Fountain v. Kyler

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

8-25-2005

Fountain v. Kyler
Precedential or Non-Precedential: Precedential

Docket No. 03-4777

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 03-4777

CHARLES VINCENT FOUNTAIN,
Appellant

v.

KENNETH D. KYLER;
ATTORNEY GENERAL FOR
THE COMMONWEALTH OF PENNSYLVANIA

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 02-cv-00897)
District Judge: Honorable James M. Munley

Argued July 11, 2005

Before: SLOVITER and McKEE, Circuit Judges,
and FULLAM,* District Judge

(Filed: August 25, 2005)

R. Damien Schorr, Esq.(Argued)
1015 Irwin Drive
Pittsburgh, PA 15236

Attorney for Appellant

* Hon. John P. Fullam, Senior Judge, United States District
Court for the Eastern District of Pennsylvania, sitting by
designation.
James P. Barker, Esq. (Argued)
Office of District Attorney
Front & Market Streets
Dauphin County Courthouse
Harrisburg, PA 17101

Attorney for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this case, we are asked to extend the jurisprudence
regarding ineffective assistance of counsel to counsel’s failure to
predict the Pennsylvania Supreme Court’s later ruling regarding
the non-retroactivity of an amended death penalty statute. We
decline to extend the law that far.

Charles Vincent Fountain, who is currently serving a life
sentence for a 1976 homicide, appeals from the denial by the
United States District Court for the Middle District of
Pennsylvania of his application for a writ of habeas corpus.
After the District Court’s denial, we issued a certificate of
appealability (“COA”) on the sole issue of whether his “remand
counsel was ineffective for advising him not to appeal. . . .”
App. at 5. The resolution of this question turns on whether
Fountain’s remand counsel provided ineffective assistance for
advising him not to take an appeal following his remand
proceedings due to her belief – that later proved to be erroneous
– that the Pennsylvania courts would give retroactive effect to a
death penalty statute enacted after Fountain’s alleged crime.1

I.

In order to resolve this matter, we must set forth in some

1
The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331, 2254; this court has jurisdiction pursuant to 28 U.S.C. §§
1291, 2253, 2254.

2
detail the procedural posture of Fountain’s case, as well as the
various developments in Pennsylvania capital punishment law
that occurred in the late 1970’s.

In late September 1976, a jury sitting in the Court of
Common Pleas for Dauphin County found Fountain guilty on
one count of murder in the first degree and on two counts of
robbery for the 1976 robbery and murder of Joseph Geller. See
generally Commonwealth v. Fountain, 402 A.2d 1014 (Pa.
1979). At sentencing, the jury recommended a punishment of
death for the murder conviction. In returning its recommended
sentence, the jury utilized the then-applicable death-penalty
provisions of Pennsylvania’s Sentencing Code. Id. at 1015.

After this bifurcated trial, Fountain’s trial counsel
requested leave to withdraw. The court granted this request and
thereupon appointed Marilyn Zilli, who was then serving as
Assistant Public Defender for Dauphin County, to represent
Fountain. 402 A.2d at 1015. Zilli represented Fountain in the
post-verdict proceedings before the Court of Common Pleas, on
Fountain’s direct appeal to the Supreme Court of Pennsylvania,
and on the subsequent remand to the Court of Common Pleas.

The trial court followed the jury’s recommendation and
imposed the death penalty on Fountain for the murder
conviction; it further imposed two sentences of ten to twenty
years for the robbery convictions. 402 A.2d at 1015. Fountain
thereafter filed a direct appeal to the Pennsylvania Supreme
Court in which he argued, inter alia, that Pennsylvania’s death
penalty scheme was unconstitutional and that his trial counsel
had provided ineffective assistance at both stages of the
bifurcated trial. Id. at 1015-16.

Meanwhile, in November 1977, while Fountain’s case
was pending on direct appeal, the Supreme Court of
Pennsylvania held in Commonwealth v. Moody, 382 A.2d 442
(Pa. 1977), that the provisions of the Pennsylvania Sentencing
Code pertaining to the imposition of the death penalty were
unconstitutional. Specifically, the Moody Court found that the
Sentencing Code did not allow a jury to consider sufficiently the
particular circumstances of the crime or the character and record

3
of the individual offender. 382 A.2d at 444-49. Of course, the
provisions held unconstitutional in Moody were the very
provisions that the jury and judge had utilized in determining
and imposing Fountain’s punishment. On September 13, 1978,
in direct response to the Moody decision, the Pennsylvania
General Assembly passed a new death penalty sentencing statute
to remedy the previous law’s constitutional shortcomings.

On July 5, 1979, the Supreme Court of Pennsylvania,
relying on its holding in Moody, ruled on Fountain’s direct
appeal and vacated his death sentence. Fountain, 402 A.2d at
1015 (“Moody . . . requires the vacation of the death penalty
imposed in this case and a remand for resentencing.”). With
respect, however, to Fountain’s claims of ineffective assistance
of trial counsel, the Court determined that there was “an
insufficient record” to resolve those issues and thus remanded
the case “to the trial court to conduct an evidentiary hearing on
all preserved claims of ineffective assistance of trial counsel.”
Fountain, 402 A.2d at 1015-16.

Pursuant to this directive, the Court of Common Pleas
conducted an evidentiary hearing regarding Fountain’s
ineffectiveness claims. On December 20, 1979, the court issued
an opinion holding that Fountain’s trial counsel had provided
constitutionally-effective representation. The following day the
court sentenced Fountain to a term of life imprisonment for the
murder conviction and a consecutive sentence of ten to twenty
years for the robbery convictions.

Following the trial court’s rejection of Fountain’s claims
of ineffective assistance of trial counsel, Attorney Zilli wrote her
client a letter in January 1980, the attorney-client communication
upon which Fountain grounds his case. In this letter, Zilli
advised Fountain not to appeal from the court’s decisions on
remand because, in her professional opinion, the risks involved
were too great. In pertinent part, the letter, dated January 7,
1980, read as follows:

As I indicated to you when you were here for
resentencing, we must now make a decision
whether to appeal [the Court of Common Pleas’]

4
 finding that counsel rendered effective assistance
in your case.

I have done more research in the area and must tell
you I do not feel an appeal should be taken. My
reasons are as follows. First, I do not believe that
we would get a favorable decision from the
Supreme Court. The Court will most likely not
overturn [the Court of Common Pleas’] decision....
Secondly, even if the Supreme Court were to
[reverse] . . . the result would not really be
favorable. Such a decision would mean that you
would be granted a new trial. I must be honest and
say that if you are tried again, I have absolutely no
doubt that you will be found guilty again. At that
point, we would have real problems. As I’ve
explained to you, the law now appears to provide
that you could be subject to the death penalty
again. I’ll admit the law is not clear but the “if” is
not really on your side. I believe it’s simply too
risky.

Please consider all this and call me with your
decision.

Supp. App. at 1.

On January 16, 1980, Fountain wrote Zilli a response
letter in which he wrote that there was “no need in giving [the
Commonwealth] another shot at me as far as the death sentence
goes. . . .” Supp. App. at 3. He thus told Zilli that she could
“drop the [a]ppeal, only under the [u]nderstanding[] that we
know that I would be [s]ubject to the [d]eath [s]entence, should I
be granted a new trial. . . .” Id. As later found by the Superior
Court of Pennsylvania, Fountain abided by counsel’s advice and
thus “ask[ed] Zilli not to pursue appellate proceedings so that he
would not be subject to the death penalty again.” App. at 46.

Shortly after Zilli and Fountain exchanged these
communications, and after the time for Fountain to file an appeal
had passed, the Supreme Court of Pennsylvania decided

5
Commonwealth v. Story, 440 A.2d 488 (Pa. 1981) (“Story II”),
which held that the revised death penalty statute could not be
applied retroactively, a holding contrary to Zilli’s implicit
prediction. In that case, a jury had convicted Stanton Story for a
1974 murder; Story received a death sentence for this crime.
Story II, 440 A.2d at 489. On direct appeal, the Supreme Court
of Pennsylvania held that the murder conviction had been
improperly obtained, and thus granted him a new trial.
Commonwealth v. Story, 383 A.2d 155 (Pa. 1981) (“Story I”).
In the interim between the 1974 murder and the decision in Story
I, the Pennsylvania Supreme Court had decided Moody and, in
turn, the General Assembly had promulgated the 1978 revamped
death penalty provisions.

At Story’s retrial, a jury again found him guilty of murder
and the Commonwealth, relying on the post-Moody 1978 death
penalty provisions, sought and obtained another death sentence.
Story II, 440 A.2d at 489. On appeal, however, the Supreme
Court of Pennsylvania held that the 1978 provisions did not have
retroactive force and thus were only applicable to murders
committed on or after the statute’s date of enactment, September
13, 1978. Id. at 490. Because the death penalty provisions in
effect at the time of Story’s crime had been found
unconstitutional, see Moody, 382 A.2d at 444, the Court vacated
Story’s sentence of death and imposed a sentence of life
imprisonment. 440 A.2d at 492.2

In December 1996, some fifteen years after he was
resentenced, Fountain filed a petition for collateral relief
pursuant to the Pennsylvania Post-Conviction Relief Act
(“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541 et seq., in the Court
of Common Pleas for Dauphin County. This petition raised
many claims, including Fountain’s claim that, by advising him
not to pursue a direct appeal following the remand proceedings,
Zilli had failed to provide effective assistance in dereliction of

2
Justice Larsen, joined by Justices Flaherty and Kauffman,
dissented from the majority’s decision in Story II. Relying on, inter
alia, Dobbert v. Florida, 432 U.S. 282 (1977), those Justices
concluded that the 1978 legislation should be given retroactive
effect. Story II, 440 A.2d at 493-509 (Larsen, J., dissenting).

6
his rights under the Sixth Amendment to the United States
Constitution. On June 5, 1998, the court denied Fountain’s
petition in all respects.

In an opinion and order dated August 24, 1999, the
Superior Court of Pennsylvania affirmed the denial of Fountain’s
PCRA petition and, in so doing, rejected, inter alia, Fountain’s
claim that Zilli’s performance on remand fell below a
constitutionally acceptable level. The Supreme Court of
Pennsylvania denied allocatur on January 20, 2000.

In March 2000, Fountain filed a second PCRA petition in
state court. On April 9, 2001, the court ruled that the petition
was untimely and thus denied relief; although Fountain appealed
this decision to the Superior Court of Pennsylvania, that court
also denied relief. Fountain did not seek allocatur with the
Supreme Court of Pennsylvania.

In May 2002, Fountain filed a 28 U.S.C. § 2254
application for a writ of habeas corpus in the United States
District Court for the Middle District of Pennsylvania raising
multiple issues.3 The District Court did not hold a hearing and

3
Notably, Fountain did not file his federal habeas
application within the applicable limitations period. Specifically,
because his conviction became “final” prior to the effective date of
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Fountain needed to file his application within a year
of that statute’s enactment, less the time any properly filed
collateral petition was pending in state court. Merritt v. Blaine,
326 F.3d 157, 161 (3d Cir. 2003). Although Fountain’s first PCRA
petition tolled the filing period, his second did not; rather, because
the Superior Court found the second petition untimely, it was not
“properly filed” and thus did not serve to toll the running of the
statute of limitations. See Pace v. DiGuglielmo, U.S. , 125
S. Ct. 1807, 1814 (2005) (“Because the state court rejected
petitioner’s PCRA petition as untimely, it was not ‘properly filed,’
and he is not entitled to statutory tolling under [28 U.S.C.] §
2244(d)(2).”). That being said, the Commonwealth did not raise
the statute of limitations issue in the District Court; likewise, the
District Court did not itself sua sponte raise the issue either. Cf.

7
rejected all of Fountain’s claims (App. 6, 28).
In its Memorandum and Order dated November 18, 2003,
the District Court found that Fountain had procedurally defaulted
the vast majority of his claims; it did, however, address on the
merits whether Zilli “was ineffective for failing to properly
advise [Fountain] of the consequences of his right to appeal. . . .”
App. at 21. Applying the standards contained in the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the District Court held that the Superior Court’s
resolution of that issue had not “‘resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law. . . .’” App. at 24 (quoting 28 U.S.C. §
2254(d)(1)). The District Court further stated that “[t]here exists
no basis for the issuance of a [COA].” App. at 25.
Nonetheless, this court granted Fountain’s request for a
COA. Specifically, we granted Fountain’s request for a COA
“with regard to the appellant’s claim that remand counsel was
ineffective for advising him not to appeal and failing to file a
notice of appeal following resentencing.” App. at 5. That is the
sole issue before this court.

II.

Due to the fact that the District Court did not conduct an
evidentiary hearing on Fountain’s § 2254 application, this
court’s review is plenary. Slutzker v. Johnson, 393 F.3d 373,
378 (3d Cir. 2004); Everett v. Beard, 290 F.3d 500, 507 (3d Cir.
2002). Our de novo review of the District Court’s decision is
governed by the provisions of AEDPA which provide the federal
courts with specific standards for review of state court

United States v. Bendolph, 409 F.3d 155, 166 (3d Cir. 2005) (en
banc). Moreover, in addition to its failure raise the issue below, the
Commonwealth’s appellate brief also failed to address the
limitations issue. Under these circumstances, we will deem the
statute of limitations defense waived. See generally Robinson v.
Johnson, 313 F.3d 128, 134 (3d Cir. 2002) (holding that “the
AEDPA limitations period is subject to . . . waiver”); Laborers’
Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994) (“An issue is waived unless a party raises it in its opening
brief. . . .”).

8
adjudications. Under AEDPA, federal habeas relief on any
claim decided in a state court is precluded unless the state
court’s adjudication “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) (emphasis added).

A state-court decision is “contrary to” clearly established
federal law if (1) the state court applied a rule that contradicts
the governing law as set forth in the Supreme Court’s cases, or
(2) the state court confronted a set of facts that are materially
indistinguishable from a Supreme Court decision and
nevertheless arrived at a result different from the Court’s
precedent. Williams v. Taylor, 529 U.S. 362, 405-06 (2000)
(O’Connor, J.); Lewis v. Johnson, 359 F.3d 646, 657-58 (3d Cir.
2004); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888
(3d Cir. 1999) (en banc). In turn, satisfaction of the
“unreasonable application” prong of 28 U.S.C. § 2254(d)(1)
requires a habeas petitioner to show that the state court’s
application of Supreme Court precedent was “objectively
unreasonable.” Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d
Cir. 2003). Thus, a federal court’s mere disagreement with the
state court’s application of Supreme Court precedent is not
sufficient; rather, a state court adjudication fails the
“unreasonable application” test only if the state court identified
the correct governing legal rule but unreasonably applied it to
the particular case or if the state court either unreasonably
extended a legal principle from Supreme Court precedent to a
new context in which it should not apply or where it
unreasonably refused to extend such a principle to a new context
in which it should apply. Gattis v. Snyder, 278 F.3d 222, 234
(3d Cir. 2002).

We digress from consideration of the substantive merits
of Fountain’s petition to address the Commonwealth’s
contention that Fountain has waived review of the issue denoted
in the COA because he failed to raise a claim of ineffective
assistance pertaining to Zilli’s advice in the District Court. See
generally Bailey v. United Airlines, 279 F.3d 194, 203-04 (3d
Cir. 2002) (“Because Bailey has not pointed to anything in the
record to demonstrate that he raised this issue with the District

9
Court . . . we will not consider this issue.”).

The Commonwealth is correct that Fountain’s original
May 2002 pro se application for a writ of habeas corpus did not
explicitly seek relief from the District Court with respect to the
advice that Zilli provided following the remand proceedings.
But see United States v. Garth, 188 F.3d 99, 108 (3d Cir. 1999)
(“When properly viewed through the more forgiving lens used to
construe pro se habeas petitions, we conclude that the claim . . .
was properly before the District Court.”). Nonetheless, after
filing his original application with the District Court, Fountain
filed a motion for leave to amend. The Commonwealth did not
oppose this motion and, on August 28, 2002, the District Court
granted it.

As a result, on September 17, 2002, Fountain filed an
amendment to his habeas corpus application in which he
specifically raised the issue of Zilli’s purported ineffectiveness.
Fountain further asked the District Court to incorporate by
reference into his § 2254 application all of his previous PCRA
filings addressing Zilli’s advice and actions. The District Court
granted this request. In sum, Fountain properly presented the
issue of Zilli’s ineffectiveness to the District Court. As a result,
we reject the Commonwealth’s waiver argument and hold the
issue is properly before us.

We turn now to the merits. In conducting our analysis,
we must apply the AEDPA standards to the August 1999 opinion
of the Pennsylvania Superior Court – the highest substantive
state court decision addressing the issue. In rejecting Fountain’s
ineffective assistance of counsel claim, the Superior Court first
applied its decisions in, inter alia, Commonwealth v. Bronaugh,
670 A.2d 147 (Pa. Super. Ct. 1995), and Commonwealth v.
Fanase, 667 A.2d 1166 (Pa. Super. Ct. 1995), and determined
that, “by asking Zilli not to pursue appellate proceedings,”
Fountain had “waived” his right to seek appellate review. Due to
this waiver, the court concluded that his claim of ineffective
assistance was untenable. App. at 45-46.4

4
For the reasons explained by this court in Lewis v.
Johnson, 359 F.3d 646 (3d Cir. 2004), the Superior Court’s

10
 The court further noted, however, even apart from Fanase
and the waiver rule, “the substance of [Fountain’s] claim of
ineffective assistance of counsel is without merit.” App. at 46.
The court stated:

The law concerning retroactivity of death
penalty statutes was uncertain at the time Zilli’s
advice was rendered and followed. Pennsylvania
law seemed to suggest a favorable outcome for
[Fountain], while a U.S. Supreme Court case
[Dobbert v. Florida, 432 U.S. 282 (1977),]
suggested that the newly enacted death penalty
might have applied. Zilli advised [Fountain] of his
options, and gave her professional opinion not to
pursue an appeal.

[Fountain] argues the counsel’s advice was
not reasonable. . . . A review of the record
supports the finding by the PCRA court that Zilli

application of the waiver rule was indeed “contrary to” federal law.
According to this state-law waiver rule, which Pennsylvania courts
have traditionally applied in ineffective assistance of counsel cases
involving counsel’s failure to file an appeal, “trial counsel cannot
be held ineffective for failing to file an appeal when his client has
not asked him to do so.” Lewis, 359 F.3d at 658 (discussing
Commonwealth v. Dockins, 471 A.2d 851 (Pa. Super. Ct. 1984));
see also Fanase, 667 A.2d at 1169. In Lewis, we held that this per
se waiver rule was “‘contrary to’ clearly established law,”
specifically, Strickland v. Washington, 466 U.S. 668 (1984). 359
F.3d at 659. In the instant case, although the Superior Court
applied the Fanase/Dockins waiver rule in rejecting Fountain’s
claim of ineffective assistance of counsel, it also rendered an
alternative holding in which it addressed the merits of the claim
irrespective of the purported waiver. And, as explained above, the
Superior Court’s on-the-merits resolution of Fountain’s claim was
not contrary to or an unreasonable application of federal law.
Therefore, due to its substantive resolution of the ineffectiveness
issue, the Superior Court’s alternative holding based on the now-
debunked waiver rule as announced in Dockins and Fanase is
irrelevant.

11
 had a reasonable basis for her actions. It is
reasonable that in the face of uncertainty as to the
applicability of the death penalty, when counsel is
convinced that her client will be convicted if
retried, allowing the life sentence to stand may be
more prudent than taking [an] appeal. The PCRA
court found Zilli’s actions had a “reasonable basis”
and we find no error on this point.

[Fountain] further argues that counsel’s
failure to take appeal was predicated on incorrect
interpretation of the law, and therefore proof of
ineffectiveness. The fact that the law prohibiting
retroactive application of death penalty statutes
became codified after Zilli advised [Fountain] is
not evidence of ineffective assistance of counsel.
Counsel can not be held ineffective for failing to
predict future developments in the law.

App. at 47-49 (internal citations and footnotes omitted).
The test announced in Strickland v. Washington, 466 U.S.
668 (1984), applies to the question of whether Zilli was
constitutionally ineffective in rendering her advice regarding
Fountain’s appeal. Roe v. Flores-Ortega, 528 U.S. 470, 476-77
(2000).5 Under the two-prong test of Strickland, a prisoner bears

5
We acknowledge that, because the Supreme Court issued
its decision in Strickland after Fountain’s conviction became final,
Fountain’s case presents a potential non-retroactivity problem. See
generally 28 U.S.C. 2254(d)(1); Teague v. Lane, 489 U.S. 288
(1989) (plurality opinion) (holding that new rules of law should not
ordinarily be applied retroactively to cases on collateral review);
Lloyd v. United States, 407 F.3d 608, 611 (3d Cir. 2005)
(“Generally, a new rule of criminal procedure will not be
applicable to those cases which have become final before the new
rule is announced.”) (internal citation, quotations, and alterations
omitted). The Supreme Court, however, has noted that “a court
need not entertain the [non-retroactivity issue] . . . if the State has
not raised it. . . .” Goeke v. Branch, 514 U.S. 115, 117 (1995) (per
curiam); see also Horn v. Banks, 536 U.S. 266, 271 (2002) (per
curiam); Lewis, 359 F.3d at 653 n.4. Thus, although we are free to

12
the burden of showing: (1) that counsel’s representation fell
below an “objective standard of reasonableness”; and (2) that
there is a “reasonable probability” that this ineffectiveness
prejudiced the outcome. 466 U.S. at 688, 693.6
As the above-quoted excerpts from the Superior Court’s
August 1999 opinion make patent, the court analyzed whether
Zilli’s advice and actions were objectively reasonable; therefore,
the court applied the correct rule as set forth in the relevant
Supreme Court cases – i.e., Strickland and its progeny.
Moreover, the Superior Court did not confront a set of facts that
were materially indistinguishable from a Supreme Court decision
and nevertheless arrive at a result different from the Supreme
Court’s precedent. Lewis, 359 F.3d at 657-58. Thus, the
Superior Court’s decision was not “contrary to” clearly
established federal law. Id.

Furthermore, the Superior Court’s determination that
Zilli’s advice and actions were objectively reasonable was not an
“unreasonable application of” federal law. Under Strickland, a
reviewing court must “evaluate the [reasonableness of the

raise sua sponte the non-retroactivity issue, we are not bound to do
so and decline to take such a course of action in this case. Cf.
Schiro v. Farley, 510 U.S. 222, 229 (1994) (“[A] State can waive
the Teague bar by not raising it. . . . Although we undoubtedly
have the discretion to reach the State’s Teague argument, we will
not do so in these circumstances.”); Wilmer v. Johnson, 30 F.3d
451, 455 (3d Cir. 1994) (“Although we have the discretion to reach
the . . . [non-retroactivity issue] sua sponte . . . we decline to do so
in this case.”).
6
We note in passing that, in ascertaining prejudice in a
failure to appeal case, the focus ordinarily should not be on the
substantive merits of the hypothetical appeal but rather on whether
counsel’s constitutionally deficient performance deprived the
defendant of an appeal that he otherwise would have taken. Flores-
Ortega, 528 U.S. at 484. As noted by the Supreme Court, “it is
unfair to require . . . [a] defendant to demonstrate that his
hypothetical appeal might have had merit . . . . Rather, we require
the defendant to demonstrate that, but for counsel’s deficient
conduct, he would have appealed.” Id. at 486.

13
challenged] conduct from counsel’s perspective at the time,” 466
U.S. at 689; thus, this court must judge the reasonableness of
Zilli’s conduct based on the law and the facts as they were
known in January 1980.

As noted by the Superior Court in its August 1999
opinion, the United States Supreme Court had decided Dobbert
v. Florida, 432 U.S. 282 (1977), shortly before Zilli rendered her
advice to Fountain. In that case, the State of Florida charged
Ernest Dobbert with several murders alleged to have occurred
between December 1971 and April 1972. In July 1972,
however, the Florida judiciary struck down Florida’s death
penalty statute. Subsequently, the Florida legislature passed a
new death penalty statute, which corrected the constitutional
problems of the prior law. Dobbert was tried, convicted, and
sentenced to death under this revised statute. 432 U.S. at 288-
90.

In rejecting Dobbert’s Ex Post Facto Clause challenge,
the Supreme Court found no constitutional problem with the
application of the new death penalty procedures to his case. It
concluded that “the changes in the law are procedural, and on the
whole ameliorative . . . .” Dobbert, 432 U.S. at 292. The Court
found dispositive the fact that the new statute “simply altered the
methods employed in determining whether the death penalty was
to be imposed . . . [and thus made] no change in the quantum of
punishment attached to the crime.” Id. at 293-94. The Court also
rejected Dobbert’s argument that there was, for constitutional
purposes, no death penalty “in effect” at the time his crimes were
alleged to have occurred. Id. at 297-98. Noting that Florida’s
prior death penalty statute had not yet been found
unconstitutional at the time of Dobbert’s killings, the Court
opined that, irrespective of whether or not the old statute would
in the future withstand constitutional attack, it clearly indicated
Florida’s view regarding the severity of murder and of the
degree of punishment which the legislature wished to impose
upon murderers. The Court found that “[t]he statute was
intended to provide maximum deterrence, and its existence on
the statute books provided fair warning as to the degree of
culpability which the State ascribed to the act of murder.” 432
U.S. at 297.

14
 Considered in perspective of the Supreme Court’s
analysis in Dobbert, a prudent defense lawyer operating in
January 1980 could have reasonably concluded that
Pennsylvania’s post-Moody death penalty provisions might have
retroactive effect. Specifically, counsel could have reasonably
concluded that, like the statute at issue in Dobbert, the 1978
Pennsylvania provisions merely effected procedural, as opposed
to substantive, changes in the law. Indeed, like the Florida
statute at issue in Dobbert, the 1978 Pennsylvania provisions
“simply altered the methods employed in determining whether
the death penalty was to be imposed . . . [and did not effect a]
change in the quantum of punishment attached to the crime.”
Dobbert, 432 U.S. at 293-94. Considering that Pennsylvania
had a then-presumably valid death penalty statute on the books at
the time of Fountain’s alleged crime, counsel could likewise
have analogized Fountain’s situation to that of Dobbert’s and
reasonably concluded that the Pennsylvania courts would find
that the prior law’s “existence on the statute books provided fair
warning as to the degree of culpability which the State ascribed
to the act of murder.” Dobbert, 432 U.S. at 297.

To be sure, several Pennsylvania state court decisions
circa 1980 suggested that Pennsylvania’s 1978 post-Moody
death penalty statute may not have had retroactive effect. See,
e.g., Commonwealth v. Crowson, 412 A.2d 1363, 1366 (Pa.
1979) (“At the time of this prosecution, the only valid penalty
for murder of the first degree was life imprisonment. . . .
Accordingly, we vacate the judgment of sentence of death and
impose a sentence of life imprisonment.”); Commonwealth v.
Edwards, 411 A.2d 493, 494 (Pa. 1979) (“The sentence of death
imposed for the murder of the first degree conviction is vacated
and a sentence of life imprisonment is substituted therefore. The
statute authorizing the death sentence was declared
unconstitutional by this Court in [Moody].”). But see
Commonwealth v. Kalck, 87 A. 61, 64 (Pa. 1913) (“[S]tatutes
which relate to procedure . . . are not to be considered ex post
facto, even though the effect may be to enhance the severity of
the punishment.”). Moreover, Pennsylvania has a long-standing
and codified rule of statutory construction that presumes the
non-retroactivity of statutes. See Commonwealth v. McKenna,
383 A.2d 174, 181 n.13 (Pa. 1978) (“In Pennsylvania there is a

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presumption that statutes are not to have retroactive effect.”); 1
Pa. Con. Stat. Ann. § 1926 (“No statute shall be construed to be
retroactive unless clearly and manifestly so intended by the
General Assembly.”). Nonetheless, considered in perspective of
Dobbert, the state of the law regarding the retroactivity (or lack
thereof) of Pennsylvania’s post-Moody death penalty provisions
was certainly an open question in January 1980.7 Thus, Zilli’s
advice, see Supp. App. at 1 (“I’ll admit the law is not clear but
the ‘if’ is not really on your side. I believe it’s simply too
risky.”), was reasonable, notwithstanding the fact that her feared
outcome did not occur.

We note that the record demonstrates that Zilli rendered
her advice only after undertaking what appears to have been a
conscientious examination of the law. During the PCRA hearing
before the Court of Common Pleas, she testified that she
researched the issue thoroughly, discussed the matter with her
colleagues at the Dauphin County Public Defender’s Office, and
was in contact with the death penalty experts throughout the case
before recommending to Fountain that he not proceed.

In sum, in advising Fountain not to appeal, Zilli’s conduct
did not fall below an “objective standard” of reasonableness.
Strickland, 466 U.S. at 688. Thus, in finding that Zilli had acted
“reasonably,” App. at 48-49, the Superior Court did not reach an

7
As suggested by Judge McKee during oral argument, the
objective reasonableness of Zilli’s advice is further buttressed by
the fact that three Pennsylvania Supreme Court Justices dissented
from the majority’s holding in Story II that Pennsylvania’s 1978
death penalty provisions did not apply retroactively. Story II, 440
A.2d at 493-509 (Larsen, J., dissenting). Indeed, those Justices
opined that Dobbert had “implicitly overrule[d]” the previous state-
law cases relied on by the Story majority. Story II, 440 A.2d at 493
(Larsen, J., dissenting). Zilli’s advice and performance can hardly
be considered “objectively unreasonable” considering that Justices
Flaherty, Kauffman, and Larsen all reached the same conclusion as
the one she feared – that the 1978 statute applied retroactively to
pre-1978 crimes. At the very least, the Justices’ dissent certainly
indicates that reasonable legal minds operating in 1980 could have
differed on the question.

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outcome “contrary to, or involv[ing] an unreasonable application
of,” clearly established federal law. 28 U.S.C. § 2254(d)(1).
This court, therefore, will decline to grant Fountain’s petition for
a writ of habeas corpus. Cf. United States v. Gonzalez-Lerma,
71 F.3d 1537, 1542 (10th Cir. 1995) (“Clairvoyance is not a
required attribute of effective representation.”); Wajda v. United
States, 64 F.3d 385, 388 (8th Cir. 1995) (“[C]ounsel’s
performance is not deficient by failing to predict future
developments in the law.”); Elledge v. Dugger, 823 F.2d 1439,
1443 (11th Cir. 1987) (“Reasonably effective representation
cannot and does not include a requirement to make arguments
based on predictions of how the law may develop.”).

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 III.

For the above reasons, we will affirm the District Court’s
order denying Fountain’s application for a writ of habeas corpus.

_________________

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