Habeas Review in Death Penalty Cases: Selected Opinions of Judge Samuel Alito

CRS Report for Congress
Habeas Review in Death Penalty Cases:
Selected Opinions of Judge Samuel Alito
December 20, 2005
Alison M. Smith
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

Habeas Review in Death Penalty Cases:
Selected Opinions of Judge Samuel Alito
On October 31, 2005, President Bush nominated Judge Samuel A. Alito to
replace retiring Associate Justice Sandra Day O’Connor. During Alito’s 15-year
tenure with the U.S. Court of Appeals for the Third Circuit, the court has considered
several habeas corpus petitions concerning the imposition of death sentences. This
report provides an overview of selected opinions (majority and dissenting) by Judge
Alito addressing habeas review in death penalty cases. This report will not be

Jury Instructions...............................................2
Jury Selection.................................................6
Ineffective Assistance of Counsel.................................7
Procedural Issues..............................................8

Habeas Review in Death Penalty Cases:
Selected Opinions of Judge Samuel Alito
During his 15 years on the U.S. Court of Appeals for the Third Circuit, Judge
Samuel Alito has participated in habeas corpus1 review in 10 capital cases. Five
cases were decided unanimously by three-judge panels;2 the other five provoked
disagreement between the judges.3 These cases have addressed procedural issues,
issues concerning jury selection and instructions, and the ineffective assistance of

1 The process by which state prison inmates can get their constitutional claims before a
federal court.
2 See Bronshtein v. Horn, 404 F.3d 700 (3d Cir. 2005)(Alito J.)(upholding the district
court’s invalidation of a death sentence due to the trial court’s failure to inform the jury that
a Pennsylvania prisoner sentenced to life imprisonment may not be paroled, but rejecting
inmate’s Batson’s claim and finding erroneous jury instruction in guilt phase to be
harmless); Crews v. Horn, 360 F.3d 146 (3d Cir. 2004)(requiring federal district court to
stay instead of dismiss mixed habeas petitions with exhausted and unexhausted claims
pending exhaustion in state court, where dismissal would jeopardize petition’s timeliness
under the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA]); Carpenter v.
Vaugh, 296 F.3d 138 (3d Cir. 2002)(Alito, J.)(rejecting, under pre-AEDPA standard of
review, claims of ineffective assistance of counsel in guilt phase but sustaining ineffective
assistance claim in penalty phase, where defense counsel failed to object to trial judge’s
misleading answer to jury’s question about availability of parole if defendant received life
sentence); Terry v. Petsock, 974 F.2d 372 (3d Cir. 1992)(Alito, J.)(finding no constitutional
violation where jury convicting defendant of first-degree murder was not instructed on
lesser-included offense of third-degree murder); Riley v. Taylor, 62 F.3d 86 (3d Cir.

1995)(reversing district court’s denial of leave to amend initial habeas petition).

3 Smith v. Horn, 120 F.3d 400 (3d Cir. 1997)(holding that [1] a reasonable likelihood existed
that the jury improperly understood instructions as permitting it to convict defendant of first-
degree murder without first finding that the defendant intended that the victim be killed; [2]
the instruction on first-degree murder that improperly removed Pennsylvania’s burden of
proving specific intent violated the defendant’s federal due process rights; and [3] jury
instruction permitting the jury to convict the defendant of first-degree murder without first
finding that he had the requisite specific intent to kill was not harmless error); Riley v.
Taylor, 277 F.3d 261 (3d Cir. 2001)(en banc)(holding that deference was not owed to state
court findings that did not reflect completion of third step of Batson analysis); Rompilla v.
Horn, 355 F.3d 233 (3d Cir. 2004)(concluding that the Pennsylvania Supreme Court’s
decision regarding Rompilla’s sentencing proceeding was not contrary to and did not
involve an unreasonable application of clearly established Supreme Court precedent);
Flamer v. Delaware, 68 F.3d 736 (3d Cir. 1995)(en banc)(consolidated with Bailey v.
Snyder)(finding that Delaware’s sentencing scheme was a “weighing” one, thus warranting
analysis under Zant as opposed to Clemons). Additional issues in Billie Bailey’s case
unrelated to the issue common to Flamer’s case were decided by the Third Circuit in the
same opinion. See id. at 754-59. Additional issues in William Flamer’s case were decided
by the Third Circuit in Flamer v. Delaware, 68 F.3d 710 (3d Cir. 1995).

counsel. In reviewing these issues, the court arguably has relied on and applied
Supreme Court precedent.
Under the “deference” provision of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), federal courts are not to
overturn state judgements on a habeas corpus review merely because they would
have decided the case differently. They may overturn only state decisions contrary
to Supreme Court precedent or applied unreasonably.4 Generally, within the broad
zone in which reasonable judges may differ, the state court decision stands. As such,
the Third Circuit has upheld some death sentences and vacated others.
Jury Instructions
In Bronshtein v. Horn,5 Judge Alito, writing for the three-judge panel, vacated
a defendant’s death sentence but upheld the underlying conviction. Antuan
Bronshtein was convicted of robbing and killing Alexander Gutman, a jewelry store
owner. One of the principal issues was whether the state trial court had denied
Bronshtein due process of law by not telling the jury that a sentence of life in prison
would not have a possibility of parole.6 The court found that the prosecution’s
arguments and the testimony elicited at the penalty phase put the issue of the
defendant’s future dangerousness at issue. In Simmons v. South Carolina,7 the U.S.
Supreme Court held that when a defendant’s “future dangerousness” is at issue, the
jury must be accurately informed whether there is any possibility of parole under the
alternative lifetime sentence. Because the trial court failed to provide the jury with
such an instruction, the appellate court affirmed the District Court’s holding that the
death sentence was unconstitutional.8
In Smith v. Horn,9 Judge Alito dissented from a panel decision invalidating the
capital murder conviction of Clifford Smith. Smith and his friend, Roland Alston,
robbed a Pennsylvania pharmacy in 1983. They subsequently shot one of the robbery
victims, Richard Sharp. The state charged Smith with first-degree murder. Instead
of showing that he was the shooter, the prosecutor proceeded against Smith on the
theory that he and Alston were accomplices, making each liable for the acts of the
other under Pennsylvania law, regardless of who pulled the trigger.

4 See Williams v. Taylor, 529 U.S. 362, 405-406 (stating that a state court’s decision is
“contrary to” clearly established law if it “applies a rule that contradicts the governing law
set forth in our cases” or if it “confronts a set of facts that are materially indistinguishable
from a decision of this Court and nevertheless arrives at a result different from our
5 404 F.2d 700 (3d Cir. 2005).
6 Another issue was whether the court could reach the issue despite Bronshtein’s failure to
raise it on appeal, his decision to drop his first state postconviction petition, and his failure
to file another one until after the state’s statutory one-year limit had expired.
7 512 U.S. 154 (1994).
8 404 F.2d at 720.
9 120 F.3d 400 (3d Cir. 1997).

The accomplice liability theory did not require the state to prove that Smith
committed the killing; however, the state needed to prove that Smith had the specific
intent to kill. The trial court’s jury instructions failed to make this requirement clear,
suggesting instead that Smith could be convicted of first-degree murder as an
accomplice, even if he intended to aid Alston only in the robbery and not in the
The trial court used the term “accomplice” without clarifying whether it meant
“accomplice in the robbery” or “accomplice in the murder” or both. By blurring this
distinction, the majority held that the instruction led “the jury to believe that an
accomplice for one purpose is an accomplice for all purposes,” contrary to state
The Third Circuit invalidated Smith’s first-degree murder conviction, explaining
that the instructions allowed Smith to be convicted of murder even if the jury found
that only Alston intended the killing, so long as Smith was an accomplice to the
robbery. The court concluded that a “fair reading of jury instructions given in this
case permitted the jury to convict Smith of murder in the first degree without first
finding beyond a reasonable doubt that Smith intended that Sharp be killed.”12 The
court concluded that the delivery of these improper instructions amounted to a
violation of Smith’s right to a fair trial pursuant to the Due Process Clause of the
Fourteenth Amendment.
Judge Alito dissented, making two arguments. On the merits, Judge Alito
observed that the trial court, before explaining the elements of the charged offenses
instructed the jury that “a person is an accomplice ‘if with the intent of promoting or
facilitating the commission of a crime he solicits, commands, encourages or requests
the other person or persons to commit that crime or crimes, or aids, agrees to aid, or
attempts to aid the other person in the planning or committing the crime.’”13 Judge
Alito then declared that “[w]hen a trial judge, in instructing a jury, provides a
definition of a complicated legal term, the judge is not generally required to repeat

10 For example, the instructions said the following:
[T]he Commonwealth must prove all of the elements of the case beyond a
reasonable doubt, but [it] do[es] not have to prove beyond a reasonable doubt
which of the two, Smith or Alston, actually brought about the killing of Richard
Sharp by showing who pulled the trigger and plac[ed] the shot in his head. If,
and I emphasize this, you find that one was the accomplice of the other and that
one of the two actually performed the killing, you, the jurors, need not agree on
the role or roles played by the respective parties; that is, by this defendant and
his accomplice, if you find that that was the position of both, provided that each
of you is satisfied that the crime was actually perpetrated by the defendant or by
the accomplice of the defendant.
11 Ibid., at 412.
12 Ibid., at 411.
13 Ibid., at 423 (quoting trial court’s instructions)(emphasis added by Judge Alito).

that definition every time the term is subsequently employed.”14 There would have
been no confusion, he argued, had the jury substituted the lengthy definition of
“accomplice” each time the term appeared in the jury instructions.”15
Second, Judge Alito argued that the court should not have considered Smith’s
claim at all because Smith’s lawyers did not object to the jury instructions at trial or
in prior appeals.16 This was viewed as an interesting argument inasmuch as the
Commonwealth never raised the issue at any time. The majority rejected Judge
Alito’s argument, explaining that
where the state has never raised the issue at all, in any court, raising the issue sua
sponte puts us in the untenable position of ferreting out possible defenses upon
which the state has never sought to rely. When we do so, we come dangerously
close to acting as advocates for the state rather than impartial magistrates. See
United States v. Burke, 504 U.S. 229-246 (1992)(Scalia J., concurring in the17
In Flamer v. Delaware,18 Judge Alito, again writing for the majority, upheld a
defendant’s death sentence. The Third Circuit en banc held that Delaware’s death19
penalty statute prior to its 1991 amendment was a “nonweighing statute,” thus
governed by the Supreme Court precedent in Zant v. Stephens,20 as opposed to21
Clemons v. Mississippi. The court held that the jury instructions and interrogatories
used did not violate the Eighth Amendment.
In separate and unrelated trials, William Flamer and Billie Bailey were
convicted of first-degree murder and sentenced to death. The sentencing jury in each

14 Ibid.
15 Ibid.
16 See ibid., at 420-23 (Alito, J., dissenting)(requesting briefing on whether Smith failed to
exhaust his state remedies and whether he procedurally defaulted his claim).
17 Ibid., at 409.
18 68 F.3d 736 (3d Cir. 1995).
19 “Weighing” and “nonweighing” states make the sentence-selection decision in different
ways. In “weighing” states, the sentencer first determines that a defendant is eligible for the
death penalty by finding the existence of certain statutory aggravating factors. The
sentencer then weighs the aggravating factors against any mitigating factors to decide
whether the death penalty is appropriate. In “nonweighing” states, the sentencer may
impose a capital sentence only after finding one or more aggravating factors. The sentencer
then considers whether any mitigating circumstances warrant a noncapital sentence. An
invalid aggravating factor invalidates any subsequent “weighing.” In a
“nonweighing,”statutory scheme, it does not invalidate a capital sentence as long as there
is at least one valid aggravating factor. Stringer v. Black, 503 U.S. 222, 231-32 (1992).
20 462 U.S. 862 (1983)(holding that when a sentencing jury relies on an unconstitutional
statutory aggravating factor, the reliance does not invalidate the death sentence because the
underlying facts associated with the invalid factor remain admissible and available for the
jury to consider).
21 494 U.S. 738 (1990).

case returned an interrogatory indicating that one of the aggravating factors informing
its decision to recommend death was that the murders were “outrageously or
wantonly vile, horrible, or inhuman.”22 This factor, listed in a Delaware statute
among 18 other aggravating factors, was subsequently invalidated by the Delaware
Supreme Court for being unconstitutionally vague.23 The issue before the Third
Circuit was whether the jury’s reliance on the unconstitutional statutory aggravating
factor rendered the death sentence invalid in each case.
To pass constitutional muster, a death penalty sentencing process must perform
two functions. First, a state must apply rational criteria to narrow the class of
offenders eligible for the death penalty.24 Once a defendant is determined to be
death-eligible, the sentence-selection process must allow for individualized
consideration that accounts for all relevant mitigating evidence.
At issue for the Third Circuit was which of two legal frameworks governed the
jury’s consideration of aggravating factors: weighing or nonweighing. In a
nonweighing sentencing scheme, the jury is free to consider all aggravating and
mitigating evidence in its totality. Although the jury must first find a statutory
aggravating factor as a condition of death eligibility, the statutory aggravators
thereafter play no role in guiding the jury’s discretion. In Zant v. Stephens,25 the
Supreme Court held that when a sentencing jury relies on an unconstitutional
statutory aggravating factor in this context, the reliance does not invalidate the death
sentence because the underlying facts associated with the invalid factor remain
admissible and available for the jury to consider.
Under an alternative framework (weighing) the sentencing jury is specifically
instructed to weigh statutory aggravating factors against all mitigating factors in
deciding whether to impose death. With this approach, statutory factors serve two
functions: first, to narrow the class of death-eligible offenders, and second, to focus
the sentencing jury’s discretion in making the ultimate decision. In a line of cases
beginning with Clemons v. Mississippi,26 the Supreme Court has held that the jury’s
reliance on an invalid statutory aggravator within a weighing state cannot stand
unless there is a judicial reweighing of the evidence without consideration of the
invalid circumstances or unless it is determined that the jury’s consideration of those
circumstances was harmless.27

22 Flamer, 68 F.3d at 741, 744 (citing Del. Code Ann. tit. 11, § 4209(e)(1)(n)).
23 See id. at 743 (citing Petition of State for Writ, 433 A.2d 325 (Del. 1981).
24 See Zant v. Stephens, 462 U.S. 862, 878 (1983)(stating that “statutory aggravating
circumstances play a constitutional function at the state of legislative definition: they
circumscribe the class of persons eligible for the death penalty”).
25 462 U.S. 862 (1983).
26 494 U.S. 738 (1990).
27 Stringer v. Black, 503 U.S. 222, 232 (1992); see Brecht v. Abrahamson, 507 U.S. 619,

637-38 (1993).

The majority concluded that Delaware is a “nonweighing” state due to the jury’s
freedom during the penalty phase to consider all relevant evidence in aggravation.
The court concluded that the Delaware scheme mirrored the capital sentencing
scheme in Zant and contrasted sharply with the sentencing scheme in Clemons. As
such, the court affirmed the lower court’s decision to deny the petitions.
Jury Selection
In Riley v. Taylor,28 the principal issue involved application of the Supreme
Court’s decision in Batson v. Kentucky29 regarding peremptory challenges to potential
jurors during the jury selection process. Although lawyers historically have been able
to challenge a limited number of jurors for any reason they wish and without any
explanation given, the Supreme Court held in the Batson case that jurors may not be
challenged because of their race. However, the high court also held that the trial
judge’s finding of fact on whether a challenge is racially motivated or made for some
other legitimate reason is entitled to “great deference.”30 The court set out a three-
step process for adjudicating a claim that a particular peremptory challenge was
racially based.
[O]nce the opponent of a peremptory challenge has made out a prima facie case
of racial discrimination (step one), the burden of production shifts to the
proponent of the strike to come forward with a race-neutral explanation (step
two). If a race-neutral explanation is tendered, the trial court must then decide
(step three) whether the opponent of the strike has proved purposeful racial31
A majority of the Third Circuit en banc sustained Riley’s claim, effectively
overruling the trial judge’s determination that the prosecutor had provided credible,
race-neutral reasons for the challenges. In doing so, the majority placed great
reliance on statistics, noting that there was little chance that the patterns of selection32
in the statistics were random.
In dissent, Judge Alito contended the majority’s statistics were erroneous and
a misleading use of statistics.33 He also noted the importance of deferring to the trial
judge, particularly where important evidence is of a type not likely to show up in the
record. One issue, for example, was whether one of the jurors hesitated before
answering a question about the death penalty. Another was the issue of the
prosecutor’s credibility at the Batson hearing. Judge Alito opined that due to the

28 277 F.3d 261 (3d Cir. 2001).
29 476 U.S. 79 (1986).
30 See Batson, at 98, n. 21; Hernandez v. New York, 500 U.S. 352, 364-65 (1991).
31 Hernandez v. New York, 500 U.S. 352, 358-359)(1991); ibid., at 375 (O’Connor, J.,
concurring in judgment); Batson, 476 U.S. at 96-98.
32 See Riley, at 281.
33 Ibid., at 326-27.

narrow review of the hearing judge’s findings, a reviewing court should give those
findings great deference.34
Ineffective Assistance of Counsel
In Rompilla v. Horn,35 the Third Circuit addressed the issue of ineffective
assistance of counsel. Ronald Rompilla robbed and killed Mr. Scanlon. In
Pennsylvania, as in most states, the penalty in a capital murder case is determined by
weighing the aggravating circumstances against the mitigating circumstances.
Rompilla’s case gave the defense lawyers little to work with in the way of mitigation.
Rompilla’s lawyers interviewed him and most of his immediate family to determine
if any “abuse excuse” evidence existed. The lawyers were told that nothing
remarkable along those lines existed in Rompilla’s childhood. The lawyers directed
their limited resources elsewhere. They had Rompilla evaluated by three different
mental health professionals, whom they believed to be the best available, and
apparently made the best case they could. The jury decided on the death penalty.
During the multiple reviews of the case, later attorneys found leads to mitigation
evidence in the records of Rompilla’s prior crimes. The Pennsylvania Supreme Court
reviewed the performance of trial counsel and found that they had rendered effective
When the case reached the Third Circuit, the governing law appeared to require
a double dose of deference. The governing Supreme Court precedent (written by
Justice O’Connor) required reviewing courts to give trial counsel broad latitude in
plotting their strategy and to resist the temptation to engage in excessively critical
hindsight when evaluating a strategy that turned out to be unsuccessful.36 Applying
these standards to the facts of the case, Judge Alito, writing for the majority, wrote
that the state supreme court had applied the correct standard and had done so in a
reasonable way. The majority concluded that the state court’s finding that the
attorneys had made reasonable choices in allocating their limited investigative
resources was not clearly wrong.
He suggested that, although a “good” or “prudent” lawyer might have examined
school, medical, and court records, Rompilla’s lawyers had done all that was
“constitutionally compelled” by interviewing him, some of his family members, and
three mental health professionals.37 Judge Alito distinguished the case at bar from
the Supreme Court’s decision in Wiggins v. Smith,38 where the Court found that
counsel’s decision not to expand the search for mitigating evidence beyond the

34 Ibid., at 318.
35 355 F.3d 233 (3d Cir. 2004).
36 See Strickland v. Washington, 466 U.S. 668, 687 (1984)(stating that “judicial scrutiny of
counsel’s performance must be highly deferential. It is all too tempting for a defendant to
second-guess counsel’s assistance after a conviction or adverse sentence, and it is all too
easy for a court examining counsel’s defense after it has proved unsuccessful, to conclude
that a particular act or omission of counsel was unreasonable”).
37 Rompilla, at 258-59.
38 539 U.S. 510 (2003).

presentence investigation report and department of social services records constituted
ineffective assistance of counsel, thus violating the defendant’s Sixth Amendment
right. The Court found that the attorney’s failure to conduct even a minimally
adequate mitigation investigation into Wiggins’ past robbed the jury of the
opportunity to review Wiggins’ social history. The Court concluded that it was quite
reasonable to assume that the jury would have reached a different sentence had they
been apprised of such evidence.39
The majority concluded that critical differences existed between the conduct of
Wiggins’s and Rompilla’s trial attorneys. First, Wiggins’s attorneys were presented
with leads that “any reasonably competent attorney” would have realized were
promising. Rompilla’s attorneys had no comparable leads. Second, the defendants
described their childhoods differently. Wiggins described his as “disgusting,”
whereas Rompilla insisted that his was “normal.” The majority opined that these
were material differences.
Four Justices of the Supreme Court saw the case the way Judge Alito did,40 but
five disagreed. In Rompilla v. Beard,41 the Court reversed in a 5-4 decision, with
Justice O’Connor casting the swing vote. The Court held that even when a capital
defendant’s family members and the defendant himself have suggested that no
mitigating evidence is available, the defendant’s counsel is still bound to make
reasonable efforts to obtain and review material that counsel knows the prosecution
will probably rely on as evidence of aggravation at the sentencing phase of trial. The
Court found that the defense counsel’s failure to examine the file on the defendant’s
prior conviction for rape and assault at the sentencing phase fell below the level of
reasonable performance.
Procedural Issues
In one of the capital cases in which the Third Circuit granted habeas relief,
Bronshtein v. Horn,42 Judge Alito, writing for the majority, held that Pennsylvania’s
time limit on state collateral review was inconsistently applied in death penalty cases
for the first few years after its enactment in 1996, and because of that, the defendant
was not barred from a review of his case on the merits.
In a series of decisions, the Supreme Court has established that a federal court
cannot consider a claim if the state court provided a procedure for reviewing that
claim and the defendant failed to make it at the time required by state law.43 There

39 Ibid.
40 As Justice Kennedy noted in dissent, “We have reminded federal courts often of the need
to show the requisite level of deference to state-court judgments under 28 U.S.C. § 2254(d).
By ignoring our own admonition today, the Court adopts a do-as-we-say, not-as-we do
approach to federal habeas review.” Rompilla v. Beard, 125 S.Ct. 2456, 2476 (2005).
41 125 S.Ct. 2456 (2005).
42 404 F.3d 700 (3d Cir. 2005).
43 See, e.g., Murray v. Carrier, 477 U.S. 478, 497(1986); Teague v. Lane, 489 U.S. 288, 297

are exceptions to this rule, one of which is that it does not apply unless the state rule
is “adequate to support the judgment.”44 In Bronshtein, the state’s deadline appeared
on the face of a recently enacted statute. Earlier, the Pennsylvania Supreme Court
had carved out an exception for capital cases to its own court-created default rule.
As of the time Bronshtein withdrew his petition, that court had not specifically stated
whether its exception would also apply to the new statutory rule. Later, the court
held it did not. Judge Alito ruled that the state statutory deadline was not “adequate”
at the time of default.45 The State has asked the Supreme Court to review this
decision. That petition is currently pending

43 (...continued)
(1989); Coleman v. Thompson, 501 U.S. 722, 751 (1991).
44 See Coleman at 729.
45 See Bronshtein, at 709-710.