Ronald Rompilla v. Martin Horn, Commissioner, Pennsylvania Department of Corrections Martin Horn, Appellant/cross-Appellee

SLOVITER, Circuit Judge,

dissenting.

I respectfully dissent from the well-crafted (albeit, in my view, flawed) decision of the Majority that, in effect, reinstates the death penalty for appellant Ronald Rompilla. There are two claims that I believe warrant the grant of a writ of habeas corpus. One, which was the basis for the District Court’s grant of the writ requiring a new sentencing hearing, is the shocking ineffective assistance of counsel at the sentencing phase. Rompilla’s trial counsel failed to obtain Rompilla’s school, medical, court and prison records as part of their investigation and, as a result, *274failed to present to the jury any mitigating evidence regarding Rompilla’s “childhood, alcoholism, mental retardation, or possible organic brain damage.” Rompilla v. Horn, 2000 WL 964750, at *9. Counsel also failed to communicate with two of Rompil-la’s siblings who lived nearby and would have advised counsel of evidence that Rompilla was raised by alcoholic parents in a cold, violent, frightening and abusive home.

The standard for establishing ineffective assistance of counsel was set forth in the Supreme Court’s seminal decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland was applied in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), to the issue of the investigation required of counsel at the penalty phase. Holding, in “a straightforward application of Strickland,” that trial counsel was ineffective because he “failed to discover or failed to offer” certain mitigating evidence, id. at 393, 120 S.Ct. 1495, the Court held that the Virginia Supreme Court decision denying the requested writ of habeas corpus was both contrary to and involved an unreasonable application of Strickland. Id. at 391, 120 S.Ct. 1495.

As I will discuss, the Pennsylvania Supreme Court’s failure to grant relief to Rompilla because of trial counsel’s grossly inadequate investigation also was both contrary to and involved an unreasonable application of Strickland and Williams. The Majority’s decision overturning the District Court’s grant of a writ of habeas corpus and rejecting- Rompilla’s claim of ineffective assistance of counsel is inexplicable in light of the Supreme Court’s most recent application of Strickland in Wiggins v. Smith, — U.S. —, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), under circumstances remarkably similar to those presented here.

The second ground on which I would grant a writ of habeas corpus is the refusal of the trial judge to advise the jury as to the meaning of a life sentence in Pennsylvania, notwithstanding the jury’s questions on that issue on three different occasions during its sentencing deliberations. As a result, the jury imposed a death sentence, rather than a life sentence, without ever being told by the trial court in response to the jury’s question that a life sentence in Pennsylvania means life without parole. The Pennsylvania courts’ rule in this respect is, in my judgment, an unreasonable application of the Supreme Court’s decisions in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002). Because this appeal is literally, not figuratively, a matter of life or death, I elaborate on each of these grounds.

I.

Ineffective Assistance of Counsel

There is no need to restate the facts of this case and its procedural history, both of which are fully and accurately set forth in the majority opinion. The ineffective assistance of counsel claim is before us on the Commonwealth’s appeal.

The applicable legal principles are not in dispute. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), 28 U.S.C. -§ 2254(d)(1), the federal court may grant a petition for habeas corpus only if the state’s adjudication resulted in a decision that is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or § 2254(d)(2), the state decision was based on an unreasonable determination of the facts. Both parties agree that it is section 2254(d)(1) that is at issue here. Strick*275land supplies the standard for addressing a claim of ineffective assistance of counsel:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687,104 S.Ct. 2052.

In Williams, the Supreme Court held that “the rule set forth in Strickland qualifies as clearly established federal law, as determined by the Supreme Court.” 529 U.S. at 391, 120 S.Ct. 1495 (internal quotation marks omitted). The Court further held that a state decision is “contrary to ... clearly established” federal law if, inter alia, “the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id. at 406, 120 S.Ct. 1495. As the decision in Williams made clear, relief should be granted under the “unreasonable application” clause “if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Williams instructs that “clearly established Federal law” refers “to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision.” 529 U.S. at 412, 120 S.Ct. 1495. The Court in Wiggins decided the ineffectiveness of counsel claim before it using the standards articulated in Strickland, noting that Williams did not create new law, but illustrated “the proper application” of these standards. 123 S.Ct. at 2535. Because Williams fell squarely within Strickland, Williams, 529 U.S. at 390, 120 S.Ct. 1495, and Wiggins was decided pursuant to the same standards of Strickland, these two later cases demonstrate how Strickland should be applied.

Under Strickland, a petitioner seeking to prove ineffective assistance of counsel must show that counsel’s performance was deficient and that the deficiency prejudiced the defense. 466 U.S. at 687, 104 S.Ct. 2052. To make the requisite showing of deficiency, the petitioner must show that counsel’s representation “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Among counsel’s responsibilities with regard to the sentencing phase is the “obligation to conduct a thorough investigation of the defendant’s background.” Williams, 529 U.S. at 396, 120 S.Ct. 1495. Coincidentally, in both Williams and Wiggins, two of the principal Supreme Court cases dealing with ineffective assistance of counsel, the Court found that a writ of habeas corpus was appropriate because the failure of counsel to conduct the requisite thorough investigation was objectively unreasonable and prejudicial.

In Williams, the Court noted that counsel “failed to conduct an investigation that would have uncovered extensive records graphically describing Williams’ nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records.” Id. at 395, 120 S.Ct. 1495. The Court continued,

Had they done so, the jury would have learned that Williams’ parents had *276been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents’ incarceration (including one stint in an abuse foster home), and then, after his parents were released from prison, had been returned to his parents’ custody.

Id. (footnotes omitted). The Court, noting that mitigating evidence “may alter the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case,” id. at 398, 120 S.Ct. 1495, concluded that “the Virginia Supreme Court rendered a ‘decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,’ thereby violating Williams’ constitutional right to the effective assistance of counsel as defined in Strickland.” Id. at 399,120 S.Ct. 1495.

Our court in Jermyn v. Horn, 266 F.3d 257 (3rd Cir.2001), a decision following Williams, concluded that Jermyn’s trial counsel was ineffective “because he failed to conduct an investigation, failed to prepare adequately for the penalty phase of Jermyn’s trial, and consequently, failed to present substantial mitigating evidence that would have directly undercut the state’s penalty-phase case.” Id. at 306. We explained,

Counsel failed to investigate the circumstances surrounding Jermyn’s childhood, even though counsel admitted at the PCRA hearing that he was aware that Jermyn had claimed that he was abused as a child. Dr. Phillips told counsel before the original trial that Jermyn had been abused as a child, and told counsel that the abuse was a critical component to understanding Jermyn’s mental illness. Nonetheless, counsel did not attempt to locate any fact witness who witnessed the abuse and could testify about it specifically.

Id. at 306 (internal citation omitted).

We stated that if counsel had investigated further “he would have obtained powerful and, as the PCRA court noted, ‘credible,’ testimony” from witnesses who presented testimony at the PCRA hearing that

was replete with first-hand accounts of instances of mental and physical abuse that Jermyn suffered at the hands of his father.... Counsel could have used that testimony to provide the jury with critical insight into the root of Jermyn’s mental illness. The [witnesses’] testimony also offered valuable insight into Jermyn’s mother’s role in the household, and how she failed to intervene on Jer-myn’s behalf.

Id. at 306-07. Counsel in Jermyn “also did not seek to obtain records from the school which corroborate the fact that Jer-myn was abused as a child, and that his mother did not intervene on his behalf.” Id. at 307. Based on the ineffective assistance of counsel for this and other reasons set forth in that opinion, we affirmed the District Court’s grant of a writ of habeas corpus.

With these cases as a background, we turn to the conduct of Rompilla’s trial counsel, informed by the Supreme Court’s recent decision in Wiggins.

Counsel in this case were two public defenders. Frederick Charles, the senior of the two, was a veteran attorney with significant criminal trial experience as a defense lawyer, who never before tried a capital case. His role here was as the principal counsel for Rompilla at the guilt phase. His colleague, Maria Dantos, who *277was two and a half years out of law school at the time of the trial, App. at 1060-61, 1065-67, was given the responsibility of handling the penalty phase. She had the role of making the arguments and presenting witnesses at the penalty phase, under Charles’ supervision. This was her first capital case and first homicide trial. Counsel’s devotion to Rompilla’s cause has not been challenged. They impressed the District Court as “intelligent, diligent and devoted to their task of representing [Rompilla].” 2000 WL 964750, at *9. It is their competence and effectiveness that are at issue.

The PCRA court determined that “counsel had a reasonable basis for proceeding as they did during the penalty phase,” Maj. Op. at 244 (quoting App. at 2028), because counsel retained three health professionals, two of whom, Drs. Cooke and Sadoff, are “recognized experts in the fields of psychiatry and psychology,” id, who administered tests, evaluated Rompil-la and reported back to defense counsel that they found that nothing could be used in mitigation. Counsel also obtained an evaluation by a local psychiatrist, Dr. Paul Gross, who found nothing that would have been beneficial in the penalty phase.

In affirming the PCRA court’s determination rejecting, inter alia, Rompilla’s claim of ineffective assistance of counsel, the Supreme Court of Pennsylvania concluded that counsel “reasonably relied upon their discussions with [Rompilla] and upon their experts to determine the records needed to evaluate mental health and other potential mitigating circumstances.” Commonwealth v. Rompilla, 554 Pa. 378, 721 A.2d 786, 790 (1998).

In accepting the Pennsylvania courts’ conclusions, the Majority also concludes that “trial counsel conducted an extensive investigation for mitigation evidence,” Maj. Op. at 250-251, because trial counsel retained three well-qualified mental health experts to examine Rompilla. The Majority recognizes that counsel failed to seek out school, medical, police, and prison records, which they recognize “contain useful information about Rompilla’s childhood home environment, his mental problems, and his problems with alcohol,” Maj. Op. at 252. Nevertheless, the Majority characterizes counsel’s decision as “reasonable” because Charles, who “had the final say on every issue in the case,” Maj. Op. at 252, “did not think that obtaining those records would have represented a sound allocation of his office’s resources.” Maj. Op. at 252. The question before us is not whether we believe counsel’s explanation for his failure to obtain the relevant records, some of which were available across the street from the trial and others in the same building as the trial, was “reasonable” but whether his failure to take such action to save money was objectively reasonable and consistent with his obligation to conduct a thorough investigation.

A comparison of counsel’s actions in this case with those of counsel in Wiggins, where the Supreme Court concluded that counsel was ineffective, is instructive.

Wiggins, who was represented by two public defenders, was convicted of capital murder in 1989 by a Maryland judge, and the jury sentenced him to death the same afternoon. A divided Maryland Court of Appeals affirmed. He filed a motion for post-conviction relief in which he challenged the adequacy of his representation at sentencing, “arguing that his attorneys had rendered constitutionally defective assistance by failing to investigate and present mitigating evidence of his dysfunctional background.” Wiggins, 123 S.Ct. at 2532. At the PCRA hearing, a licensed social worker testified regarding an elaborate social history in which he chronicled Wiggins’ “bleak life history” based on state *278social services, medical and school records and interviews with Wiggins and numerous family members. Id. at 2533. His mother, a chronic alcoholic, frequently left him and his siblings alone for days, forcing them to beg for food and to eat paint chips and garbage. Her abusive behavior included beating the children and having the children present while she engaged in her active sexual life. Wiggins suffered severe physical and sexual abuse at the hands of his mother and father and while in the care of a series of foster parents. The father in his second foster home repeatedly molested and raped him. In one foster home, he was gang raped on more than one occasion and was sexually abused by his supervisor on a job corps program. Id.

Wiggins’ counsel decided to focus their request for post-conviction relief on retrying the factual case and disputing Wiggins’ direct responsibility for the murder. Notwithstanding that counsel, as a practical matter, did not compile a social history of Wiggins, the state post-conviction court concluded that when the decision not to investigate is a matter of trial tactics, there is no ineffective assistance of counsel. Wiggins, 123 S.Ct. at 2533. The Maryland Court of Appeals affirmed the denial of relief on the ground that trial counsel, although they knew of Wiggins’ unfortunate childhood and had available both the presentence investigation report and the more detailed social service records, “made a reasoned choice to proceed with what they thought was their best defense.” Id. at 2533-34.

In holding that Wiggins’ trial counsel provided constitutionally ineffective assistance of counsel and that the Maryland Court of Appeals unreasonably applied Strickland in failing to so conclude, the Supreme Court specified why counsel’s conduct was defective. The Court noted that trial counsel had limited their investigation to two sources. One was the presentence investigation report (PSI) prepared by the Division of Parole and Probation, “which included a one-page account of Wiggins’ ‘personal history’ noting his ‘misery as a youth,’ quoting his description of his own background as ‘disgusting,’ and observing that he spent most of his life in foster care,” 123 S.Ct. at 2536 (quoting PSI). The other source counsel examined was the records kept by the Baltimore City Department of Social Services (DSS) documenting Wiggins’ various placements in the state foster care system. The Supreme Court noted that counsel chose not to expand their investigation beyond those records even though the Public Defender’s Office made funds available for the retention of a forensic social worker. Id. The Supreme Court thus concluded that, “counsel abandoned their investigation of [Wiggins’] background after having acquired only rudimentary knowledge of his history from a narrow set of sources.” Id. at 2537.

The Supreme Court characterized the Maryland Court of Appeals’ application of Strickland’s governing legal principles as “objectively unreasonable.” Id. at 2538. That court merely assumed that counsel’s investigation was adequate and failed to focus on counsel’s failure to engage in further investigation, despite the information in the DSS records with respect to Wiggins’ mother’s alcoholism, his shuttling from foster home to foster home, and his lengthy absences from school. Further investigation would have discovered the sexual abuse that was later revealed during state post-conviction proceedings. Id.

The investigation by Rompilla’s lawyers, albeit different from that conducted by Wiggins’ lawyers, was similarly defective. They did not present at the penalty phase evidence that was available, had they investigated thoroughly, and which was pre-

*279sented for the first time at Rompilla’s PCRA hearing. Rompilla’s parents were both severe alcoholics who drank constantly. His mother drank during her pregnancy with Rompilla, and he and his brothers eventually developed serious drinking problems. His father, who had a vicious temper, frequently beat Rompilla’s mother, leaving her bruised and black-eyed, and bragged about his cheating on her. His parents fought violently, and on at least one occasion his mother stabbed his father. App. at 1408, 1416-17, 1450, 1460, 1487, 1492, 1495-96. He was abused by his father who beat him when he was young with his hands, fists, leather straps, belts and sticks. All of the children lived in terror. There were no expressions of parental love, affection or approval. Instead, he was subjected to yelling and verbal abuse. His father locked Rompilla and his brother Richard in a small wire mesh dog pen that was filthy and excrement filled. He had an isolated background, and was not allowed to visit other children or to speak to anyone on the phone. They had no indoor plumbing in the house, he slept in the attic with no heat, and the children were not given clothes and attended school in rags. These facts were not presented at the sentencing hearing because counsel did not know them and, more important for our purposes, failed to make the reasonable investigation that would have uncovered them.

Rompilla’s counsel presented the testimony of three of Rompilla’s siblings at the sentencing hearing but did not interview two of Rompilla’s sisters, Barbara Harris and Randi Rompilla, both of whom livéd nearby, prior to sentencing, App. at 1422, 1436-37, 1489-90, and did not present their testimony. Further, Rompilla’s brother, Nicholas Rompilla, Jr., who had briefly testified at the sentencing hearing, claimed at the post-conviction hearing that Rompilla’s counsel only asked him about the three months prior to the offense and did not ask him about Rompilla’s childhood. App. at 1462-63. We must then ask whether it was unreasonable for counsel not to have interviewed all of Rompil-la’s siblings. It was these family members who testified at the PCRA hearing that, among other things, their parents were alcoholics and their mother drank while pregnant with Rompilla. They detailed the physical abuse referred to above. Rompilla was told he was stupid and would not amount to anything; they also testified that Rompilla was a “very nervous child,” who kept everything inside. App. at 1407-13, 1424, 1451, 1480-84, 1487-88. ■

It was Rompilla’s PCRA counsel, not trial counsel, who presented evidence from two mental health experts, Drs. Armstrong and Crown, both of whom evaluated and tested Rompilla post-conviction. Their evaluations included neuropsychological testing, review of Rompilla’s school, medical, and prison records (none of which had been examined by trial counsel), and review of declarations by Barbara Harris, Darlene Rompilla, and Nicholas Rompilla, Jr., App. at 1562-64, 1567, 1704, 1736, 1741, 1743, 1745; Commonwealth • Response to Habeas Pet., Exh. B, C, & Pet., Exh. B, C, & D. The doctors stated that Rompilla’s low IQ and achievement test, results documented in his school records, his medical history, and his abusive background were all “red flags” indicating that further objective evaluation was necessary. App. at 1614, 1686, 1692-93, 1739, 1743, 1745-46.

These doctors determined that Rompilla suffers from organic brain damage, an extreme mental disturbance significantly impairing several of his cognitive functions: impulsivity, reasoning and judgment, ability to make sense out of experience, ability to draw conclusions, ability to accept long-term consequences of immediate behavior, *280emotional liability, concentration, mental flexibility, recalling and integrating information, controlling behavior, and controlling motor movements (hands). App. at 1572-74, 1577-79, 1581-84, 1617-18, 1707, 1717-18, 1721-22, 1726, 1728-33. The doctors believe Rompilla’s problems relate back to his childhood, and were likely caused by fetal alcohol syndrome. App. at 1601-02, 1606, 1615. They concluded that Rompilla’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired at the time of the offense. App. at 1616, 1687-88, 1735-36.

The PCRA court, ■ applying Pennsylvania’s three-prong standard for ineffective assistance of counsel claims, stated that although Rompilla’s claim arguably had merit because he was “entitled to have relevant information of mental infirmity” presented to the jury, App. at 2028, “[g]iv-en the fact that three health care professionals, all of whom were experienced forensic experts, had provided opinions to defense counsel, and none of them asked for more information, it was hardly unreasonable or ineffective for defense counsel to have relied upon their opinions.” App. at 2030.

The PCRA court accepted Rompilla’s trial counsel’s testimony that they had spoken to family members in detail and that the family had not revealed the information that was claimed in the PCRA hearing. App. at 2029-30. The court also noted that Rompilla “made contradictory statements” to counsel during their representation, and that he had not indicated he had any mental problems or alcoholic blackouts. App. at 2029. The PCRA court concluded that counsel was reasonable in believing that seeking mercy was the only available strategy, and found that there was a reasonable basis for counsel’s actions. App. at 2029-30.

The Pennsylvania Supreme Court, also citing the state’s three-prong test for ineffective assistance of counsel claims, agreed with the PCRA court’s conclusion that counsel was effective, concluding without discussion that counsel acted reasonably. Rompilla, 721 A.2d at 789-90. The Court, relying on the conclusions of the PCRA court, noted that counsel had investigated Rompilla’s mental health by retaining three experts and reasonably relied on the experts and on their own discussions with Rompilla to determine the records needed to evaluate Rompilla, and it effectively adopted the PCRA court’s credibility determination of trial counsel’s conversations with family members, leading it to conclude that counsel had not failed to investigate. The Court rejected Rompilla’s argument that the experts received inadequate information because of counsel’s failure to investigate his background. Id.

An examination of the record shows that Rompilla’s lawyers did less investigation into mitigating evidence than did counsel for Wiggins. The Pennsylvania Supreme Court, in affirming the decision of the PCRA court denying post-conviction relief, stated that there was no “arguable merit” in Rompilla’s claim that trial counsel failed to investigate Rompilla’s family background, Rompilla, 721 A.2d at 790. The Court never referred to counsel’s failure to speak to two of Rompilla’s siblings, Randi Rompilla and Barbara Harris, who lived nearby and who attended the trial. Dan-tos, when questioned at the post-conviction hearing, said that she didn’t remember whether she spoke to those sisters or not, App. at 1099-1100, but those sisters testified at the PCRA hearing that they would have testified at the penalty phase, if asked, and would have told counsel about Rompilla’s dysfunctional background, if they had been asked.

*281Counsel certainly had reason to inquire further as to the availability of other family members. Counsel was aware that the family members whom she interviewed did not know a great deal about Rompilla. Charles testified that the family said “they hardly know him.” One said, “He was in a reformatory. He’s been away the whole time. We didn’t know him well.” Even Dantos testified that “[T]he overwhelming response from the family was that they didn’t really feel as though they knew him all that well since he had spent the majority of his adult years and some of his childhood years in custody ...,” App. at 1094, and that the family had “limited knowledge of their brother.” App. at 1098. Dantos stated that “it seemed pretty clear that [the family members she interviewed] didn’t feel as though they knew Ron very well,” App. at 1166. It is thus apparent that trial counsel had sufficient leads, as in Wiggins, to investigate further to find family members who did know more about Rompilla’s youth. Counsel never explained why she did not interview the other sisters.

The Pennsylvania Supreme Court, in rejecting Rompilla’s PCRA claim that counsel did not obtain records that would have aided the mental health experts who evaluated him, agreed with the PCRA court that counsel reasonably relied on their experts to determine the record needed to evaluate his mental health. Rompilla, 721 A.2d at 790. Counsel cannot so easily shed their constitutional obligations. Moreover, it appears that counsel directed the experts to the guilt phase, giving no or little attention to the penalty phase.

Rompilla’s lawyers sought opinions from' the mental health experts they hired primarily about Rompilla’s “mental infirmity or mental insanity for the guilt phase.” App. at 1069-71. Although Dantos stated that she also instructed the experts to see if there was any issue “to possibly use in mitigation any mental infirmity,” id. at 1067, Dr. Gross’ report says that counsel’s instruction as to the evaluation was “to determine Mr. Rompilla’s mental state during the time of the alleged charges.” Id. at 1069. That is supported by Dantos’ own testimony that the mental health professionals employed by the defense were asked to look into Rompilla’s “mental state at the time of the commission of the offense.” App. at 1071. Counsel did not themselves investigate Rompilla’s medical history, drug use, birth trauma or developmental delays; did not request or instruct the medical experts they retained to investigate those issues, and the medical experts did not make any such investigation. Counsel did not provide Drs. Sadoff and Cooke, who saw Rompilla, with any of the records that would have shown Rompilla’s long history of alcoholism and never themselves investigated the records that would have shown that history.

Rompilla’s counsel did not seek or obtain any of Rompilla’s school records and therefore did not learn that Rompilla was in special education, left school in the 9th grade, and that his abilities had not advanced beyond the third grade, suggesting mental retardation because of a possible organic brain disorder. Rompilla, 2000 WL 964750, at *4-*7. Because they did not obtain these records, they did not provide them to the health experts they retained.

The PCRA court, on which the Pennsylvania Supreme Court relied, did not explain its finding that the school records were “not entirely helpful” beyond noting that Rompilla’s IQ can “simply be part of the Bell Curve and a learning disability is not necessarily caused by an organic defect,” a statement made by Dr. Cooke, one of the experts retained by Rompilla’s trial counsel. App. at 2029. Trial counsel-*282failed to investigate further into Rompilla’s retarded level IQ scores. Indeed, Dr. Cooke further testified at the PCRA hearing that had he been provided with Rom-pilla’s IQ scores at trial he would have done testing for brain damage, looked for evidence of prenatal damage to Rompilla’s brain, and looked at the family situation, whether it was an abusive situation, or dysfunctional situation. App. at 1800-01.

Counsel did not investigate records from the Pennsylvania Department of Corrections where Rompilla was incarcerated for 14 years and therefore did not learn that his adult scores on achievement tests were very low, his spelling and arithmetic achievement scores were below 96% of the population, App. at 1009, and that psychological tests performed showed serious abnormalities on the schizophrenia, paranoia, neurosis and obsessive/compulsive scales. See App. at 1595-99. The court records, which counsel did not investigate, were used by the Commonwealth as an aggravating circumstance and were in the same courthouse where Rompilla’s case was tried. Because counsel failed to investigate into Rompilla’s prior coi'rectional experience, they did not provide that information to the health experts they retained.

In Wiggins, the Supreme Court quoted from the American Bar Association’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989), which provide that investigations into mitigating evidence “ ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’ ” 123 S.Ct. at 2537 (emphasis in original). Because Wiggins’ counsel abandoned the investigation of his background by failing to pursue evidentiary leads provided in the DSS records, they fell short of these “well-defined norms.” Id.

As shown by the above, the investigations by Rompilla’s counsel were no more thorough, perhaps less, than those found inadequate by the Supreme Court in Wiggins. The Majority’s attempt to reconcile its conclusion that Rompilla’s counsel provided effective assistance of counsel with the conclusion in Wiggins that defendant’s counsel were ineffective is nothing short of astonishing. The Majority states that “[tjhere are critical differences between the conduct of Wiggins’s and Rompilla’s trial attorneys.” Maj. Op. at 257-258. It continues, “Wiggins’s attorneys were presented with leads that ‘any reasonably competent attorney’ would have realized were promising. Rompilla’s attorneys had no comparable leads.” Id.

With due respect to my colleagues on the Majority, the distinction entirely misses the point. If it was ineffective for Wiggins’ counsel to fail to follow up the leads they had, was it not even more ineffective, indeed inexcusable, for Rompilla’s attorneys to fail to investigate to find the leads that could have been used by the experts they retained or to retain experts to testify at the penalty phase and present a viable case for mitigation? At the brief sentencing hearing, trial counsel called only five witnesses, Rompilla’s sister Darlene, older brother Nicholas, Jr., younger brother Robert, sister Sandy Whitby and Aaron, Rompilla’s fourteen-year old son. The total examination covered about 26 pages of notes of testimony. The witnesses testified in general that Rompilla was a good family member and never had a problem. As described by the District Court, the “testimony was apparently presented to engender sympathy for [Rompil-la].” 2000 WL 964750, at *4. “It seemed to be designed primarily as an emotional appeal to the jury to show mercy to [Rom-pilla] — he wasn’t as bad as he seemed and his family loved him.” Id. In lieu of the *283case trial counsel presented in mitigation, a case that the District Court described as “unreasonably brief and lacking in real substance,” 2000 WL 964750, at *4, had they investigated they could have presented a case such as that presented by the PCRA counsel. Rompilla’s counsel shifted the responsibility for finding leads to the medical experts, and never even told their experts that they had the responsibility for uncovering that information.

In Wiggins, trial counsel made the tactical decision to forego mitigating evidence of Wiggins’ dysfunctional background and mental health problems because they believed that Wiggins’ “best hope of escaping the death penalty was for one or more jurors to entertain a reasonable doubt as to his criminal agency.” Wiggins v. State, 352 Md. 580, 724 A.2d 1, 15 (1999), a decision the Maryland Supreme Court termed a “deliberate, tactical decision” which, under Strickland, should not be second guessed. Id. at 15, 17-18. When the United States Supreme Court reviewed that decision under § 2254(d), it held that because counsel’s investigation was inadequate, the state court’s “subsequent deference to counsel’s strategic decision ... despite the fact that counsel based this alleged choice on what we have made clear was an unreasonable investigation, was also objectively unreasonable.” Wiggins, 123 S.Ct. at 2538.

The PCRA court found that Rompilla’s counsel “had a reasonable basis for proceeding as they did,” App. at 2028, because they employed two experts and obtained an evaluation by another psychiatrist, who also advised counsel that he found nothing that would be beneficial in the penalty phase. The Pennsylvania Supreme Court agreed that “trial counsel was effective with respect to their investigation and presentation of mitigation evidence.” Rompilla, 721 A.2d at 790. Notwithstanding the decision in Wiggins, the Majority, applying § 2254(d)(1), holds that “the state court’s determination that counsel acted reasonably was not ‘contrary to’ or an ‘unreasonable application’ of Strickland.” Maj. Op. at 259.

As noted above, I believe the Majority seriously errs. It is clearly established by both Williams and Wiggins that counsel or counsel’s experts cannot make a reasonable decision at.the penalty phase-if they do not investigate the relevant facts that could be used in mitigation. In holding that the Maryland Court of Appeals’ application of Strickland’s governing legal principles was objectively unreasonable, Justice O’Connor, in Wiggins, stated that counsel’s failure to thoroughly investigate made “a fully informed decision with respect to sentencing strategy impossible.” Wiggins, 123 S. Ct at 2538. Therefore the state Supreme Court’s holding “reflected an unreasonable application of Strickland. Id. What was true in Wiggins and before that in Williams is equally applicable here. It follows that the District Court properly determined that Rompilla’s trial counsel did not meet the performance standards required under Strickland.

I believe that under the circumstances in which counsel presented an inadequate case for mitigation at the penalty phase of a capital sentencing hearing, the prejudice prong of constitutionally ineffective assistance of counsel is clearly met. The Pennsylvania Supreme Court did not reach this issue and therefore we may consider it de novo. . A reasonable attorney, if aware of the evidence presented at the PCRA hearing following a thorough investigation, would have done more at sentencing than plead for mercy. As the Court stated in Wiggins, “had the jury been confronted with [the] considerable mitigating evidence, there is a reasonable probability that it would have returned with a differ*284ent sentence.” 123 S.Ct. at 2543. Quoting from Williams, the Court stated, “we must evaluate the totality of the evidence, both that adduced at trial, and the evidence adduced in the habeas proceeding.” Wiggins, 123 S.Ct. at 2543, citing Williams, 529 U.S. at 397-98, 120 S.Ct. 1495. In Williams, the Court recognized that the graphic description of the defendant’s childhood “filled with abuse and privation, or the reality that he was ‘borderline mentally retarded’ might well have influenced the jury’s appraisal of his morale culpability.” 529 U.S. at 398, 120 S.Ct. 1495 (citation omitted). The Court further stated that “[mjitigating evidence unrelated to dangerousness may alter the jury’s selection of penalty, even if it does not undermine or rebut the prosecution’s death-eligibility case.” Id.

In considering prejudice to Rompilla from his trial counsel’s performance, we should look at the totality of evidence adduced at trial as well as that adduced at the state post-conviction hearing where counsel, after a thorough investigation, found the evidence of Rompilla’s abusive background, his disfunctional family situation, his low IQ, his meager reading and understanding ability found in the prison records, and the medical evidence of brain disfunction. The jury could certainly have considered this matter as sufficiently mitigating to warrant a different sentence. Therefore, I believe that the Supreme Court of Pennsylvania failed to reasonably apply the Strickland standard when it held that Rompilla had not shown ineffective assistance of counsel.

I therefore disagree with the majority and would affirm the District Court’s grant of a writ of habeas corpus because of trial counsel’s ineffective assistance of counsel.

II.

Failure to Give a Simmons Instruction

Rompilla has cross-appealed from the District Court’s denial of a writ of habeas corpus on Rompilla’s claim that his right to due process was violated by the state trial court’s refusal to inform the jury in response to the jury’s inquiries that Rompilla was parole ineligible if sentenced to life imprisonment.

While the jury was deliberating Rompil-la’s penalty, life imprisonment or death, the jury asked in succession, “If a life sentence is imposed, is there any possibility of the Defendant ever being paroled?” App. at 802. The trial court responded:

I’m sorry to say, I can’t answer that question. That’s not before you as such. The only matter that you can consider in the Sentencing Hearing is the evidence that was brought out in the course of the Hearing and the Law with respect to the Court’s Charge. That’s the only consideration you have, I’m sorry to say. I-if there were other alternatives that you should consider, we would have outlined them in the Charge, all right. Are there any other questions?

App. at 802-03.

The jury later requested to examine information with respect to Rompilla’s prior sentence. The trial court refused because it was not entered into evidence. The jury foreman clarified that the jury wanted to know the sentence from Rompilla’s prior conviction. The trial court stated that he cannot give that. A juror then asked “if he got released on behavioral ...” and the foreman added, “It was commuted in any way, the original sentence.” App. at 823. As before, the trial court refused to give the requested information. App. at 824.

Finally, the next day, after more deliberation the jury asked, “Was the Defen*285dant offered any type of rehabilitation either while in prison or after his release from prison?” App. at 842. Once again the trial court declined to answer, even after the foreman changed the question to ask “isn’t rehabilitation available in prison?” App. at 842. The trial court again refused to provide the information sought by the jury. It was only after the trial court declined to provide the information requested by the jury time after time that the jury returned a sentence of death.

On Rompilla’s appeal from the denial of his PGRA petition, the Supreme Court of Pennsylvania rejected Rompilla’s contention that due process required that the jury be instructed that in Pennsylvania “life imprisonment means life,” ruling as follows:

Under the current state of the law in Pennsylvania, the jury must be told that life means life without parole only when the defendant’s future dangerousness is at issue. Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 35-36 (Pa.1998). Appellant argues that his future dangerousness was at issue because the Commonwealth argued the aggravating circumstance that he has a significant history of felony convictions involving the use or threat of violence. The Court rejected this argument in Commonwealth v. May, 551 Pa. 286, 710 A.2d 44, 47 (Pa.1998). As stated in that case, this aggravating circumstance only addresses Appellant’s past conduct, not his future dangerousness. See id. Thus, no relief is due.10

Commonwealth v. Rompilla, 554 Pa. 378, 721 A.2d 786, 795 (1998). In his dissent, Chief Justice Flaherty wrote:

I believe the majority is in error in its treatment of the issue pertaining to the jury’s question about the defendant’s parole eligibility. Under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) and Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 35-36 (Pa.1998), the court must tell a jury that a life sentence means life without parole, if the defendant requests the instruction and his future dangerousness is at issue. Here, during deliberations in the penalty phase, the jury asked, “If a life sentence is imposed, is there any possibility of the Defendant ever being paroled?” I view this question as a clear expression of the jury’s concern about the defendant’s future dangerousness. I would therefore hold that the trial court’s refusal to explain the meaning of life without parole constituted error under Commonwealth v. Clark, supra. I would therefore reverse the order of the court of common pleas and remand for' proceedings consistent with this opinion.
I would go further and require an explanation of the meaning of a life sentence in all capital cases. There can be no harm in instructing juries that in Pennsylvania appellant would be statutorily ineligible for parole if sentenced to life in prison, but that a life sentence might nonetheless be commuted by the governor. On the other hand, if we do not so instruct, a jury, erroneously believing that a prisoner sentenced to life may be paroled *286within a period of years, may impose the death penalty for reasons which are not based in law.

Id. at 795-96 (Flaherty, C.J., dissenting).1

I believe that the Pennsylvania Supreme Court’s analysis of Rompilla’s Simmons claim was an “unreasonable application” of Supreme Court precedent, specifically Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), and therefore that it must be reversed under the standards of AEDPA.

In Simmons, the Supreme Court held that the defendant’s due process right to answer an allegation against him requires the trial court to instruct the jury that the alternative to the death penalty is life without parole (in states where that is the alternative) if the prosecutor argues that the defendant will pose a danger to others. As Justice Blackmun, who authored the plurality opinion, wrote: “The State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole.” Simmons, 512 U.S. at 171, 114 S.Ct. 2187. In Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), the Supreme Court described Simmons as holding that when “a capital defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant ‘to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.’ ” Id. at 39, 121 S.Ct. 1263 (quoting Ramdass v. Angelone, 530 U.S. 156, 165, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000) (plurality opinion)).

The Simmons plurality and Justice O’Connor, concurring, believed there was no question that the prosecutor had made an issue of Simmons’s future dangerousness. As a result, the Court had no occasion to define what constitutes making an issue of future dangerousness. That issue was directly addressed eight years later in Kelly, an opinion of the Court authored by Justice Souter.

In Kelly, the prosecutor stated that he would not argue future dangerousness and “that takes it out of Simmons anyhow.” Kelly, 534 U.S. at 249, 122 S.Ct. 726. The trial court then denied Kelly’s counsel’s request for a Simmons instruction, saying that the State’s evidence went to Kelly’s character and characteristics, not to future dangerousness. The South Carolina Supreme Court affirmed the conviction and death sentence, holding that the Simmons instruction was not required because future dangerousness was not at issue.

In reversing, Justice Souter stated that the South Carolina Supreme Court’s statement that Kelly’s future dangerousness was not at issue “is unsupportable on the record before us.” Id. at 252, 122 S.Ct. 726. He continued, “It is not that the *287state court failed to pose the legal issue accurately, for in considering the applicability of Simmons it asked whether Kelly’s future dangerousness was ‘a logical inference from the evidence,’ or was ‘injected into the case through the State’s closing argument.’” Id. at 252, 122 S.Ct. 726 (internal citations omitted). In support of the appropriateness of this statement of the legal issue, Justice Souter included the following citations and explanatory parentheses: “Shafer, [532 U.S.] at 54-55 [121 S.Ct. 1263] (whether prosecutor’s evidence or argument placed future dangerousness in issue) [and] Simmons, 512 U.S. at 165, 171 [114 S.Ct. 2187], (plurality opinion) (future dangerousness in issue because ‘State raised the specter of ... future dangerousness generally’ and ‘advanced] generalized arguments regarding ' the [same]’).” Kelly, 534 U.S. at 252, 122 S.Ct. 726.

In addressing the trial court’s interpretation of the evidence, the Kelly Court explained why the trial court erred:

To the extent that it thought that “[e]vidence that Kelly took part in escape attempts and carried a shank ... is not the type of future dangerousness evidence contemplated by Simmons, ”... it overlooked that evidence of violent behavior in prison can raise a strong implication of “generalized ... future dangerousness.” Simmons, [512 U.S.] at 171 [114 S.Ct. 2187], (And, of course, the state court’s reasoning says nothing about the evidence of the crime, or of Kelly’s sadism generally, and his mercurial thirst for vengeance.) A jury hearing evidence of a defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee.

Id. at 253-54, 122 S.Ct. 726 (emphasis added).

In language particularly relevant to this case, the Kelly Court stated, “The fallacy of the State Supreme Court’s attempt to portray the thrust of the evidence as so unrealistically limited harks back to a comparable mistake by the trial judge, who spoke of the evidence as going, not to future dangerousness, but ‘to [Kelly’s] character and characteristics.’ ” Id. at 254, 122- S.Ct. 726. The Court continued,

The error in trying to distinguish Simmons this way lies in failing to recognize that evidence of dangerous “character” may show “characteristic” future dangerousness, as it did here. This, indeed, is the fault of the State’s more general argument before us, that evidence of future dangerousness counts under Simmons only when the State “introduces] evidence for which there is no other possible inference but future dangerousness to society.” ... Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.

Id. (emphasis in original).

The Kelly Court thus made explicit what was implicit in Simmons: the prosecutor need not expressly and separately argue future dangerousness; rather, future dangerousness can be made an issue through implication by or inference from arguments addressing such independent matters as the defendant’s character.

At Rompilla’s sentencing hearing, the prosecutor, who was seeking the death penalty, focused on Rompilla’s “significant history of felony convictions,” as that is one of the statutory factors that can serve as “aggravators” in the balancing between *288mitigating factors and aggravating factors required under Pennsylvania’s death penalty law. 42 Pa. Cons.Stat. Ann. § 9711(d)(9). During his closing argument the prosecutor referred to Rompilla’s prior offense, which involved the robbery, rape and slashing with a knife of a female bar owner, in the following terms:

Joe Macrenna, the woman that was raped, was raped pretty brutally. She was raped at knife point.... [I]sn’t it frightening, the similarity between that case and this case. I mean, it is absolutely astounding. Both take place around the bar. The Defendant gets in after closing or right before closing.... On both occasions, a knife was used. Steals money both times. Isn’t it frightening the similarities in those crimes. Takes a taxi away from Joe’s Bar, takes a taxi the night of this crime. He slashes Joe in the breast with a knife. He uses a knife on Jimmy Scanlon. It’s absolutely frightening to think of the similarities in those two crimes. But there is one difference, one major difference, Joe Ma-crenna lived through her experience. Jimmy Scanlon didn’t.... I think the Defendant learned a lesson from Joe Macrenna in that case, that Rape case. That lesson ivas, don’t leave any witnesses. Don’t leave anybody behind that can testify against you.

App. at 779-80 (emphasis added).

At sentencing the jury also learned via testimony elicited by both parties that the instant crime occurred shortly after Rom-pilla had been released from prison, that there is a lack of rehabilitation services for prisoners, that Rompilla’s children were initially frightened of him when he was released on parole, and that he had been paroled from his previous sentence only three weeks before the instant crime.

Rompilla argues that because the prosecutor placed Rompilla’s future dangerousness at issue, the trial court was required under Simmons to inform the jury that Rompilla is parole ineligible. The PCRA court disagreed, reasoning that Simmons does not apply because the prosecutor did not argue future dangerousness. The court stated, “The prosecution merely argued that Mr. Rompilla had a significant history of felony convictions which was proper argument as an aggravating factor under Pennsylvania law.” App. at 2025. The court did not find the jury’s question concerning whether he had received rehabilitation supportive of Rompilla’s argument: “This question ... relates more to the issues raised by the defense witnesses during the penalty phase who complained that Mr. Rompilla had not received rehabilitation while in prison and while on parole after his 1974 rape and burglary convictions. In fact, that was a mitigating factor found by the jury rather than an aggravating factor.” App. at 2026. The court did not address, perhaps did not recognize, the relevance of the jury’s question concerning whether rehabilitation is available in prison to Rompilla’s request for a Simmons instruction.

On appeal, the Pennsylvania Supreme Court summarized the facts and issue, and analyzed Rompilla’s Simmons claim in one paragraph which I quoted in full near the beginning of this dissent. The Pennsylvania Supreme Court interpreted Pennsylvania law as requiring a Simmons instruction “only when the defendant’s future dangerousness is at issue,” and expressly rejected Rompilla’s argument that in presenting Rompilla’s extensive criminal history the prosecutor ipso facto made future dangerousness an issue. The Pennsylvania Supreme Court thus appears to have determined that future dangerousness must be argued expressly and separately *289and may not be implied by or inferred from other arguments; consequently, the prosecutor’s recitation of defendant’s past criminal conduct cannot, without more, also amount to making an issue of future dangerousness. It is unclear whether the Pennsylvania Supreme Court believes this principle to be consistent with or required by Simmons.

When the Simmons issue was before the District Court on Rompilla’s habeas petition, that court also gave the issue only brief analysis and concluded:

The prosecutor’s summation in this case covers 16 pages of the notes of testimony2 and a fair reading of it leads to the conclusion that the state’s reasoning for the death penalty was not based upon future dangerousness but on the despicable, savage and cowardly beating the Petitioner inflicted upon his victim. This is a close issue, however, but the Supreme Court of Pennsylvania’s decision in the PCRA case was not an unreasonable application of federal law.

Rompilla v. Horn, 2000 WL 964750, at *15 (E.D.Pa. July 11, 2000). The District Court appears to have agreed with the Pennsylvania Supreme Court that if the prosecutor “based his argument on” the despicable nature of the defendant’s actions, he could not at the same time have made an issue of Rompilla’s future dangerousness for Simmons purposes without providing a separate, express argument to that effect. The Majority appears to agree, as its opinion states: “even if [the prosecutor’s comments] were meant to imply that Rompilla would present a future danger if he was ever released from prison, the fact remains that the prosecutor never expressly argued that Rompilla presented a future threat.” Maj. Op. at 271-272.

I do not read Simmons as requiring an express argument of future dangerousness. In Simmons, the prosecutor put future dangerousness “at issue” in a few brief comments in his closing argument. As the Simmons plurality opinion describes it:

In its closing argument the prosecution argued that petitioner’s future dangerousness was a factor for the jury to consider when fixing the appropriate punishment. The question for the jury, said the prosecution, was “what to do with [petitioner] now that he is in our midst.” ... The prosecution further urged that a verdict for death would be “a response of society to someone who .is a threat. Your verdict will be an act of self-defense.”

512 U.S. at 157,114 S.Ct. 2187.

In his dissent, Justice Scalia takes issue with the conclusion of those Justices who formed the majority that the above statements constituted an argument for future dangerousness.3 The language used in the *290various opinions of the Justices who formed the Simmons majority does not suggest that the prosecutor must expressly argue that defendant will be a serious threat if not sentenced to death before the Court will hold that future dangerousness has been placed before the jury. For example, Justice Blackmun’s opinion uses the following phrases (emphases added, passim): “where the defendant’s future dangerousness is at issue,” id. at 156, 114 S.Ct. 2187; “[t]he Due Process Clause does not allow the execution of a person ‘on the basis of information which he had no opportunity to deny or explain.’ ” Id. at 161, 114 S.Ct. 2187; “the State’s repeated suggestion that petitioner would pose a future danger to society if he were not executed,” id. at 162, 114 S.Ct. 2187; “[t]he State raised the specter of petitioner’s future dangerousness generally ...,” id. at 165, 114 S.Ct. 2187; “if the State rests its case for imposing the death penalty at least in part on the premise that the defendant will be dangerous in the future ...,” id. at 168-69, 114 S.Ct. 2187; “[t]he State may not create a false dilemma by advancing generalized arguments regarding the defendant’s future dangerousness ...,” id. at 171, 114 S.Ct. 2187.

In his concurring opinion, Justice Souter writes, “when future dangerousness is an issue in a capital sentencing determination. ...” Id. at 172, 114 S.Ct. 2187 (emphasis added). Similarly, Justice O’Con-nor states, “When the State seeks to show the defendant’s future dangerousness,” and “a means of responding to the State’s showing of future dangerousness.” Id. at 177, 114 S.Ct. 2187. “Moreover, the prosecutor, by referring to a verdict of death as an act of ‘self-defense,’ strongly implied that petitioner would be let out eventually if the jury did not recommend a death sentence.” Id. at 178, 114 S.Ct. 2187 (emphasis added).

There are indeed some statements that can be read to refer to arguments expressly made by the State as to Simmons’s future dangerousness, particularly in the concurring opinion of Justice O’Connor, but even she uses the phrase “strongly implied.” I therefore repeat my observation that neither Justice O’Connor nor the other Justices forming the majority suggest that the instruction must be given only if the prosecutor makes express, explicit, exclusive arguments for future dangerousness. Rather, the Court was willing to infer a future dangerousness argument from what was, on Justice Scalia’s account, *291an argument about a different topic entirely (the merit of one of Simmons’s mitigating factors). Nothing in the Justices’ language supports the premise on which the Pennsylvania Supreme Court’s decision turns. Any doubts on the matter were dispelled by the Supreme Court’s subsequent decision in Kelly where the prosecutor did not expressly argue future dangerousness.

The Majority concedes that Kelly “arguably broadened the holding in Simmons,” Maj. Op. at 265-266, and notes that two of the Justices who joined Justice O’Connor’s concurring opinion in Simmons dissented in Kelly because “the test is no longer whether the State argues future dangerousness to society ... [but] whether evidence was introduced at trial that raises an ‘implication’ of future dangerousness to society.” Kelly, 534 U.S. at 261, 122 S.Ct. 726 (Rehnquist, C.J., joined by Kennedy, J., dissenting).

The Majority declines to apply Kelly in Rompilla’s favor, stating, “Even if Kelly broadened Simmons ... Kelly cannot aid Rompilla here” because Kelly was decided after the Pennsylvania Supreme Court’s decision in Rompilla’s case. Maj. Op. at 267. The Majority notes that under Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), federal review pursuant to section 2254(d)(1) is limited to the state court’s application of federal law “as of the time of the relevant state-court decision.” Id. at 412, 120 S.Ct. 1495.

The Supreme Court does not interpret the unreasonable application of Supreme Court precedent prong of § 2254(d)(1) as narrowly as does the Majority. In Wiggins, the Court viewed its opinion in Williams as “illustrative of the proper application” of the Strickland standard, notwithstanding that ‘Williams had not yet been decided at the time the Maryland Court of Appeals rendered the decision at issue in this case.” Wiggins, 123 S.Ct. at 2535. Just as the Williams opinion noted that “the merits of [Williams’s] claim are squarely governed by our holding in Strickland v. Washington,” Williams, 529 U.S. at 390, 120 S.Ct. 1495, so also the Court’s opinion in Kelly represented an application of Simmons and did not make new law. There is no indication anywhere in the opinion that the Kelly majority thought that they were doing anything other than applying Simmons. Rather, at every step of the way the Kelly majority cites Simmons. At one point, the Kelly majority states that the prosecutor “accentuated the clear implication of future dangerousness raised by the evidence and [thereby] placed the case within the four corners of Simmons.” Kelly, 534 U.S. at 255, 122 S.Ct. 726. Therefore, even if Kelly “arguably” broadened Simmons, it is dispositive for present purposes that the majority of the Supreme Court believed otherwise.

To recapitulate, the Pennsylvania Supreme Court applied an unjustifiedly narrow test for determining whether the prosecutor made an issue of Rompilla’s future dangerousness. That test represented an unreasonable application of Simmons, especially as Simmons was applied in Kelly.

In any event, I believe that the record shows that the prosecutor did make an issue of Rompilla’s future dangerousness. It is noteworthy that the prosecutor referred to the similarities between this crime and Rompilla’s previous crime as “frightening” no less than three times. The similarities can be “frightening” only if the prosecutor was sending the message that there is a possibility that Rompilla will repeat the crime. Similarly, the prosecutor’s emphasis on the one major difference between this crime and his previous crime — the murder of the victim — and his statement to the jury that Rompilla had *292learned not to leave any witnesses were tantamount to a warning about what would happen if Rompilla were allowed to commit another crime, i.e., that Rompilla would be dangerous. Moreover, as the Supreme Court has recognized, evidence of past criminal conduct may be indicative of future dangerousness. See Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

The Majority urges us to consider the prosecutor’s comments in context, claiming he was merely responding to counsel’s argument that the jury must have some doubt concerning Rompilla’s guilt and that his comments were a rebuttal of that argument, not an argument for future dangerousness. The Majority states, “Seeking to dispel any such doubts, the prosecutor’s obvious point in stressing the similarities between the circumstances of the rape for which Rompilla had previously been convicted and the Scanlon murder was to convince the jury that the same man had committed both crimes.” Maj. Op. at 271.

The Majority’s attempt to explain the remark is sheer conjecture. The prosecutor made his remarks in the course of outlining why three aggravating factors apply against Rompilla. After addressing the first two — torture and murder while committing other crimes — the prosecutor said:

Commonwealth has more. Commonwealth submits to you that the Defendant has a significant history of felony convictions involving violence to the ... person or the threat of violence to the person.

App. at 779. The prosecutor then described the previous rape with his above-quoted use of “frightening” and gave the State’s explanation that Rompilla did not wait at the bar until Scanlon closed up before breaking in to steal because Rom-pilla did not want to leave any witnesses. App. at 780. This suggests dangerousness, not rebuttal.

It is plain from Simmons and Kelly that the reasons for the prosecutor’s statements are not dispositive of whether they put future dangerousness at issue for the jury. They could have done so even if their principal thrust were to dispel doubt raised by the defense. After all, in Simmons the prosecutor’s remarks were made in response to defense counsel’s mitigating evidence (see Justice Scalia’s dissenting opinion, quoted above). Thus, even if the prosecutor in Rompilla’s case did not make an express argument, Simmons is still applicable because, as explained above, Simmons does not require “express arguments.”

The Majority also asserts that the prosecutor merely used the word “frightening” as a synonym for “astounding,” a word that the prosecutor also used (“more aptly,” as the Majority puts it). Maj. Op. at 271. Accepting arguendo the Majority’s hypothesis, it does not negate the implication of future dangerousness. The meaning of a word or phrase depends in part on the reasonable understanding of the listener, not merely the intent of the speaker.

The Majority also attempts to discount any future dangerousness implications in the prosecutor’s statement that by the time of this crime Rompilla had learned to kill any eyewitnesses by explaining that “the comment seems to have had two likely purposes: to explain why there was no eyewitness to the most recent crime and to explain why the two crimes differed in the important respect that one involved a killing and the other did not.” Maj. Op. at 271. Again, even if those were the prosecutor’s purposes, it does not follow that he did not also thereby inject future dangerousness into the proceedings. The more immediate message learned by the jury *293was surely that if they put Rompilla in a position from which he could commit another crime, the jurors had better not be among the witnesses. Their repeated questions to the judge concerning parole and rehabilitation suggests that they had learned that lesson.4

Justice Souter, in his concurring opinion in Simmons, joined by Justice Stevens, wrote:

The Eighth Amendment entitles a defendant to a jury capable of a reasoned moral judgment about whether death, rather than some lesser sentence, ought to be imposed. The Court has explained that the Amendment imposes a heightened standard “for reliability in the determination that death is the appropriate punishment in a specific case,” Woodson v. North Carolina, 428 U.S. 280, 305 [96 S.Ct. 2978, 49 L.Ed.2d 944] (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.); see also, e.g., Godfrey v. Georgia, 446 U.S. 420, 427-428 [100 S.Ct. 1759, 64 L.Ed.2d 398] (1980); Mills v. Maryland, 486 U.S. 367, 383-384 [108 S.Ct. 1860, 100 L.Ed.2d 384] (1988). Thus, it requires provision of “accurate sentencing information [as] an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die,” Gregg v. Georgia, 428 U.S. 153, 190 [96 S.Ct. 2909, 49 L.Ed.2d 859] (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), and invalidates “procedural rules that ten[d] to diminish the reliability of the sentencing determination,” Beck v. Alabama, 447 U.S. 625, 638 [100 S.Ct. 2382, 65 L.Ed.2d 392] (1980).
That same need for heightened reliability also mandates recognition of a capital defendant’s right to require instructions on the meaning of the legal terms used to describe the sentences (or sentencing recommendations) a jury is required to consider, in making the reasoned moral choice between sentencing alternatives. Thus, whenever there is a reasonable likelihood *294that a juror will misunderstand a sentencing term, a defendant may demand instruction on its meaning, and a death sentence following the refusal of such a request should be vacated as having been “arbitrarily or discrimina-torily” and “wantonly and ... freakishly imposed.” Furman v. Georgia, 408 U.S. 238, 249 [92 S.Ct. 2726, 33 L.Ed.2d 346] (1972) (Douglas, J., concurring) (internal quotation marks omitted); id., at 310 [92 S.Ct. 2726] (Stewart, J., concurring).

Simmons, 512 U.S. at 172-73, 114 S.Ct. 2187 (Souter, J., concurring).

In this case, the repeated questions by the jury as to the effect of a sentence by them of life imprisonment demonstrate unequivocally that the jury did not understand that under Pennsylvania law a life prison term means life without parole. I believe the rationale for requiring that the jury be instructed about parole ineligibility when the prosecutor puts future dangerousness in issue — i.e., to ensure that the jurors have accurate information as to the effect of their sentence — is similarly applicable in a case, such as this one, where the jurors have requested accurate information. I do not understand the State to be arguing that the requested instruction was not legally accurate. The Majority has provided no rationale why the jury should not be informed of the applicable Pennsylvania law. Truth in advertising is now the byword of this generation. Truth in instructing the jury as to the effect of the sentence in a capital case is at least as important.

I would grant a writ of habeas corpus on this issue as well as on the ineffective assistance of counsel issue.

This author [Justice Nigro] agrees with the dissent’s position that a Simmons instruction should be given in all cases and has previously so stated. See Clark, 710 A.2d at 43-44 (Nigro, J., concurring, joined by Flah-erty, J. and joined in relevant part by Zappa-la, J.); May, 710 A.2d at 49 (Nigro, J., concurring, joined by Zappala, J.). Under the current state of the law, however, Appellant's argument that he was entitled to the instruction because the Commonwealth argued the aggravating circumstance identified above, is without merit. See May, 710 A.2d at 47.

. I find it difficult to glean much enlightenment from the two cases cited by the Pennsylvania Supreme Court. In Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31 (1998), the Court did not define what it meant to put future dangerousness "at issue” because the question did not arise. (In Clark it was not the Commonwealth that argued future dangerousness; rather, the defense argued the opposite, noting that chances of a commuted sentence in Pennsylvania were close to zero; the court gave an instruction defining life imprisonment.) As for Commonwealth v. May, 551 Pa. 286, 710 A.2d 44 (1998), its proposition that "[t]he aggravating circumstance of appellant’s prior record for violent felonies addressed only appellant's past conduct, not his future dangerousness,” is a mere unsupported assertion. Id. at 47.

. That is not accurate: it covers eight pages. See App. at 774-782.

. The dissent states:

Both Justice Blackmun and Justice O'Con-nor focus on two portions of the prosecutor’s final argument to the jury in the sentencing phase. First, they stress that the prosecutor asked the jury to answer the question of "what to do with [petitioner] now that he is in our midst.” That statement, however, was not made (as they imply) in the course of an argument about

future dangerousness, but was a response to petitioner’s mitigating evidence. Read in context, the statement is not even relevant to the issue in this case:

“The defense in this case as to sentence ... [is] a diversion. It's putting the blame on society, on his father, on his grandmother, on whoever else he can, spreading it out to avoid that personal responsibility. That he came from a deprived background. That he didn't have all of the breaks in life and certainly that *290helps shape someone. But we are not concerned about how he got shaped. We are concerned about what to do with him now that he is in our midst.”....

Both opinions also seize upon the prosecutor's comment that the jury’s verdict would be "an act of self-defense.” That statement came at the end of admonition of the jury to avoid emotional responses and enter a rational verdict:

"Your verdict shouldn't be returned in anger. Your verdict shouldn't be an emotional catharsis. Your verdict shouldn't be ... a response to that eight-year-old kid [testifying in mitigation] and really shouldn't be a response to the gruesome grotesque handiwork of [petitioner]. Your verdict should be a response of society to someone who is a threat. Your verdict will be an act of self-defense.”....
This reference to "self-defense” obviously alluded, neither to defense of the jurors’ own persons, nor specifically to defense of persons outside the prison walls, but to defense of all members of society against this individual, wherever he or they might be. Thus, as I read the record (and bear in mind that the trial judge was on the lookout with respect to this point), the prosecutor did not invite the jury to believe that petitioner would be eligible for parole — he did not mislead the jury.

Simmons, 512 U.S. at 181-182, 114 S.Ct. 2187 (Scalia, J., dissenting) (emphasis in original).

. This court is limited to reviewing the Pennsylvania Supreme Court's opinion for its consistency with federal law, and has no role in its application of state law. It is of interest, however, that there is disagreement among the Pennsylvania Supreme Court justices themselves as to whether the jury need be instructed that in Pennsylvania the jury may not be informed that life imprisonment means life without parole. Pennsylvania is one of only two states out of the 50 United States where life imprisonment means life without parole that hold that the jury may not be so informed. South Carolina, the state that was the subject of the Supreme Court decisions in Simmons, Kelly, and Skipper, is the other such state.

The Pennsylvania rule was enunciated in Commonwealth v. Mills, 350 Pa. 478, 39 A.2d 572 (1944), where the Pennsylvania Supreme Court stated that in a capital case the jury's only function was to decide whether the penalty should be life imprisonment or the death penalty. More recently, the Pennsylvania Supreme Court, in addressing the effect of Simmons on the rule announced in Mills, stated that "the per se rule announced in Mills [that any reference to the possibility of parole was an improper consideration for the jury in their deliberation of the defendant's guilt] has been superseded [by Simmons].” Clark, 710 A.2d at 36. The Pennsylvania Court then stated "that due process requires the court to instruct the jury on the law as it relates to the possibility of parole where that issue [the defendant's future dangerousness] clearly arises from the arguments of either counsel in the penalty phase." Id. Justice Nigro concurred, suggesting "that the better practice and policy is to require trial courts to give a Simmons instruction in all death penalty proceedings, regardless of whether counsel raises the issue of a defendant's potential future dangerousness during the penalty phase.” Id. at 43. Justice Zappala concurred separately, agreeing with Justice Nigro that a Simmons charge should be mandated. Id.