies both to aggravating and mitigating
circumstances. There is no way that a juror would
understand that a mitigating circumstance could be
considered by less than all jurors. Further, when the judge
clarified the difference between aggravating and mitigating
circumstances, he described the requirements for finding
aggravating circumstances and then said:

The defendant has the burden of proving mitigating
circumstances by a preponderance of the evidence. The
preponderance of the evidence is a lesser burden of
proof than beyond a reasonable doubt. A
preponderance of the evidence exists where one side is
more believable than the other or, as has been
explained to you, a preponderance exists whenever the
scales tip ever so slightly.

A reasonable juror could readily infer from the fact that
the distinctions between the burden of proof were
explained, but no mention was made of a distinction
between a requirement of unanimity for a finding of
aggravating circumstances and the requirement for
mitigating circumstances, that the same requirement of
unanimity applied. The Banks court went on to stress:

Remember, again, your verdict in each case must be
unanimous. It cannot be reached by a majority vote or
by any percentage. It must be the verdict of each and
every one of you.

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Considered as a whole, the jury instructions leave no
doubt that "there is a reasonable likelihood that the jury
has applied the challenged instruction in a way that
prevents the consideration of constitutionally relevant
evidence." Boyde, 494 U.S. at 380.

ii. Verdict Slip

In its review of the verdict slip, the Pennsylvania
Supreme Court noted that the form of slip used was
"virtually identical to" the one the court had considered in
Commonwealth v. Frey and had "determined not to infer to
the jury a requirement of unanimity with respect to
mitigating circumstances." Banks II, 656 A.2d at 470. It
therefore rejected as "unfounded" Banks's claim that the
verdict slip "impermissibly suggested to the jury that it
must find mitigating circumstances by unanimous vote." Id.

The Pennsylvania Supreme Court then reviewed the poll
by the foreman but determined that, because both the oral
instructions and the instructions on the verdict slip were
proper, the situation was distinguishable from
Commonwealth v. Young, 572 A.2d 1217 (1990),
resentencing after remand aff 'd, 651 A.2d 1313 (Pa. 1993),
cert. denied, 511 U.S. 1012 (1994), in which the court had
remanded for resentencing a case in which the oral
instructions were inconsistent with the verdict sheet. See
Banks II, 656 A.2d at 471. In Young, the jury charge
required a sentence of death if "the jury unanimously finds
at least one aggravating circumstance and no mitigating
circumstance, or if the jury unanimously finds one or more
aggravating circumstances which outweigh any mitigating
circumstances." Young, 572 A.2d at 1228. The verdict
sheet, however, indicated that "We, the jury, unanimously
find that the defendant has proven the following mitigating
circumstances by a preponderance of the evidence." Id.
(Emphasis in original). The Pennsylvania Supreme Court
found that "[t]his inconsistency requires a remand of this
case for resentencing. . . ." Id. In contrast, in Banks II, the
Pennsylvania Supreme Court found nothing in the verdict
slip questions, or the jurors' responses, that would
"indicate they believed they had to find mitigating
circumstances unanimously." 656 A.2d at 471.

33
But, again, the court undertook a different inquiry from
that required under Mills. Mills requires a court to assess
whether a need for a unanimous finding of mitigating
circumstances is one that "a reasonable jury could have
drawn from . . . the verdict form employed." Mills, 486 U.S.
at 375-76.

Here, we cannot help but find that a reasonable juror
could so conclude. In fact, we believe the form itself does
suggest the need for unanimity. The verdict form is a three-
page document, containing two "numbered" statements:

1. We the jury unanimously sentence the defendant in
the above matter to
X Death
Life Imprisonment

2. (To be completed if the Sentence is Death)
We the jury have found unanimously (emphasis
added)

____ At least one aggravating circumstance a nd no
mitigating circumstances. The aggravated
circumstance(s) (is) (are):

1. ___ In the commission of the offense th e defendant
knowingly created a grave risk of death to
another person in addition to the victim of the
offense.

2. ___ The defendant has a significant his tory of felony
convictions involving the use or threat of
violence to the person.

3. ___ The defendant has been convicted of another
federal or state offense, committed either before
or at the time of the offense at issue, for which
a sentence of life imprisonment or death was
imposable or the defendant was undergoing a
sentence of life imprisonment for any reason at
the time of the commission of the offense.

Or

X One or more aggravating circumst ances
which outweigh any mitigating circumstance
or circumstances.

34
 The aggravating circumstance(s) (is) (are):

1. In the commission of th e offense the defendant
knowingly created a grave risk of death to
another person in addition to the victim of the
offense.

2. The defendant has a sig nificant history of
felony convictions involving the use of threat of
violence to the person.

3. X The defendant has been con victed of another
federal or state offense, committed either
before or at the time of the offense at issue, for
which a sentence of life imprisonment or death
was imposable or the defendant was
undergoing a sentence of life imprisonment for
any reason at the time of the commission of
the offense.

The mitigating circumstance(s) (is) (are):

1. X The defendant was under th e influence of
extreme mental or emotional disturbance.

2. The capacity of the def endant to appreciate the
criminality of his conduct or to conform his
conduct to the requirements of law was
substantially impaired.

3. Any other mitigating ma tter concerning the
character or record of the defendant or the
circumstances of his offense.

Each form was marked as shown above and signed by the
foreperson of the jury.

We find it only reasonable to conclude that the form itself
is at least confusing, and more likely suggestive, regarding
the need for unanimity as to mitigating circumstances. The
lead-in language to the overarching second question is "We
the jury have found unanimously . . . ." By implication,
everything that follows was found unanimously. What
follows is a reference both to aggravating and to mitigating
circumstances, with no additional language that would
imply that there is a different standard for aggravating
circumstances than there is for mitigating circumstances.

35
There is also no language anywhere on the form from which
the jury could infer that a mitigating circumstance might be
marked if only one juror had found that circumstance to
exist.

Thus, the structure and form of the verdict slip itself
runs afoul of the dictates of Mills. Further, for the
Pennsylvania Supreme Court to have ruled that there was
no Mills violation without an examination of the content
and implications of the verdict slip and without employing
the proper inquiry was an unreasonable application of
Mills.

iii. Jury Poll

Of the three elements -- the instructions, the verdict slip,
and the jury poll -- the Pennsylvania Supreme Court
opinion devoted the greatest attention to the polling of the
jury, actually quoting the trial court's words. The polling
questions and answers never used the term "unanimous"
regarding the verdict or the finding of any of the
aggravating or mitigating circumstances. While the jurors
were asked whether they each found the "same"
circumstances as the ones referred to before, it is difficult
to say whether the questions were confusing in this regard.
We do agree with the Pennsylvania Supreme Court in its
view that the polling of a jury can compound the problem
created by a questionable charge or verdict slip, as was the
case in Young. Banks II, 656 A.2d at 471. Here, the polling
does not appear either to add to or reduce the confusion as
to the Mills problems we have already identified in the
penalty phase instructions and verdict slip.

C. CONCLUSION

Because the Pennsylvania Supreme Court ruling
regarding the application of Mills to the penalty phase
instruction and verdict slip in Banks's trial was
unreasonable, habeas relief will be granted and we will
REVERSE the Order of the District Court and instruct it to
GRANT a provisional writ of habeas corpus directed to the
penalty phase. The Commonwealth of Pennsylvania may
conduct a new sentencing hearing in a manner consistent

36
with this opinion within 120 days of this Order, or shall
sentence Banks to life imprisonment.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

37