(c. 1956 – May 2, 1995) was convicted of the October
1980 murder of Charles DeVetsco, a friend who was
planning to testify against him in a robbery trial.
He was executed in
1995 by the state of Pennsylvania by lethal injection at
the age of 39. He became the first person to be executed
in Pennsylvania since 1976 when the death penalty was
First Execution in 33 Years
May 2, 1995
BELLEFONTE, Pa. (Reuter) - Convicted killer Keith
Zettlemoyer Wednesday became the first person executed by the state
of Pennsylvania in 33 years.
Zettlemoyer, 39, was pronounced dead at 10:25
p.m. EDT at Rockview State Correctional Institution, 12 minutes
after he was injected with a lethal dose of barbituates and
paralytic agents, prison spokesman Sam Mazzotta said.
Zettlemoyer was convicted in the 1980 killing of
a friend, Charles DeVetsco, who was a potential witness in a
burglary case. Zettlemoyer had said in the weeks before the
execution he no longer wished to fight his sentence.
"I ask that the people of Pennsylvania and the
Commonwealth of Pennsylvania please accept my 14 years of
imprisonment and my execution now as all of my debt to society paid
in full," Zettlemoyer said in a final statement released before his
"And I ask that the people of Pennsylvania and
the Commonwealth of Pennsylvania please forgive me of all the
terrible crimes I committed against them and I thank them sincerely,"
His last meal was two cheeseburgers, french fries,
chocolate pudding and chocolate milk.
The execution was the first in Pennsylvania since
1962. The state re-enacted a death penalty law in 1978 but legal and
political obstacles have delayed the resumption of executions.
Republican Gov. Tom Ridge, however, has promised
to expedite death sentences and since he took office in January he
has signed five death warrants, including Zettlemoyer's. There are
now 188 prisoners on Pennsylvania's death row.
In a statement after the execution, Ridge said, "Nearly
15 years ago, Keith Zettlemoyer brutally murdered his friend,
Charles DeVetsco. May Keith Zettlemoyer's soul rest in peace. May
the soul of Charles DeVetsco rest in peace."
Scores of death-penalty opponents and supporters
protested outside the prison prior to the sentence being carried
Death penalty opponents and DeVetsco's mother
continued the legal battle to save Zettlemoyer's life until minutes
before the execution, when the Pennsylvania Supreme Court denied a
request for a stay.
The U.S. Supreme Court had also rejected a stay
request earlier Tuesday.
The Pennsylvania Post-Conviction Defender
Organization, which represents death-row inmates, had argued
Zettlemoyer was seriously mentally ill and incapable of fighting the
execution on his own.
DeVetsco's mother, Aldona DeVetsco, explained her
opposition to the execution in an interview with a Philadelphia
television station. "Life is sacred. It's about the only sacred
thing on earth — and no one has a right to do away with it," she
Pennsylvania Execution First Since '62
The New York Times
May 3, 1995
A man who begged the courts to let him die
because "brain disease" made his life in prison hell was executed
Tuesday, becoming the first inmate put to death in Pennsylvania in
The inmate, Keith Zettlemoyer, was declared dead at
Rockview State Prison at 10:25 P.M., about 10 minutes after drugs
began dripping into each arm through intravenous tubes.
The execution took place after the state and United
States Supreme Courts turned down 11th-hour appeals.
Mr. Zettlemoyer was convicted of the 1980 murder of
Charles DeVetsco, a friend who planned to testify against him in a
robbery trial. After 14 years of appeals, Mr. Zettlemoyer, 39,
recently fired his lawyers and dropped his efforts to live.
"I see my execution as an end of suffering to my
imprisonment -- a blessed, merciful release from all these health
symptoms that I'm constantly suffering with," he testified on Saturday
in Federal District Court.
Doctors said Mr. Zettlemoyer suffered from post-traumatic
stress disorder. He complained in court of an unspecified "brain
disease," though doctors said they could find nothing physically wrong.
The doctors did not specify a cause or possible origin of the stress
Lawyers for the Pennsylvania Post-Conviction
Defender Organization argued that Mr. Zettlemoyer was not mentally
competent to decide his own fate.
Three psychiatrists testified that Mr. Zettlemoyer
"I'm not crazy," Mr. Zettlemoyer said. "I'm not
loony. I understand perfectly what's going on with the execution and
The last inmate to be executed in Pennsylvania was
Elmo Smith, in 1962. Since the United States Supreme Court allowed
states to resume the death penalty in 1976, Pennsylvania has scheduled
Mr. Zettlemoyer had twice previously been scheduled
to die. He received one stay from the Pennsylvania Supreme Court and
anone from former Gov. Dick Thornburgh.
The United States Court of Appeals for the Third
Circuit on Monday rejected a motion to block the execution. Three
appeals judges agreed with a lower court ruling that Mr. Zettlemoyer "knowingly,
intelligently and voluntarily opted to proceed with his execution."
Since the United States Supreme Court allowed
executions to resume in 1976, 275 people have been put to death around
Secrecy Governs Execution Process
Pittsburgh Post-Gazette (PA)
April 23, 1995
Dennis B. Roddy, Post-Gazette Staff Writer
In nine days, a trio of strangers, chosen in
secrecy, will arrive at the large, white prison that sits on a
hillside here. Shortly before 10 p.m., they will insert catheters
into both of Keith Zettlemoyer's arms, pump poison into his veins
and kill him.
They will each get $300 in cash and disappear
until summoned again.
Nobody is ever to know the names of the people
assigned to dispatch the first convict to be executed in
Pennsylvania since 1962.
The mechanics of capital punishment in
Pennsylvania involve a series of meticulous protocols shrouded in
sometimes bizarre secrecy. Department of Corrections officials, for
instance, won't say precisely what chemicals will be used for the
state's first lethal injection.
But they will say that the combination of drugs
that will put Zettlemoyer into a deep sleep and then stop his heart
cost somewhere between $300 and $400.
"The department fails to see what public purpose
would be filled by identifying the chemical agents," said Ben
Livengood, spokesman for the department.
"They want to anesthetize the process. It makes
it digestible -- the ruse that it's a medical process," said
Andrew Shubin, a State College lawyer and death penalty
The "execution chamber" is now referred to by
corrections officials as ''the injection room."
The room is the same one in which 348 men and two
women were executed in the state's electric chair between 1915, when
Rockview opened, and 1962, when Elmo Smith of Montgomery County
became the last person put to death in Pennsylvania by electrocution.
The chair is now in storage with the state's
Historical and Museum Commission.
While state officials won't identify the
chemicals, a four-member contingent visited Huntsville, Texas, in
March to confer with officials there. Texas has been executing
inmates by lethal injection since 1982 and has carried out more
executions than any other state.
Texas uses a barbiturate called sodium thiopental,
followed by a paralyzing agent called pancuronium bromide, which
stops a person's breathing. A third chemical, potassium chloride, is
then injected into the IV line, stopping the heart.
In Illinois, corrections official Nick Howell
watched as executioners used the same three chemicals to dispatch
convicted murderers James Free and Hernando Williams and serial
killer John Wayne Gacy.
"Free gave out a snort or a snore. Williams did
nothing. Gacy gave some sort of respiratory sound," he said. It took
six to seven minutes for the men to die.
Pennsylvania changed its legal method of
execution from electrocution to lethal injection in December 1990.
Midway through the next year, corrections officials put three people
under a retainer, $500 apiece annually, to carry out the executions.
They also get $150 each for mock execution "drills." They are the
same three who will get $300 apiece on May 2 for the first execution
in 33 years.
State officials will give few details about the
execution team except to say its members are neither prison
employees nor doctors, and that they are ''technically qualified" to
insert IV tubes and administer drugs intravenously. Under
Pennsylvania law, the only people other than physicians authorized
to administer IV drugs are nurses, physician's assistants and
"There are probably fewer than five people in the
entire department who know their identities," Livengood said. The
three are issued prison credentials with assumed names. When they go
through mock execution training drills, the prison staff members who
join them don't know their identities.
They will be brought to the prison by a staff
member who will pick them up at a predetermined location.
From there, the team will go to the DW building,
a squarish block structure that stands directly behind the grand
white main prison building. DW stands for "deputy warden," although
staff, prisoners and lawyers alike also call it the "death warrant"
Zettlemoyer will be waiting in a second-floor
cell. Officials won't say precisely when he will arrive from the
State Correctional Institution at Pittsburgh.
But when Florencio Rolan was scheduled to die
last month for a 1984 murder in Philadelphia, he was taken to
Rockview at midday of his planned execution day. Prison neighbors
say state troopers blocked off roads as the vehicle carrying Rolan
neared. Prisoners who work the fields and orchards of the prison
were locked down in their cells immediately after their evening meal.
All approaches to the prison were sealed off at 6 p.m. the preceding
Rolan was saved by a court-ordered stay of
When Zettlemoyer arrives, he'll be fingerprinted
to verify that the right man has arrived. Transfer documents will
include a recent photograph. He will be asked if he would like to
issue a final statement. He can write it down or dictate it.
The condemned man will be taken to the second
floor and put in one of six cells lining a hallway adjacent to the
injection room. His only view will be a patch of sky visible in one
of the windows on the other side of the hall, behind a screen of
At some point on the afternoon of May 2, prison
officials will deliver a menu from the prison cafeteria for his
final meal. The menu includes grilled steak, roast beef, a
cheeseburger, fried chicken -- "things you'd expect to find on a
menu," as Livengood puts it. No alcoholic drinks are permitted.
Department-approved immediate family members will
be allowed a final visit. One clergyman and the inmate's attorney
will be allowed to visit "as needed." Around 8:30 p.m., prison
officials will give Zettlemoyer another chance to make a final
Shortly after 9:30 p.m., a team of prison staff
members will wheel a metal hospital gurney to his cell. A series of
straps will be used to hold him down. A separate team will stand by,
Livengood said, "if there's a need to do a cell extraction" should
the prisoner be uncooperative.
Those who know Zettlemoyer say he's an utterly
beaten-down man, profoundly withdrawn and unlikely to fight.
Larry Fitzgerald, a spokesman at Huntsville State
Prison in Texas, has witnessed five lethal injection executions this
year and said he had heard no stories of resistance. Prisoners are
often remarkably cooperative.
"In those last six hours, the prisoners I have
talked to and met are resigned to this thing, or are inquisitive
about exactly what's going to happen," Fitzgerald said. In one
instance, a prisoner with collapsed veins because of intravenous
drug use pointed out good veins to the injection team.
There have been glitches in the injection process,
says a report by the National Coalition to Abolish the Death Penalty.
In one, Ricky R. Rector, a brain-damaged convict put to death for
killing a sheriff in Arkansas, moaned for 40 minutes as an injection
team tried to locate a usable vein in his arms.
Under Pennsylvania's protocols, Zettlemoyer will
be wheeled down the hallway and into the injection room. The front
of the gurney will be latched to the wall behind him. Both arms will
be extended, crucifixion style, and two members of the injection
team will take over. The third will be on hand as a backup.
Team members will insert catheters into both arms
and hook them to tubes running through the small opening beneath a
two-way mirror on the wall behind Zettlemoyer's head. On the other
side are bags with a saline solution that will drip into the tubes.
The injection team members will go into that small room -- which
previously housed the transformer for the electric chair -- and
watch through the mirror.
Remaining in the injection room will be Robert W.
Meyers, deputy warden for operations, and Harvey Yancey, the major
of the guard, the prison's highest- ranking uniformed officer.
Meyers will stand at a black wall telephone near the gurney, on an
open telephone line to the office of Warden Joseph Mazurkiewicz.
Mazurkiewicz will be on an open line to the office of Gov. Ridge,
who signed the execution order.
On a shelf next to the telephone will be a
microphone and a small intercom box, linking the deputy warden by
voice with the team in the injection room.
Yancey will draw open a blue curtain, revealing a
large glass window. Behind it will be the clergyman, six news
reporters and six "reputable adult citizens" selected by
Mazurkiewicz, all seated in folding metal chairs.
They will see Zettlemoyer's feet, which will
point toward the window. His face will be visible on one of several
mirrors set up to provide a view. He won't be asked to give any last
At 10 p.m., barring word from Gov. Ridge, one or
both members of the execution team -- it's up to them to decide --
will insert a needle and syringe into one of the two IV lines and
pump in the barbiturate. Moments later, they will add the paralyzer,
then the heart stopper.
What will it look like?
"It's kind of like watching someone go to sleep,"
Fitzgerald said. When the lungs collapse, he said, "they make kind
of a cough sound. By that point, the inmate's dead."
And at that point, the deputy warden will summon
a doctor, who has been waiting in an adjacent room, forbidden by his
Hippocratic oath and medical society rules to participate physically
in an execution. He will check for Zettlemoyer's heartbeat and
pulse. If all has gone as planned, there will be none.
He will look at a clock that hangs on the wall
directly above Zettlemoyer's head and announce the hour. That's what
he'll list on the state certificate -- that, 14 years, six months
and 17 days after he killed Charles DeVetsco, Keith Zettlemoyer is
923 F.2d 284
Keith W. Zettlemoyer, Appellant,
Thomas A. Fulcomer, Superintendent, State Correctional
Institution At Huntingdon, Pennsylvania and Honorable
Leroy S. Zimmerman, Attorney General of the Commonwealth
of Pennsylvania, Appellees.
Docket number: 88-5543
March 20, 1991
Before SLOVITER, GREENBERG, and NYGAARD, Circuit
OPINION OF THE COURT
GREENBERG, Circuit Judge.
Petitioner Keith W. Zettlemoyer
appeals to this court from an order of the United
States District Court for the Middle District of
Pennsylvania entered May 31, 1988, dismissing his
petition for a writ of habeas corpus under 28 U.S.C.
Sec. 2254. We have jurisdiction under 28 U.S.C. Sec.
1291. We will affirm the order of the district court
dismissing Zettlemoyer's petition.
I. PROCEDURAL AND FACTUAL HISTORY
Zettlemoyer murdered Charles
DeVetsco on October 13, 1980, one week before
DeVetsco was to be a witness for the Commonwealth of
Pennsylvania at a trial of several felony charges
Two police officers arrested
Zettlemoyer, who was heavily armed, after they heard
the shots that killed DeVetsco at a railroad yard in
Harrisburg in the early morning hours. The
unmistakable inference from the evidence is that
Zettlemoyer, who knew that DeVetsco was to be a
witness at the ensuing trial, kidnapped and executed
him so that he could not testify.
At the murder trial in the Dauphin
County Court of Common Pleas, Zettlemoyer did not
contest that he had killed DeVetsco but presented a
defense of "diminished capacity." The jury returned
a verdict of guilty of first degree murder and on
the same day determined that a death sentence should
be imposed under 42 Pa.Cons.Stat.Ann. Sec. 9711
(Purdon 1982 & Supp.1990), the germane portions of
(a) Procedure in jury trials.--
(1) After a verdict of murder of
the first degree is recorded and before the jury is
discharged, the court shall conduct a separate
sentencing hearing in which the jury shall determine
whether the defendant shall be sentenced to death or
(2) In the sentencing hearing,
evidence may be presented as to any matter that the
court deems relevant and admissible on the question
of the sentence to be imposed and shall include
matters relating to any of the aggravating or
mitigating circumstances specified in subsections
(d) and (e). Evidence of aggravating circumstances
shall be limited to those circumstances specified in
(3) After the presentation of
evidence, the court shall permit counsel to present
argument for or against the sentence of death. The
court shall then instruct the jury in accordance
with subsection (c).
(c) Instructions to the jury.--
(1) Before the jury retires to
consider the sentencing verdict, the court shall
instruct the jury on the following matters:
(i) the aggravating circumstances
specified in subsection (d) as to which there is
(ii) the mitigating circumstances
specified in subsection (e) as to which there is
(iii) aggravating circumstances
must be proved by the Commonwealth beyond a
reasonable doubt; mitigating circumstances must be
proved by the defendant by a preponderance of the
(iv) the verdict must be a
sentence of death if the jury unanimously finds at
least one aggravating circumstance specified in
subsection (d) and no mitigating circumstance or if
the jury unanimously finds one or more aggravating
circumstances which outweigh any mitigating
circumstances. The verdict must be a sentence of
life imprisonment in all other cases.
(d) Aggravating circumstances.--Aggravating
circumstances shall be limited to the following ...
(5) The victim was a prosecution
witness to a murder or other felony committed by the
defendant and was killed for the purpose of
preventing his testimony against the defendant in
any grand jury or criminal proceeding involving such
(e) Mitigating circumstances.--Mitigating
circumstances shall include the following:
(1) The defendant has no
significant history of prior criminal convictions.
(2) The defendant was under the
influence of extreme mental or emotional
(3) The capacity of the defendant
to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was
(4) The age of the defendant at
the time of the crime.
(5) The defendant acted under
extreme duress, although not such duress as to
constitute a defense to prosecution ... or acted
under the substantial domination of another person.
(6) The victim was a participant
in the defendant's homicidal conduct or consented to
the homicidal acts.
(7) The defendant's participation
in the homicidal act was relatively minor.
(8) Any other evidence of
mitigation concerning the character and record of
the defendant and the circumstances of his offense.
42 Pa.Cons.Stat.Ann. Secs.
After the Court of Common Pleas
denied Zettlemoyer's post-trial motions, he filed a
direct appeal to the Supreme Court of Pennsylvania
which affirmed his conviction and sentence.
Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d
937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct.
2444, 77 L.Ed.2d 1327 (1983).
Zettlemoyer then filed a petition seeking a new
trial in the Court of Common Pleas under
Pennsylvania's Post-Conviction Hearing Act ("PCHA"),
42 Pa.Cons.Stat.Ann. Secs. 9541-9551, but on August
26, 1985, that court denied the petition without a
Commonwealth v. Zettlemoyer, 106 Dauphin County
Repts. 215 (1985). Zettlemoyer appealed from the
denial of the petition to the Superior Court which
affirmed on July 2, 1986. Commonwealth v.
Zettlemoyer, 359 Pa.Super. 631, 515 A.2d 620 (1986).
He then sought leave of the Supreme Court of
Pennsylvania to appeal, but that application was
denied by order dated December 23, 1986.
Commonwealth v. Zettlemoyer, 513 Pa. 34, 518 A.2d
807 (1986). Zettlemoyer then filed a petition for a
writ of certiorari in the United States Supreme
Court on February 13, 1987, but it, too, was denied
on April 6, 1987. Zettlemoyer v. Pennsylvania, 481
U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987).
On July 17, 1987, Zettlemoyer
filed his petition for a writ of habeas corpus in
the United States District Court for the Middle
District of Pennsylvania challenging the
constitutionality of the Pennsylvania death penalty
statute, alleging errors by the trial court, and
asserting that he had had ineffective assistance of
In the petition Zettlemoyer set forth
that he was arrested while heavily armed in the
early morning hours of October 13, 1980, when the
police officers heard the gun shots. Zettlemoyer
admitted being acquainted with DeVetsco and
acknowledged that DeVetsco was scheduled to testify
against him in criminal proceedings in Snyder
County. Zettlemoyer made no claim in the petition
that he had not murdered DeVetsco.
Zettlemoyer set forth that the
Pennsylvania death penalty statute is
unconstitutionally mandatory and vague, and
unconstitutionally shifts the risk of nonpersuasion
because defendants must prove mitigating
circumstances by a preponderance of the evidence. He
also urged that his trial counsel was ineffective in
failing to present competent psychological testimony
on the issue, central to his defense, of diminished
capacity, and in failing to present psychological
testimony at the sentencing phase.
He asserted that
the trial court improperly instructed the jury that
it had no responsibility for imposition of the death
penalty and thus violated the holding in Caldwell v.
Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86
L.Ed.2d 231 (1985), that it is constitutionally
impermissible to rest a death sentence on a
determination made by a sentencer led to believe
that responsibility for determining the
appropriateness of the defendant's death rests
He further contended that the trial court
erred by failing to instruct the jury that if it was
unable to agree unanimously that the death penalty
should be imposed, it was free to decide by less
than a unanimous vote to impose a life sentence
under 42 Pa.Cons.Stat.Ann. Sec. 9711(c)(1).
The district court dismissed the
petition in a memorandum opinion and order.
Zettlemoyer v. Fulcomer, No. 87-0993 (M.D.Pa. May
It explained that the Pennsylvania death penalty
statute is not unconstitutionally mandatory because
it "mandates a sentence of death only after a jury
acting with channeled discretion finds that
aggravating circumstances outweigh mitigating
circumstances." Id. at 20 (citing Jurek v. Texas,
428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976);
Commonwealth v. Cross, 508 Pa. 322, 496 A.2d 1144
The court continued that the statute is not
unconstitutionally vague because "[u]nder
Pennsylvania law, the Commonwealth has the burden of
proving beyond a reasonable doubt every element of
the offense in the guilt phase of the trial, as well
as proving the aggravating circumstances beyond a
reasonable doubt." Zettlemoyer, slip op. at 21. It
reasoned that the statute eliminates total
arbitrariness and capriciousness and appropriately
channels the sentencer's discretion because it
"focuses on the circumstances of each individual
homicide and individual defendant in deciding
whether the death penalty is to be imposed." Id.
(quoting Proffitt v. Florida, 428 U.S. 242, 258, 96
S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976)).
also rejected Zettlemoyer's challenge that the
statute impermissibly shifts the risk of
nonpersuasion to defendants, citing Patterson v. New
York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281
(1977), for the holding that it was proper to place
the burden of proving an affirmative defense on the
defendant. Zettlemoyer, slip op. at 22.
The court rejected Zettlemoyer's
argument that his trial counsel was ineffective for
not identifying and retaining a psychiatrist or
specially-qualified psychologist competent to offer
an expert opinion on his ability to form the
specific intent to commit first degree murder, as he
did not demonstrate prejudice from this omission.
Id. at 13 (citing Strickland v. Washington, 466 U.S.
668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674
(1984) (defendant must show counsel's deficient
performance prejudiced defense so that it deprived
him or her of a fair judicial proceeding with
Likewise, the court found that
counsel was not ineffective for failing to recall
the psychologist who testified during trial at the
sentencing phase because Zettlemoyer's father
testified at the sentencing hearing, thus
reinforcing his diminished capacity defense in the
minds of the jury. Zettlemoyer, slip op. at 30.
Finally, the court found that the
trial court's charge, when taken in its entirety,
"properly explained to the jury the role which they
were to play in weighing the aggravating and
mitigating circumstances." Id. at 32.
the court found that the entire charge complied with
the requirements of 42 Pa.Cons.Stat.Ann. Sec.
9711(c)(1) because "the court informed the jury that
the only possible way it could return a sentence of
death would be if the Commonwealth proved beyond a
reasonable doubt, and the jury unanimously agreed,
that there was an aggravating circumstance and no
mitigating circumstances, or that the aggravating
circumstances outweighed any mitigating
circumstances." Zettlemoyer, slip op. at 32. The
court, therefore, dismissed the petition, stating in
its order that "any appeal from this order will be
deemed frivolous, lacking in probable cause and not
taken in good faith." Id. at 35.
Zettlemoyer then appealed to this
court on June 29, 1988, and we subsequently issued a
certificate of probable cause and scheduled oral
argument for March 30, 1989. However, on March 27,
1989, the United States Supreme Court granted
certiorari in Blystone v. Pennsylvania, 489 U.S.
1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989), on the
question of whether the Pennsylvania death penalty
statute is unconstitutional because "it improperly
limits the full discretion the sentencer must have
in deciding the appropriate penalty for a particular
defendant." Accordingly, though we did hear oral
argument on March 30, 1989, we deferred decision on
the appeal pending disposition of Blystone.
On February 28, 1990, the Supreme
Court held that the Pennsylvania death penalty
statute, notwithstanding its "mandatory" language,
satisfies the requirement that a capital-sentencing
jury be allowed to consider and to give effect to
all relevant mitigating evidence and, therefore,
does not violate the Eighth Amendment's proscription
against cruel and unusual punishment. Blystone v.
Pennsylvania, --- U.S. ----, 110 S.Ct. 1078, 1082,
108 L.Ed.2d 255 (1990).
The Court found that the
death penalty is not automatically imposed for
certain types of murders; rather, "[i]t is imposed
only after a determination that the aggravating
circumstances outweigh the mitigating circumstances
present in the particular crime by the particular
defendant, or that there are no such mitigating
circumstances." Id. 110 S.Ct. at 1082-83.
Following the decision in
Blystone, we called for and received additional
briefs and heard argument again. In his supplemental
brief, Zettlemoyer argues that the Pennsylvania
death penalty statute is unconstitutional as applied
to him, attempting to distinguish Blystone on the
basis that in Blystone the petitioner presented no
mitigating circumstances whereas he had done so.
Zettlemoyer argues that the mandatory result of the
jury's process of weighing aggravating and
mitigating circumstances excluded it from making a
"unique judgment" about him as a "specific
defendant." Additionally, he reiterates the
ineffective assistance of counsel and improper jury
instruction arguments made to the district court.
A. Scope of Review
Our scope of review is limited as
we sit not to retry state cases de novo but rather
to examine the proceedings in the state court to
determine if there has been a violation of federal
Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct.
2174, 2178, 33 L.Ed.2d 1 (1972).
Accordingly, we do
not exercise the supervisory power that we might
possess on an appeal from a conviction in the
district court. Donnelly v. DeChristoforo, 416 U.S.
637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431
(1974). Where, as here, a district court has denied
a petition for habeas corpus without holding an
evidentiary hearing, our review consists of a
two-step analysis. Smith v. Freeman, 892 F.2d 331,
338 (3d Cir.1989) (citing Toomey v. Clark, 876 F.2d
1433, 1435 (9th Cir.1989)).
First, we must determine
whether the petitioner has alleged facts that, if
proved, would entitle him to relief. Smith, 892 F.2d
at 338 (citing Townsend v. Sain, 372 U.S. 293, 312,
83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); Toomey,
876 F.2d at 1435). If so, we must then decide
whether an evidentiary hearing is necessary to
establish the truth of those allegations. Smith, 892
F.2d at 338 (citing Townsend, 372 U.S. at 312-19, 83
S.Ct. at 756-60; Toomey, 876 F.2d at 1435).
therefore consider the facts in this case in the
light most favorable to Zettlemoyer. Smith, 892 F.2d
at 338 (citing Keller v. Petsock, 853 F.2d 1122,
1128 (3d Cir.1988)). Of course, his contentions
implicating the interpretation and application of
legal precepts receive plenary review. Sullivan v.
Cuyler, 723 F.2d 1077, 1082 (3d Cir.1983) (citing
Universal Minerals, Inc. v. C.A. Hughes & Co., 669
F.2d 98 (3d Cir.1981)). Furthermore, we freely
review the district court's conclusions regarding
the competency of Zettlemoyer's trial counsel. Lewis
v. Mazurkiewicz, 915 F.2d 106, 110 (3d Cir.1990).
B. The Blystone Ruling
Zettlemoyer's argument that the
Pennsylvania death penalty statute is
unconstitutional as applied to him centers on the
instruction to the jury that it was required to
impose the death penalty if the result of a weighing
process tipped in favor of the aggravating
circumstance. He contends that the jury's discretion
in applying the death penalty was thus
unconstitutionally removed and he could not be
In Blystone, the Supreme Court
held that, notwithstanding its "mandatory" language,
the Pennsylvania death penalty statute is not
unconstitutional on its face because it satisfies
the requirement that a capital-sentencing jury be
allowed to consider and to give effect to all
relevant mitigating evidence and because the death
penalty is not automatically imposed for certain
types of murders.
The Court explained that rather
"[i]t is imposed only after a determination that the
aggravating circumstances outweigh the mitigating
circumstances present in the particular crime by the
particular defendant, or that there are no such
mitigating circumstances." Blystone v. Pennsylvania,
110 S.Ct. at 1082-83.
Additionally, the Court held
that the statute was not unconstitutional as applied
to Blystone who was convicted of first-degree
murder, robbery, criminal conspiracy to commit
homicide, and criminal conspiracy to commit robbery.
Id. at 1084. The jury which convicted Blystone
returned a death penalty verdict after finding,
pursuant to Pa.Cons.Stat.Ann. Sec. 9711(d)(6), the
aggravating circumstance that Blystone committed a
killing while in the perpetration of a felony and
further finding that there were no mitigating
110 S.Ct. at 1081.
The Court rejected Blystone's
argument that where a jury found there were no
mitigating circumstances, mandatory imposition of
death violated the Eighth Amendment requirement of
individualized sentencing since the jury was
precluded from considering whether the severity of
the aggravating circumstance warranted the death
penalty. Id. at 1083.
The Court explained that
"[t]he presence of aggravating circumstances serves
the purpose of limiting the class of death-eligible
defendants, and the Eighth Amendment does not
require that these aggravating circumstances be
further refined or weighed by a jury.... The
requirement of individualized sentencing in capital
cases is satisfied by allowing the jury to consider
all relevant mitigating evidence." Id. (emphasis
added) (citing Lowenfield v. Phelps, 484 U.S. 231,
244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988)).
Finding that the trial court "specifically
instructed the jury to consider, as mitigating
evidence, any 'matter concerning the character or
record of the defendant, or the circumstances of his
offense,' " the Court concluded that the statute, as
applied, did not violate the Eighth Amendment. 110
S.Ct. at 1083-84. Moreover, the Court concluded that
the trial court's examples of mitigating
circumstances did not preclude the jury's
considering any other mitigating factors. Id. at
Blystone is dispositive on
Zettlemoyer's statutory constitutional issue. The
trial court here instructed the jury on mitigating
circumstances as follows:
There are in the law--well,
there's an unlimited number. They list eight. They
list seven and they say, any other evidence of
mitigation concerning the character. Four of them
may be applicable to this case, the others are not.
They are one, that the defendant has no significant
history of prior criminal convictions; two, he was
under the influence of extreme mental or emotional
distress; the third one, the capacity of the
defendant to appreciate the criminality of his
conduct or to conform his conduct to the
requirements of the law was substantially impaired;
four, the age of the defendant at the time of the
crime and then this eighth one; any other evidence
of mitigation, which would be the fifth one to
consider, any other evidence of mitigation
concerning the character and record of the defendant
and the circumstances of his offense.
All of the evidence from both
sides that you have heard earlier, of course, during
the trial in chief, all of that which has any
bearing in your judgment upon aggravating or
mitigating circumstances as I have mentioned them is
important or proper for you to consider.
The court, therefore, instructed
the jury that several mitigating circumstances might
apply to Zettlemoyer for this particular crime. The
trial court instructed the jury to consider
Zettlemoyer's age, mental and emotional status at
the time of the crime, and absence of a criminal
record. These factors distinguished him from other
defendants and provided the individualized
consideration required by Woodson v. North Carolina,
428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d
944 (1976) (individualized sentencing required by
fundamental respect for humanity underlying Eighth
Additionally, because the jury retained
discretion in assigning weight to these factors and
in weighing them against any aggravating
circumstances, the statutory plan did not
"automatically" impose a sentence of death. See id.
(statute that automatically imposes death sentence
without particularized consideration of character
and record of defendant struck down); Roberts v.
Louisiana, 428 U.S. 325, 333-34, 96 S.Ct. 3001,
3006-07, 49 L.Ed.2d 974 (1976) (same).
The Blystone Court held that a
trial court's specific instruction to the jury to
consider, as mitigating evidence, any "matter
concerning the character or record of the defendant,
or the circumstances of his offense," complied with
the requirements of the Eighth Amendment. Blystone,
110 S.Ct. at 1083-84. See also Penry v. Lynaugh, 492
U.S. 302, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256
(1989) (jury must be able to consider and to give
effect to any mitigating evidence relevant to
defendant's background, character, or circumstances
of crime); Lockett v. Ohio, 438 U.S. 586, 604, 98
S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality
opinion) (sentencer must be allowed to consider any
aspect of defendant's character or record and any
circumstances of the offense as mitigating factors).
The trial court here gave this exact instruction.
See App. at 203. Additionally, the court instructed
the jury to consider all evidence presented from
both sides during both the guilt and sentencing
phases of trial "which has any bearing in your
judgment upon aggravating and mitigating
circumstances." Id. at 203-04 (emphasis added). This
broad instruction permitted the jury to consider
mitigating factors in addition to the character,
record, or offense evidence required by Blystone.
This unrestricted consideration of mitigating
circumstances clearly meets the Eighth Amendment's
requirements. See Blystone, 110 S.Ct. at 1083-84;
Penry, 109 S.Ct. at 2947; Lockett, 438 U.S. at 604,
98 S.Ct. at 2964 (plurality opinion). We, therefore,
reject Zettlemoyer's argument that the statute is
unconstitutional as applied to him.
C. Competency of Counsel
Zettlemoyer argues that his trial
counsel was ineffective for not presenting competent
psychological testimony on the issue of diminished
capacity at the trial and not presenting
psychological testimony or affirmative evidence at
the sentencing hearing. We will address these
1. Guilt Phase
During the guilt phase of the
trial, Zettlemoyer's counsel presented Dr. Stanley
Schneider to testify to his diagnosis of
Zettlemoyer's mental condition. Dr. Schneider is a
clinical psychologist licensed in Pennsylvania who
had been Director of the Department of Psychology at
the Harrisburg State Hospital. App. at 114. Dr.
Schneider interviewed and tested Zettlemoyer on
three separate occasions, interviewed his paternal
grandparents, parents, and one sister, and reviewed
Zettlemoyer's school and police records. Id. at 126.
During his meetings with Zettlemoyer, Dr. Schneider
administered seven different psychological tests
within three general categories; intellectual
and "projected tests" which gave Zettlemoyer the
opportunity to project his own "unique thoughts,
ideas, anxieties, needs, [and] conflicts" in
response to certain relatively unstructured stimuli.
Id. at 128-30.
The tests indicated that Zettlemoyer
functioned in the average range of intelligence with
some deficits in his common sense and practical
judgment, particularly as it related to
interpersonal relationships. Id. at 131.
Zettlemoyer's intelligence was also weak when
compared to his age group and the personality test
revealed that he apparently distorted his responses
to exaggerate his symptoms. Id. at 131-32. Dr.
Schneider did not find any evidence of organic or
physical involvement or any suggestion of trauma to
the brain or central nervous system. Id. at 133.
Dr. Schneider testified that the projected tests
revealed that Zettlemoyer was not psychotic, but had
limited ability to tolerate adversity, and that too
much emotional stimulation caused a loss in his
judgment. Id. at 134-35. Dr. Schneider concluded
that Zettlemoyer was a paranoid personality with
schizoid features and that Zettlemoyer had suffered
this personality disorder for his entire life. Id.
At one point, Dr. Schneider
testified that he was:
a pampered, doted upon, catered to, in simple
terminology spoiled brat who figured out how to get
what he wanted, either directly or by manipulating
or controlling the situation to get what he wanted
his entire life and I believe that faced with the
number of stresses that he had to deal with that he
could not cope with, and he decompensated [and] ...
engaged in a variety of unproductive behaviors.
Zettlemoyer's counsel then asked
I specifically want to direct your attention to
October the 13th of 1980, to the early morning
hours, I want to ask you with a reasonable degree of
medical certainty, was the Defendant's mental
illness of such an intensity at that time, at the
time of the killing, that he was not mentally
capable of fully forming the specific intent which
is required for a willful deliberate and
The trial court sustained the
district attorney's objection to this question and
refused to permit Dr. Schneider to answer, stating
at sidebar that "assuming all these things are
correct, [it] is no legal excuse for a crime." Id.
at 149. The court reasoned that, notwithstanding Dr.
Schneider's thorough examination of Zettlemoyer's
personality, Dr. Schneider could not testify
whether, at the time of the killing, Zettlemoyer
could form a specific intent to kill because the
testimony did not lay a proper foundation for that
conclusion. Id. at 151-52.
Zettlemoyer does not contend that
this ruling was incorrect, as he admits that Dr.
Schneider was not "qualified" and "competent to
offer the opinion testimony for which he was called
as a witness by [his] trial counsel." Brief at 13.
Of course, the Supreme Court of Pennsylvania upheld
the ruling under state law on the direct appeal.
Commonwealth v. Zettlemoyer, 500 Pa. at 27, 454 A.2d
Rather, Zettlemoyer claims that
his counsel was ineffective because he did not
identify or secure a witness who could have provided
competent opinion testimony on the defense of
diminished capacity at the guilt phase of the trial.
He also contends that trial counsel was ineffective
because Dr. Schneider's key testimony was
inadmissible and because the counsel produced
negative personality testimony, without the ultimate
conclusion that such factors reduced his
culpability, thereby prejudicing his case.
claims prejudice from the trial court's instruction
to the jury, in which he maintains the court
"interjected its negative opinion of the core of
[his] defense, suggesting that Dr. Schneider's
testimony should be disregarded." Brief at 16.
The Supreme Court set forth the
criteria for determining whether relief may be
granted on the ground of ineffective assistance of
counsel in Strickland v. Washington, 466 U.S. 668,
687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
A petitioner must show (1) that counsel made errors
so serious that counsel's representation fell below
an objective standard of reasonableness, and (2)
that such failure resulted in prejudice so as to
deprive the petitioner of a fair trial, that is, a
trial whose result is reliable. Id. at 688, 104
S.Ct. at 2064.
However, a court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel's
challenged conduct on the facts of the particular
case, viewed as of the time of counsel's conduct. A
convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of
counsel that are alleged not to have been the result
of reasonable professional judgment.
The court must
then determine whether, in light of all the
circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance. In making that determination, the court
should keep in mind that counsel's function ... is
to make the adversarial testing process work in the
particular case. At the same time, the court should
recognize that counsel is strongly presumed to have
rendered adequate assistance and made all
significant decisions in the exercise of reasonable
Id. at 690, 104 S.Ct. at 2066.
In order to resolve the
ineffectiveness claim, we must consider
Zettlemoyer's counsel's conduct within the context
of Pennsylvania law regarding the defense of
diminished capacity. Pennsylvania recognizes the
defense to show that a defendant did not have the
capacity to possess the state of mind required by
the legislature to commit a particular degree of the
crime charged. Commonwealth v. Walzack, 468 Pa. 210,
220-21, 360 A.2d 914, 919-20 (1976).
Defendants invoking the defense of diminished
capacity, however, concede general criminal
liability and Zettlemoyer has done this. Id.
Evidence of diminished capacity is admissible at the
guilt phase of trial and a jury finding diminished
capacity may not find the defendant guilty of first
degree murder, but it may find the defendant guilty
of third degree murder.
Pennsylvania case law now
establishes that, to prove diminished capacity, only
expert testimony on how the mental disorder affected
the cognitive functions necessary to form the
specific intent is relevant and admissible.
Commonwealth v. Terry, 513 Pa. 381, 393, 521 A.2d
398, 404, cert. denied, 482 U.S. 920, 107 S.Ct.
3198, 96 L.Ed.2d 685 (1987); Commonwealth v. Davis,
331 Pa.Super. 59, 64, 479 A.2d 1077, 1080 (1984)
(personality disorders are irrelevant to show
diminished capacity). But when Zettlemoyer was tried
the law was slightly different, as a finding of
diminished capacity depended on whether the
defendant had a "conscious intent to kill."
Commonwealth v. Sourbeer, 492 Pa. 17, 31-32 n. 2,
422 A.2d 116, 123 n. 2 (1980); Commonwealth v.
Brantner, 486 Pa. 518, 523, 406 A.2d 1011, 1014
Evidence of specific intent to
kill may disprove the defense of diminished
capacity. See Commonwealth v. Tempest, 496 Pa. 436,
442, 437 A.2d 952, 955 (1981). In Tempest, the
Supreme Court of Pennsylvania held that evidence
adduced at trial that showed the defendant planned
the killing days in advance, considered various
means to kill, persisted despite the victim's pleas,
and repeated at various times her motive for the
killing, sufficed to enable the trier of fact to
reject the diminished capacity defense. Id. The
defendant presented evidence that she suffered from
chronic schizophrenia, acute type. Id. at 439, 437
A.2d at 954.
The trial court had initially
determined that the defendant was incompetent to
stand trial but less than two years later, she was
adjudged competent. Id. at 439-40, 437 A.2d at 954.
Notwithstanding this evidence, the Supreme Court
affirmed her conviction of first degree murder,
concluding that the Commonwealth had adduced ample
evidence to reject the diminished capacity defense
and to prove that she possessed the specific intent
to kill. Id. at 442, 437 A.2d at 955.
Likewise, in Commonwealth v.
Davis, 331 Pa.Super. 59, 65, 479 A.2d 1077, 1080
(1984), the Superior Court upheld the trial court's
rejection of the defendant's diminished capacity
defense and affirmed his conviction of first degree
murder. Id. The defendant had presented evidence
that he had experienced a schizophrenic episode at
the time of the murder. Id.
The Superior Court noted
that the trier of fact had evidence of specific
intent to kill, including the defendant's shooting
the decedent twice at close range, his prior threats
to kill her, his threat to cut her throat while
holding a knife to her neck, his breaking into her
apartment in the early hours possessing a deadly
weapon, and his firing shots at her as she fled the
apartment. Id. at 64, 479 A.2d at 1080. In light of
this evidence, the court concluded that the record
showed ample support for the trial court's
discrediting the psychological testimony of
diminished capacity. Id. at 65, 479 A.2d at 1081.
After considering Pennsylvania law
and the record here, we conclude that Zettlemoyer is
not entitled to relief on his claim that his counsel
was ineffective for calling Dr. Schneider, even
though his testimony was not admissible on the issue
of diminished capacity. The colloquy at sidebar
after the Commonwealth's objection to Dr.
Schneider's testimony clearly shows that defense
counsel was familiar with the diminished capacity
defense and its requirements. See App. at 149-50.
Counsel referred the court to three diminished
capacity cases, Commonwealth v. Sourbeer, 492 Pa.
17, 422 A.2d 116 (1980), Commonwealth v. Brantner,
486 Pa. 518, 406 A.2d 1011 (1979), and Commonwealth
v. Walzack, 468 Pa. 210, 360 A.2d 914, in his
attempt to persuade the court to permit Dr.
Schneider to give his opinion on Zettlemoyer's
mental capability to form specific intent to kill.
App. at 149-50. It is obvious, therefore, that he
had thoroughly researched the defense. The trial
court rejected counsel's arguments by distinguishing
these precedents on their facts. Id. at 149, 151
(distinguishing Sourbeer, 492 Pa. at 25-26, 422 A.2d
at 119-20 (psychiatrist testified that defendant had
passive-aggressive personality with antisocial
tendencies); Brantner, 486 Pa. at 523, 406 A.2d at
1014 (psychiatrist testified that defendant had
schizoid personality and was paranoid); Walzack, 468
Pa. at 215, 360 A.2d at 916 (defendant had undergone
Counsel cannot be deemed ineffective
merely because he could not persuade the court to
admit Dr. Schneider's opinion. He fully developed
Dr. Schneider's testimony but it simply was not
sufficient to lay a foundation for the opinion
question. Yet there is nothing unusual in an
attorney not being able to convince a court that
evidence should be admitted.
Clearly, Zettlemoyer did have
significant personality problems and it was
reasonable strategy for counsel to bring them out in
an attempt to convince the court to allow Dr.
Schneider's testimony. A defense counsel cannot be
deemed ineffective just because he is not
Finally, on this issue we point out that
at the time of Zettlemoyer's trial, Pennsylvania law
was in a state of flux regarding diminished capacity
and even the Supreme Court of Pennsylvania was
having difficulty dealing with the defense. See
Commonwealth v. Zettlemoyer, 500 Pa. at 27-31, 454
A.2d at 943-44. Thus, it is not surprising that a
defense counsel did as well.
In any event, the evidence that
Zettlemoyer had the specific intent to kill was
overwhelming. Zettlemoyer was very heavily armed
when police discovered him at the scene of the
murder. See Transcript of Trial, Vol. II, at
383-431. The police testified that they found on
Zettlemoyer's person forty-one rounds of .357
federal ammunition; twenty-four in strip packets
with more deadly semi-jacketed hollow points, and
seventeen loose, and that he was carrying a knife
with a six-inch blade and sheath, wore a shoulder
holster, two beltkeepers, and an ammunition pouch.
Id. at 399, 406, 428, 429, 431.
two handcuff keys and a canister of tear gas and was
dressed in dark clothing and black gloves. Id. at
383, 406, 428-29. An inventory search of his van,
parked near the site of the murder, revealed two
sets of handcuffs; two spent .22 caliber casings;
and a .22 caliber pistol with holster and clip. Id.
at 452. Just outside the van, police found a .357
live round on the ground. Id. at 459.
drove his van as far back as possible into the
deserted area where the murder occurred, to a point
where it could not be seen. Transcript of Trial,
Vol. I, at 8, 9; Vol. II, at 388. Surely this
irrefutable physical evidence demonstrated that he
had extensively prepared for the crime and had a
specific intent to kill.
But there is more. The victim,
DeVetsco, lived and worked in Sunbury, Pennsylvania,
approximately one hour's drive from where his body
was found. He carried no identification; his
license, car, and car keys were at his apartment in
Sunbury, suggesting that he was not willingly
travelling from Sunbury to the murder scene in
Harrisburg. Transcript of Trial, Vol. II, at 513,
The jury heard testimony that Zettlemoyer
dragged the handcuffed DeVetsco, who already had
been shot and was bleeding, from the van to the spot
where Zettlemoyer shot him twice more. Transcript of
Trial, Vol. I, at 22. In total, DeVetsco suffered
two wounds in the back from a .22 caliber weapon and
two wounds in the base of the neck, behind his left
ear. Transcript of Trial, Vol. II, at 465-66.
Zettlemoyer fired these last two shots from
approximately two feet away while the victim lay on
the ground. Id. at 472, 474. Discharging a deadly
weapon aimed at a vital part of the body
demonstrates specific intent to kill. See
Commonwealth v. Davis, 331 Pa.Super. at 64, 479 A.2d
The testimony also showed that
Zettlemoyer had a motive to commit the murder. One
week before the murder, during the jury selection
for a trial on the indictment against Zettlemoyer
handed down by a Snyder County jury, the list of
prospective witnesses which included DeVetsco was
read in Zettlemoyer's presence. Transcript of Trial,
Vol. II, at 530-32. The trial was scheduled to begin
one week after the murder. Id. at 532. There is no
escaping the fact that this was a vicious,
cold-blooded, premeditated execution-style murder.
In light of this overwhelming
evidence demonstrating Zettlemoyer's specific intent
to kill DeVetsco, we conclude that Zettlemoyer was
not prejudiced by Dr. Schneider's inability to
testify to his cognitive functioning at the time of
the murder. We cannot conceive that any expert
opinion would have led the jury to disregard the
compelling uncontroverted evidence of what actually
happened and conclude that Zettlemoyer had a
diminished capacity, predicated on a lack of a
conscious or specific intent to kill. This crime was
so carefully executed and reflective of specific
planning that, it seems to us, a suggestion that
Zettlemoyer had a diminished capacity, as that term
is understood under Pennsylvania law, is nothing
short of preposterous.
Thus, even if counsel had
been ineffective in failing to extract expert
testimony to support a claim of diminished capacity,
which he was not, Zettlemoyer is not entitled to
habeas relief because the failure did not prejudice
him by depriving him of a fair trial with a reliable
result. Strickland v. Washington, 466 U.S. at 687,
104 S.Ct. at 2064. Likewise, Dr. Schneider's
testimony regarding Zettlemoyer's personality, which
characterized him as, inter alia, a "spoiled brat,"
paled in comparison to the overwhelming evidence of
his specific intent to kill. The testimony, while
portraying Zettlemoyer in a less than flattering
light, did not undermine the reliability of the
result of the trial. There is no escape from the
fact that the evidence in this case was
We recognize that Zettlemoyer
maintains that counsel failed to call some other
witness who might have presented testimony crucial
to his defense of diminished capacity; however, he
neither alleges nor offers evidence that any such
testimony was forthcoming or available upon
A witness cannot be
produced out of a hat. Zettlemoyer cannot meet his
burden to show that counsel made errors so serious
that his representation fell below an objective
standard of reasonableness based on vague and
conclusory allegations that some unspecified and
speculative testimony might have established his
defense. Rather, he must set forth facts to support
his contention. See Mayberry v. Petsock, 821 F.2d
179, 187 (3d Cir.) (petitioner's vague and general
allegations and supporting materials fail to make
sufficient showing to justify relief), cert. denied,
484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987).
Having failed to do so, he is not entitled to habeas
relief on this claim.
Furthermore, even if the counsel had produced a
second expert witness, that witness would have been
confronted with the uncontroverted evidence of
Zettlemoyer's actual conduct and would not have been
able to explain it away.
2. Sentencing Phase
The second aspect of Zettlemoyer's
attack on his trial counsel relates to the
sentencing phase of the trial. He claims that his
counsel was ineffective in that he did not recall
Dr. Schneider to testify at that hearing and did not
present affirmative evidence during this phase.
Rather, counsel called only one witness,
Zettlemoyer's father, to testify about his son's
mental and emotional health at the time of the
We consider counsel's failure to
recall Dr. Schneider in the context of Pennsylvania
law. In Pennsylvania, a defendant has the burden to
show mitigating circumstances by a preponderance of
the evidence at the sentencing hearing. 42
Pa.Cons.Stat.Ann. Sec. 9711(c)(1)(iii). The
Commonwealth stipulated to the existence of two
mitigating factors: that Zettlemoyer had no prior
criminal convictions under section 9711(e)(1) and
that he was 25 years old, an arguably youthful age
within section 9711(e)(4). App. at 180.
Dr. Schneider was the last defense
witness during the guilt phase; the jury heard his
testimony less than 24 hours before the sentencing
hearing. Transcript of Trial, Vol. II, at 690-745.
The Commonwealth put on only a minimal rebuttal
case. Id. at 747-70. In fact the trial was quite
short as both the guilt and sentencing phases were
completed within one week. Dr. Schneider testified
that Zettlemoyer was "unable ... to deal with the
normal pressures, demands, [and] responsibilities of
daily living." App. at 142.
He stated that he
believed that Zettlemoyer's "reaction over this
period of time resulted in, well, what I refer to as
a pressure cooker syndrome, pressure mounting up. If
you don't have a release valve it will blow and
that's where I believe that the emotional
disturbance, in addition to the personality
disorder, may have resulted in the behavior." Id. He
continued that this "pressure cooker effect"
worsened in the two weeks before the murder due to
the publicity surrounding the robbery for which
Zettlemoyer was charged. Id. at 145.
goes to the two mitigating factors of the influence
of extreme mental or emotional disturbance pursuant
to section 9711(e)(2), and whether Zettlemoyer's
capacity to appreciate the criminality of his
conduct and to conform his conduct with the law were
substantially impaired pursuant to section
This testimony was reinforced at
the sentencing phase by Zettlemoyer's father who
testified that he had spoken with his son in the two
weeks before the murder and that he could see the
stresses building up in him. App. at 184. He further
testified that, based on his observations and
conversations with his son at that time,
Zettlemoyer's capacity to appreciate the criminality
of his conduct and to conform his conduct to the
requirements of the law were substantially impaired.
Id. at 185. He stated that, since his imprisonment,
his son had "shown considerable remorse" and that he
had "taken to religion to some extent which is
something he never did before." Id. at 184.
In his closing argument, counsel
specifically asked the jury to consider the
testimony on diminished capacity. Id. at 192.
Relevant portions of the closing argument include:
[T]wo [mitigating circumstances] deal with the
mental capacities of the defendant; extreme mental
or emotional disturbance or the capacity of the
defendant to appreciate the criminality of his
Now, if you did not believe the
defense of diminished capacity then I certainly hope
that at least you would consider it in regards to
life or death. The District Attorney has agreed to
incorporate all that testimony that we presented to
you at trial and I want you to consider it.
Additionally, the trial court
instructed the jury to consider whether Zettlemoyer
was under extreme mental or emotional distress and
his capacity to appreciate the criminality of his
conduct or to conform his conduct to the law,
factors which may be mitigating circumstances under
section 9711(e)(2) and (3). App. at 203-04. It
likewise instructed the jury to consider all
evidence presented by both sides during both the
guilt and sentencing phases in determining the
penalty. Id. at 203-04. See supra at 293.
In the circumstances, we see no
deficiency in counsel's decision not to recall Dr.
Schneider, as the choice plainly was well within the
range of a professionally reasonable judgment.
Counsel presented evidence to support the relevant
mitigating circumstances during the guilt phase of
the trial and both counsel and the court asked the
jury to consider this evidence in its sentencing
We cannot hold that counsel's action in
not recalling Dr. Schneider to repeat his testimony
at the sentencing phase of this short trial in which
the testimony from the guilt phase was then still
quite fresh satisfied the Strickland standard of
ineffectiveness that "counsel made errors so serious
that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment."
Strickland v. Washington, 466 U.S. at 687, 104 S.Ct.
at 2064. There is not the slightest doubt that the
jury had a very complete psychological picture of
Zettlemoyer as an individual.
In view of the foregoing, we find
the following statement in Zettlemoyer's brief to be
Indeed, the testimony of Dr.
Schneider at the trial of Mr. Zettlemoyer's guilt or
innocence demonstrates that his opinion testimony at
sentencing would have been admissible, relevant of
Mr. Zettlemoyer's intellectual capacity and
emotional situation at the time of the murder, and
thus of central importance to the jury's
consideration of mitigation.
The difficulty with this argument
is that inasmuch as the guilt phase testimony was
incorporated into the sentencing phase, Dr.
Schneider's testimony not only "would have been
admissible" at the sentencing phase, it was
admitted. Zettlemoyer then continues his argument
stating that trial counsel's affirmative case at the
sentencing phase consisted only of the evidence of
Zettlemoyer's father and that "[n]o use was made of
This statement is incomprehensible
since the evidence from the guilt phase was
incorporated into the sentencing phase. Indeed, in
his closing argument at the sentencing phase,
Zettlemoyer's counsel told the jury that: "The
District Attorney has agreed to incorporate all that
testimony that we presented to you at trial and I
want you to consider it." Shortly thereafter he
asked the jury to consider Zettlemoyer's mental
sickness. The attack on trial counsel for making
only, in the word used in Zettlemoyer's brief, a
"perfunctory" case for Zettlemoyer's life is
Our result is informed by a recent
case in which a similar claim regarding the failure
to recall a professional witness was rejected. The
United States Court of Appeals for the Fourth
Circuit recently held that counsel was not
ineffective for not recalling, during the sentencing
hearing, a psychiatrist who testified during the
guilt phase of a trial. Clozza v. Murray, 913 F.2d
1092 (4th Cir.1990).
The court explained that
counsel had been able to introduce at the guilt
phase all the mitigating evidence that could have
introduced at the penalty phase. Id. at 1102. During
a hearing in the state habeas corpus proceedings,
the psychiatrist testified that his testimony at
sentencing would not have been different than his
testimony at the guilt phase. Id.
court of appeals noted that the doctor's testimony,
which was based on the premise that the defendant
was intoxicated at the time of the offense, was
vulnerable to impeachment on cross-examination
because defendant testified that he was sober at the
time. Id. The court concluded that counsel's
decision not to recall the psychiatrist in light of
the potential damage of his testimony was a
reasonable tactical choice. Id. at 1102-03.
We also find that Zettlemoyer's
claim that counsel was ineffective for failing to
present other affirmative evidence during the
sentencing phase is without merit. Counsel presented
the stipulations, the testimony of Zettlemoyer's
father, and incorporated the earlier testimony into
the sentencing hearing. At the guilt phase
Zettlemoyer's paternal grandmother and his mother
described his conduct as a child and as a young man.
In his brief, Zettlemoyer points to no evidence
other than that of Dr. Schneider that might have
been produced at the sentencing phase. Inasmuch as
Dr. Schneider's evidence was before the jury as
incorporated by reference, it is thus clear that
Zettlemoyer has made no showing that counsel was not
competent. He cannot rest on a conclusory allegation
that he should have done more. Furthermore, the jury
had information in support of a conclusion that four
of the mitigating factors enumerated in section
9711(e) were present in this case.
We have not overlooked the fact
that the district court did not order an evidentiary
hearing on the claim of counsel's ineffectiveness at
the sentencing phase. Rather, we find on the record
of this case that it would have been improper to
have such a hearing. The law on the point is
familiar. Where the facts are in dispute in a habeas
case, a federal court must hold an evidentiary
hearing if the petitioner did not receive a full and
fair evidentiary hearing in state court, either at
trial or in a collateral proceeding. Townsend v.
Sain, 372 U.S. at 312, 83 S.Ct. at 756-57.
A district court must hold a hearing if the petitioner
has alleged facts that, if proved, would entitle him
or her to relief and an evidentiary hearing is
necessary to establish the truth of those
allegations. Smith v. Freeman, 892 F.2d at 338.
However, bald assertions and conclusory allegations
do not provide sufficient ground to warrant
requiring the state to respond to discovery or to
require an evidentiary hearing. Mayberry v. Petsock,
821 F.2d at 185. See also Barry v. United States,
528 F.2d 1094, 1101-02 (7th Cir.) (insufficiently
detailed affidavit that did not demonstrate that
petitioners had actual proof of allegations is
"patently insufficient" to require hearing under 28
U.S.C. Sec. 2255), cert. denied, 429 U.S. 826, 97
S.Ct. 81, 50 L.Ed.2d 88 (1976).
We, of course, must only determine
"the reasonableness of counsel's challenged conduct"
and we judge this matter on the basis of an
objective standard of reasonableness. Strickland v.
Washington, 466 U.S. at 688, 690, 104 S.Ct. at 2064,
2066. Here, it is perfectly clear that counsel's
conduct was reasonable, because counsel made a
complete record in support of a plea for a life
sentence by incorporating the record from the guilt
phase into the sentencing phase of the case, and
supplementing it with Zettlemoyer's father's
We also reiterate that although
Zettlemoyer complains that counsel did not produce
affirmative evidence during the sentencing hearing,
he has failed to specify any evidence that was
available to counsel that he did not present during
either the guilt phase or the sentencing phase of
At oral argument before us, appellate counsel
maintained that trial counsel could have brought out
the facts of petitioner's childhood and his
proclivity to use violence; however, these facts
were presented during the guilt phase. Likewise,
counsel presented evidence of petitioner's mental
and emotional instability during the guilt phase.
We understand why an evidentiary
hearing on the issue of counsel's competency might
be required in a case in which a petitioner could
point to specific significant mitigating evidence,
available to counsel at the time of the trial, that
was not produced at a sentencing phase and was not
before the jury from the guilt phase.
In such a
case, the court might not be able to judge the
objective reasonableness of counsel's conduct
without the counsel's explanation of the underlying
trial strategy. But we do not have that situation,
for Zettlemoyer's assertion that other evidence
should have been presented is merely a conclusory
allegation. Mayberry v. Petsock, 821 F.2d at 185. He
has not made a preliminary showing that mitigating
facts available to counsel were not produced at the
trial. Thus, there is no open factual matter
requiring resolution at an evidentiary hearing.
We will not require an evidentiary
hearing absent identification of some facts that
support a contention of ineffectiveness, because to
do so will encourage meritless petitions burdening
judicial resources. See Strickland v. Washington,
466 U.S. at 690, 104 S.Ct. at 2066 ("The
availability of intrusive post-trial inquiry into
attorney performance or of detailed guidelines for
its evaluation would encourage the proliferation of
ineffectiveness challenges. Criminal trials resolved
unfavorably to the defendant would increasingly come
to be followed by a second trial, this one of
counsel's unsuccessful defense.").
in a death case must some day come to a conclusion.
We reiterate that a district court must hold a
hearing if a petitioner has alleged facts that, if
proved, would entitle him or her to relief and an
evidentiary hearing is necessary to establish the
truth of those allegations. Smith v. Freeman, 892
F.2d at 338. But Zettlemoyer did not allege facts to
satisfy this test and thus is not entitled to an
We refuse to order an evidentiary hearing for the
purpose of conducting an inquisition into how the
case was tried. The only way on the record before us
that we could require an evidentiary hearing on
counsel's effectiveness at the sentencing hearing
would be to hold that the mere charge of
ineffectiveness per se entitles a petitioner to a
hearing. That is not the law and we will not so
hold. In sum, we conclude that Zettlemoyer has
failed to meet his burden to show that he is
entitled to habeas relief based on ineffective
assistance of counsel.
While we have already explained
why we will not order a hearing on the competency of
counsel at the sentencing phase, in view of the
interest at stake on this appeal it is especially
appropriate to comment on the dissent from this
aspect of our opinion.
The dissent states that Dr.
Schneider was testifying on the guilt phase on the
diminished capacity defense and not to show
mitigating circumstances, and that the jury did not
hear his testimony from the perspective of whether
Zettlemoyer's life should be spared. But Dr.
Schneider completely described Zettlemoyer's mental
condition and emotional state prior to the murder in
the guilt phase, only hours before the sentencing
phase and, though the purpose of that evidence
somewhat changed between the phases, no one suggests
that Dr. Schneider's evaluation of Zettlemoyer's
mental condition and emotional state did.
Furthermore, inasmuch as Dr. Schneider testified
that Zettlemoyer's "emotional disturbance, in
addition to the personality disorder, may have
resulted in the behavior," he actually used the
statutory term for a mitigating circumstance,
"emotional disturbance," in describing the cause of
In the circumstances, it is
clear why it was reasonable for counsel not to have
the evidence repeated, even though it was originally
presented on the diminished capacity defense. Of
course, the petition for habeas corpus does not
allege that Dr. Schneider withheld evidence at the
guilt phase regarding Zettlemoyer's evaluation or
his emotional state possibly helpful to Zettlemoyer
in the sentencing phase.
The dissent also contends that a
hearing should have been held to determine why
Zettlemoyer's mother was not recalled at the
sentencing phase and to explain why counsel would
not have called Zettlemoyer's friends, co-workers,
or his former fiancee to support the claim of
overwhelming emotional disturbance. It further
contends that a hearing should be held so that trial
counsel could explain his "complete failure" to
present evidence of "catch-all" mitigating
circumstances, though it acknowledges that
Zettlemoyer points to no "specific significant
mitigating evidence" which it agrees is "troubling."
But a decade has passed since this
murder and Zettlemoyer has never alleged that he was
deprived of the testimony which the dissent
mentions, and we cannot by speculation supply a
basis to remand a matter for a hearing to determine
if counsel was incompetent in not producing this
evidence when Zettlemoyer does not make a showing or
even an allegation that it ever existed.
he does not assert that his mother should have been
recalled. Except for Dr. Schneider, the petition for
habeas corpus, which insofar as germane to the issue
of competency of counsel at the sentencing phase we
have set out in full, see note 14, supra, makes no
reference to testimony of specific individuals who
should have been presented at the sentencing phase
and were not.
D. The Jury Instructions
Zettlemoyer contends that the
trial court's instructions to the jury were
defective in several respects. First, he asserts
that the trial court improperly instructed the jury
that it had no responsibility for imposition of the
death penalty, in violation of the holding in the
Supreme Court's subsequent decision in Caldwell v.
Mississippi, 472 U.S. at 320, 105 S.Ct. at 2633.
Second, he urges that the trial court's instruction
erroneously suggested that the jury's finding on
mitigating circumstances must be unanimous, a charge
barred by Mills v. Maryland, 486 U.S. 367, 108 S.Ct.
1860, 100 L.Ed.2d 384 (1988). Finally, he contends
that the instructions were deficient because they
did not include an instruction that, if the jury
could not unanimously agree that the death penalty
should be imposed, the court would impose a life
sentence pursuant to section 9711(c)(1).
1. Teague v. Lane
Initially on the instructions
point we note that Zettlemoyer must overcome Teague
v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989) (plurality) in order for Caldwell to
apply retroactively in this case. In Teague, the
Supreme Court held that a determination of whether a
decision is to be applied retroactively to cases on
collateral review is "properly treated as a
threshold question." Id. at 300, 109 S.Ct. at 1069.
The Court held that new rules may be applied in
habeas corpus proceedings only if they come within
one of two narrow exceptions. Id. at 310, 109 S.Ct.
The first exception "applies to new rules
that place an entire category of primary conduct
beyond the reach of the criminal law, ... or new
rules that prohibit imposition of a certain type of
punishment for a class of defendants because of
their status or offense." Sawyer v. Smith, --- U.S.
----, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193 (1990)
(citations omitted). "The second Teague exception
applies to new 'watershed rules of criminal
procedure' that are necessary to the fundamental
fairness of the criminal proceeding." Id. 110 S.Ct.
In general, a case announces a new
rule if it "breaks new ground or imposes a new
obligation on the States or the Federal Government."
Teague, 489 U.S. at 301, 109 S.Ct. at 1070. Put
another way, "a case announces a new rule if the
result was not dictated by precedent existing at the
time the defendant's conviction became final." Id.
at 301, 109 S.Ct. at 1070 (emphasis in original).
That prior decisions "inform or even control or
govern analysis of [the] claim' " is insufficient to
require retroactive application of the rule. Sawyer,
110 S.Ct. at 2828.
2. Caldwell v. Mississippi
We turn first to Zettlemoyer's
contention that the trial court improperly
instructed the jury that it had no responsibility
for imposition of the death penalty. The trial court
instructed the jury as follows:
Ladies and Gentlemen, you must now decide what
sentence is to be imposed upon the defendant,
whether it be death or life imprisonment. In a very
proper sense, you are not really making that
decision. You are not deciding whether he should be
sentenced to death or life imprisonment. That was
the law years ago and the Supreme Court of the
United States declared such death penalties to be
unconstitutional. I won't go into the reason.
the theories was that it placed discretion on the
jury. They could decide whether a particular
individual could suffer death or life imprisonment.
They have removed that burden from you. That is not
what you are to decide. You are to decide whether
there are certain aggravating circumstances or
mitigating circumstances and depending upon how you
find those circumstances, as I will explain to you,
your decision follows. It must follow. If you find a
certain way, a certain penalty must follow. That is
So you see, it is not really your
decision in a sense. You decide, of course, the
underlying factors but it is the way you decide
those factors that the penalty is imposed. That is
the way the Supreme Court and our legislature have
felt that they would remove that burden or that
discretion from the jury.
App. at 200-02 (emphasis added).
In Caldwell v. Mississippi, 472
U.S. at 328-29, 105 S.Ct. at 2639-40, the Supreme
Court held that the Eighth Amendment prohibits the
imposition of a death sentence by a sentencer that
has been led by the prosecuting attorney to the
false belief that the responsibility for determining
whether a capital sentence is to be imposed rests
elsewhere. Id. In Caldwell, the assistant district
attorney responded in his closing arguments to
defense counsel's plea for mercy by stating:
Now, they would have you believe that you're
going to kill this man and they know--they know that
your decision is not the final decision.... Your job
is reviewable.... They said 'Thou shalt not kill.'
If that applies to him it applies to you,
insinuating that your decision is the final decision
and that they're going to take Bobby Caldwell out in
the front of this courthouse in moments and string
him up and that is terribly, terribly unfair. For
they know, as I know, and as Judge Baker has told
you, that the decision you render is automatically
reviewable by the [state] Supreme Court.
Id. at 325-26, 105 S.Ct. at
Notably, the trial court agreed
with the prosecutor's statements, stating "I think
it is proper that the jury realizes that it is
reviewable automatically as the death penalty
commands." Id. at 325, 105 S.Ct. at 2638.
The Supreme Court vacated the
death sentence, explaining that under the Eighth
Amendment, it had long recognized that "the
qualitative difference of death from all other
punishments requires a correspondingly greater
degree of scrutiny of the capital sentencing
determination.' " Id. at 329, 105 S.Ct. at 2639.
Court concluded that false information about the
"awesome responsibility" to determine the
appropriateness of death and suggestion that the
sentencing jury may shift its responsibility to an
appellate court might produce "substantial
unreliability as well as bias in favor of death
sentences." Id. at 330, 105 S.Ct. at 2640.
If we assume that the holding in
Caldwell was violated here, which as we shall later
demonstrate it was not, Zettlemoyer nevertheless
cannot be given relief because the Supreme Court has
held in Sawyer v. Smith, 110 S.Ct. at 2833, that
Caldwell is not applicable in cases in which the
conviction became final before the Court announced
the decision in Caldwell. The Court in Sawyer v.
Smith held that Caldwell announced a "new rule"
subject in its application to the limitations on
retroactivity of Teague and it rejected the
petitioner's argument that the case fell within the
second Teague exception for a rule "fundamental to
the criminal proceeding." Id. 110 S.Ct. at 2827,
The Court initially determined
that the Caldwell rule was not " 'dictated by
precedent existing at the time defendant's
conviction became final,' " because its earlier
precedent determining the propriety of a
prosecutor's comments relied on a due process clause
rather than Eighth Amendment analysis. Id.
(discussing Donnelly v. DeChristoforo, 416 U.S. 637,
643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)).
Additionally, finding that the Caldwell decision
relied on Eddings v. Oklahoma, 455 U.S. 104, 102
S.Ct. 869, 71 L.Ed.2d 1 (1982), Lockett v. Ohio, 438
U.S. at 586, 98 S.Ct. at 2954 (plurality), Gardner
v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d
393 (1977) (plurality), and Woodson v. North
Carolina, 428 U.S. at 280, 96 S.Ct. at 2978, only
for "the general proposition that capital sentencing
must have guarantees of reliability, and must be
carried out by jurors who would view all of the
relevant characteristics of the crime and the
criminal, and take their task as a serious one," the
Court concluded that this level of generality did
not suffice to show that Caldwell was an old rule
rather than a new rule limited by Teague. Sawyer,
110 S.Ct. at 2828.
The Sawyer Court also held that
the rule did not fall within Teague's second
exception for new "watershed rules of criminal
procedure" necessary to the fundamental fairness of
the criminal proceeding. Id. 110 S.Ct. at 2833. The
Court noted that Teague required that such a rule
"must not only improve accuracy, but also 'alter our
understanding of the bedrock procedural elements'
essential to the fairness of a proceeding." Id. 110
S.Ct. at 2831.
The Court noted that, because all
Eighth Amendment jurisprudence concerning capital
sentencing is directed at enhancing the reliability
and accuracy of the proceeding, considering only
fairness and accuracy would transform the second
exception into a limitless rule. Id. 110 S.Ct. at
The Court determined that the Caldwell rule
was not an " 'absolute prerequisite to fundamental
fairness' " because its enhancement of the accuracy
of capital sentencing was in addition to the due
process protection against fundamental unfairness
set forth in Donnelly. Id. The Court, therefore,
dismissed the petitioner's habeas corpus claim
because he sought the benefit of a new rule that did
not fall within either of Teague's exceptions. Id.
110 S.Ct. at 2833.
Zettlemoyer's conviction became
final at the latest on August 23, 1983, when
rehearing was denied by the United States Supreme
Court on his direct appeal, 463 U.S. 1236, 104 S.Ct.
31, 77 L.Ed.2d 1452, two years before the Court
announced its decision in Caldwell.
Thus, he cannot rely on Caldwell to challenge his
capital sentence in this federal habeas corpus
action. Sawyer, 110 S.Ct. at 2833. Furthermore, he
cannot avoid Teague on the basis that here, unlike
in Caldwell, it was the trial court, rather than the
prosecutor, which made the comments said to diminish
the jury's sense of responsibility for, prior to
Caldwell, precedent would not have dictated a result
in conformity with Caldwell regardless of whether
the court or the prosecutor made the remark. See
Dugger v. Adams, 489 U.S. 401, 410, 109 S.Ct. 1211,
1217, 103 L.Ed.2d 435 (1989).
In any event, even if Teague and
Sawyer did not bar the application of Caldwell in
this case, we would find that there was no Caldwell
violation. Caldwell was concerned with the shifting
of the responsibility in the mind of the jury from
it to the appellate court. Here there was simply no
All the trial court did was to
explain the law and point out that if the jury made
certain findings, then "a certain penalty must
follow." But that was the exact opposite of reducing
the jury's sense of responsibility, because the jury
knew that depending upon its conclusion regarding
aggravating and mitigating circumstances,
Zettlemoyer would or would not receive the death
sentence. Thus, it returned its verdict with
knowledge of the consequences and had no reason to
believe that it had not made the ultimate decision
regarding the penalty.
There was no suggestion to the
jury that the Supreme Court of Pennsylvania or
anyone else would have the last word in the case.
Furthermore, at the outset of the sentencing phase,
the court told the jury that at the end of that
phase "you will decide whether the defendant is to
be sentenced to death or life imprisonment. Whether
you sentence the defendant to death or life
imprisonment will depend upon what, if any,
aggravating or mitigating circumstances you find are
present...." Thus, there is no way that the court's
instructions could have diminished the jury's sense
3. Mills v. Maryland
We turn next to Zettlemoyer's
contention that the trial court's instruction
erroneously suggested that the jury's finding on
mitigating circumstances must be unanimous and
accordingly violated the rule in Mills v. Maryland,
486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384
In particular, Zettlemoyer contends that the trial
court's instruction and the verdict form may have
erroneously led the jury to believe that it had to
agree unanimously on the existence of a particular
mitigating circumstance before considering that
mitigating circumstance in its weighing process.
In Mills, the Supreme Court
vacated the petitioner's sentence of death because
it found a substantial probability that reasonable
jurors, when receiving the judge's instructions and
attempting to complete the verdict form as
instructed, may have thought they were precluded
from considering any mitigating evidence unless all
twelve jurors agreed on the existence of a
particular mitigating circumstance. Id. 108 S.Ct. at
Under Maryland's sentencing scheme, if the
sentencer finds that any mitigating circumstances
had been proved to exist, it then proceeds to decide
whether those mitigating circumstances outweigh the
aggravating circumstances. Id. 108 S.Ct. at 1865-66.
The verdict form in Mills included
three separate sections. The preamble to section I
Based upon the evidence we unanimously find that
each of the following aggravating circumstances
which is marked 'yes' has been proven BEYOND A
REASONABLE DOUBT and each aggravating circumstance
which is marked 'no' has not been proven BEYOND A
Id. 108 S.Ct. at 1870 (Appendix to
the Opinion of the Court).
Section I then set forth ten
aggravating circumstances with boxes for the jury to
select "yes" or "no." Id. 108 S.Ct. at 1871. Section
II of the form stated, in part:
Based upon the evidence we unanimously find that
each of the following mitigating circumstances which
is marked 'yes' has been proven to exist by A
PREPONDERANCE OF THE EVIDENCE and each mitigating
circumstance which is marked 'no' has not been
proven by A PREPONDERANCE OF THE EVIDENCE.
Section II listed eight mitigating
circumstances with boxes marked "yes" or "no." Id.
108 S.Ct. at 1871-72. Section III stated:
Based on the evidence we unanimously find that it
has been proven by A PREPONDERANCE OF THE EVIDENCE
that the mitigating circumstances marked 'yes' in
Section II outweigh the aggravating circumstances
marked 'yes' in Section I.
Id. 108 S.Ct. at 1872 (emphasis
This statement was likewise
followed by boxes for the jury to select "yes" or
The Court found that this form and
the trial court's instruction suggested that jurors
could only consider those mitigating circumstances
which they unanimously agreed existed. Id. 108 S.Ct.
at 1870. The Court concluded that failure to give
consideration to a mitigating circumstance that
fewer than all jurors found to exist violated the
principle that the sentencer not be "precluded from
considering, as a mitigating factor, any aspect of a
defendant's character or record and any of the
circumstances of the offense that the defendant
proffers as a basis for a sentence less than death."
Id. 108 S.Ct. at 1865 (emphasis in original). See
also McKoy v. North Carolina, --- U.S. ----, 110
S.Ct. 1227, 1234, 108 L.Ed.2d 369 (1990) (unanimity
requirement on existence of mitigating factors
impermissibly limits juror's consideration of
mitigating evidence and is, therefore,
Last term, the Supreme Court
clarified the legal standard for reviewing jury
instructions claimed to restrict impermissibly a
jury's consideration of relevant evidence. The
proper standard is "whether there is a reasonable
likelihood that the jury applied the challenged
instruction in a way that prevents the consideration
of constitutionally relevant evidence." Boyde v.
California, --- U.S. ----, 110 S.Ct. 1190, 1198, 108
L.Ed.2d 316 (1990).
The Court explained that a
capital sentencing proceeding is not inconsistent
with the Eighth Amendment if the "reasonable
likelihood" standard is met because this standard
balances the strong policy in favor of accurate
determination of the appropriate sentence in a
capital case with the "equally strong policy against
retrials years after the first trial where the
claimed error amounts to no more than speculation."
In Boyde, the Court held that the trial court's
instruction that the jury "consider ... [a]ny other
circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the
crime" and its definition of "extenuate" as "to
lessen the seriousness of a crime as by giving an
excuse" did not prevent the jury from considering
evidence about the defendant's background and
character as mitigating circumstances. Id. 110 S.Ct.
In this case, the trial court
stated in its instructions during the sentencing
The verdict, of course, must be
unanimous. Again, if you find unanimously, beyond a
reasonable doubt, the aggravating circumstance that
I have mentioned, the only one that's applicable,
that the victim was a prosecution witness to a
felony and it was committed and he was murdered so
that he would not testify, that is an aggravating
circumstance. If you find that aggravating
circumstance and find no mitigating circumstances or
if you find that the aggravating circumstance which
I mentioned to you outweighs any mitigating
circumstance you find, your verdict must be the
death penalty. If, on the other hand, you find that
the Commonwealth has not proven an aggravating
circumstance beyond a reasonable doubt or if they
have, that the mitigating circumstances outweight
(sic) the aggravating circumstances, then you must
bring in a verdict of life imprisonment.
... Under the law, as I said, you
are obligated by your oath of office to fix the
penalty at death if you unanimously agree and find
beyond a reasonable doubt that there is an
aggravating circumstances (sic) and either no
mitigating circumstance or that the aggravating
circumstance outweighs any mitigating circumstances.
Additionally, the jury completed
the following verdict form:
1. We the jury unanimously sentence the defendant
to: [X] death __ life imprisonment.
2. (To be used in the sentence if death)
We the jury have found unanimously:
__ at least one aggravating circumstance and no
mitigating circumstance. The aggravating
circumstance is _______.
[X] the aggravating circumstance outweighs [the]
mitigating circumstances. The aggravating
circumstance is [the murdering of a prosecution
witness to prevent testimony in a felony case.]
The challenged instructions were
not defective. Neither the court nor the verdict
sheet stated that the jury must unanimously find the
existence of particular mitigating circumstances or
that the jury could weigh only those mitigating
circumstances which it found unanimously. Thus,
Mills is clearly distinguishable. Additionally, the
trial court correctly instructed the jury that its
verdict must be unanimous. This instruction in no
way precluded the jury's consideration of relevant
evidence in arriving at that verdict.
The verdict form here did not
limit the mitigating circumstances the jury could
consider. Notably, the language on the verdict form
We the jury have found unanimously ... at least
one aggravating circumstances and no mitigating
circumstances. The aggravating circumstance is....
This language requires that the
jury's conclusion on the particular aggravating
circumstance must be unanimous. The absence of a
similar instruction for mitigating circumstances
indicates that unanimity is not required. In fact,
the lack of specificity in the form's reference to
mitigating circumstances cuts against Zettlemoyer's
position. Though the jury was obliged to specify the
aggravating circumstance it found, it had no such
duty with respect to mitigating circumstances, thus
suggesting that consideration of mitigating
circumstances was broad and unrestricted.
The court's instruction that "if
you unanimously agree and find beyond a reasonable
doubt that there is an aggravating circumstances
(sic) and either no mitigating circumstance or that
the aggravating circumstance outweighs any
mitigating circumstances" indicates only that the
jury's ultimate conclusion must be unanimous, not
that each interim step in its deliberations be
unanimous. That the jury must unanimously agree that
the aggravating must outweigh the mitigating is not
the same as unanimously agreeing that a mitigating
There is no support for Zettlemoyer's
suggestion that a reasonable jury might construe the
foregoing to mean that it must unanimously find
mitigating circumstances. Accordingly, Zettlemoyer
has failed to show that there is a reasonable
likelihood that the jury applied these instructions
in a way that precluded its consideration of any
relevant mitigating evidence.
4. Life Sentence Instruction
We next turn to Zettlemoyer's
contention that the trial court failed to instruct
the jury that, in the event it could not unanimously
agree that the death penalty should be imposed, the
court would impose a life sentence, as required by
42 Pa.Cons.Stat.Ann. Sec. 9711(c)(1). At the outset
of our discussion on this point we note that we are
perplexed by the contention, as the court expressly
told the jury that it would decide whether the
penalty would be "death or life imprisonment." App.
Therefore the argument at most goes to the
form not the substance of the instructions, as the
jury could not have possibly been misled. But we
will nevertheless treat the matter as though there
had been a section 9711(c)(1) violation.
At least one state trial court has
interpreted this section to require an instruction
on the matter from the trial court. See Commonwealth
v. Gabler, Crim.Div. CC 8104539 (C.C.P.Allegheny
Oct.1988). Nonetheless, "a state court's
misapplication of its own law generally does not
raise a constitutional claim cognizable in a federal
habeas proceeding." Grace v. Butterworth, 635 F.2d
1, 4 (1st Cir.1980), cert. denied, 452 U.S. 917, 101
S.Ct. 3053, 69 L.Ed.2d 421 (1981) (citing Beck v.
Washington, 369 U.S. 541, 554, 82 S.Ct. 955, 963, 8
L.Ed.2d 98 (1969)). "As stated by the Supreme Court,
'[f]ederal courts hold no supervisory authority over
state judicial proceedings and may intervene only to
correct wrongs of constitutional dimension.' " Smith
v. Zimmerman, 768 F.2d 69, 71 (3d Cir.1985) (citations
This alleged omission did not
raise an error of constitutional dimension. It did
not give the jury unbridled discretion nor did it
limit the jury's consideration of all mitigating
evidence in determining whether death was the
appropriate sentence. Blystone v. Pennsylvania, 110
S.Ct. at 1083 (individualized sentencing requirement
met by allowing jury to consider all relevant
mitigating evidence); Gregg v. Georgia, 428 U.S.
153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976)
(death penalty may not be imposed under procedures
that create substantial risk it will be inflicted in
arbitrary and capricious manner). Inasmuch as the
alleged omission raises only issues of state law, we
have no authority to grant relief by reason of it.
E. Exhaustion of State Remedies
Although neither party raises the
issue of exhaustion of state remedies, our review of
the available record reveals that Zettlemoyer may
not have pursued certain constitutional claims
through the state supreme court level and may have
raised slightly different constitutional claims in
his state court proceedings. However, inasmuch as
exhaustion is a rule of comity and not a
jurisdictional requirement, we may decide the merits
of an unexhausted claim.
Thus, in Granberry v. Greer,
the Court indicated that: "Although there is a
strong presumption in favor of requiring the
prisoner to pursue his available remedies, his
failure to do so is not an absolute bar to appellate
consideration of his claims." 481 U.S. 129, 131, 107
S.Ct. 1671, 1674, 95 L.Ed.2d 119 (1987). Because the
state did not raise lack of exhaustion in the
omission in such a case makes it appropriate for the
court of appeals to take a fresh look at the issue.
The court should determine whether the interests of
comity and federalism will be better served by
addressing the merits forthwith or by requiring a
series of additional state and district court
proceedings before reviewing the merits of the
Id. at 134, 107
S.Ct. at 1675.
The Court set
forth the standards for a court of appeals to
determine whether strict compliance with the
exhaustion doctrine was desirable:
If, for example,
the case presents an issue on which an unresolved
question of fact or of state law might have an
important bearing, both comity and judicial
efficiency make it appropriate for the court to
insist on complete exhaustion to make sure that it
may ultimately review the issue on a fully informed
basis. On the other hand, if it is perfectly clear
that the applicant does not raise even a colorable
federal claim, the interests of the petitioner, the
warden, the state attorney general, the state courts,
and the federal courts will all be well served even
if the State fails to raise the exhaustion defense,
the district court denies the habeas petition, and
the court of appeals affirms the judgment of the
district court forthwith.
Id. at 134-35, 107
S.Ct. at 1675.
In light of our
conclusions that the Pennsylvania death penalty
statute is not unconstitutional as applied to
Zettlemoyer and that his claims of ineffective
assistance of counsel and error by the trial court
are not meritorious, we conclude that the interests
of comity and federalism have been better served by
our having addressed the merits of his claims rather
than requiring a series of additional state and
district court proceedings before doing so.
Zettlemoyer's federal claims do not raise questions
of unresolved Pennsylvania law; therefore,
principles of comity are not compelling here.
Furthermore, the Pennsylvania courts have already
considered this case at length. Finally, we observe
that the proceedings involving Zettlemoyer are a
decade old and we recoil from the idea of
protracting them for no good reason.
In sum, we find
that Zettlemoyer's challenge to the Pennsylvania
Death Penalty statute as applied to him is without
merit. Likewise, his claims of ineffective
assistance of counsel and error by the trial court
do not entitle him to relief by writ of habeas
corpus. Accordingly, the order of the district court
will be affirmed.
facts in every death penalty case present a sordid
story, and this case is no exception. Zettlemoyer's
murder of DeVesco, uncontested at trial and before
us, was base. Although Zettlemoyer's habeas counsel
makes a valiant effort to challenge the conviction
on the ground of ineffective assistance of counsel,
I agree with the majority that in the end this
argument is not persuasive.
trial counsel, a public defender appointed to defend
him, apparently conceived the strategy of relying
upon one expert witness, Dr. Schneider, to
substantiate a defense of diminished capacity. Dr.
Schneider was not competent to testify to support
such a defense which, under Pennsylvania law,
applies to a defendant who does "not possess
sufficient mental capacity to form the specific
intent required for a conviction of murder of the
first degree." Commonwealth v. Walzack, 468 Pa. 210,
360 A.2d 914, 916 (1976).
presenting a witness who could testify to any
possible "mental disorders affecting the cognitive
functions necessary to formulate a specific intent,"
Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d
1344, 1347 (1982), the defense relied on Dr.
Schneider who could only testify to Zettlemoyer's
personality disorder. Zettlemoyer does not challenge
the correctness of the trial court's ruling that
such evidence, going to the "irresistible impulse"
defense which Pennsylvania does not accept, was
inadmissible. I agree with the majority that in the
absence of any showing of the availability of
evidence to support the diminished capacity defense
and in the face of overwhelming evidence that
Zettlemoyer had the specific intent to kill, there
is simply no basis for the claim of ineffective
assistance of counsel at the guilt phase.
I part company
with the majority, however, over the treatment of
the claim of ineffective assistance of counsel at
the penalty phase. Zettlemoyer argues that the
paltry case presented on his behalf was the product
of ineffective assistance of counsel. The majority,
without the benefit of any evidence presented at a
hearing, either state or federal, has decided that
counsel acted reasonably in the sentencing phase.
Although, as I suggest hereafter, I believe it is
probable that I would reach a contrary conclusion, I
am reluctant to draw any conclusion without the
usual hearing. Therefore, I believe that the
principal question before us is whether the district
court had a duty to hold an evidentiary hearing so
that this issue could be explored.
Counsel for the
state cites no capital case in which a defendant who
claims ineffective assistance of counsel at the
sentencing stage has not been afforded at least one
evidentiary hearing on that claim, either as part of
the state post-conviction proceeding or in federal
court on a habeas petition. Surprisingly, the
majority overlooks the singularity of its decision
to bypass the usual process by which a trial judge
decides whether counsel's performance fell "within
the wide range of reasonable professional assistance,"
Strickland v. Washington, 466 U.S. 668, 689, 104
S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), after an
evidentiary hearing at which trial counsel explains
the strategy of his or her trial conduct.
the benefit of such a post hoc explanation the
majority undertakes to make the requisite analysis
itself, and reaches what for me are two startling
conclusions: first, that Zettlemoyer's attack on
trial counsel for making a "perfunctory" case for
his life "is completely unfounded," Maj. op. at 300,
and second, that "it would have been improper" to
have had an evidentiary hearing on the claim of
counsel's ineffectiveness at the sentencing stage.
Maj. op. at 300. I proceed to explore both
conclusions, which are central to the disposition of
The Supreme Court
established the general standards to be used by a
federal habeas court in deciding whether to grant an
evidentiary hearing in Townsend v. Sain, 372 U.S.
293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Of
particular relevance to this case, a hearing is
required if "for any reason it appears that the
state trier of fact did not afford the habeas
applicant a full and fair fact hearing." Id. at 313,
83 S.Ct. at 757.
In United States
v. Dawson, 857 F.2d 923 (3d Cir.1988), we outlined
the more particularized standard to be used when
considering whether a hearing was required on a
claim of ineffective assistance of counsel as
First, we must
determine whether the district court considered as
true all appellant's nonfrivolous factual claims.
This step requires that we review whether the
district court properly found certain allegations
frivolous. Second, we must determine whether, on the
existing record, those claims that are nonfrivolous
conclusively fail to show ineffective assistance of
counsel.... If a nonfrivolous claim does not
conclusively fail either prong of the Strickland
test, then a hearing must be held.
Id. at 927-28 (emphasis
The district court
dealt with this particular claim of Zettlemoyer's in
a single paragraph. Although the court rejected it
as without merit, it did not state that it regarded
the claim as frivolous. Because the majority does
not remand for an evidentiary hearing, it apparently
views Zettlemoyer's allegations as frivolous or
deems that they failed to show ineffective
assistance of counsel at the penalty phase. I
believe that either conclusion is unsupported by the
record before us.
give some indication of the extent of the case made
for Zettlemoyer's life. On April 24, 1981, at 11:36
a.m., the jury found Zettlemoyer guilty of first-degree
murder. App. at 215. The case proceeded immediately
to the penalty phase. There was a sidebar conference
at which counsel and the court discussed
stipulations as to aggravating and mitigating
circumstances, defense counsel presented one witness,
Zettlemoyer's father, whose direct testimony takes
eight transcript pages, there was cross-examination
occupying three pages, the case recessed so that the
jury could lunch, counsel presented final arguments
to the jury, the court gave the jury its charge, the
jury deliberated, and it returned with a death
sentence at 5:31 p.m. on the same day.
Of course, the
fact that Zettlemoyer's fate was decided in the span
of six hours is not alone evidence of "perfunctoriness."
We must instead examine the substance of the case
presented by counsel to the jury in an attempt to
convince them that there were mitigating
circumstances to outweigh the one aggravating
circumstance present, that DeVesco was to have been
a witness against Zettlemoyer on a robbery charge.
that Dr. Schneider should have been recalled to
testify at the penalty hearing. The majority holds
that the failure to do so was not ineffective
assistance because Dr. Schneider was the last
witness at the trial phase, and the court instructed
the jury to consider in the penalty phase all of the
evidence from both sides that it heard during the
trial in chief. However, the majority overlooks that
the focus of Dr. Schneider's testimony at trial was
to establish a diminished capacity defense, not to
show mitigating circumstances.
testified that he interviewed Zettlemoyer on three
separate occasions for a total of eight hours and
conducted seven different tests on him, and that
based on these tests, he concluded that Zettlemoyer
showed normal intelligence overall but "deficits" in
common sense and practical judgment, particularly as
they relate to interpersonal relationships.
testified that Zettlemoyer showed no signs of
organic damage to his brain or central nervous
system and that he is not psychotic, meaning he does
not grossly distort reality, but that "under stress
this man will lose control and lose judgment." App.
at 133. Dr. Schneider continued, saying that
Zettlemoyer "has a limited ability to tolerate
adversity, that too much emotional stimulation may
precipitate a loss in judgment, perhaps even to a
psychotic proportion." App. at 134-35.
Zettlemoyer as "self centered" and "autistic" and "an
individual who has been protected and indulged to
the point where he has not developed adequate skills
to cope or meet with the normal pressures, demands
and responsibilities of everyday living." App. at
135. The overall "diagnostic impression" was of "a
schizoid personality with paranoid features." App.
at 137. Dr. Schneider explained that schizoid meant
a personality that was unusually detached,
unemotional, and reclusive, with little social
described Zettlemoyer's inability to complete
anything successfully as a "pressure cooker syndrome,"
and that "[i]f you don't have a release valve it
will blow and that's where I believe that the
emotional disturbance, in addition to the
personality disorder, may have resulted in the
behavior." App. at 142. Again, "[t]here is
sufficient evidence to suggest that he has not met
with success in any field of endeavor. If you take
that kind of foundation and build upon that a number
of stressful situations, a number of powerful
factors over which he had no control, then you are
going to get a result which can be catastrophic."
App. at 144.
stated that the stressful situations pertinent to
Zettlemoyer immediately before October 13, 1980 were
the publicity over "the robbery," the embarrassment
he brought upon his family, particularly his mother,
his debts, and rejection by his girlfriend/fiance.
App. at 145.
counsel asked Dr. Schneider whether Zettlemoyer was
capable of fully forming the specific intent which
is required for a willful, deliberate and
premeditated act, the state objected, and, after a
sidebar conference, the court sustained the state's
objection. Thus, Dr. Schneider's testimony on
Zettlemoyer's behalf in the guilt phase ended with a
discredited whimper, rather than a bang,
particularly since it was followed by grueling and
effective cross-examination designed to show that
Zettlemoyer knew the nature and quality of his act.
At sentencing, the
state had stipulated to two statutory mitigating
factors, the absence of a prior criminal record and
Zettlemoyer's age (25). Thus it appears that the
entire sentencing phase strategy of defense counsel
was to try to establish the additional mitigating
factor that "[t]he defendant was under the influence
of extreme mental or emotional disturbance." 42
Pa.Cons.Stat.Ann. Sec. 9711(e)(2) (Purdon 1982).
In denying an
evidentiary hearing on Zettlemoyer's claim of
ineffective assistance of counsel at sentencing, the
district court held that it was unnecessary to
recall Dr. Schneider because "the petitioner's
father testified during the sentencing phase about
petitioner's mental and emotional health, thus
reinforcing in the minds of the jury petitioner's
asserted diminished capacity defense." Opinion of
May 31, 1988, slip op. at 30 (emphasis added).
It is thus evident
that the district court failed to recognize that the
diminished capacity defense which Dr. Schneider had
sought unsuccessfully to establish during the guilt
phase, and which itself can be the basis of a
mitigating circumstance, see 42 Pa.Cons.Stat.Ann.
Sec. 9711(e)(3), is distinct from the mitigating
circumstance of "extreme mental or emotional
disturbance." Id. Sec. 9711(e)(2). Zettlemoyer makes
this distinction in paragraphs 139 through 142 of
his petition for habeas corpus, quoted in Maj. op.
at 302 n. 14.
Schneider's testimony may have contained the
evidentiary predicate for an "emotional disturbance"
mitigating circumstance, the jury did not hear Dr.
Schneider's testimony during the guilt phase from
the perspective of whether Zettlemoyer was troubled
enough so that his life should be spared, and thus I
find it difficult based on what is before us to
characterize the defense counsel's decision not to
recall Dr. Schneider as a reasonable one.
relies on Clozza v. Murray, 913 F.2d 1092 (4th
Cir.1990), to support its conclusion that counsel
was not ineffective in failing to recall Dr.
Schneider. Clozza is inapposite. There the court
rejected the claim of ineffective assistance of
counsel for failing to recall a psychiatrist who had
testified at the guilt phase because the state court
had made findings and reached the conclusion that
counsel's tactic was reasonable trial strategy. That
decision was made only after the state court held an
evidentiary hearing on the ineffective assistance of
counsel claim in a post-conviction habeas corpus
hearing, the doctor testified that his testimony at
sentencing would not have added anything new, and it
was revealed that the doctor's testimony had been
based on the understanding that the defendant had
been drunk at the time of the offense. Because
Clozza had testified during the guilt phase that he
was sober, the Court of Appeals discussed the
strategic dilemma Clozza's counsel would have faced
had the psychiatrist been recalled to testify. Id.
In contrast, no
such state court hearing was held in this case, and
thus trial counsel has never been called upon to
explain his enigmatic decision to rest on Dr.
Schneider's testimony given during the guilt phase.
I find it significant that in the majority's
reiteration of its conclusion that it was reasonable
for defense counsel not to recall Dr. Schneider, the
majority never once suggests that, as in Clozza, Dr.
Schneider's testimony at the sentencing phase could
have been harmful to defendant.
Schneider would have given the defense the
opportunity to rehabilitate him in the eyes of the
jury. The majority has not and cannot reasonably
disagree that such a move would have enabled the
defense to emphasize Zettlemoyer's extreme mental
and emotional disturbance at the time of the crime.
jury would have proceeded to its deliberations
focused on Dr. Schneider's testimony about this
statutory mitigating circumstance rather than
focused on his earlier testimony that the defendant
was unable to form a specific intent to kill, which
the jury had already found unpersuasive. I cannot
discount the possibility that Dr. Schneider's recall
might have tipped the scales in favor of a decision
by the jury to spare Zettlemoyer's life.
claims that trial counsel should have presented
additional evidence at the penalty phase. As I noted
previously, the only live testimony during the
sentencing phase was that of Zettlemoyer's father,
who, in his brief testimony, reiterated his wife's
earlier testimony that Zettlemoyer had personality
problems when he was a boy and had poor relations
with the rest of the family members.
He testified that
he had one or two discussions with his son during
the two weeks before the murder, that Keith
Zettlemoyer discussed "all the problems that he was
having and how he felt overwhelmed," App. at 184,
and that he should have taken responsibility to get
psychiatric or psychological help for his son.
father also mentioned that his son "has shown
considerable remorse" over the crime, that "he's
taken to religion to some extent which is something
he never did before," id., and that he believed his
son was suffering under extreme mental or emotional
It is not apparent
from the record why counsel would have relied solely
on the testimony of Zettlemoyer's father.
Zettlemoyer's father's testimony shows that he was
only peripherally involved with his son and had "only
mild" knowledge that his son's fiance had broken off
with him, App. at 187, a patently traumatic event.
He was obliged to
admit that he was only aware of the problems in his
son's personal life and his financial problems "[t]o
some degree, not to the degree that my wife would
have been aware of them but I know he had them." App.
at 186. Under these circumstances, it is not
difficult to see why the jury would not be overly
impressed with the only testimony put before them on
the critical issue of life or death sentencing.
understand why counsel would not have recalled
Zettlemoyer's mother, since her testimony, like Dr.
Schneider's, during the guilt phase was more
inclined to the diminished capacity defense, whereas
her penalty phase testimony could have emphasized
the mitigating circumstance of "extreme mental or
emotional disturbance." It is also not evident why
counsel would not have called Zettlemoyer's friends,
co-workers, or his former fiance to support the
claim of overwhelming emotional disturbance.
Certainly the absence of such supporting testimony
could not have escaped the jury's notice.
inexplicable is the complete failure of the defense
to attempt to make any kind of case at sentencing to
support the catch-all mitigating circumstance, which
permits the defense to present and the jury to
consider "[a]ny other evidence of mitigation
concerning the character and record of the defendant
and the circumstances of his offense." 42
Pa.Cons.Stat.Ann. Sec. 9711(e)(8). If this was the
result of a defense trial strategy, its logic is
opaque and defense counsel should be obliged to
The majority rules
that no evidentiary hearing is called for on this
issue first, because it believes the petition for
habeas corpus does not allege failure to produce
other witnesses as a basis for the claim of
counsel's ineffectiveness and second, because
petitioner has failed to point to specific
significant mitigating evidence. The habeas petition
does in fact complain of ineffectiveness at the
sentencing phase on this basis.
Although I agree
that the failure to point to specific evidence that
would have been available is troubling, I do not
find it dispositive in this case. The habeas court
is free to "direct that the record be expanded by
the parties by the inclusion of additional materials
relevant to the determination of the merits of the
petition." Rule 7(a), Rules Governing Sec. 2254
Cases. Both the state court and the district court
considered only the failure to recall Dr. Schneider.
Had the district court considered paragraph 143 of
the habeas petition and found it insufficiently
specific, the rules provide ample opportunity for
I do not agree
that our decision in Mayberry v. Petsock, 821 F.2d
179 (3d Cir.), cert. denied, 484 U.S. 946, 108 S.Ct.
336, 98 L.Ed.2d 362 (1987), compels the denial of an
evidentiary hearing at which counsel would be
obliged to explain his underlying trial strategy.
In Mayberry, where
we affirmed the district court's denial of a hearing
on Mayberry's habeas corpus petition at which he
sought to compel discovery from the state on his
contention that state officials had obstructed him
from pursuing his appeal, we held, and reiterate
here, that "bald assertions and conclusory
allegations do not afford a sufficient ground for an
evidentiary hearing." Id. at 185.
In this case, we
have substantially more. We have before us a plainly
unenthusiastic case made on behalf of Zettlemoyer's
life. I find it incomprehensible that there were no
character witnesses who could testify to some
redeeming virtue on behalf of a young man who had no
criminal record. Is it possible that there was no
clergyman, former employer, teacher, neighbor, or
friend who was willing to come forward to show that
despite his crime, Zettlemoyer's life is still worth
preserving? If so, then counsel should explain that
he searched for such testimony, and that it was
unavailable, or that there was a reasonable basis
not to present any such testimony.
Surely even the
majority must acknowledge that as appellate judges
we have the experience to spot a nonchalant, languid
and lackluster defense at sentencing. The question
before us is not whether this was the case, but why.
Unlike the majority, I will not put an explanation
into defense counsel's mouth which he has never
given in either testimony or by affidavit filed at
any time in any place.
Based on what is
before us, this does not appear to be a case like
Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97
L.Ed.2d 638 (1987), where the failure of the
attorney to present any mitigating evidence at all
at the penalty phase was the result of trial
counsel's strategic decision that the witnesses,
including the petitioner himself, necessary to
present such evidence would ultimately be more
damaging than helpful. Nor is this a case like
Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986),
cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d
383 (1987), where the court ruled that an
evidentiary hearing by the habeas court was not
warranted because it was clear from trial counsel's
testimony at the state post-conviction proceedings
that he had made a strategic choice not to put on
certain witnesses at the penalty phase. If this is a
case like Burger or Coleman where counsel made such
strategic decisions, then the reasonableness of that
conduct can be explored at a hearing, such as the
one the district court held in Burger or the state
court held in Coleman where the respective counsel
On the other hand,
it may be that an evidentiary hearing will show, as
Zettlemoyer charges, that counsel was dispirited
following the jury verdict of guilty to first-degree
murder and, as a result, presented what appears to
me to be a plainly anemic case. This may be a case
such as Blake v. Kemp, 758 F.2d 523 (11th Cir.),
cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d
367 (1985), where the court ruled, based on evidence
presented at the habeas hearing, that trial
counsel's strategy to concentrate on winning the
guilt phase rather than prepare for the sentencing
phase and his failure to seek out and prepare any
witnesses who could present character evidence at
the most critical stage of the proceeding warranted
the grant of a writ of habeas corpus.
As the court
stated in Kubat v. Thieret, 867 F.2d 351, 369 (7th
Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 206,
107 L.Ed.2d 159 (1989),
[D]efense counsel must make a
significant effort, based on reasonable
investigation and logical argument, to ably present
the defendant's fate to the jury and to focus the
attention of the jury on any mitigating factors.
Mitigating factors brought out at trial might be
emphasized, a coherent plea for mercy might be given,
or new evidence in mitigation might be presented.
But counsel may not treat the sentencing phase as
nothing more than a mere postscript to the trial.
While the Strickland threshold of professional
competence is admittedly low, the defendant's life
hangs in the balance at a capital sentencing hearing.
Indeed, in some cases, this may be the stage of the
proceedings where counsel can do his or her client
the most good.
Perhaps the most
analogous case to that before us is Wilson v. Butler,
813 F.2d 664, 671-72 (5th Cir.), modified on other
grounds, 825 F.2d 879 (5th Cir.1987), cert. denied,
484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1021
(1988). There, as here, the issue was the
effectiveness of trial counsel at the sentencing
stage of a state trial culminating in a death
The court noted
that while trial counsel may choose not to pursue
certain avenues of investigation or strategies,
those decisions must be informed ones. Because there
was no evidentiary hearing held in the state court,
the federal court held that the record was
inadequate to establish whether trial counsel "made
a considered strategic decision or whether this
decision was reasonable." Id. at 672. Therefore, the
court held that an evidentiary hearing by the habeas
court was necessary.
law, sustained by the United States Supreme Court, "the
verdict must be a sentence of death ... if the jury
unanimously finds one or more aggravating
circumstances which outweigh any mitigating
circumstances." 42 Pa.Cons.Stat.Ann. Sec. 9711(c).
Given the single
aggravating circumstance that the victim was a
potential witness, and the two stipulated mitigating
circumstances of age and the absence of any prior
significant criminal record, there was a clear
chance that a forceful, well conceived, and
adequately supported case at the penalty phase
directed to one or two additional mitigating
circumstances would have led the jury to return with
a life imprisonment sentence for Zettlemoyer. There
has never been any explanation why such a defense
was not provided, and thus my confidence in the
outcome has been undermined.
I believe that our
opinion in Dawson required the district court to
hold a hearing because Zettlemoyer's claim of
ineffectiveness "does not conclusively fail either
prong of the Strickland test." 857 F.2d at 928 (emphasis
in original). The majority expresses some
displeasure because a decade has passed since this
murder. The majority has already satisfactorily
explained the reason for the passage of time. See
Maj. op. at 303. It is, however, ironic that in all
this time no court has sought an explanation for the
pallid case made for Zettlemoyer's life. When the
decision between life and death is as fine as a
razor's edge, I cannot agree with the majority that
neither society nor Zettlemoyer is entitled to an
objective evaluation of that explanation.