Hackett v. Price

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

8-26-2004

Hackett v. Price
Precedential or Non-Precedential: Precedential

Docket No. 01-9008

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-9008

RICHARD HACKETT

v.

JAMES PRICE, Superintendent of SCI Greene;
THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

James S. Price, Superintendent of the State Correctional
Institution, Greene County; The District Attorney of
Philadelphia County; Michael Fisher, Attorney General of
Pennsylvania,
Appellants

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 99-cv-05434)
District Judge: Honorable John R. Padova

Argued July 8, 2002

Before: BECKER, Chief Judge*, AMBRO and GREENBERG, Circuit Judges

(Opinion filed: August 26, 2004)

*Judge Becker completed his term as Chief Judge on May 4, 2003.
David Curtis Glebe (Argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney, Law Division
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
District Attorney
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102-1582

Attorneys for Appellants

Norris E. Gelman, Esquire (Argued)
620 Chestnut Street, Suite 940
Public Ledger Building
Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

AM BRO, Circuit Judge

Richard Hackett was convicted by a Pennsylvania jury of murder in the first degree

and sentenced to death. His direct appeals and post-conviction claims in state court were

unsuccessful. Hackett then filed in federal court a petition for a writ of habeas corpus,

which the District Court granted after determining there is a reasonable likelihood the jury

interpreted the trial court’s instructions and verdict form to preclude it from considering

2
mitigating evidence in violation of the Eighth Amendment. The Commonwealth has

appealed, and we reverse. The jury found unanimously that no mitigating circumstance

exists. Because of that finding, we conclude that Hackett fails to show a reasonable

likelihood that the jurors, individually or collectively, applied the challenged instruction

and verdict form in a way that prevented the consideration of constitutionally relevant

evidence.1

I. Facts & Procedural History

As did the District Court, we recite only briefly the facts of this case as set forth by

the Pennsylvania Supreme Court. See Hackett v. Price, 212 F. Supp. 2d 382, 386 (E.D.

Pa. 2001) (Hackett) (citing Commonwealth v. Hackett, 627 A.2d 719 (Pa. 1993)).

Hackett and a friend, M arvin Spence, conspired to kill Gregory Ogrod. Hackett lived in

Ogrod’s house, though their living situation had become hostile. Spence and Ogrod were

partners in the sale of illegal drugs, but their business relationship deteriorated after

Spence stole money that Ogrod had given him to purchase drugs for resale. On July 31,

1986, at 3:30 a.m., three men armed with knives and a crowbar entered the basement of

Ogrod’s home, where he and his girlfriend, Maureen Dunne, were sleeping. The

1
We delayed issuing this decision because the Supreme Court accepted certiorari in a
case from our Court that raised the possibility of addressing the question before us. See
Beard v. Banks, 539 U.S. 987 (2003) (order granting certiorari in Banks v. Horn, 316
F.3d 228 (3d Cir.)). The Supreme Court, however, decided Beard v. Banks without
reaching that question. No. 02-1603, 2004 WL 1402567, at *4 n.2 (June 24, 2004)
(declining to address “whether the Court of Appeals also erred in concluding that the
Pennsylvania Supreme Court unreasonably applied Mills”).

3
assailants repeatedly struck the couple. Dunne, stabbed through the heart, was killed.

Ogrod managed to resist, and the attackers fled. Testimony at trial established the

assailants as Hackett, Spence, James Gray, and Keith Barrett. Id.

Hackett was charged with murder in the first degree, criminal conspiracy,

possession of instruments of crime, and aggravated assault. In 1988 he was tried jointly

with Spence, Gray, and Barrett in the Court of Common Pleas of Philadelphia County.

All four defendants were convicted of first degree murder. Id.; see also Commonwealth

v. Spence, 627 A.2d 1176 (Pa. 1993); Commonwealth v. Gray, 608 A.2d 534 (Pa. 1992).

Pennsylvania law requires that

[b]efore the jury retires to consider the sentencing verdict, the court shall
instruct the jury . . . [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 circumstances. The verdict
must be a sentence of life imprisonment in all other cases.

42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iv). At the capital sentencing hearing the

Commonwealth argued two aggravating circumstances: Hackett conspired to pay another

person to kill the victim, and he created a grave risk to another during the murder of the

victim. Commonwealth v. Hackett, 627 A.2d at 723 (citing 42 Pa. Cons. Stat. Ann.

§§ 9711(d)(2), (7)). Hackett offered countervailing evidence of mitigating circumstances

– including a history of learning and social disabilities, a low level of maturity, signs of

depression and suicidal problems, limited interpersonal resources, and alcohol abuse. See

Hackett, 212 F. Supp. 2d at 407 n.20; see also 42 Pa. Cons. Stat. Ann. §§ 9711(e)(1)-(8)

4
(listing statutory mitigating circumstances).

The jury sentenced Hackett to death, finding both of the aggravating circumstances

argued by the Commonwealth and no mitigating circumstance. Spence also was

sentenced to death, the jury in his case finding aggravating circumstances that outweighed

any mitigating circumstance.2 Gray and Barrett were sentenced to life imprisonment. 3

On direct appeal, the Pennsylvania Supreme Court affirmed Hackett’s conviction

and sentence. Commonwealth v. Hackett, 627 A.2d at 721. The Court rejected, inter alia,

his argument “that the trial court erred in its charge to the jury during the penalty phase by

failing to instruct the jury they need not be unanimous in finding mitigating circumstances

in accord with Mills v. Maryland, 486 U.S. 367 (1988).” Id. at 725.

Hackett next filed a petition for relief under Pennsylvania’s Post Conviction Relief

Act, 42 Pa. Cons. Stat. Ann. § 9541 et seq. The Court of Common Pleas denied Hackett’s

petition for relief and the Pennsylvania Supreme Court affirmed. Commonwealth v.

2
The Pennsylvania Supreme Court, in affirming Spence’s sentence on direct appeal,
stated that “[t]he jury found the two aggravating [circumstances argued by the
Commonwealth] and no mitigating circumstances, and returned a sentencing verdict of
death.” Spence, 627 A.2d at 1180. This is not correct. Spence’s verdict sheet, submitted
as part of the record in Hackett’s appeal before this Court, indicates the jury found the
same two aggravating circumstances as it had in Hackett’s case, but as to Spence the jury
also found the following mitigating circumstance: “The defendant has no significant
history of prior criminal convictions.” Accordingly, the jury “found unanimously . . . one
or more aggravating circumstances which outweigh any mitigating circumstance[].”
3
Gray, 608 A.2d at 536. The verdict sheets for Gray and Barrett could not be located.
That they were sentenced to life imprisonment for first degree murder means the jury
either found no aggravating circumstance or found one or more aggravating
circumstances that were outweighed by one or more mitigating circumstances.

5
Hackett, 735 A.2d 688 (Pa. 1999). The United States Supreme Court denied certiorari.

Hackett v. Pennsylvania, 528 U.S. 1163 (2000).

Hackett then petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 in the

United States District Court for the Eastern District of Pennsylvania. Hackett, 212 F.

Supp. 2d at 385. He challenged the guilt and sentencing phases of his trial on six

grounds. The District Court denied five of these claims, but concluded that Hackett’s

allegations of Mills error entitled him to relief. The District Court “determine[d] that the

state court’s failure to apply the legal standard from Boyde v. California, 494 U.S. 370

(1990), in adjudicating [Hackett’s] Mills claim was contrary to clearly established federal

law as determined by Supreme Court of the United States.” Id. at 400. The District Court

“further conclude[d] on plenary review that the instructions and verdict form created a

reasonable likelihood that the jury understood the instructions in such a way that it was

improperly prevented from considering mitigating evidence.” Id. Hackett’s sentence was

vacated without prejudice to the Commonwealth to sentence him to life imprisonment or

to conduct such further proceedings as may be appropriate under Pennsylvania law,

including a new sentencing hearing, within 180 days. Id. at 413. The Commonwealth

appealed, and the District Court’s ruling on Hackett’s Mills claim is the sole issue before

us. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

6
 II. Standard of Review

Congress in 1996 passed the Antiterrorism and Effective Death Penalty Act

(AEDPA), which “altered the standard of review that a federal habeas court must apply to

a state prisoner’s claim that was adjudicated on the merits in state court.” Stevens v.

Delaware Corr. Ctr., 295 F.3d 361, 368 (3d Cir. 2002) (citing Williams v. Taylor, 529

U.S. 362, 402-13 (2000) (interpreting 28 U.S.C. § 2254(d)(1)). See also Dunn v.

Colleran, 247 F.3d 450, 456-57 (3d Cir. 2001) (explaining Williams). More specifically,

AEDPA “placed a new restriction on the power of federal courts to grant writs of habeas

corpus to state prisoners.” Dunn, 247 F.3d at 456-57 (quoting Williams, 529 U.S. at 399).

Because Hackett filed his habeas petition after AEDPA became effective, we follow

Congress’ directive and give greater deference to state courts’ factual findings and legal

determinations. See id. at 457. According to the relevant provision of AEDPA:

(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 . . . .

28 U.S.C. § 2254(d)(1).

Prior decisions of our Court explain thoroughly the “contrary to” and

“unreasonable application of” clauses of § 2254(d)(1). For instance, in Werts v. Vaughn,

228 F.3d 178, 196 (3d Cir. 2000), we noted that Justice O’Connor delivered the opinion

7
of the Supreme Court in Williams as to AEDPA’s amended standard of review and

described the operation of both clauses as follows:

Under § 2254(d)(1), the writ may issue only if one of the following two
conditions is satisfied – the state court adjudication resulted in a decision that
(1) “was contrary to . . . clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “involved an unreasonable
application of . . . clearly established Federal law, as determined by the
Supreme Court of the United States.” Under the “contrary to” clause, a federal
habeas court may grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law or if the state court
decides a case differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable application” clause, a federal
habeas court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.

(quoting Williams, 529 U.S. at 412-13). Werts further noted that, per Williams, the

appropriate inquiry under the “unreasonable application of” standard was “whether the

state court’s application of clearly established federal law was objectively unreasonable.”

228 F.3d at 196 (quoting 529 U.S. at 409). An unreasonable application of federal law

involves more than merely an incorrect or erroneous application of federal law: “[A]

federal habeas court may not grant relief unless that court determines that a state court’s

incorrect or erroneous application of clearly established federal law was also

unreasonable.” Id. (citing Williams, 529 U.S. at 411).

Werts also noted that, one year prior to Williams, an en banc decision of our Court,

Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir. 1999), had construed the

procedure for applying § 2254(d)(1)’s standard of review:

8
 First, the federal habeas court must determine whether the state court decision
was “contrary to” Supreme Court precedent that governs the petitioner’s claim.
Relief is appropriate only if the petitioner shows that “Supreme Court
precedent requires an outcome contrary to that reached by the relevant state
court.” O’Brien [v. Dubois], 145 F.3d [16, 24-25 (1st Cir. 1998)]. In the
absence of such a showing, the federal habeas court must ask whether the state
court decision represents an “unreasonable application of” Supreme Court
precedent: that is, whether the state court decision, evaluated objectively and
on the merits, resulted in an outcome that cannot reasonably be justified. If so,
then the petition should be granted.

Werts, 228 F.3d at 196-97 (quoting Matteo, 171 F.3d at 891). We further stated our belief

that Matteo was in accord with the Supreme Court’s subsequent decision in Williams, as

both opinions make the distinction “that the ‘contrary to’ and ‘unreasonable application

of’ clauses should be accorded independent meaning.” Id. at 197 (quoting Williams, 529

U.S. at 405).

In summary, our review under AEDPA is to proceed as follows. “[W]e must first

identify the applicable Supreme Court precedent and determine whether it resolves the

petitioner’s claim.” Id. (citing Matteo, 171 F.3d at 888). To do so, “it is not sufficient for

the petitioner to show merely that his interpretation of Supreme Court precedent is more

plausible than the state court’s; rather, the petitioner must demonstrate that Supreme

Court precedent requires the contrary outcome.” Id. (quoting Matteo, 171 F.3d at 888).

“If we determine that the state court decision is not ‘contrary to’ the applicable Supreme

Court precedent, then we are required to advance to the second step in the analysis –

whether the state court decision was based on an ‘unreasonable application of’ Supreme

Court precedent.” Id. (citing Matteo, 171 F.3d at 888). In performing this inquiry, “we

9
are not authorized to grant habeas corpus relief simply because we disagree with the state

court’s decision or because we would have reached a different result if left to our own

devices.” Id. (citing Matteo, 171 F.3d at 889). Rather, the state court’s application of

Supreme Court precedent must have been “objectively unreasonable,” i.e., “[t]he federal

habeas court should not grant the petition unless the state court decision, evaluated

objectively and on the merits, resulted in an outcome that cannot reasonably be justified

under existing Supreme Court precedent.” Id. (quoting Matteo, 171 F.3d at 890); see also

Price v. Vincent, 538 U.S. 634, 636, 643 (2003) (unanimously reversing a decision to

grant habeas relief as “exceed[ing] the limits imposed on federal habeas review by 28

U.S.C. § 2254(d)” because “[e]ven if we agreed with the Court of Appeals that the

Double Jeopardy Clause should be read to prevent continued prosecution of a defendant

under these circumstances, it was at least reasonable for the state court to conclude

otherwise.”).

III. Discussion

The District Court in this case concluded that the Pennsylvania Supreme Court’s

decision rejecting Hackett’s Mills claim was “contrary to” clearly established federal law,

and thus determined that it (the District Court) was “not constrained by the deferential

standard of [AEDPA’s] section 2254(d)(1).” 212 F. Supp. 2d at 406. We exercise

plenary review over this legal conclusion, Stevens, 295 F.3d at 368, and disagree with the

District Court that AEDPA deference does not apply to Hackett’s petition. Before

10
explaining our reasons for so concluding, however, we first – as instructed by Williams –

identify and discuss the applicable Supreme Court precedent.

A. The Supreme Court Standard: Mills, McKoy & Boyde

1. Mills

We begin with Mills v. Maryland, 486 U.S. 367, 384 (1988), where the Supreme

Court vacated a death sentence after concluding there was a “substantial probability that

reasonable jurors, upon receiving the judge’s instructions in this case, and in attempting

to complete the verdict form as instructed, well may have thought they were precluded

from considering any mitigating evidence unless all 12 jurors agreed on the existence of a

particular such circumstance.” The potential for such an outcome violated the well-

established rule that the sentencer in a capital case must be permitted to consider (and,

conversely, must not be precluded from considering) all mitigating evidence offered by a

defendant in arguing for a sentence less than death. Id. at 374 (citing Eddings v.

Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978); Skipper v. South

Carolina, 476 U.S. 1 (1986)).

The Maryland sentencing scheme at issue in Mills worked in the following

manner, depending on the jury’s findings of aggravating and mitigating circumstances.

The jury first was instructed to determine whether it unanimously found one or more of

the aggravating circumstances listed on the verdict form. If it did not, the defendant was

sentenced to life imprisonment. If the jury did unanimously find one or more aggravating

11
circumstance(s), it next was instructed to determine whether it unanimously found one or

more of the mitigating circumstances listed on the verdict form. If it did not, the

defendant was sentenced to death. If the jury unanimously found one or more mitigating

circumstance(s), it next was instructed to determine whether it unanimously found that the

mitigating circumstance(s) outweighed the aggravating circumstance(s). If the answer to

this question was yes, the defendant was sentenced to life imprisonment. If the answer

was no – i.e., the mitigating circumstance(s) did not outweigh the aggravating

circumstance(s) – the defendant was sentenced to death. Id. at 384-89.

The petitioner in Mills argued that the sentencing scheme was constitutionally

infirm because “even if some or all of the jurors were to believe some mitigating

circumstance or circumstances were present, unless they could unanimously agree on the

existence of the same mitigating factor, the sentence necessarily would be death.” Id. at

371 (emphases in text). For example, if only eleven of twelve jurors agreed that one or

more mitigating circumstance(s) existed – or if all twelve jurors agreed that one or more

mitigating circumstance(s) existed, but did not agree as to the same circumstance(s) –

individual jurors could not give any effect to that mitigating evidence at all, and the jury

could not deliberate whether the mitigating circumstance(s) merited a sentence of life

imprisonment instead of death. Id. at 373-74.

Thus, the “critical question” in Mills was “whether petitioner’s interpretation of

the sentencing process is one a reasonable jury could have drawn from the instructions

12
given by the trial judge and from the verdict form employed in this case.” Id. at 375-76

(emphasis added). The verdict form required the jury to mark either “yes” or “no” beside

each of the listed mitigating circumstances. If the jury understood that every time it

marked “no” beside a mitigating circumstance it was indicating it had unanimously

concluded the petitioner had failed to prove that circumstance, then the death sentence

was to be upheld, as each juror had considered and rejected all proffered mitigating

evidence. But, on the other hand, if the jury believed it was to mark “no” if it could not

unanimously agree whether the same mitigating evidence existed, even one holdout juror

could prevent the other jurors from weighing mitigating evidence against aggravating

evidence, and the death sentence could not stand. Id. at 376. Concluded the Court:

[T]here is a substantial probability that reasonable jurors, upon receiving the
judge’s instructions in this case, and in attempting to complete the verdict form
as instructed, well may have thought they were precluded from considering any
mitigating evidence unless all 12 jurors agreed on the existence of a particular
such circumstance. Under our cases, the sentencer must be permitted to
consider all mitigating evidence. The possibility that a single juror could block
such consideration, and consequently require the jury to impose the death
penalty, is one we dare not risk.

Id. at 384 (emphases added).

2. McKoy

The Supreme Court revisited Mills two years later in McKoy v. North Carolina,

494 U.S. 433, 435 (1990), and held that the unanimity requirement in North Carolina’s

capital sentencing scheme – which “prevent[ed] the jury from considering, in deciding

whether to impose the death penalty, any mitigating factor that the jury does not

13
unanimously find” – was unconstitutional because it prevented the sentencer from

considering all mitigating evidence. McKoy repeated the rule in Mills that a death

sentence cannot stand if the jury instructions and verdict form created a substantial

probability that reasonable jurors thought they were precluded from considering

mitigating evidence unless the jury unanimously agreed on the existence of that particular

circumstance. Id. at 438 (citing Mills, 486 U.S. at 384). The Court also noted that Mills

reasoned that allowing a holdout juror to preclude other jurors from considering

mitigating evidence violated the principle that a sentencer may not be prevented from

giving effect to all mitigating evidence. Id. (citing Mills, 486 U.S. at 375).

The North Carolina Supreme Court attempted to distinguish Mills by concluding

that – whereas Maryland’s sentencing scheme required the jury to impose the death

penalty if it found i) aggravating circumstances and no mitigating circumstances or ii)

aggravating circumstances that outweighed any mitigating circumstances – the North

Carolina procedure allowed the jury to recommend a sentence of life imprisonment even

without a finding of mitigating circumstances. Id. (discussing the decision of the North

Carolina Supreme Court). The United States Supreme Court, however, concluded that

the purported distinction did not place the statute outside of the scope of Mills. The fact

remained that the jury, even if it recommended a sentence of life imprisonment, was

required to make its decision based only on circumstances it unanimously found. Id. at

439. “The unanimity requirement thus allows one holdout juror to prevent the others

14
from giving effect to evidence that they believe calls for a ‘sentence less than death.’” Id.

(quoting Eddings, 455 U.S. at 110). In addition, even if all twelve jurors agreed that

some mitigating circumstances were present, they could not give effect to that evidence

without unanimity as to the same circumstance, precisely the violation found in Mills. Id.

The Court noted that “[o]ur decision in Mills was not limited to cases in which the jury is

required to impose the death penalty if it finds that aggravating circumstances outweigh

mitigating circumstances or that no mitigating circumstances exist at all.” Id. at 439-40

(emphasis in text). “Rather, we held that it would be the ‘height of arbitrariness to allow

or require the imposition of the death penalty’ where 1 juror was able to prevent the other

11 from giving effect to mitigating evidence.” Id. at 440 (quoting Mills, 486 U.S. at 374)

(emphasis in text).

3. Boyde

The same day it issued McKoy, the Supreme Court decided Boyde v. California,

494 U.S. 370 (1990). Boyde clarified the legal standard for jury instructions in death

penalty cases asserted to be “ambiguous and therefore subject to an erroneous

interpretation.” Id. at 380. The Court first noted that “[i]n assessing the effect of a

challenged jury instruction, we follow the familiar rule . . . ‘that a single instruction to a

jury may not be judged in artificial isolation, but must be viewed in the context of the

overall charge.’” Id. at 378 (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)).

The Court next recognized that “[t]he legal standard for reviewing jury instructions

15
claimed to restrict impermissibly a jury’s consideration of relevant evidence is less than

clear from our cases.” Id. For example, in Mills alone

we alluded to at least three different inquiries for evaluating such a challenge:
whether reasonable jurors “could have” drawn an impermissible interpretation
from the trial court’s instructions; whether there is a “substantial possibility
that the jury may have rested its verdict on the ‘improper’ ground”; and how
reasonable jurors “would have” applied and understood the instructions.

Id. at 379 (internal citations omitted) (emphasis in text). The Court stated that

“[a]lthough there may not be great differences among these various phrasings, it is

important to settle upon a single formulation for this Court and other courts to employ in

deciding this kind of federal question.” 4

Boyde thus held that the proper inquiry for reviewing a jury instruction that is

ambiguous and therefore subject to erroneous interpretation “is 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. However, a

defendant “need not establish that the jury was more likely than not5 to have been

4
Id. While the Boyde majority indicated it merely was clarifying the proper standard of
review, the four Justices in dissent vehemently disagreed. “To the contrary, in reviewing
criminal judgments we have described the difference between a standard that demands
reasonable certainty on the one hand, and one that tolerates significant doubt on the other,
as the difference that sets apart ‘a society that values the good name and freedom of every
individual.’” Id. at 394 n.2 (Marshall, J., dissenting) (quoting In re Winship, 397 U.S.
358, 363-64 (1970)).
5
As one definition of “likely” is “having a better chance of existing or occurring than
not,” Webster’s Third New International Dictionary 1310 (1971), someone could
plausibly argue that “reasonable likelihood” is not a lesser standard than “more likely than
not.” See also Funk & Wagnall’s New Standard Dictionary of the English Language

16
impermissibly inhibited by the instruction,” though “a capital sentencing proceeding is

not inconsistent with the Eighth Amendment if there is only a possibility of such an

inhibition.” Id. (emphasis added). The Court further explained its reasons for requiring a

“reasonable likelihood” of jury confusion, rather than the various formulations in Mills:

This “reasonable likelihood” standard, we think, better accommodates the
concerns of finality and accuracy than does a standard which makes the inquiry
dependent on how a single hypothetical “reasonable” juror could or might have
interpreted the instruction. There is, of course, a strong policy in favor of
accurate determination of the appropriate sentence in a capital case, but there
is an equally strong policy against retrials years after the first trial where the
claimed error amounts to no more than speculation. Jurors do not sit in
solitary isolation booths parsing instructions for subtle shades of meaning in
the same way that lawyers might. Differences among them in interpretation
of instructions may be thrashed out in the deliberative process, with
commonsense understanding of the instructions in the light of all that has taken
place at the trial likely to prevail over technical hairsplitting.

Id. at 380-81.6

*****

In sum, a petitioner’s Mills claim alleging juror confusion as to unanimity must be

examined under Boyde to determine whether there is a reasonable likelihood (as opposed

to merely a possibility) that jurors have applied the challenged instruction in a way that

1434 (1941).
6
It may appear that Boyde focuses on the confusion of the entire jury and not a single
juror. We avoid that avenue of analysis. Its logical end is a standard that requires all
twelve jurors to be confused by the jury instruction in a capital sentencing case. But
would the taint of confusion be any less to a defendant if but eleven (or fewer) jurors
were confused? We believe instead that the Supreme Court focuses more aptly on the
likeliness legal standard for an allegedly confusing instruction.

17
prevents the consideration of constitutionally relevant mitigating evidence.

B. Third Circuit Application: Zettlemoyer, Frey & Banks

Three times previously our Court has applied the Boyde standard of review to a

Mills claim, with varying results. We review each below.

1. Zettlemoyer

In a 1991, pre-AEDPA decision, Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.

1991), the petitioner argued the following trial court instruction erroneously suggested

that the jury’s finding on mitigating circumstances must be unanimous:

The verdict, of course, must be unanimous. Again, if you find unanimously,
beyond a reasonable doubt, the aggravating circumstance that I have
mentioned, the only one that’s applicable, that the victim was a prosecution
witness to a felony and it was committed and he was murdered so that he
would not testify, that is an aggravating circumstance. If you find that
aggravating circumstance and find no mitigating circumstances or if you find
that the aggravating circumstance which I mentioned to you outweighs any
mitigating circumstance you find, your verdict must be the death penalty. If,
on the other hand, you find that the Commonwealth has not proven an
aggravating circumstance beyond a reasonable doubt or if they have, that the
mitigating circumstances outweight [sic] the aggravating circumstances, then
you must bring in a verdict of life imprisonment.
....
. . . Under the law, as I said, you are obligated by your oath of office to fix the
penalty at death if you unanimously agree and find beyond a reasonable doubt
that there is an aggravating circumstances (sic) and either no mitigating
circumstance or that the aggravating circumstance outweighs any mitigating
circumstances.

Id. at 307-08. In addition, the jury completed the following verdict form:

1. We the jury unanimously sentence the defendant to: _[X]_ death ___ life
imprisonment.
2. (To be used in the sentence if death)

18
 We the jury have found unanimously:
___ at least one aggravating circumstance and no mitigating circumstance.
The aggravating circumstance is ___.
_[X]_ the aggravating circumstance outweighs [the] mitigating circumstances.
The aggravating circumstance is [the murdering of a prosecution witness to
prevent testimony in a felony case.]

Id. at 308.

We concluded that the petitioner had “failed to show that there is a reasonable

likelihood that the jury applied these instructions in a way that precluded its consideration

of any relevant mitigating evidence.” Id. First, the instructions were not defective. The

jury was not directed that it must find unanimously the existence of a particular mitigating

circumstance or told that it could weigh only those mitigating circumstances which it

found unanimously, distinguishing that case from Mills. Also, the trial court correctly

instructed the jury that its verdict must be unanimous, but this instruction did not preclude

the jury from considering relevant evidence in deliberating in anticipation of the verdict.

Id. Second, the verdict form likewise was permissible. The language explicitly required

unanimity as to aggravating circumstances. The absence of a similar instruction as to

mitigating circumstances indicated that unanimity was not required. To focus the jury, it

was required to identify the aggravating circumstance it had found, but was not similarly

required to do so as to mitigating circumstances, suggesting to the jury that it had broad

and unrestricted discretion to consider mitigating circumstances. Id. Finally, while the

trial court instructed the jury that its ultimate conclusion (as to the defendant’s sentence)

must be unanimous, this did not indicate to the jury that each step in its deliberative

19
process also required unanimity. Id.

2. Frey

Next, in Frey v. Fulcomer, 132 F.3d 916 (3d Cir. 1997) – like Zettlemoyer, also

involving a habeas petition filed before AEDPA became effective – we again considered

a Mills challenge to a similar jury instruction. The trial court in Frey charged:

Members of the jury, you must now decide whether this defendant should be
sentenced to death or life imprisonment. The sentence will depend upon your
findings concerning aggravating and mitigating circumstances. The Crimes
Code 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 circumstances. The verdict
must be a sentence of life imprisonment in all other cases.
...
Remember that your verdict must be a sentence of death if you unanimously
find at least one aggravating circumstances (sic) and no mitigating
circumstances, or if you unanimously find one or more aggravating
circumstances which outweigh any mitigating circumstances. In all other
cases, your verdict must be a sentence of life imprisonment.

Id. at 922.

Frey determined it was reasonably likely that the jury could have understood this

charge to require unanimity in the consideration of mitigating evidence.7 “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

7
In Frey, as in Zettlemoyer, the jury imposed a death sentence after finding that one or
more aggravating circumstances outweighed any mitigating circumstances. See
Commonwealth v. Frey, 554 A.2d 27, 31 n.2 (Pa. 1989) (reproducing completed verdict
slip).

20
– within seven words – the mitigating circumstances clause.” Id. at 923. The Court

found particularly relevant the clause “if the jury unanimously finds at least one

aggravating circumstance and no mitigating circumstance . . . .” Id. “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.” Id.

Moreover, the Court noted that its conclusion in Frey was not inconsistent with its

holding in Zettlemoyer. The separation in Zettlemoyer between the clauses emphasizing

unanimity and mitigating circumstances was seventeen words, “not one sound bite.” Id.

Also, the Zettlemoyer trial court had “used the term ‘unanimously’ to modify only the

term ‘agree’ in the subsequent phrase ‘agree and find.’” Id. The Frey trial court “did not

instruct the jury to ‘fix the penalty at death if you unanimously agree and find . . . ,’ but

rather instructed them to so fix that sentence ‘if the jury unanimously finds.’” Id.

(emphases in text). 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.” Id. (emphasis added). Finally, unlike in Zettlemoyer, the Frey trial

court “did not stress that the different burdens that attach to aggravating and mitigating

circumstances also entail different unanimity requirements,” meaning a lay jury plausibly

may have concluded that the same unanimity requirements extended to both. Id. at 924.

21
For these reasons, the Court found that “it was reasonably likely that the jury could have

believed that it was required to find the existence of mitigating circumstances

unanimously before those circumstances could be considered in its deliberations,” id.

(emphasis added), and that the charge therefore violated Mills.8

3. Banks

Lastly, we recently analyzed a Mills claim under the more stringent AEDPA

standard of review in Banks v. Horn, 271 F.3d 527 (3d Cir.) (Banks I), rev’d in part, 536

U.S. 266 (2002) (Banks II), aff’d on reh’g, 316 F.3d 228 (3d Cir. 2003) (Banks III), rev’d

in part sub nom., Beard v. Banks, No. 02-1603, 2004 WL 1402567 (June 24, 2004)

(Banks IV).9 The Banks I Court phrased the question presented by the petitioner’s Mills

8
The Court also noted that the verdict form in Frey was “substantially the same” as in
Zettlemoyer. Id. However, the text of the charges in the two cases differed significantly.
“Since Zettlemoyer considered the verdict form and the court’s instructions as a whole in
reaching its decision, see Zettlemoyer, 923 F.2d at 308 n.22, and since the charge here
was significantly different, the discussion in Zettlemoyer regarding the propriety of the
verdict slip is not controlling.” Id.
9
Our decision in Banks I granted the petitioner habeas relief after concluding that the
Pennsylvania Supreme Court had unreasonably applied federal law in evaluating the
petitioner’s Mills claim. 271 F.3d at 543-551. In so doing, our Court found it
unnecessary to evaluate whether Mills applies retroactively to cases on habeas review per
Teague v. Lane, 489 U.S. 288 (1989), because the Pennsylvania Supreme Court had not
ruled on retroactivity. Banks I, 271 F.3d at 541-43.

The United States Supreme Court in a per curiam opinion reversed the panel’s
determination that a Teague analysis was unnecessary. Banks II, 536 U.S. at 267. In so
doing, however, the Supreme Court stated that it did not reach the petitioner’s argument
that our Court erred by concluding that the Pennsylvania Supreme Court’s decision was
unreasonable under Mills. Id. at 271. On remand, our Court reaffirmed its prior analysis
of the petitioner’s Mills claim, stating:

22
claim as “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.” 271 F.3d at 544.10 The Court answered this question

in the affirmative, concluding that the Pennsylvania Supreme Court erred by ruling there

was no Mills violation without applying the teachings of Mills, and by examining the state

statute from which the instructions were derived instead of looking for potential

confusion by jurors applying those instructions. Id. at 545.

The Banks trial court delivered to the jurors the following instructions:

Our previous ruling in this case was reversed by the Supreme Court only
insofar as we held it unnecessary to decide whether Mills had retroactive
application. Because we now hold that our application of Mills on habeas
review of Banks’s sentence was not prohibited by Teague, we do not disturb
the remainder of our previous opinion, including its discussion and holding
with regard to the merits of Banks’s Mills claim. We merely augment that
opinion by essentially replacing its discussion of the Teague issue with the
analysis here. Accordingly, our judgment requiring a new penalty phase for
Banks will remain unchanged.

Banks III, 316 F.3d at 247. With the Supreme Court overturning our conclusion in
Banks III as to the retroactivity of Mills, Banks IV, 2004 WL 1402567, at *11 (concluding
that Mills cannot be applied retroactively because it “announced a new rule of criminal
procedure that falls within neither Teague exception”), our holding in Banks I as to the
petitioner’s Mills claim is no longer precedential, as Mills no longer applies. Nonetheless,
the discussion in Banks I on Mills is instructive and relevant to our current inquiry.
10
The Banks I Court moved directly to AEDPA’s second, “unreasonable application of”
clause, bypassing any analysis of whether the state court decision was “contrary to”
federal law. The panel explained that “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.” Id. at 545 n.21.

23
 Members of the jury, you must now decide whether the defendant in this case
is to be sentenced to death or to life imprisonment on each of the Informations
upon which you have returned a verdict of guilty of murder in the first degree.

The sentence you will impose will depend on your findings concerning
aggravating and mitigating circumstances. The Crime [sic] 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 circumstances, or if the jury unanimously finds one or more
aggravating circumstances which outweigh any mitigating circumstance or
circumstances.

Remember, under the law of this Commonwealth, your verdict must be a
sentence of death if you unanimously find at least one aggravating
circumstance and no mitigating circumstance, or if you unanimously find one
or more aggravating circumstances which then outweigh any mitigating
circumstances.

In all other cases, your verdict would be life imprisonment.

Once again, the Commonwealth has the burden of proving aggravating
circumstances beyond a reasonable doubt. The defendant has the burden of
proving mitigating circumstances by 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.

Id. at 546-47.

Banks I juxtaposed these jury instructions against those our Court found to be

constitutionally defective in Frey. Because Frey was a pre-AEDPA decision, it did not

control the holding in Banks I, but “nonetheless our reasoning there regarding the Mills

implications of a very similar jury charge is instructive and applicable.” Id. at 544, 547.

After quoting extended portions of Frey, Banks I concluded that “[t]hese same concerns

dictate the same result here.” Id. at 548. Our Court determined that the jury instructions

24
in Banks, like those in Frey, violated Mills, and the Pennsylvania Supreme Court’s

examination (and approval) of the instruction was therefore an unreasonable application

of Mills. Most significantly, the instructions were ambiguous as to whether unanimity

was required to consider mitigating evidence, and the trial court’s explanation of the

distinctions between the burdens of proof for aggravating and mitigating circumstances

also failed to clarify the distinctions between the unanimity requirement for either set of

circumstances. Id. at 548-49.

Banks I next reviewed the verdict slip and concluded that it also suggested to the

jury a unanimity requirement as to mitigating circumstances. This form, as completed by

the jury, was as follows:

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

___ At least one aggravating circumstance and no mitigating circumstances.
The aggravated circumstance(s) (is)(are):

1. ___ In the commission of the 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 significant history 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

25
 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 circumstances which outweigh any mitigating
circumstance or circumstances.

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

1. ___ In the commission of the 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 significant history of felony convictions involving
the use of [sic] threat of violence to the person.

3. _X_ 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.

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

1. _X_ The defendant was under the influence of extreme mental or emotional
disturbance.

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

3. ___ Any other mitigating matter concerning the character or record of the
defendant or the circumstances of his offense.

Id. at 549-50.

Banks I found “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

26
circumstances.” Id. at 550. The statement that explains the jury’s reasoning for imposing

a sentence of death – “We the jury have found unanimously . . . .” – implies that

everything that follows was found unanimously, including “[o]ne or more aggravating

circumstances which outweigh any mitigating circumstance or circumstances.” Id. No

additional language explains the distinctions between the unanimity requirements for

aggravating and mitigating circumstances, and nowhere does the form instruct that the

jury could infer that a mitigating circumstance might be marked if only one juror found

that the circumstance existed. Id. For these reasons, the verdict slip also violated Mills,

and “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.” 11 Id.

C. The Hackett Charge

Following the lead of Zettlemoyer, Frey, and Banks, we begin by setting out the

trial court’s instructions to the jury in Hackett’s case:

The sentence will depend upon your findings concerning aggravating or
mitigating circumstances. The Crimes Code provides that a verdict must be
the 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 circumstance [sic] which outweigh any mitigating
circumstances that you may determine. The verdict must be a sentence of life
imprisonment in all other cases.

11
Banks I also briefly examined the jury poll, but concluded that “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.” Id. at 551.

27
The Crimes Code defines aggravating and mitigating circumstances. For the
purposes confronting you at this time in this case, only the following matters,
if proven, can constitute aggravating circumstances.

Now, ladies and gentlemen, I digress for a moment. Some of these may have
no application, but I’m going to give them all to you. You will then have to
make a determination as to whether, in your view, they apply or not.

[lists possible aggravating circumstances]

I am a bit repetitious. You may note, some of those don’t have any application
to this matter, but I’m giving them all to you. It is your determination to find
as you must or not, as you see it, whether any of the things I’ve just read
constitute aggravating circumstances, as it applies to this case and these
defendants.

For the purpose or purposes of this case, the following matters, if proven, can
constitute mitigating circumstances: [lists possible mitigating circumstances]

Next. The Commonwealth has the burden of proving aggravating
circumstances beyond a reasonable doubt. As you will recall, I defined that
term for you. The defendant has the burden of proving mitigating
circumstances, but only by a preponderance of the evidence. This 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 side.

All the evidence from both sides, including the evidence you heard earlier
during the trial in chief, as to aggravating or mitigating circumstances is
important and proper for you to consider. You should not decide out of any
feelings of vengeance or prejudice toward the defendants acting as I’ve
heretofore said.

******

Now, the verdict is for you, ladies and gentlemen of the jury. Remember and
consider all of the evidence, giving it the weight to which you determine it to
be entitled, remembering that you are not merely recommending a punishment.
The verdict you return will actually fix the punishment at death or life
imprisonment.

28
 Remember again that your verdict must be unanimous. All twelve of you must
agree. Please note, it therefore cannot be reached by a majority vote or by a
percentage. It must be the verdict of each and every one of you.

Remember that your verdict must be a sentence of death if you unanimously
find at least one aggravating circumstance and no mitigating circumstance, or
if you unanimously find one or more aggravating circumstances which
outweigh any mitigating circumstances. In all other cases, your verdict must
be a sentence of life imprisonment.

You will be given a verdict slip, which you will refer to, . . . upon which to
record your verdict and findings. You will follow the directions on the verdict
slip and do whatever is required.

Ladies and gentlemen, finally, after conscientious and thorough deliberation,
if you are unable to agree on your findings and verdict, you should report to
me. If in my opinion further deliberations will not result in a unanimous
agreement on the sentence, whichever it may be, it will be my duty to then
impose a sentence upon the defendant[] . . . of life imprisonment.

Hackett, 212 F. Supp. 2d at 400-01 (footnote omitted). The verdict form, as completed by

Hackett’s jury, is as follows:

We, the jury, enpaneled [sic] in the above entitled case, having heretofore
determined that the defendant . . . is guilty of murder of the first degree, do
hereby find:

AGGRAVATING CIRCUMSTANCE(S)

1. The victim was a fireman, peace officer or public servant concerned in
official detention who was killed in the performance of his duties ( )

2. The defendant paid or was paid by another person or had contracted to
pay or be paid by another person or has conspired to pay or be paid by
another person for the killing of the victim (T)

3. The victim was being held by the defendant for ransom or reward, or
as a shield or hostage ( )

29
4. The death of the victim occurred while defendant was engaged in the
hijacking of an aircraft ( )

5. The victim was a prosecution witness to a murder or other felony
committed by the defendant and was killed for the purpose of
preventing his testimony against the defendant in any grand jury or
criminal proceeding involving such offenses ( )

6. The defendant committed a killing while in the perpetration of a felony
()

7. In the commission of the offense the defendant knowingly created a
grave risk of death to another person in addition to the victim of the
offense (T)

8. The offense was committed by means of torture ( )

9. The defendant has a significant history of felony convictions involving
the use or threat of violence to the person ( )

10. 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 possible or the defendant
was undergoing a sentence of life imprisonment for any reason at the
time of the commission of the offense ( )

11. The defendant has been convicted of another murder, committed either
before or at the time of the offense at issue ( )

12. The defendant has been convicted of voluntary manslaughter,
committed either before or at the time of the offense at issue. ( )

MITIGATING CIRCUMSTANCE(S)

a. The defendant has no significant history of prior criminal convictions
()

b. The defendant was under the influence of extreme mental or emotional
disturbance ( )

30
 c. The capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
substantially impaired ( )

d. The age of the defendant at the time of the crime ( )

e. The defendant acted under extreme duress, although not such duress as
to constitute a defense to prosecution under Section 309 (Relating to
duress), or acted under the substantial domination of another person
()

f. The victim was a participant in the defendant’s homicidal conduct or
consented to the homicidal acts ( )

g. The defendant’s participation in the homicidal act was relatively minor
()

h. Any other evidence of mitigation concerning the character and record
of the defendant and the circumstances of his offense ( )

We, the jury, have found unanimously

[ T] at least one aggravating circumstance and no mitigating circumstance.
The aggravating circumstance(s) (is) (are) ___#2 and #7___

[ ] one or more aggravating circumstances which outweigh any mitigating
circumstances. The aggravating circumstance(s) (is) (are) _______

We, the jury, unanimously render the following sentencing verdict:

DEATH (T)

LIFE IMPRISONMENT ( )

App. at 98-100. The verdict form was signed by all twelve jurors. Id. at 100.

D. AEDPA “Contrary To” Analysis

Our first task under AEDPA is to inquire whether the decision of the Pennsylvania

31
Supreme Court was contrary to United States Supreme Court precedent. See Werts, 228

F.3d at 196-97. The District Court held that it was, primarily because “[t]he state court

failed to cite, apply, or otherwise refer to the Boyde standard.” Hackett, 212 F. Supp. 2d

at 404. The Pennsylvania Supreme Court did analyze Hackett’s claim under Mills, but

did so improperly, the District Court concluded, because it focused on the

constitutionality of the state sentencing statute rather than on the issue of jury confusion,

relied solely on prior state court cases (none of which applied Boyde either), and failed to

consider the jury instructions in the context of the entire proceeding. Id. at 404-06.

We agree with the District Court that the Pennsylvania Supreme Court’s treatment

of Hackett’s Mills claim was not comprehensive. Indeed, the sum total of its discussion

on this issue was as follows:

Hackett next argues that the trial court erred in its charge to the jury during the
penalty phase by failing to instruct the jury they need not be unanimous in
finding mitigating circumstances in accord with Mills v. Maryland, 486 U.S.
367 (1988). Mills concerned a Maryland statute which required jurors
unanimously to agree on each individual mitigating circumstance after
deciding aggravating factors. Absent unanimous agreement, the Maryland
statute barred consideration of the mitigating evidence as to a given
circumstance. The Supreme Court held that the statute violated the Eighth
Amendment because a single Maryland juror could force a death verdict on the
other jurors by refusing to agree that mitigation existed.

The Pennsylvania statute, 42 Pa.C.S. § 9711, does the opposite and, therefore,
does not violate the rule in Mills. The Pennsylvania statute, 42 Pa.C .S. §
9711(c)(1)(iv), requires that the jury unanimously agree that no mitigating
circumstances exist and unanimously agree on a verdict for a sentence of
death. Thus, while a single Pennsylvania juror can always prevent a death
sentence, a single juror can never compel one, as could a single juror under the
former Maryland statute. Jury instructions in the penalty phase which follow

32
 the language of the death penalty statute do not recreate the error in Mills.
Commonwealth v. Tilley, 595 A.2d 575 (1991); Commonwealth v. Williams,
570 A.2d 75 (1990); Commonwealth v. O’Shea, 567 A.2d 1023 (1989), cert.
denied, 498 U.S. 881 (1990); Commonwealth v. Frey, 554 A.2d 27 (1989).

Here, the trial court’s instructions exactly followed the death penalty statute,
42 Pa.C.S. § 9711.12 Indeed, Hackett concedes that the lower court “recited
the language of the statute.” The trial court did not err by following the
statutory language.

Commonwealth v. Hackett, 627 A.2d at 725 (internal footnote omitted) (emphasis in text).

Although cursory, the Pennsylvania Supreme Court’s decision was not contrary to

Supreme Court precedent for the purpose of granting habeas relief under AEDPA. As the

Supreme Court explained in Williams, “[t]he word ‘contrary’ is commonly understood to

mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’”

529 U.S. at 405 (quoting Webster’s Third New International Dictionary 495 (1976)).

Thus, “[a] state-court decision will certainly be contrary to our clearly established

precedent if the state court applies a rule that contradicts the governing law set forth in

our cases.” Id. The Pennsylvania Supreme Court applied Mills, but did not apply Boyde.

Its analysis thus was incomplete, as Boyde is the governing standard of review for Mills

claims of juror confusion. But it does not follow that the state court decision also was

contrary to Supreme Court precedent. This is because Boyde clarifies Mills, but does not

12
The Pennsylvania Supreme Court stated here in a footnote: “Hackett argues that his
claim is unique in that he does not question the constitutionality of the statute itself, but
only the instructions given by the trial court. Since the trial court here followed the
language of the statute, word for word in its instruction, this is hardly a distinction.”
Commonwealth v. Hackett, 627 A.2d at 725 n.6.

33
contradict it.

Mills required, among other formulations, a petitioner to show a “substantial

probability” 13 of juror confusion, whereas Boyde clarified that standard to require a

“reasonable likelihood” of the same. In any event, analyzing a Mills claim under Mills

alone (i.e., instead of under Boyde) does not raise the bar for a petitioner to obtain relief.

If the Pennsylvania Supreme Court denied Hackett relief under Mills, it logically

would have done the same if applying Boyde. A petitioner unable to demonstrate a

substantial probability of juror confusion cannot show a reasonable likelihood of as much.

Thus, the absence of a Boyde analysis did not “result[] in a decision that was contrary to

. . . clearly established Federal law, as determined by the Supreme Court of the United

States . . . .” 28 U.S.C. 2254(d)(1) (emphasis added). Put another way, had the

Pennsylvania Supreme Court applied Boyde, it would have arrived at the same result. For

this reason, we disagree with the District Court and conclude that Hackett’s claim is more

appropriately reviewed under § 2254(d)(1)’s second, “unreasonable application of”

standard. Cf. Banks I, 271 F.3d at 545 n.21 (“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’ [standard] . . . .”).

13
“Probability” should be understood as the “relative frequency of the occurrence of an
event based on the ratio between its occurrence and the total average number of cases
necessary to ensure its occurrence...[,as] when a die is rolled, the [probability] that ...[x]
will be thrown is 1 out of 6.” Webster’s Third New International Dictionary, at 1806
(1971). In this context, “probability” connotes odds or tendency, not whether an outcome
is more probable than not. See generally supra Part III.A.3.

34
E. AEDPA “Unreasonable Application Of” Analysis

In determining “whether the state court decision was based on an ‘unreasonable

application of’ Supreme Court precedent,” Werts, 228 F.3d at 197, we note at the outset

the emphasis in our prior opinions that we are to focus on the charge delivered to the jury

and the language in the verdict form as a whole, Frey, 132 F.3d at 924; Zettlemoyer, 923

F.2d at 308-09 n.22, and not the jury’s result. Banks I, 271 F.3d at 547 (quoting Frey,

132 F.3d at 923). The reason that we need not determine whether the jurors actually

misunderstood the trial court’s instructions and verdict form is that, in many instances, it

would be quite difficult to do so. Cf. Mills, 486 U.S. at 381.

The completed verdict forms in Zettlemoyer, Frey, and Banks indicate that the jury

in each case imposed a death sentence after finding unanimously that the aggravating

circumstances outweighed the mitigating circumstances. Zettlemoyer, 923 F.2d at 308

(“We the jury have found unanimously . . . the aggravating circumstance outweighs [the]

mitigating circumstances.”); Commonwealth v. Frey, 554 A.2d at 31 n.2 (“W e the jury

have found unanimously . . . [o]ne or more aggravating circumstances which outweigh

any mitigating circumstances.”); Banks I, 271 F.3d at 549-50 (“We the jury have found

unanimously . . . [o]ne or more aggravating circumstances which outweigh any mitigating

circumstance or circumstances.”). In all three cases, the jury found at least some

mitigating evidence. What we cannot know, however, is the precise extent to which the

jurors properly considered the evidence of mitigating circumstances when weighing that

35
evidence against the aggravating circumstances. Some measure of uncertainty is

unavoidable when the jury weighs mitigating circumstances against aggravating

circumstances but reveals only the result of its efforts. In other words, the opaque nature

of the jury’s deliberative process limits our review primarily to the trial court’s

instructions and the verdict form to determine whether it is reasonably likely the jury

understood the charge to require unanimity in finding mitigating evidence exists.

But this case is different, for the jury’s verdict form demonstrates unequivocally

that there is no reasonable likelihood that the jurors applied the challenged instruction in a

way that prevented the consideration of constitutionally relevant evidence. Hackett’s jury

“found unanimously at least one aggravating circumstance and no mitigating

circumstance” (emphasis added). We do not conclude there was a Mills-Boyde violation

here, as no juror found that there was any mitigating circumstance.

This result is logically unavoidable. When the jury found unanimously that there

was no mitigating circumstance, it left no room to speculate that perhaps one juror was

confused about unanimity requirements and therefore precluded from considering

mitigating evidence. After all, if even a single juror thought that there was any mitigating

circumstance, then that juror could not join a verdict in which the jury “found

unanimously” that there was “no mitigating circumstance.” The finding of no mitigating

circumstance – versus when a mitigating circumstance was outweighed by aggravating

circumstances – distinguishes Hackett’s case from Zettlemoyer, Frey, and Banks, all of

36
which were “weighing” cases.14

14
As in Zettlemoyer and Frey, we acknowledge that the Supreme Court in Mills noted
that the Maryland Court of Appeals, subsequent to the defendant’s sentencing,
promulgated a new findings and sentencing form. Zettlemoyer, 923 F.3d at 308 n.22
(citing Mills, 486 U.S. at 381-83); Frey, 132 F.3d at 924 (same). As noted by the
Supreme Court:

Although we are hesitant to infer too much about the prior verdict form from
the Court of Appeals’ well-meant efforts to remove ambiguity from the State’s
capital sentencing scheme, we cannot avoid noticing these significant changes
effected in instructions to the jury. We can and do infer from these changes
at least some concern on the part of that court that juries could misunderstand
the previous instructions as to unanimity and the consideration of mitigating
evidence by individual jurors.

Mills, 486 U.S. at 382 (emphasis in text).

We further recognize, as did Zettlemoyer and Frey, that Pennsylvania likewise has
revised its uniform verdict slip for capital cases. Zettlemoyer, 923 F.3d at 308 (quoting
Pa. R. Crim. P. 358A); Frey, 132 F.3d at 924 (same). The verdict slip now instructs, in
relevant part:

A. We, the jury, unanimously sentence the defendant to (check one):

___ Death
___ Life Imprisonment

B. The findings on which the sentence of death is based are (check one):

___ 1. At least one aggravating circumstance and no mitigating
circumstance.

The aggravating circumstance(s) unanimously found (is) (are): _____

___ 2. One or more aggravating circumstances which outweigh(s) any
mitigating circumstance(s).

The aggravating circumstance(s) unanimously found (is) (are): _____

37
 Our dissenting colleague points out that, like this case, Mills was not a “weighing”

case. There is, however, an important difference between the two. The jury verdict form

in Mills required jurors to find unanimously the presence of mitigating circumstances.

See 486 U.S. at 387 (“Based upon the evidence we unanimously find that each of the

following mitigating circumstances which is marked ‘yes’ has been proven to exist by a

preponderance of the evidence . . . .”). That is not our case, where juror unanimity was on

the absence of mitigating circumstances. “Such a requirement . . . enhances the reliability

of the jury’s decision without any risk that a single holdout juror may impose a sentence

against the views of the other 11.” McKoy, 494 U.S. at 455 n.1 (Kennedy, J., concurring).

The Supreme Court in Mills stated its conclusion succinctly: “Under our cases, the

sentencer must be permitted to consider all mitigating evidence. The possibility that a

single juror could block such consideration, and consequently require the jury to impose

the death penalty, is one we dare not risk.” 486 U.S. at 384. We recognized as much in

Frey, where then Chief Judge Becker wrote: “In sum, the essential holding of Mills-

The mitigating circumstance(s) found by one or more of us (is) (are):
_____

Pa. R. Crim. P. 807 (emphases added).

While we too are hesitant to infer too much from these revisions, we believe it is at
least relevant that the wording on the verdict slip as to mitigating circumstances in
“weighing” cases was altered significantly (to emphasize that mitigating circumstances
may be found by only one or more jurors), whereas no similar change was made to the
verdict form to strengthen the directive that a jury’s finding of no mitigating circumstance
must be unanimous.

38
McKoy is simply that one juror cannot prevent the others from giving effect to mitigating

evidence, regardless of whether the imposition of a life sentence depends on the existence

of such evidence.” 132 F.3d at 921. The Pennsylvania Supreme Court, however, did not

fail to heed Mills’s admonition when it denied Hackett’s direct appeal – four years before

Frey had been decided by our Court – on the ground that Pennsylvania’s capital

sentencing scheme

requires that the jury unanimously agree that no mitigating circumstances exist
and unanimously agree on a verdict for a sentence of death. Thus, while a
single Pennsylvania juror can always prevent a death sentence, a single juror
can never compel one, as could a single juror under the former Maryland
statute.

Commonwealth v. Hackett, 627 A.2d at 725 (emphases in text). The Pennsylvania

Supreme Court is correct, for if even only one juror had found any mitigating

circumstance the jury could have imposed a death sentence only if it found unanimously

that there was one or more aggravating circumstances that outweighed any mitigating

circumstances. Plainly the jury could not have imposed the sentence that it did – death,

after unanimously finding aggravating circumstances and no mitigating circumstance – if

even a single juror was unwilling to join in the verdict.

A “state-court decision involves an unreasonable application of this Court’s

precedent if the state court identifies the correct governing legal rule from this Court’s

cases but unreasonably applies it to the facts of the particular state prisoner’s case.”

Williams, 529 U.S. at 407. The Pennsylvania Supreme Court identified Mills as the

39
correct governing legal rule under which to analyze Hackett’s claim of juror confusion.

That Court’s application of Mills may have been both cursory and undertaken without the

subsequently clarified standard of review found in Boyde, but these factors do not provide

a sufficient basis for granting habeas relief. “Under § 2254(d)(1)’s ‘unreasonable

application’ clause . . . a federal habeas court may not issue the writ simply because that

court concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather, that application must

also be unreasonable.” Williams, 529 U.S. at 411. The Pennsylvania Supreme Court’s

application of Mills was reasonable in this case, as a single dissenting juror could have

made impossible the unanimous finding of no mitigating circumstance.15

F. Conclusion

We hold there is no reasonable likelihood the jury in Hackett’s case applied the

challenged instruction and verdict form in a way that prevented the consideration of

constitutionally relevant evidence. We conclude as much because the jury unanimously

found no mitigating circumstance. Because the jury found no mitigating circumstance, it

15
Though our analysis focuses, as it must, on the jury instructions and verdict form, we
note in passing that the comparative verdicts in the four defendants’ joint trials support
that the jury in this case was not confused. For Hackett, the jury unanimously found no
mitigating circumstance while unanimously finding two aggravating circumstances. As
to the other defendants, one was sentenced to death because the aggravating
circumstances outweighed the mitigating circumstance, and two were sentenced to life
imprisonment because the jury either found no aggravating circumstance or found one or
more aggravating circumstances that were outweighed by one or more mitigating
circumstances.

40
did not proceed to determine whether any mitigating circumstance outweighed the

aggravating circumstances it unanimously found, as did the juries in Zettlemoyer, Frey,

and Banks. Accordingly, those decisions are distinguishable from this case. Even under

pre-AEDPA review Hackett would not have been entitled to federal habeas relief.

Inasmuch as after AEDPA’s enactment the federal courts’ deference to state courts has

been enhanced, there is even less reason to grant Hackett’s petition. We therefore reverse

the judgment of the District Court with instructions to vacate its order granting the

petition for writ of habeas corpus and instead enter an order denying the petition.

Hackett v. Price, No. 01-9008

Becker, Circuit Judge, dissenting:

The majority rejects Richard Hackett’s habeas petition by concluding that the state

court did not reach a result that was contrary to, or an unreasonable application of, the

Eighth Amendment rule expressed in Mills v. Maryland, 486 U.S. 367 (1988). The

majority makes no showing, however, that the instructions and verdict slip in this case

were at all different from, or any less confusing than, the instructions and verdict slips

which led this Court to grant relief under Mills in Banks v. Horn, 271 F.3d 527 (3d Cir.

2002), and Frey v. Fulcomer, 132 F.3d 916 (3d Cir. 1997). Instead, the majority justifies

its result on the sole ground that Hackett’s jury unanimously found “no mitigating

circumstance.” The majority infers from this finding that Hackett’s jury must not have

41
been confused by the instructions and verdict slip with regard to its role in finding

mitigating circumstances. Like the able District Judge who granted Hackett’s petition, I

find this analysis unconvincing.

In Banks, this Court granted relief under AEDPA upon concluding that essentially

the same instructions and verdict slip made it likely a jury would believe that it could not

consider mitigating evidence unless the whole jury was unanimous as to the existence of a

particular mitigating factor.16 The majority tries to evade Banks by noting that Hackett’s

jury found “no mitigating circumstance,” whereas in Banks (and in Frey) the jury found at

least one mitigating circumstance and reached the weighing stage. In my view, this

distinction between the cases is immaterial. The trial court never explained what it meant

to “unanimously” find “no mitigating circumstance,” and its instructions, as we have held

in Banks and Frey, were reasonably likely to lead a jury to believe that unanimity was

required before it could even consider a mitigating factor. Thus, contrary to the

16
As the majority notes, our decision in Banks to grant relief under Mills is no longer
precedential given the Supreme Court’s holding in Beard v. Banks, 124 S. Ct. 2504
(2004), that the Mills rule is barred under Teague v. Lane, 489 U.S. 288 (1989), from
retroactive application. See Maj. Op. at 22 n.9. Hackett’s conviction became final after
Mills was decided, and thus there is no Teague problem here. The majority correctly
observes that our discussion in Banks regarding the Mills issue, although not precedential,
is nevertheless “instructive and relevant to our current inquiry,” Maj. Op. at 22 n.9,
particularly given that the analysis in Banks reflects the unanimous judgment of three
members of this Court in granting relief on a Mills issue that is, I submit,
indistinguishable from the one presented here. It also bears mention that Justice Stevens,
joined by Justices Souter, Ginsburg, and Breyer, filed a dissent in Beard v. Banks in
which he noted that the four dissenters would have affirmed the grant of habeas relief on
the Mills question in Banks “[f]or the reasons identified by the Third Circuit[.]” 124 S.
Ct. at 2517 (Stevens, J., dissenting).

42
majority’s suggestion that each juror in Hackett’s case must have considered and rejected

all mitigating evidence, the record more accurately reflects that this jury likely was

unanimous only in finding that there was “no mitigating circumstance” upon which all

jurors could agree.

Such an understanding of its instructions and verdict slip violated Hackett’s rights

under the Eighth Amendment, as individual jurors were prevented from considering a

mitigating factor, and possibly voting for a lesser sentence, absent the agreement of all

jurors as to the presence of that factor. Put another way, a single juror, insisting Hackett

failed to prove any mitigating circumstance by a preponderance of the evidence, could

compel the death sentence despite other jurors who felt mitigating evidence was proven

and sufficient to warrant a life sentence. This is precisely the situation that the Mills rule

seeks to prevent. Indeed, the majority observes only in passing that Mills itself was a case

in which the jury found no mitigating circumstance and the Supreme Court vacated the

sentence due to the likelihood that the jury thought it was precluded from considering

mitigating evidence absent unanimity. See Mills, 486 U.S. at 370, 384.

In short, there is a reasonable likelihood, under the standard of Boyde v.

California, 494 U.S. 370 (1990), that Hackett’s jury understood its instructions in a

manner that violated Mills. Because the Pennsylvania Supreme Court’s rejection of this

claim resulted in an unreasonable application of federal law, I respectfully dissent.

I.

43
 As a threshold matter, I agree with the majority that the “unreasonable application

of” prong of 28 U.S.C. § 2254(d)(1) appears to provide the best fit for analyzing the

Pennsylvania Supreme Court’s decision to reject Hackett’s Mills claim.17 An AEDPA

17
I do not concede, however, that the Pennsylvania Supreme Court’s decision is
necessarily immune from analysis under the “contrary to” test, or that its decision would
survive such scrutiny. As Justice O’Connor explained for the majority in Williams v.
Taylor, 529 U.S. 362 (2000), “[a] state-court decision will certainly be contrary to our
clearly established precedent if the state court applies a rule that contradicts the governing
law set forth in our cases.” 529 U.S. at 405. Justice O’Connor offered the following
example of a “contrary to” application of federal law:

Take, for example, our decision in Strickland v. Washington,
466 U.S. 668 (1984). If a state court were to reject a
prisoner’s claim of ineffective assistance of counsel on the
grounds that the prisoner had not established by a
preponderance of the evidence that the result of his criminal
proceeding would have been different, that decision would be
"diametrically different," "opposite in character or nature,"
and "mutually opposed" to our clearly established precedent
because we held in Strickland that the prisoner need only
demonstrate a "reasonable probability that ... the result of the
proceeding would have been different." Id., at 694.

Williams, 529 U.S. at 405-06.

A similar flaw can be found in the state court analysis here. The Pennsylvania
Supreme Court cited Mills and purported to analyze Hackett’s claim under the Mills rule,
but the court failed to consider, as is required by Mills and Boyde, whether the jury likely
interpreted its instructions and verdict slip in a manner that prevented its consideration of
relevant mitigating evidence. The state court instead reasoned that, because the
instructions mirrored the language of 42 Pa. Cons. Stat. § 9711(c)(1)(iv), and because it
had previously held that statute constitutional by finding that it does not expressly permit
a single juror who refuses to agree that mitigation exists to force a death verdict on the
other jurors, there can be no Mills violation. See Commonwealth v. Hackett, 627 A.2d
719, 725 (Pa. 1993). This analysis employed a rule (i.e., no Mills violation if the
challenged instructions can be read in a constitutional manner) that did not comport with
the governing rule set forth in Mills and Boyde (i.e., whether there is a reasonable

44
merits analysis of the Mills claim must begin, of course, with a review of the Supreme

likelihood that the jury applied the challenged instructions in a way that prevented
consideration of mitigating evidence). In Mills itself, the state court interpreted its statute
as constitutional, but the Supreme Court vacated the state court decision because there
was a substantial risk that the jury did not understand that it could consider mitigating
evidence absent unanimous agreement. Mills, 486 U.S. at 371, 384.

The majority finds that the state court “applied Mills, but did not apply Boyde,”
and therefore the state court’s analysis was merely “incomplete” but not necessarily
contrary to Supreme Court precedent. See Maj. Op. at 33. The majority fails to
acknowledge, however, that the Pennsylvania Supreme Court never applied Mills in the
sense that it failed to identify the correct rule from Mills, not to mention its failure to
apply the Boyde standard. Thus, as in Justice O’Connor’s example involving a
misapprehension of the Strickland rule, the state court’s decision arguably fits the mold of
“contrary to” federal law. Cf. Bell v. Cone, 535 U.S. 685, 698 (2002) (“We hold,
therefore, that the state court correctly identified the principles announced in Strickland as
those governing the analysis of respondent’s claim. Consequently, we find no merit in
respondent’s contention that the state court’s adjudication was contrary to our clearly
established law.”). Moreover, Hackett can show not only that the state court failed to
apply the correct Mills rule, but that he is entitled to relief under a correct application of
Mills and Boyde. Thus, although I would agree with the majority that “ [i]f the
Pennsylvania Supreme Court denied Hackett relief under Mills, it logically would have
done the same if applying Boyde,” Maj. Op. at 34, the Pennsylvania Supreme Court’s
failure to apply Mills correctly precludes an inference that it also would have denied relief
under the Boyde standard.

In the final analysis, however, this case may fall in the overlap between the
“contrary to” and “unreasonable application of” standards, given that the state court
assessed and sought to distinguish Hackett’s claim by analogy to Mills, despite its failure
to conduct a proper Mills inquiry. See Moore v. Morton, 255 F.3d 95, 104 (3d Cir. 2001)
(noting that “[i]n Williams v. Taylor, 529 U.S. 362, 404-06 (2000), the Supreme Court
held that ‘contrary to’ and ‘unreasonable application of’ have independent, if overlapping
meanings.”). I see no need to explore this “overlap” here. In Banks, we held that the
Pennsylvania Supreme Court rendered an unreasonable application of federal law on
indistinguishable instructions, and we opted not to analyze the claim under the “contrary
to” test. Banks, 271 F.3d at 545 n.21. Because I believe the same approach can be taken
here, there is little need to engage in a separate contrary to analysis for Hackett’s claim.
Moreover, the majority denies relief to Hackett primarily by finding that the state court’s
decision survives the unreasonable application test. Thus, I too focus upon the
unreasonableness standard.

45
Court’s clearly established holdings in this area. Fortunately, our task in identifying the

controlling law is made easier by the fact that our Court has fully explored the Mills

question in the past. For example, in Frey, we summarized the relevant law as follows:

Under the Supreme Court's current construction of the Eighth

Amendment, the sentencer in a death penalty case must be

permitted to consider all relevant mitigating evidence that the

defendant proffers as counseling less than a sentence of death.

Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio,

438 U.S. 586 (1978). Accordingly, it is well established that

the sentencer cannot be precluded from considering any such

evidence. Skipper v. South Carolina, 476 U.S. 1 (1986);

Eddings, 455 U.S. at 114. The source of this preclusion is

irrelevant; whether its source is statutory (Lockett), the

sentencing court (Eddings), or an evidentiary ruling (Skipper),

the result is the same.

In Mills, the Supreme Court relied on these precedents to

conclude that a death sentence should be vacated if there is a

substantial probability that reasonable jurors, upon receiving

the judge’s instructions and attempting to complete the verdict

46
 form based on those instructions, may have thought that they

could only consider those mitigating factors which they

unanimously found to exist. Put differently, if the jurors were

led to believe that they could not each individually consider

certain mitigating circumstances because there was not

unanimous agreement as to the existence of those

circumstances, then “some jurors were prevented from

considering factors which may call for a less severe penalty,

and petitioner's sentence cannot stand.” Id. at 376 (internal

citations omitted). See also Zettlemoyer v. Fulcomer, 923

F.2d 284, 306-07 (1991) (discussing Mills).

Frey, 132 F.3d at 920-21.

In Boyde v. California, 494 U.S. 370 (1990), as the majority explains, the Supreme

Court clarified that the proper standard for assessing a Mills challenge is “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. Thus, as we

made clear in Frey, “while our inquiry is directed toward whether the [] instruction suffers

from the same type of defect discussed in Mills (i.e. that the instruction could be read to

require a unanimous finding of mitigating circumstances), our standard is that of Boyde,

47
not Mills.” Frey, 132 F.3d at 921.

Frey was a pre-AEDPA case in which we found a Mills violation upon review of

Pennsylvania jury instructions that mirrored, in all pertinent respects, the instructions at

issue here. Cf. Frey, 132 F.3d at 922 (“The Crimes Code provides that the verdict must

be a sentence of death if the jury unanimously finds at least one aggravating circumstance

and no mitigating circumstances, or if the jury unanimously finds one or more

aggravating circumstances which outweigh any mitigating circumstances.”) with Hackett,

212 F. Supp. 2d. at 400-01 (“The Crimes Code provides that a verdict must be the

sentence of death if the jury unanimously finds at least one aggravating circumstance and

no mitigating circumstances, or if the jury unanimously finds one or more aggravating

circumstance [sic] which outweigh any mitigating circumstances that you may

determined.”). The majority understandably makes no attempt to distinguish the language

of the Frey instructions from the instructions to Hackett’s jury.

We observed in Frey that this instruction “emphasize[d] the importance of a

unanimous finding, using the phrase frequently and in close proximity to– within seven

words of– the mitigating circumstances clause.” 132 F.3d at 923 (quoting the pertinent

language as “if the jury unanimously finds at least one aggravating circumstance and no

mitigating circumstance”). We noted that this “clause is, to the ear and to the mind, one

sound bite,” id., and given the use of “unanimously” in close proximity to “mitigating

circumstances,” we held that, when viewed in the context of the entire charge, “it is quite

48
possible that a juror would, regardless of other qualifying language, believe that

mitigating circumstances had to be found unanimously.” Id.

In Banks, a post-AEDPA case, we confronted a “very similar charge” to that

issued in Frey and held that it, too, ran afoul of Mills. Banks, 271 F.3d at 547-49. The

instructions to the jury in Banks provided in relevant part as follows: “The Crime [sic]

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

circumstances, or if the jury unanimously finds one or more aggravating circumstances

which outweigh any mitigating circumstance or circumstances.” Id. at 546-47. The

majority makes no attempt at a distinction between the Banks and Hackett instructions,

and I see no basis for one: in both cases, the instructions, viewed in their entirety, were

likely understood to require unanimity to consider a mitigating factor.18

18
The Commonwealth’s only argument in this regard is that Banks was wrongly
decided on the Mills question, as it contends that Banks “did not apply the correct
evaluative inquiry under Boyde, but rather, consistently and improperly employed
possibility-based, and single-juror based, standards of evaluation that Boyde explicitly
rejected.” Appellant’s Br. at 51. The Commonwealth levels a similar charge against
Frey. Appellant’s Br. at 56-58, 61-62. However, a close review of Banks and Frey
shows that this Court did not misapply the Boyde standard. The Court was careful in Frey
to note the difference between Mills and Boyde, and we held, in accordance with Boyde,
that “it was reasonably likely that the jury could have believed that it was required to find
the existence of mitigating circumstances unanimously. . . .” Frey, 132 F.3d at 924.
Likewise, we held in Banks that, “[c]onsidered as a whole, the jury instructions leave no
doubt ‘there is a reasonable likelihood that the jury has applied the challenged instruction
in a way that prevents consideration of constitutionally relevant evidence.’” Banks, 271
F.3d at 549 (quoting Boyde, 494 U.S. at 380).

49
 We concluded in Banks that the state court’s rejection of the petitioner’s claim

resulted in an unreasonable application of federal law. Banks, 271 F.3d at 545. We

observed that the state court failed (as it did here) to analyze how the jury might have

interpreted its instructions and verdict slip, merely holding that there was no error because

the instructions tracked the language of 42 Pa. Cons. Stat. § 9711(c)(1)(iv). We found

this determination insufficient because Mills, in conjunction with Boyde, requires a

reviewing court to examine the entire charge and ask whether a reasonable jury could

have concluded that unanimity was required to find a mitigating circumstance. Id. at 546.

In fact, we quoted in Banks the District Court’s reasoning in Hackett’s case to explain

that the Pennsylvania Supreme Court in both cases

“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 544-45 (quoting Hackett v. Price, 212 F. Supp. 2d 382, 404 (E.D. Pa. 2001)).

Moreover, when discussing in Banks the reasons why the state court’s decision to

reject the Mills claim amounted to an unreasonable application of federal law, we

50
observed that the Pennsylvania Supreme Court’s analysis there contained the same flaw

as its analysis in Hackett’s case. We explained as follows:

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

51
 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.

Banks, 271 F.3d at 545-46.

II.

It is against this background that we reach our consideration of the instructions and

verdict slip employed in Hackett’s case. As noted, the majority does not, and cannot,

distinguish Frey and Banks on whether the jury likely understood the instructions here to

require unanimity to consider mitigating evidence. Like those earlier cases, the Hackett

court used the word “unanimously” in close proximity to “mitigating circumstances,”

instructing the jury that it must return a death sentence “if you unanimously find at least

one aggravating circumstance and no mitigating circumstance.” As we explained in Frey,

it is likely “a juror would, regardless of other qualifying language, believe that mitigating

circumstances had to be found unanimously.” Frey, 132 F.3d at 923. The Hackett trial

court also repeated the instruction near the end of its charge, thus twice reinforcing the

notion that the jury needed unanimity. See Maj. Op. at 28-29. Moreover, as in Banks and

Frey, nowhere did the court explain or even hint that unanimity was unnecessary to find a

mitigating factor. I note that this flaw in the jury instructions is seemingly remedied by

52
 Pennsylvania’s current model instructions, quoted in the margin.19

The language of the verdict slip is also ambiguous, at best, as to the need for

unanimity. The preface to the jury’s finding provides, “We, the jury, have found

unanimously. . .,” following which the jury placed a check to reflect “at least one

aggravating circumstance and no mitigating circumstance.” In Banks, the corresponding

language was identical, see Banks, 271 F.3d at 549, and we held this language “at least

confusing, and more likely suggestive, regarding the need for unanimity as to mitigating

circumstances.” Id. at 550. Moreover, the verdict slip here, as in Banks, had “no

additional language that would imply that there is a different standard for aggravating

circumstances than there is for mitigating circumstances.” Id. “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.” Id.

Under Boyde, the issue before us is whether it is reasonably likely Hackett’s jury

interpreted its instructions and verdict slip to mean that it could find a mitigating

circumstance only if all twelve jurors agreed upon its existence. This Court has twice

resolved that issue in favor of the habeas petitioner with our holdings in Banks and Frey,

19
1
When voting on the general findings, you are to regard a
particular aggravating circumstance as present only if you all
agree that it is present. On the other hand, each of you is free
to regard a particular mitigating circumstance as present
despite what other jurors may believe.

P A. S UGGESTED S TANDARD C RIMINAL J URY INSTRUCTIONS No. 15.2502H(2) (2000).

53
and there is no basis for a different outcome here. Moreover, our analysis in Banks calls

for relief under AEDPA, as we fully explained why the state court’s flawed application

of Mills is unreasonable under clearly established federal law. See 271 F.3d at 543-551.

The majority, nevertheless, holds that there can be no Mills error because

Hackett’s jury “unanimously” found “no mitigating circumstance,” a finding that the

majority believes can mean one, and only one, thing– that each juror considered the

mitigating evidence and agreed with all other jurors that no mitigating circumstance was

proven, resulting in no Mills error. The record reflects, however, the trial court’s lone

pertinent instruction on the finding of mitigating evidence was its directive to return a

death sentence “if you unanimously find at least one aggravating circumstance and no

mitigating circumstance.” What did it mean to Hackett’s jury to “unanimously” find “no

mitigating circumstance”? The majority merely offers its view as to what the instruction

“plainly” must have meant, but its analysis fails to comply with the Supreme Court’s

directive in Boyde that “a single instruction to a jury may not be judged in isolation, but

must be viewed in the context of the overall charge.” Boyde, 494 U.S. at 378; see also

Banks, 271 F.3d at 546 (explaining that “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.”). We must look, therefore, to the full context here rather than offer a

facile interpretation of a single instruction viewed in isolation.

As noted, the court’s charge on mitigating evidence was at best ambiguous.

54
Indeed, we expressly found in Banks that, based on these instructions, “[t]here is no way

that a juror would understand that a mitigating circumstance could be considered by less

than all jurors.” Banks, 271 F.3d at 548 (emphasis added). The Hackett trial court also

did not explain that a juror was free to find a mitigating circumstance despite the views of

other jurors, and it issued no instruction suggesting that a finding of “no mitigating

circumstance” should reflect that each juror had considered and rejected all mitigating

evidence individually rather than reflecting that there was no mitigating circumstance of

common agreement. The language of the verdict slip was likewise ambiguous, if not

suggestive, as to a need for unanimity on mitigating circumstances. The verdict slip also

contained no language that would imply that mitigating circumstances were subject to a

different standard or that mitigation might be found by only one juror.

Hackett’s jury, then, was left to decide whether to check the box reflecting a

finding of “at least one aggravating circumstance and no mitigating circumstance” based

solely on its understanding that it could find a mitigating circumstance only with the

unanimous agreement of all jurors. In this light, it seems far more likely, if not outright

certain, that the jury believed itself required to return a death verdict if it unanimously

found an aggravating circumstance and unanimously found “no mitigating circumstance”

upon which all jurors could agree. As Judge Padova observed:

With respect to the specific question of whether the clause

requires the unanimous rejection of all mitigating factors, it is

55
simply not clear, in the context in which it was given, whether

the instruction means that a death sentence is warranted if the

jury unanimously finds at least one aggravating circumstance

and unanimously finds that no mitigating circumstances exist

(as the [majority] contends), or if the phrase means a death

sentence is warranted if the jury unanimously finds at least

one aggravating circumstance and finds no unanimously

agreed upon mitigating circumstances.

The jury’s interpretation of the unanimity requirement as to

the rejection of mitigating circumstances would depend on

how the jury understood and employed the concept of

unanimity. If the jury believed that all jurors would have to

agree as to the existence of the same particular mitigating

circumstance, then the jury could reach a death verdict even if

individual jurors believed mitigating factors existed, so long

as all the jurors did not agree as to the existence of a

particular mitigating circumstance. Such a jury would meet

the requirement of the “no mitigating circumstance” prong on

the basis that all the jurors agreed, unanimously, that there

56
 was no mitigating circumstance that was commonly agreed

upon by all twelve jurors.

...

The ambiguity of the language of the sentencing statute, the

additional jury instructions, and the verdict form all contribute

to the conclusion that it was reasonably likely the jury

believed it must find mitigating circumstances unanimously

before considering them, and that it could reach a verdict of

death under the “no mitigating circumstance” prong even if

one or more jurors believed that a mitigating circumstance

existed without performing the weighing inquiry.

Hackett, 212 F. Supp. 2d at 411-412.

The District Court was correct that we must infer from the record that this jury

acted in accordance with a belief that unanimity was required to find a mitigating factor,

and that its finding of “no mitigating circumstance” reflects that erroneous belief. The

majority’s alternative view is untenable, as it merely assumes, with no record support, that

the jury applied its instructions so as not to violate Mills. I find this assumption a

troubling basis upon which to affirm a sentence of death.

57
 In addition to ignoring the context of this case, the majority, as noted above,

observes only in passing, that the jury in Mills likewise found no mitigating circumstance

to exist and imposed a death sentence without reaching the weighing stage. Mills, 486

U.S. at 370. The petitioner in Mills argued that the court’s instructions and verdict slip

served “to require the imposition of a death sentence if the jury unanimously found an

aggravating circumstance, but could not agree unanimously as to the existence of any

particular mitigating circumstance.” Id. at 371. The petitioner thus claimed that “even if

some or all of the jurors were to believe that some mitigating circumstance or

circumstances were present, unless they could unanimously agree on the existence of the

same mitigating factor, the sentence necessarily would be death.” Id. The Maryland

Court of Appeals rejected this claim, concluding, inter alia, that because the instructions

and verdict slip expressly required unanimity in the acceptance or rejection of a

mitigating circumstance, the jury’s finding likely reflected (as the majority concludes

here) a unanimous determination that a mitigating circumstance did not exist, not a failure

to find unanimously the existence of a mitigating circumstance. Id. at 372.

The Supreme Court rejected the Maryland court’s conclusion as to what the jury

likely understood its task to be. The Court distilled the question before it as follows:

If the jury understood the verdict form as the Court of

Appeals asserted it should have, then every time it marked

"no" beside a mitigating circumstance it indicated its

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 unanimous conclusion that petitioner had not proved the

relevant facts by a preponderance of the evidence, and thus

the court properly upheld the judgment. On the other hand, if

the jury understood that it should mark "no" when it failed to

agree unanimously that a mitigating circumstance existed,

then some jurors were prevented from considering "factors

which may call for a less severe penalty," Lockett v. Ohio,

438 U.S. at 605, and petitioner’s sentence cannot stand.

Mills, 486 U.S. at 376 (footnote omitted). The Court conceded that the Maryland Court

of Appeals’ interpretation of the record was “plausible,” but it found, after reviewing the

instructions as a whole and the language of the verdict slip, that it could not reject the

petitioner’s interpretation “with any degree of certainty.” Id. at 377. The Court thus

vacated the sentence because the jurors “well may have thought they were precluded from

considering mitigating evidence unless all 12 jurors agreed in the existence of a particular

such circumstance.” Id. at 384.

While the language of the instructions in Mills took a different form than those at

issue here, see 486 U.S. at 378-80, the practical effect of the jury’s finding of no

mitigation in each case is the same. As in Mills, the instructions here likely prevented the

jury from considering mitigating evidence absent unanimity, and in both cases the juries

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found no mitigating factor to exist. Unlike my colleagues, however, the Supreme Court

refused to infer from the finding of no mitigation that the jury must have reached a

unanimous conclusion that the petitioner failed to prove the relevant facts by a

preponderance of the evidence. Such an inference could not be drawn in Mills after a

consideration of the context of the jury instructions and verdict slip, and the same is true

here. Of course, we cannot verify whether Hackett’s jury in fact believed itself precluded

from considering mitigating evidence absent unanimity, but we can safely conclude that

there is a reasonable likelihood the jury interpreted its task in that manner, and that this

death sentence, therefore, cannot stand under Mills.

The majority’s attempt to find support for its conclusion in the different sentencing

verdicts reached for Hackett’s co-defendants rings hollow. The jury acted upon the same

instructions in its consideration of the sentencing evidence as to all four defendants. The

jury sentenced one defendant (Spence) to death after finding that aggravation outweighed

mitigation, but given its instructions and verdict slip, the jury likely reached a unanimous

finding as to a mitigating circumstance (in violation of Mills) and thereby reached the

weighing stage. This does nothing to diminish the showing of a Mills error as to Hackett.

The same can be said for the two co-defendants (Gray and Barrett) who received life

sentences– given its instructions, the jury likely was either unanimous in its agreement

that the Commonwealth failed to prove an aggravating circumstance, or unanimous as to

particular mitigating circumstances and found that those mitigating circumstances

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outweighed the aggravating circumstances, thereby resulting in life sentences. The

different sentences thus do nothing to bolster the majority’s speculation that there was no

Mills error.

It should be added that Hackett’s jury was not without substantial mitigating

evidence to consider. The Pennsylvania death penalty statute specifies eight categories of

mitigating evidence, and Hackett argued mitigation under five of those categories: “[t]he

defendant has no significant history of prior criminal convictions”; “[t]he defendant was

under the influence of extreme mental or emotional disturbance”; “[t]he capacity of the

defendant to appreciate the criminality of his conduct or to conform his conduct to the

requirements of law was substantially impaired”; “[t]he age of the defendant at the time

of the crime”; and “[a]ny other evidence of mitigation concerning the character and

record of the defendant and the circumstances of his offense.” 42 Pa. Cons. Stat. §

9711(e)(1)-(4) and (8).

Hackett was twenty years old at the time of the offense. He had one prior

conviction in Montgomery County at age nineteen for conspiracy and four counts of

burglary, for which he was sentenced to concurrent terms of ten and one-half to twenty-

three months imprisonment. His mother, Bonnie Hackett, testified that her son twice

failed the first grade and suffered from severe learning problems that resulted in his

attending a special school throughout childhood for the learning and emotionally

disabled. She further testified, and documentary evidence reflected, that Hackett was

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diagnosed with perception problems and as functioning at a “low average” or “dull

normal” range of intelligence based on separate full-scale IQ scores of 80 and 85. She

testified that her son began to abuse alcohol around age eighteen. Ann M arie Clay, a

long-time neighbor and family friend, also testified to Hackett’s childhood difficulties.

Doctor Albert Levitt, a psychologist, testified as to the results of various tests he

performed on Hackett before trial. He explained the results as showing “very regressed,

immature perception of reality situations, which is a sign of immaturity and possibly

illness.” App. at 48. Hackett also displayed a low-level of maturity, signs of depression,

suicidal problems, an immature view of social relationships, anxiety, and “psychosexual

difficulties.” Id. at 51-52. Doctor Levitt concluded that Hackett “was limited in terms of

coping mechanisms, limited in terms of the way he functions, limited in understanding

social relationships. There was a significant degree of psychopathology when I saw him,

with a lot of morbid and negative thought processes.” Id. at 54.

Doctor Levitt also described the results of the standardized Minnesota

Multiphasing Inventory, a computer-graded true/false test. He explained the results as

indicating, among other things: “[l]imited interpersonal resources”; “[h]igh clinical

depression, which means that his depression has reached pathological limits”;

“[p]rojective of blame and hostility”; “[p]aranoid features”; “[l]ook[s] for delusions of

persecution and maltreatment”; “[m]ay have a thought disorder[, which] would be

schizophrenia”; and”[h]yperactive and agitated.” Id. at 55-56. Doctor Levitt found these

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results consistent with his own finding that “the clinical impression was schizoaffective

disorder and major depression.” Id. at 56. He opined that Hackett “is an emotionally

disturbed individual, especially when he has to interact in social situations,” and that if

“he has to interact socially, he tends to get anxious, confused and develops all kinds of

distorted ideations.” Id. at 57. Doctor Levitt added that “[a]lcohol would have a

significant effect” on Hackett because “[h]is perceptions of reality are not good in the

first place, and alcohol would cause all these things to become more distorted.” Id. at 59.

The likelihood that Hackett’s jury misunderstood its task, resulting as it did in the

inability of individual jurors to consider the evidence in mitigation and possibly impose a

lesser sentence, poses precisely the type of Eighth Amendment problem that the Mills rule

seeks to eliminate. I again refer to Judge Padova’s thoughtful analysis:

Consider, for example, the following scenario. All twelve

jurors agree that a particular aggravating factor exists. Two

of the jurors conclude that age is a mitigating factor in the

case; however, the other ten jurors do not agree. None of the

jurors believe that any other mitigating factors exist, and so

the jury is not unanimous as to the existence of the individual

mitigating factor. Believing that unanimity is required in

order to find that a mitigating factor exists, the jurors “find”

one aggravating factor, and fail to find any commonly agreed

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upon mitigating factors. Rather than moving on to the

weighing prong and determining if the aggravating

circumstance outweighs the mitigating factor, the jury uses its

findings and renders a verdict of death on the basis that the

jury unanimously agreed to the existence of “at least one

aggravating circumstance” and that the jury unanimously

agreed that there was “no mitigating circumstance” that was

commonly agreed upon by all twelve jurors. Notwithstanding

the fact that two of the jurors believed that a mitigating factor

existed, because of the jury’s erroneous interpretation of the

instructions with respect to the requirement of unanimity, the

result would be a sentence of death.

This scenario even creates the possibility of a death verdict

under the “no mitigating circumstance” prong where all

twelve jurors believe a mitigating factor to exist, but there is

no agreement as to the particular factor. For example, two

jurors could believe age is a mitigating factor and the other

ten jurors could believe the defendant’s lack of significant

criminal history is a mitigating factor. All twelve jurors thus

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 believe that a mitigating factor exists, but because they do not

all agree as to the same particular mitigating factor, they

conclude that there are no commonly agreed upon mitigating

factors. Based on their findings, the jurors thus conclude,

unanimously, that there are no mitigating factors that were

unanimously agreed upon by all the jurors. The jury therefore

delivers a verdict of death without ever weighing the

aggravating circumstance against the mitigating factors.

Hackett, 212 F. Supp. 2d at 411-12.

Finally, the majority correctly notes that Pennsylvania adopted changes to its

verdict slip subsequent to Hackett’s trial, see Maj. Op. at 37 n.14, but the majority

seems to believe that these changes pertain to “weighing cases” only and that “no

similar change was made to strengthen the directive that a jury’s finding of no

mitigating circumstance must be unanimous.” Id. The changes to Pennsylvania’s

model jury instructions suggest otherwise.

The present model instructions, adopted after Hackett’s trial, provide in

pertinent part as follows with regard to how a Pennsylvania jury should reach its

capital sentencing findings and record them on the verdict slip:

You have been given a sentencing verdict slip on which to

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record your verdict and findings. I shall now give you further

directions on how to go about reaching a verdict, making

findings, and using the verdict slip.

...

As I told you earlier, and as the verdict slip indicates, you

must agree unanimously on one of two general findings

before you can sentence the defendant to death. They are a

finding that there is at least one aggravating circumstance and

no mitigating circumstances or a finding that there are one or

more aggravating circumstances which outweigh any

mitigating circumstances. (In deciding whether aggravating

circumstances outweigh mitigating circumstances, do not

simply count their number. Compare the seriousness and

importance of the aggravating with the mitigating

circumstances.) If you all agree on either one of the two

general findings then you can and must sentence the

defendant to death.

When voting on the general findings, you are to regard a

particular aggravating circumstance as present only if you all

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 agree that it is present. On the other hand, each of you is free

to regard a particular mitigating circumstance as present

despite what other jurors may believe. (This different

treatment of aggravating and mitigating circumstances is one

of the law’s safeguards against unjust death sentences. It

gives a defendant the full benefit of any mitigating

circumstances. . . .)

P A. S UGGESTED S TANDARD C RIMINAL J URY INSTRUCTIONS Nos. 15.2502F(7) &

15.2502H(1)-(2) (2000). The Committee Note to instruction 15.2502H explains that

the final portion of the above-quoted language is intended to “tell the jurors that they

are to make collective decisions about the aggravating circumstances but that they

ultimately are to make individual decisions about mitigating circumstances.”

This addition to the model instructions– coupled with the decision no longer to

use the word “unanimously” in close proximity to “mitigating circumstances”– plainly

seeks to eliminate the previous ambiguity as to whether all jurors had to agree on a

mitigating factor. The new model instructions state that “each of you is free to regard

a particular mitigating circumstance as present despite what other jurors may

believe”– language that should reduce the risk, present even in a “non-weighing case”

like Hackett’s, that the jury would interpret its mandate as requiring a death sentence

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only if it unanimously agreed that there was no mitigating circumstance of common

agreement. The new instructions would leave a unanimous finding of “no mitigating

circumstance” more likely to reflect that each juror actually considered and rejected all

mitigating evidence. Notably, in Commonwealth v. Coss, 726 A.2d 333 (Pa. 1999),

two concurring Justices of the Pennsylvania Supreme Court opined that the jury

instruction in Frey, which mirrors the Banks and Hackett instruction, “contains a

degree of imprecision that can be avoided merely by employing Pennsylvania

Suggested Standard Criminal Jury Instruction 15.2502H(3) [currently 15.2502H(2)],

which removes any doubt concerning a juror’s role in assessing mitigating

circumstances.” Id. at 338-39. These Justices noted that they “would affirmatively

require Pennsylvania trial courts to instruct capital sentencing juries in accordance

with the standard instruction.”

Pennsylvania’s well-intended effort to clarify its sentencing procedure does not

in itself indicate that its former instructions and verdict slip were constitutionally

infirm. Nevertheless, the above-noted revisions, as well as the views expressed by the

concurring Pennsylvania Justices in Coss, lend support to the conclusion that an

instruction on unanimity that merely tracks the language of 42 Pa. Cons. Stat. §

9711(c)(1)(iv) is imprecise and subject to an impermissible risk of jury

misinterpretation on whether unanimity is required to consider mitigating evidence.

Moreover, these revisions further support the view that there was insufficient clarity in

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the instructions and verdict slip at Hackett’s trial to permit this Court to uphold his

sentence of death on the sole ground that the jury found “no mitigating circumstance.”

At the very least, my colleagues in the majority should find themselves in agreement

with the following observation from Mills:

The decision to exercise the power of the State to execute a

defendant is unlike any other decision citizens and public

officials are called upon to make. Evolving standards of

societal decency have imposed a correspondingly high

requirement of reliability on the determination that death is

the appropriate penalty in a particular case. The possibility

that [Hackett]’s jury conducted its task improperly certainly is

great enough to require resentencing.

Mills, 486 U.S. at 383-84.

III.

For these reasons, I conclude that Hackett has established a Mills error, and

that the state court’s rejection of this claim resulted in an unreasonable application of

clearly established federal law. I therefore would affirm the District Court’s order

vacating Hackett’s sentence and allow Pennsylvania to resentence him to life

imprisonment or conduct a new capital sentencing proceeding.

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