Rompilla v. Horn ( 2004 )


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  •                                                                                                                            Opinions of the United
    2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                                  for the Third Circuit
    
    
    1-13-2004
    
    Rompilla v. Horn
    Precedential or Non-Precedential: Precedential
    
    Docket No. 00-9005
    
    
    
    
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    Recommended Citation
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1047
    
    
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                                           Volume 1 of 2
    
                           PRECEDENTIAL
    
                                 Filed January 13, 2004
    
         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
    
    
                Nos. 00-9005, 00-9006
    
    
                 RONALD ROMPILLA
                          v.
           MARTIN HORN, COMMISSIONER,
           PENNSYLVANIA DEPARTMENT OF
                  CORRECTIONS
                     Martin Horn,
                                Appellant/Cross-Appellee
    
    On Appeal From the United States District Court
        For the Eastern District of Pennsylvania
               (D.C. Civ. No. 99-cv-00737)
    District Judge: Honorable Ronald L. Buckwalter
    
                Argued: May 22, 2002
      Before: SLOVITER, ALITO, AND STAPLETON,
                    Circuit Judges.
    
               (Filed: January 13, 2004)
                    AMY ZAPP (Argued)
                    Senior Deputy Attorney General
                    Office of Attorney General
                    16th Floor, Strawberry Square
                    Harrisburg, PA 17120
                    Counsel for Appellant/Cross-Appellee
                                   2
    
    
                            BILLY H. NOLAS (Argued)
                            DAVID W. WYCOFF
                            MICHAEL WISEMAN
                            Defender Association of Philadelphia
                            Federal Court Division
                            The Curtis Center, Suite 545 West
                            Independence Square West
                            Philadelphia, PA 19106
                            Counsel for Appellee/Cross-Appellant
    
    
                     OPINION OF THE COURT
    
    ALITO, Circuit Judge:
       The Commissioner of the Pennsylvania Department of
    Corrections (hereinafter “the Commonwealth”) appeals from
    a District Court order granting the petition for a writ of
    habeas corpus that was filed by Ronald Rompilla, a
    Pennsylvania prisoner who was sentenced to death. The
    District Court ordered that Rompilla be released unless he
    is either resentenced to life imprisonment or a new penalty
    phase trial is held. Rompilla cross-appeals from the denial
    of his petition insofar as it challenged his conviction. We
    conclude 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, and
    therefore we reverse the decision of the District Court with
    respect to Rompilla’s sentence. We affirm the decision of
    the District Court with respect to his conviction. By
    separate order, however, we have granted Rompilla’s
    application to file a successive petition for a writ of habeas
    corpus so that he will be able to assert his claim that,
    under Atkins v. Virginia, 
    536 U.S. 304
     (2002), he may not
    be executed because of mental retardation.
    
                                   I.
      In 1988, Rompilla was tried for the murder of James
    Scanlon. Scanlon’s body was found lying in a pool of blood
    in his bar, the Cozy Corner Café in Allentown,
                                  3
    
    
    Pennsylvania. Scanlon had been stabbed repeatedly and set
    on fire. There were no eyewitnesses to the killing, but the
    Commonwealth introduced substantial circumstantial
    evidence of Rompilla’s guilt. In its opinion on direct appeal,
    the state supreme court summarized the prosecution’s
    evidence as follows:
        Appellant was seen in the Cozy Corner Café on
        January 14, 1988, from approximately 1:00 a.m. to
        2:00 a.m. During that time, he was observed going to
        the bathroom approximately ten times. A subsequent
        police investigation determined that the window in the
        men’s bathroom was used as the point of entry into the
        bar after it had closed.
          When questioned by an investigating detective from
        the Allentown Police Department, Appellant stated that
        he had been in the Cozy Corner Café on the night of
        the murder and left between 2:00 a.m. and 2:30 a.m.
        because he had no money. He stated that he had only
        $2.00 to buy breakfast at a local diner. A cab driver
        testified that he picked up Appellant at the diner and
        drove him to two different hotels where Appellant was
        unable to rent a room. The driver then took Appellant
        to the George Washington Motor Lodge where he was
        able to rent a room. Appellant paid the cab fare of
        $9.10.
          Appellant rented a room for two nights at the George
        Washington Motor Lodge. In doing so, he paid $121.00
        in cash and flashed a large amount of cash to the desk
        clerks. Appellant also used a false name when he
        checked in.
          The police secured a search warrant for Appellant’s
        motel room and seized several items, including
        Appellant’s sneakers. These sneakers matched a
        footprint in blood that was discovered near the victim’s
        body. In addition, the blood found on the sneakers
        matched the victim’s blood type.
          The    Commonwealth       also    presented    other
        circumstantial evidence that linked Appellant with the
        robbery and murder of James Scanlon. First, Mr.
        Scanlon’s wallet was found by a groundskeeper in the
                                  4
    
    
        bushes, six to eight feet outside the room that
        Appellant had rented at the George Washington Motor
        Lodge. Second, Appellant’s fingerprint was found on
        one of the two knives used to commit the murder.
        Finally, there were numerous inconsistencies between
        what Appellant had told the police concerning his
        activities on January 14 and 15, 1988, and the
        testimony of other witnesses.
    Commonwealth v. Rompilla, 
    653 A.2d 626
    , 629 (Pa. 1995).
    The jury found Rompilla guilty of first degree murder and
    other related offenses.
       At the penalty phase of the trial, the prosecution
    attempted to establish three aggravating factors: (1) that
    Rompilla committed the murder while perpetrating a felony,
    42 Pa. C.S. § 9711(d)(6), namely, the burglary and robbery
    of the bar; (2) that he committed the murder by means of
    torture, 42 Pa. C.S. § 9711(d)(8); and (3) that he had a
    significant history of felony convictions involving the use or
    threat of violence to the person, 42 Pa. C.S. § 9711(d)(9). To
    establish torture, the Commonwealth called Dr. Isidore
    Mihalakis, a forensic pathologist, who testified to the
    multiple wounds inflicted on Scanlon and opined that
    Scanlon was conscious and alive when many of those
    wounds were inflicted. App. 698-707. Based on the nature
    of the wounds, Dr. Mihalakis also opined that Scanlon’s
    killer had deliberately attempted to inflict pain before
    Scanlon died. Id. at 707-08. To show the defendant’s prior
    history of violent felonies, the Commonwealth proved that
    he had been convicted in 1976 of rape, burglary, and theft.
    App. 651-52. Commonwealth v. Rompilla, 
    378 A.2d 865
     (Pa.
    1977). The testimony of the rape victim, which was read
    into the record, showed that Rompilla had burglarized a bar
    after closing and had raped the bar owner and slashed her
    with a knife. App. 662-696.
      The defense presented the testimony of five members of
    the Rompilla family. Rompilla’s older brother, Nicholas, and
    his wife, Darlene, testified that Rompilla had lived in their
    home with their children for the three and one-half months
    before the killing. Nicholas testified that he and the
    defendant had grown up together, that the defendant had
    worked for him as a house painter before his arrest, and
                                  5
    
    
    that the defendant had also helped out around the house.
    App. 738-41. Nicholas said that he had visited his brother
    frequently in prison and that they had a good relationship.
    Id. at 739. Nicholas added that he did not think that his
    brother had killed Scanlon, whom he had known for about
    10 or 11 years, and that his heart went out to the Scanlon
    family. Id. at 740. He concluded his testimony by asking
    the jury to have mercy on his brother. Id. at 741.
       Darlene Scanlon testified that her children were “very
    attached” to the defendant and that he “was very good in
    our house.” App. 734-35. Darlene said that he helped out
    in the home and that “he was a good family member” who
    felt “strongly about family” and “respected the family very
    well.” Id. at 735. While the defendant was in prison,
    Darlene testified, he frequently wrote to her and spoke
    about “[f]amily, his son, his wife, his brothers and sisters.”
    Id. She stated that the defendant’s relationship with his son
    was good. Id. at 736. Like her husband, Darlene testified
    that she had known Scanlon, that she did not believe that
    the defendant had killed him, and that she felt for the
    Scanlon family “[v]ery, very much.” Id. Weeping, she
    concluded her testimony by telling the jury: “We go to bed
    crying, we wake up crying, it’s been very hard on my
    children . . . . [W]e want Ron alive even if it’s in jail, we
    want him alive.” Id.
       Another brother, Bobby, also took the stand. Bobby
    testified that during the time when the defendant was out
    of prison they had an “[e]xcellent relationship” and were
    “[v]ery close.” App. 745. Before then, according to Bobby, he
    had visited the defendant in prison and the defendant had
    written him letters in which he expressed great concern for
    his son and other family members. Id.
      The defendant’s sister, Sandra Whitby, testified that she
    had grown up with the defendant. App. 754. Crying, she
    said that she loved him very much and that she thought
    that he was a “good person.” Id. at 755. Asked what things
    were important for the defendant, she answered: “Family,
    his son, his wife, things my children were doing, my
    brothers.” Id. She testified that she was praying for the
    Scanlon family and for her brother’s life. Id. at 756. She
    added: “[W]e’re not God, and we can’t take people’s lives
                                   6
    
    
    (crying) . . . I love my brother. Taking one life is never going
    to replace another life.” Id.
      Finally, Aaron Rompilla, the defendant’s 14-year old son
    testified. He said that after his father’s release from prison
    they had regular visits, which he enjoyed, that his father
    was proud of him, that he loved his father, and that he
    would visit him if he was sentenced to prison. Id. at 757-
    59. He said that he did not think it would be “right” to
    sentence his father to death, and when he was asked
    whether there was anything else he wanted to tell the jury,
    he simply cried. Id. at 759.
       In her closing argument, defense counsel made an
    impassioned plea for Rompilla’s life. Her closing appears to
    have had three major themes. First, she repeatedly stressed
    that, although the jury had found the defendant guilty, they
    must have had at least some lingering doubt about what
    had happened, and therefore they should not sentence him
    to death, which “is final, irreversible.” Id. Second, she
    reminded the jury of the good qualities mentioned by
    Rompilla’s family members. She argued that Rompilla was
    “more than this act that you have found him to have
    committed,” id. at 769, and she emphasized the love of
    Rompilla’s family members. Id. at 773. She particularly
    asked the jury to keep in mind the defendant’s 14 year old
    son, who had come to court to ask the jury “not to kill his
    father.” Id. Third, she pled for mercy and warned the jury:
    “I tell you this from the bottom of my heart, if you order
    death, it will take a part of your life away. Don’t stain your
    hands and your souls with this man’s blood, don’t do it
    please.” Id. at 772.
      After deliberating, the jury unanimously found all three
    of the aggravating circumstances alleged by the
    prosecution, and the jury stated that one or more members
    found two mitigating factors under the “catchall” provision
    of 42 Pa. C.S. § 9711(e)(8), i.e., “Rompilla’s son being
    present and testifying” and the possibility of rehabilitation.
    The jury found that the aggravating circumstances
    outweighed the mitigating factors and sentenced Rompilla
    to death.
      The Pennsylvania Supreme Court affirmed the conviction
                                        7
    
    
    and sentence. Commonwealth v. Rompilla, 
    653 A.2d 626
    (Pa. 1995) (hereinafter “Rompilla-1”).1 In December 1995,
    Rompilla filed a petition under the Pennsylvania Post-
    Conviction Relief Act (“PCRA”). After an evidentiary hearing,
    the PCRA denied the petition, and the Pennsylvania
    Supreme Court affirmed. Commonwealth v. Rompilla, 
    721 A.2d 786
     (Pa. 1998) (hereinafter “Rompilla-2”).
      Rompilla then filed a petition for a writ of habeas corpus
    pursuant to 28 U.S.C. § 2254 in the United States District
    Court for the Eastern District of Pennsylvania. Rompilla’s
    petition raised 11 claims. Rompilla v. Horn, No. Civ.A.99-
    737, 
    2000 WL 964750
     (E.D. Pa. July 11, 2000).2 The
    
    1. While the case was pending on direct appeal, Rompilla filed a petition
    for a writ of habeas corpus in the United States District Court for the
    Eastern District of Pennsylvania. The District Court dismissed the
    petition without prejudice for lack of exhaustion. Rompilla v. Love, No.
    94-cv-4196 (E.D. Pa.).
    2. The claims as identified by the District Court were as follows:
        (1) Trial counsel were ineffective at the capital sentencing phase for
        failing to investigate, develop and present significant mitigating
        evidence related to petitioner’s traumatic childhood, alcoholism,
        mental retardation, cognitive impairment and organic brain damage;
        (2) Petitioner is entitled to relief from his conviction and death
        sentence because of the trial court’s improper instruction on
        accomplice liability;
        (3) The trial court’s failure to instruct the jury that “life
        imprisonment” means life without possibility of parole, even after
        the jury repeatedly asked about parole eligibility; and the trial
        court’s provision, instead, of inaccurate and misleading information,
        violated petitioner’s Sixth, Eighth and Fourteenth Amendment
        rights;
        (4) Petitioner is entitled to relief from his death sentence because
        the (d)(8) aggravating circumstance was unconstitutionally obtained;
        (5) Petitioner is entitled to relief from his death sentence because
        the (d)(9) “significant history” of felony convictions aggravating
        circumstance is unconstitutionally vague; the jury instructions did
        not cure this vagueness; and the jury instructions, to the extent
        they provided guidance at all, directed a finding of this aggravating
        circumstance;
                                       8
    
    
    District Court denied relief as to the guilt phase but
    granted relief as to the penalty phase based on its
    conclusion that counsel had been ineffective in failing to
    investigate and present mitigating evidence. Id. at *14. The
    District Court thus ordered that a writ of habeas corpus
    would be granted unless the Commonwealth conducted a
    new sentencing hearing or resentenced Rompilla to life
    imprisonment. Id. at *21. The Commonwealth appealed,
    and Rompilla cross-appealed. Three questions are
    presented on appeal: (1) whether Rompilla’s trial counsel
    was constitutionally ineffective during the penalty phase;
    (2) whether the trial court committed constitutional error in
    giving an accomplice liability instruction; and (3) whether
    the trial court erred in failing to instruct the jury that “life
    
       (6) Petitioner is entitled to relief from his death sentence because
       of improper prosecutorial argument at the penalty phase;
       (7) Petitioner is entitled to relief from his death sentence because
       the trial court improperly allowed the prosecutor to read to the jury
       the inflammatory and prejudicial testimony of the victim of a prior
       rape and counsel were ineffective for failing to cite controlling
       authority that would have prevented the introduction of the
       inflammatory and prejudicial evidence;
       (8) The seating of the juror who visited the scene of the crime ten
       times, including, during the trial proceedings, who knew the victim
       of the offense and the victim’s son, who knew an employee of the
       prosecutor’s office and who expressed substantial doubts regarding
       the presumption of innocence; and trial counsel’s failure to
       challenge this juror for cause, violated petitioner’s sixth, eighth and
       fourteenth amendment rights;
       (9) Petitioner’s death sentence should be vacated because the
       arbitrary “proportionality review” performed by the Pennsylvania
       Supreme Court violated his Eighth Amendment and Fourteenth
       Amendment rights;
       (10) Petitioner is entitled to an evidentiary hearing on his claim
       that the prosecution violated his due process by introducing false
       and misleading evidence; and
       (11) Petitioner is entitled to relief because of cumulative prejudicial
       effects of errors in this case.
    Rompilla, 
    2000 WL 964750
    .
                                         9
    
    
    imprisonment” under Pennsylvania law meant life without
    the possibility of parole.3
    
                                         II.
       Because the District Court did not conduct an
    evidentiary hearing, our review of that Court’s decision is
    plenary. Duncan v. Morton, 
    256 F.3d 189
    , 196 (3d Cir.),
    cert. denied, 
    122 S. Ct. 269
     (2001). However, our review of
    the decision of the Pennsylvania Supreme Court is
    circumscribed by the Antiterrorism and Effective Death
    Penalty Act of 1996 (“AEDPA”). See Hartey v. Vaughn, 
    186 F.3d 367
    , 371 (3d Cir. 1999). Under AEDPA, a federal court
    may not grant habeas relief on any claim adjudicated on
    the merits in state court unless the adjudication
         (1) resulted in a decision that was contrary to, or
         involved an unreasonable application of, clearly
         established Federal law, as determined by the Supreme
         Court of the United States; or
         (2) resulted in a decision that was based on an
         unreasonable determination of the facts in light of the
         evidence presented in the State court proceeding.
    28 U.S.C. § 2254(d). Under the “contrary to” clause of
    § 2254(d)(1), relief may be ordered if the state court arrived
    at “a conclusion opposite to that reached by [the Supreme]
    Court on a question of law” or if the state court decided “a
    case differently than [the Supreme] Court has on a set of
    materially indistinguishable facts.” Williams v. Taylor, 
    529 U.S. 362
    , 412-13 (2000). Under the “unreasonable
    application” clause of § 2254(d)(1), relief may be awarded if
    the state court identified the correct governing legal
    principle from Supreme Court decisions but unreasonably
    applied that principle to the facts of the case, id., or was
    “unreasonable in refusing to extend the governing legal
    
    3. A certificate of appealability was not required for the Commonwealth’s
    appeal of the ineffective assistance of counsel claim. Fed. R. App. P.
    22(b)(3). The District Court granted a certificate of appealability as to the
    parole ineligibility claim, Rompilla, 
    2000 WL 964750
    , at *21, and we
    granted a certificate of appealability as to the accomplice liability
    instruction claim. 28 U.S.C. § 2253(c).
                                  10
    
    
    principle to a context in which the principle should have
    controlled.” Ramdass v. Angelone, 
    530 U.S. 156
    , 166
    (2000). Relief may not be granted under the “unreasonable
    application” clause merely because the federal court
    “concludes in its independent judgment that the relevant
    state-court decision applied clearly established federal law
    erroneously or incorrectly. Rather, that application must
    also be unreasonable.” Williams, 529 U.S. at 411. See also
    Bell v. Cone, 
    122 S. Ct. 1843
    , 1850 (2002) (“The focus . . .
    is on whether the state court’s application of clearly
    established federal law is objectively unreasonable, and we
    stressed in Williams that an unreasonable application is
    different from an incorrect one.”). Furthermore, a federal
    court “must presume that the factual findings of both state
    trial and appellate courts are correct.” Everett v. Beard, 
    290 F.3d 500
    , 508 (3d Cir. 2002) (citing 28 U.S.C. § 2254(e)(1)).
    This presumption may be rebutted only by clear and
    convincing evidence. 28 U.S.C. § 2254(e)(1).
    
                                  III.
       Rompilla claims that his trial attorneys were ineffective at
    the penalty phase. First, Rompilla alleges that his attorneys
    were derelict in failing to obtain school, hospital, court, and
    prison records that reveal a number of IQ test results in the
    mentally retarded range, low achievement scores,
    placement in special education classes, childhood neglect,
    problems with alcohol, and an alcoholic mother. Second, he
    faults his attorneys for failing to provide such records to
    the psychologist and the two psychiatrists whom they
    retained to examine him and for allegedly failing to
    communicate adequately with these experts. Third, he
    alleges that his attorneys were negligent in interviewing
    members of his family. He criticizes trial counsel because
    they did not interview two sisters who did not testify at the
    penalty phase, and because they did not ask sufficiently
    specific questions when they interviewed other family
    members. Fourth, Rompilla charges that his attorneys were
    derelict in failing to investigate the possible effects on
    Rompilla of childhood trauma and alcoholism.
                                11
    
    
                                A.
      Rompilla was represented by two public defenders,
    Frederick Charles, who was then the Chief Public Defender
    for Lehigh County, and Maria Dantos, a full-time assistant
    public defender. App. 1055-56, 1059. Both testified at
    length at the PCRA hearing. For present purposes, two
    aspects of these attorneys’ preparation for the penalty
    phase are most pertinent: first, their efforts to obtain
    information about Rompilla’s childhood and schooling and,
    second, their communications with the three mental health
    professionals whom they consulted.
       Both Charles and Dantos explained that the defense had
    questioned Rompilla and numerous members of his family
    about his childhood, schooling, and background and had
    asked for any information that might be helpful at
    sentencing. According to their testimony, however, neither
    Rompilla himself nor any family member even hinted at the
    problems on which Rompilla’s ineffective assistance claim is
    based. Dantos testified that she had developed a good
    relationship of trust with Rompilla, that she felt that she
    had gotten to know him, and that she had a lot of
    discussions with Rompilla “about who he was and his life.”
    App. 1073, 1163. When she asked Rompilla about school,
    Dantos recounted, he told her “[t]hat there was nothing
    unusual about it.” Id. at 1197. Dantos also said that she
    specifically asked Rompilla about drinking and that he
    responded that he sometimes drank but “could handle it”
    and was not an alcoholic. Id. at 100-01. On the night of the
    killing, Rompilla told her, he had consumed three or four
    beers over the course of the entire evening. Id. at 1101.
      Charles added that Rompilla had responded to questions
    about his background by saying that nothing was wrong:
        “Is there anything that happened? What was it like
        growing up? Is there anything you can tell us that
        could help us?” And he said, “No, there was nothing
        wrong.” He was very, very, smooth about it. It wasn’t
        that he was reluctant to talk about anything. He said,
        “Your conversations about the possibility of the death
        penalty bore me.” . . .
                                 12
    
    
          There was no indicator from anything he told us that
        would send us searching for . . . any kind of records.
        He said everything was fine. He had a normal
        childhood. There was nothing there. . . .
          . . . I remember [Dantos] specifically going one by one
        and talking to him. ‘Is there anything you can tell me?
        Tell me about yourself. Tell by about your background.’
        She was, you know, meticulous to cover points.
    App. 1303. Both Dantos and Charles said that nothing in
    their discussions with Rompilla ever suggested that he was
    mentally retarded, id. at 1181, 1393, and Charles
    elaborated that Rompilla did not have difficulty in
    understanding what was said to him or in expressing his
    feelings. Id. at 1393.
       Dantos and Charles also testified that members of
    Rompilla’s family provided no hint that Rompilla had
    mental problems, had suffered child abuse, or was an
    alcoholic. Dantos stated that she spoke with three of
    Rompilla’s siblings, his sister-in-law Darlene Rompilla, and
    his ex-wife and that she had formed a “very close”
    relationship with the family. App. 1092, 1065. She said
    that they had discussed the importance of mitigation
    evidence but that no one had provided any useful
    information about Rompilla’s background. She testified that
    she had “spent hours with these family members,” that
    they had “discussed the family dynamics and what
    [Rompilla’s] family relationship was with his parents,” and
    that there was no indication “that there was any sort of
    abuse within the family.” Id. at 1097 Likewise, she stated
    that “there was nothing exceptional presented to [her]
    about drinking within the family.” Id. Charles added that
    although the family members said that they did not know
    Rompilla well because he had spent so many years behind
    bars, the family was a “constant source of information.” Id.
    at 1303, 1384.
      Charles was questioned repeatedly and extensively by
    Rompilla’s attorneys about the failure of the defense to look
    for school, prison, and medical records, and Charles
    explained his strategy as follows:
                                       13
    
    
         I would investigate by asking my client, “how was your
         childhood? Were there any problems that you suffered?
         Any kind of abuse? . . . [I]s there anything that sticks
         out? Don’t think whether it’s important or not. You just
         tell us, and then we’ll determine whether or not we can
         use it.” Investigate it that way. Would I send somebody
         to the person’s elementary school to talk to the teacher
         to see if they remember him from 25 years or 40 years
         before. No. I didn’t have those resources in the office.
         . . . I had two investigators and 2,000 cases. . . . I will
         talk to the client, talk to the family, and see if anything
         developed from there.
    Id. at 1293-94. If these inquiries provided any hint that
    records would be helpful, he added, he would go anywhere
    to get the records. Id. at 1307.
      With respect to the development of mitigation evidence
    regarding Rompilla’s mental condition, Charles said that he
    had sent Rompilla to “the best forensic psychiatrist around
    here, to [another] tremendous psychiatrist and a fabulous
    forensic psychologist” and that he relied on them to detect
    any mental problems that might be useful to the defense
    and to request that the defense provide them with any
    records that they might need. App. 1307-08. He elaborated
    that when he sent Rompilla to the psychologist, he expected
    the psychologist to administer “a Reitan battery test to
    determine if there was any brain damage,”4 a personality
    test such as “the Minnesota Multiphasic Personality
    Inventory (“MMPI”)”,5 a Rorschach test,6 and an IQ test. Id.
    
    4. “The Reitan Battery measures organic impairment by means of a
    variety of exercises testing concentration, coordination, memory, motor
    control, abstract abilities and other cognitive and physical functions.”
    Barker v. Secy of Health and Human Services, 
    882 F.2d 1474
    , 1476 (9th
    Cir. 1989).
    5. The Minnesota Multiphasic Personality Inventory or “MMPI” is “one of
    the best known and widely used personality assessment tests.” Richard
    Sloane, THE SLOANE-DORLAND ANNOTATED MEDICAL-LEGAL DICTIONARY — 1992
    SUPPLEMENT 522 (1992).
    6. The Rorschach test is “a projective psychological [test] in which the
    subject reveals his or her attitudes, emotions, and personality by
    reporting what is seen in each of 10 inkblot pictures.” STEDMAN’S MEDICAL
    DICTIONARY 1808 (27th ed. 2000).
                                         14
    
    
    at 1323. He stated that he also expected that the results of
    this testing would be available to the psychiatrists. Id. If the
    mental health professionals needed any records or other
    information, he said, he expected them to ask for them, and
    he would have tried to provide whatever they sought. Id. He
    said that he also thought that the mental health
    professionals would interview Rompilla and that they would
    detect whether Rompilla’s denial of anything unusual in his
    background seemed suspicious. Id. at 1308-09.
      All three of the mental health professionals to whom
    Rompilla had been sent by the defense testified at the PCRA
    hearing either in person or by deposition. All three stated
    that they had examined Rompilla and had found nothing
    useful to the defense, but as Rompilla now stresses, all
    three also testified that, if they had been provided with
    Rompilla’s school and other records, they would have done
    additional testing.
      Dr. Gerald Cooke, an experienced clinical and forensic
    psychologist, no longer possessed records regarding his
    examination of Rompilla other than the letter that he had
    sent to the public defender’s office after completing the
    examination, but he was able to state with “99 percent”
    certainty what he would have done in a case of that type.
    App. at 1797. In a death penalty case, he testified that one
    of the questions in his mind would have been whether the
    defendant “showed any mental illness, emotional
    disturbance, or other sorts of problems that might be a
    psychological mitigating circumstance.” App. at 1808. He
    would have administered an MMPI, “an Incomplete
    Sentence Blank,7 the Rorschach inkblot technique, and two
    or three subtests of the verbal subscale of the Wexler Adult
    Intelligence WAIS Revised.”8 Id. at 1797. Dr. Cooke testified
    that he knew that the IQ test that he would have
    administered to Rompilla had not produced a score in the
    
    7. The Rotter Incomplete Sentences Blank Test tests maladjustment by
    providing the beginning of sentences (e.g., “I feel . . .”, “My nerves . . .”)
    that are completed by the subject. See www.cps.nova.edu/
    ~cpphelp/ROTTER.hrml.
    8. The Wechsler Adult Intelligence WAIS Revised is a test that measures
    general intelligence in adults. STEDMAN’S MEDICAL DICTIONARY, supra, 1596.
                                 15
    
    
    mentally retarded range because, in that event, he would
    have given further tests. Id. at 1810. He explained that he
    had not prepared a report regarding his examination
    because it was his practice to discuss the results of an
    examination orally with the referring attorney and to leave
    it to the attorney to decide whether he should prepare a
    report. Id. at 1816. He interpreted the letter that he wrote
    in this case to mean that he “didn’t have anything that [he]
    felt could be helpful.” Id.
       Dr. Robert Sadoff, an experienced board-certified forensic
    psychiatrist, also had no records about Rompilla but
    testified that in a case of that type he would have examined
    the defendant for competency to stand trial, criminal
    responsibility, and mitigating circumstances. App. 1841,
    1859. He would have questioned and observed the
    defendant and would have requested psychological testing
    if he thought it was necessary. Id. From the letter that he
    sent to the Public Defender’s Office, he said, it was fair to
    infer that he had found no mitigating evidence. Id. at 1859.
      A second psychiatrist, Paul K. Gross, also testified that
    he had examined Rompilla prior to his trial at the request
    of the Public Defender’s office to determine his mental
    status at the time but was not asked to look for mitigating
    factors. App. 1504, 1506, 1549. Dr. Gross stated that
    Rompilla “denied any abuse as a child, by either parent.”
    Id. at 1517. According to Dr. Gross, Rompilla said that he
    had “a good relationship with his father” and a “fairly
    normal childhood except for the fact that he didn’t like
    school, which he left in the ninth grade.” Id. at 1517. Dr.
    Gross’s conclusion at the time was that, although there was
    some evidence of antisocial behavior, “[t]here was no other
    evidence for underlying psychiatric or mental disorder.” Id.
    at 1540. He added that he did not see anything in the
    materials shown to him by Rompilla’s attorneys at the
    PCRA hearing that would have changed his opinion. Id. at
    1539-40. Dr. Gross also reported that although Rompilla
    denied it, there was a possibility that he could become
    violent while under the influence of alcohol.
      In the PCRA proceedings, Rompilla presented testimony
    of three family members: two sisters, Barbara Harris and
    Randi Rompilla, who testified that they were not
                                16
    
    
    interviewed before sentencing, and Nicholas Rompilla, who
    had testified at the sentencing hearing. These family
    members stated, among other things, that their parents
    were alcoholics; that their mother drank while pregnant
    with Rompilla; that their father was physically abusive to
    the children and their mother; that Rompilla was locked in
    an outdoor dog pen; and that Rompilla was told he was
    stupid and would not amount to anything and was a very
    nervous child who kept everything inside. Nicholas testified
    that during the pre-sentencing interview he was asked only
    about the three months prior to the offense and was not
    asked about Rompilla’s childhood. App. 1462-63, 1467-71,
    1477-78.
      Rompilla also presented evidence from two psychologists,
    Carol L. Armstrong and Barry Crown, both of whom had
    evaluated and tested Rompilla after he was convicted and
    sentenced. These psychologists’ evaluations included
    neuropsychological testing, review of Rompilla’s school,
    medical, and prison records, and review of post-sentencing
    declarations by Barbara Harris, Darlene Rompilla, and
    Nicholas Rompilla. The psychologists stated that the low IQ
    and achievement test results documented in Rompilla’s
    school records, his medical history, and his abusive
    background were all “red flags” indicating that further
    objective evaluation was necessary. App. at 1692, 1739,
    1743.
       Drs. Armstrong and Crown opined that Rompilla suffers
    from organic brain damage, an extreme mental disturbance
    significantly impairing several of his cognitive functions.
    They expressed the view that Rompilla’s problems relate
    back to his childhood and were likely caused by fetal
    alcohol syndrome, and they concluded that Rompilla’s
    capacity to appreciate the criminality of his conduct or to
    conform his conduct to the law was substantially impaired
    at the time of the offense. See Rompilla Br. at 58-61.
    
                                B.
      In evaluating Rompilla’s ineffective assistance of counsel
    claim, the PCRA court noted that Strickland v. Washington,
    
    466 U.S. 668
     (1984), requires proof of deficient performance
                                 17
    
    
    and prejudice. App. 2027. The court then observed that
    Pennsylvania cases employ a three-pronged test:
         First, a defendant must demonstrate that his claim is
         of arguable merit. In the event this threshold
         requirement is satisfied, a defendant must show that
         counsel had no reasonable basis for the act or
         omission in question. Finally a defendant must
         establish that but for counsel’s act or omission, the
         outcome of the proceedings would have been different.
    App. 2028 (quoting Commonwealth v. Buehl, 
    658 A.2d 771
    (Pa. 1995).
      Applying this standard, the PCRA court concluded that
    Rompilla satisfied the first prong because he was “entitled
    to have relevant information of mental infirmity” presented
    to the jury, but the court held that the second prong was
    not met because “counsel had a reasonable basis for
    proceeding as they did during the penalty phase.” App.
    2028. The court made the following findings:
    •   Drs. Cooke and Sadoff, are “recognized experts in the
        field of psychiatry and psychology.”
    •   “These experts administered tests, evaluated        Mr.
        Rompilla, and reported back to defense counsel.”
    •   They found “no organic brain damage” and “nothing that
        could be used in mitigation.”
    •   They diagnosed Rompilla as a “sociopath,” and this
        evidence “would not have been of benefit to Mr.
        Rompilla’s case.”
    •   The defense attorneys provided Drs. Cooke and Sadoff
        “with whatever they asked for,” and Drs. Cooke and
        Sadoff did not request the records later unearthed by
        PCRA counsel.
    •   Trial counsel “also obtained an evaluation by Dr. Paul
        Gross, a well respected Lehigh Valley psychiatrist,” and
        Dr. Gross “found nothing that would have been
        beneficial in the penalty phase.”
    •   Rompilla did not provide trial counsel with “any
        indication of mental problems or alcoholic blackouts” or
        anything else that was “particularly useful.”
                                  18
    
    
    •   Trial counsel “spoke with members of the family in a
        detailed manner,” and the family did not reveal the
        family background information adduced in the PCRA
        proceeding.
    •   The family members’ testimony at the PCRA hearing was
        not credible insofar as it “attempted to contradict what
        defense counsel indicated was asked of them during
        numerous communications prior to trial.”
    App. 2028-2029.
        Based on these findings, the PCRA concluded:
    •   “Given the fact that [the] three health care professionals
        [retained by trial counsel], all of whom were experienced
        forensic experts, had provided opinions . . . , and none
        of them asked for more information, it was hardly
        unreasonable or ineffective for defense counsel to have
        relied upon their opinions.”
    •   Trial counsel was not ineffective in questioning family
        members because family members were questioned “in a
        detailed manner,” and contrary testimony at the PCRA
        hearing was rejected.
    •   “Defense counsel was reasonable in believing that the
        only avenue available to them was to ask the jury to
        show mercy upon Mr. Rompilla.” “Under the
        circumstances of this case, this strategy was not only an
        appropriate one, but the only one reasonably available to
        counsel.”
      On appeal, the Pennsylvania Supreme Court also held
    that Rompilla’s ineffective assistance claim lacked merit.
    The Court agreed with the PCRA court “that trial counsel
    was effective with respect to their investigation and
    presentation of mitigating evidence.” Rompilla-2, 721 A.2d
    at 790. Noting that trial counsel employed three experts to
    evaluate Appellant” and that “the experts found nothing
    helpful to Appellant’s case,” the Court added: “[W]e agree
    with the PCRA court that under the facts of this case,
    counsel reasonably relied upon their discussion with
    Appellant and upon their experts to determine the records
    needed to evaluate his mental health and other potential
    mitigating circumstances.” Id.
                                  19
    
    
      In the habeas proceeding, the District Court not only
    disagreed with the decisions of the PCRA court and the
    state supreme court on the ineffective assistance issue, but
    the District Court found that those decisions were
    unreasonable. Rompilla, 
    2000 WL 964750
    , at *14. However,
    the Court stated that its decision was “a very close call . . .
    because trial counsel performed so admirably according to
    my review of the record” and further commented that its
    review of the record revealed that “trial counsel were
    intelligent, diligent and devoted to their task of representing
    [Rompilla].” Id. at *8, *12.
       The District Court found two omissions in the opinions of
    the PCRA court and the state supreme court. First, the
    District Court stated, the prior opinions lacked “an in depth
    analysis of what the duty to investigate consists of in a case
    of this nature.” Id. at *8. In particular, the District Court
    faulted the state courts for failing to “include a reference to
    the ABA Standards for Criminal Justice.” Id. Second, the
    District Court found the state court opinions deficient for
    failing to discuss alcoholism. Id. at *8. Observing that it
    appeared that trial counsel “thought they could rely on the
    experts to determine [Rompilla’s] general mental ability or
    capacity,” the Court opined: “[I]t seems to me on balance
    that [trial counsel] were obliged to go a bit farther to fulfill
    their duty to investigate.” Id. at *9, *12. Concluding that
    trial counsel’s performance at the penalty phase had been
    inadequate and that Rompilla had been prejudiced, the
    Court held that Rompilla was entitled to habeas relief with
    respect to his sentence. Id. at *14.
    
                                  IV.
      Strickland is the Supreme Court precedent governing
    ineffective assistance of counsel claims, Williams, 529 U.S.
    at 391, and in order to show ineffective assistance under
    Strickland, a defendant must demonstrate (1) that counsel’s
    “representation fell below an objective standard of
    reasonableness,” Strickland, 466 U.S. at 688; and (2) that
    “there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding would
    have been different.” Id. at 694. “Judicial scrutiny of a
    counsel’s performance must be highly deferential,” and
                                 20
    
    
    “every effort [must] be made to eliminate the distorting
    effects of hindsight, to reconstruct the circumstances of
    counsel’s challenged conduct, and to evaluate the conduct
    from counsel’s perspective at the time.” Id. at 689. “There
    is a ‘strong presumption’ that counsel’s performance was
    reasonable.” Jermyn v. Horn, 
    266 F.3d 257
    , 282 (3d Cir.
    2001). Thus, “a defendant must overcome the presumption
    that, under the circumstances, the challenged action might
    be considered sound trial strategy.” Bell, 122 S. Ct. at 1852
    (quotations omitted).
      “The test for ineffectiveness is not whether counsel could
    have done more; perfection is not required. Nor is the test
    whether the best criminal defense attorneys might have
    done more. Instead the test is . . . whether what [counsel]
    did was within the ‘wide range of reasonable professional
    assistance.’ ” Waters v. Thomas, 
    46 F.3d 1506
    , 1518 (11th
    Cir. 1995) (en banc) (quoting Strickland, 466 U.S. at 689).
    Ultimately, the issue is not what conduct is “prudent or
    appropriate, but only what is constitutionally compelled,”
    Burger v. Kemp, 
    483 U.S. 776
    , 794 (1987) (quoting United
    States v. Cronic, 
    466 U.S. 648
    , 665 n.38 (1984)), and the
    Sixth Amendment “simply . . . ensure[s] that criminal
    defendants receive a fair trial,” Strickland, 466 U.S. at 689.
    See also Kokoralies v. Gilmore, 
    131 F.3d 692
    , 696 (7th Cir.
    1997) (“The sixth amendment does not guarantee success
    or entitle defendants to the best available counsel or the
    most prudent strategies. . . . [T]he Constitution is satisfied
    when the lawyer chooses a professionally competent
    strategy that secures for the accused the benefit of an
    adversarial trial.”)
    
                                 V.
      In this appeal, the Commonwealth contends that the
    state courts reasonably applied the Strickland ineffective
    assistance standard to the facts of this case. According to
    the Commonwealth, the District Court erred by essentially
    considering the ineffective assistance issue as if it were
    conducting a de novo review — that is, by making its own
    independent application of the Strickland test to the facts
    rather than considering only whether the state supreme
    court’s application of that test was reasonable. Rompilla of
                                 21
    
    
    course disagrees, but he also goes further and argues that
    we need not reach the unreasonable application issue at all
    for two reasons: first, because the Pennsylvania Supreme
    Court did not render a “decision” within the meaning of 28
    U.S.C. § 2254(d)(1), and, second, because the state supreme
    court’s decision is “contrary to” Strickland. We discuss each
    of these arguments below.
    
                                 A.
       Rompilla argues that the Pennsylvania Supreme Court
    did not render a “decision” on his Sixth Amendment claim
    because “[t]he Pennsylvania Court’s opinion lacks any real
    Sixth Amendment analysis.” Rompilla Br. at 98. Rompilla
    criticizes the state supreme court for applying the three-
    pronged test set out in its own cases rather than the two-
    pronged Strickland test. Id. He contends that the
    relationship    between     the    three-part    Pennsylvania
    formulation and the Strickland test is “not clear,” and he
    faults that state supreme court for supposedly failing to
    address either prong of the Strickland test. Id. at 98-99. He
    asserts that the state supreme court mistakenly thought
    that his federal claim was that trial counsel did not conduct
    any investigation at all, whereas his actual claim was that
    trial counsel did not conduct a sufficiently “thorough”
    investigation. Id. at 100. Finally, he criticizes the state
    supreme court for failing “to render a ‘decision’ at all on
    critical aspects of this claim,” viz., the prejudice prong of
    Strickland and his arguments regarding alcoholism and
    intoxication. Id.
      In order to address these arguments, we must first
    explain the critical difference under the habeas statute
    between, on the one hand, the failure of a state court to
    adjudicate a federal claim on the merits (something that
    may occur if the state court misconstrues the federal claim)
    and, on the other, the failure of a state court to hand down
    an opinion that discusses every argument, sub-argument,
    and legal authority offered by the habeas petitioner. For
    purposes of the habeas statute, a failure to decide affects
    the standard of review; a failure to discuss (either at all or
    to the satisfaction of the habeas petitioner or the federal
    court) is irrelevant.
                                    22
    
    
       Under the habeas statute, as previously noted, if a claim
    was “adjudicated on the merits” in a state court proceeding,
    relief may not be granted “unless the adjudication of the
    claim . . . resulted in a decision that was contrary to, or
    involved an unreasonable application of, clearly established
    Federal law.” 28 U.S.C. § 2254(d)(1)(emphasis added). An
    “adjudication on the merits” “has a well settled meaning: a
    decision finally resolving the parties’ claims, with res
    judicata effect, that is based on the substance of the claim
    advanced, rather than on a procedural, or other, ground.”
    Sellan v. Kuhlman, 
    261 F.3d 303
    , 311 (2d Cir. 2001). See
    also Neal v. Puckett, 
    286 F.3d 230
    , 235 (5th Cir. 2001)
    (“adjudication ‘on the merits’ is a term of art that refers to
    whether a court’s disposition of the case was substantive as
    opposed to procedural”), cert. denied, 
    123 S. Ct. 963
     (2003).
      In Chadwick v. Janecka, 
    312 F.3d 597
    , 605-07 (3d Cir.
    2002), cert. denied, 
    123 S. Ct. 1914
     (2003), we discussed
    this issue in detail and reviewed both pertinent Supreme
    Court precedent and our own prior decisions in Everett v.
    Baird, 
    290 F.3d 500
    , 507-08 (3d Cir. 2002), cert. denied,
    
    537 U.S. 1107
     (2003); Appel v. Horn, 
    250 F.3d 203
    , 210 (3d
    Cir. 2001); and Hameen v. Delaware, 
    212 F.3d 226
    , 248
    (3d Cir. 2000). We noted that under Weeks v. Angelone,
    
    528 U.S. 225
    , 237 (2000), a state court may render an
    adjudication or decision on the merits of a federal claim by
    rejecting the claim without any discussion whatsoever.
    Chadwick, 238 F.3d at 606. We explained that if an
    examination of a state court opinion reveals that the state
    court did not decide a federal claim on the merits, the
    deferential standards of review set out in § 2254(d)(1) do not
    apply. Id. at 605-07. But if the state court decided the
    claim, the § 2254(d)(1) standards govern — regardless of the
    length, comprehensiveness, or quality of the state court’s
    discussion. Id. See also Sellan, 261 F.3d at 312 (a state
    court adjudicates a claim on the merits when it “(1)
    disposes of the claim ‘on the merits,’ and (2) reduces its
    disposition to judgment. . . . [e]ven if the state court does
    not explicitly refer to . . . relevant federal case law.”); Bell v.
    Jarvis, 
    236 F.3d 149
    , 160 (4th Cir. 2000) (en banc) (section
    2254(d) “does not require that a state court cite to federal
    law in order for a federal court to determine whether the
    state court decision is an objectively reasonable one.”), cert.
                                 23
    
    
    denied sub nom., Bell v. Beck, 
    122 S. Ct. 74
     (2001); Aycox
    v. Lytle, 
    196 F.3d 1174
    , 1177 (10th Cir. 1999) (“The focus
    is on the state court’s decision or resolution of the case.”);
    Wright v. Secretary for Dep’t of Corrections, 
    278 F.3d 1245
    ,
    1255 (11th Cir. 2002) (section 2254(d)(1) “focuses on the
    result, not on the reasoning that led to the result”) cert.
    denied, 
    123 S. Ct. 1511
     (2003).
       Here, it is abundantly clear that the state supreme court
    adjudicated Rompilla’s Sixth Amendment claim on the
    merits. Although the state supreme court referred to its
    own three-pronged ineffective assistance test rather than
    the two-pronged Strickland test, the Pennsylvania Supreme
    Court has explicitly held that the state standard is “the
    same” as Strickland’s and that Pennsylvania law does not
    provide “any greater or lesser protection” than the Sixth
    Amendment. Commonwealth v. Pierce, 
    527 A.2d 973
    , 976-
    77 (Pa. 1987). As we put it in Werts v. Vaughn, 
    228 F.3d 178
    , 203 (3d Cir. 2000) cert. denied, 
    532 U.S. 980
     (2001),
    the Pennsylvania Supreme Court has “opined that the
    Pennsylvania standard judging ineffectiveness claims [is]
    identical to the ineffectiveness standard enunciated by the
    United States Supreme Court in Strickland.” Since the brief
    filed in the state supreme court on Rompilla’s behalf in the
    PCRA appeal left no doubt that the ineffectiveness claim
    asserted was based on federal law, it is perfectly clear that
    the state supreme court adjudicated that federal claim on
    the merits but simply chose to address the claim within the
    framework of its own, familiar three-part test, which it
    regards as “the same” as Strickland.
      Moreover, it is apparent that this essentially stylistic
    choice on the part of the state supreme court had no effect
    on its decision. The state supreme court held that the
    second prong of the state formulation — requiring a
    showing that “counsel had no reasonable basis for the act
    or omission in question,” Rompilla-2, 721 A.2d at 789 —
    had not been met because Rompilla’s trial “counsel acted
    reasonably” “with respect to their investigation and
    presentation of mitigation evidence.” Id. at 790. The second
    prong of the state formulation is substantively
    indistinguishable from the first prong of Strickland — which
    requires a showing that counsel’s “representation fell below
                                        24
    
    
    an objective standard of reasonableness”. Strickland, 466
    U.S. at 688. Rompilla argues that the significance of the
    first Pennsylvania prong is unclear9 and that the third
    Pennsylvania prong differs from Strickland’s prejudice
    prong,10 Rompilla Br. at 98-99, but because the state
    supreme court held that Rompilla failed the second state
    prong, which is indistinguishable from the first Strickland
    prong, these arguments are entirely beside the point.
       Rompilla’s remaining arguments on the question whether
    the state supreme rendered an “adjudication” or “decision”
    on the merits of his federal ineffectiveness claim require
    little additional discussion. There is plainly no merit to
    Rompilla’s argument that the state supreme court
    mistakenly thought that his Sixth Amendment claim was
    that counsel failed to conduct any investigation at all
    regarding the matters at issue and did not appreciate that
    his claim was that counsel did not conduct a sufficiently
    thorough investigation. Although the state supreme court
    did use the phrase “failed to investigate,” 721 A.2d at 790,
    it seems clear that this was simply a shorthand way of
    referring to the claim. The court’s discussion of the various
    steps that counsel took and its conclusion that counsel
    acted “reasonably” make it clear that the court did not
    think that any investigation at all would suffice but instead
    understood that the extent of the investigation had to be
    “reasonabl[e].”
    
    9. Rompilla takes exception with the first prong of the Pennsylvania
    formulations — whether the underlying claim has arguable merit.
    Although the question of the merit of an underlying claim is not an
    explicit step under Strickland, we have held that it is a determinative
    factor in the “deficient performance” prong of the Strickland analysis in
    at least some contexts. See Parrish v. Fulcomer, 
    150 F.3d 326
    , 328 (3d
    Cir. 1998) (counsel not ineffective for failing to raise meritless claims).
    10. Rompilla notes that the third Pennsylvania prong, as stated by the
    Pennsylvania Supreme Court’s opinion, asks whether counsel’s act or
    omission “would have” produced a different outcome, not whether, as
    stated in Strickland, there is a reasonable probability of a different
    outcome. Strickland, 466 U.S. at 694. Since neither the decision of the
    state supreme court nor our decision in this appeal turns on the issue
    of prejudice, we have no occasion to explore the question whether in
    practice prejudice is analyzed differently under these two standards.
                                 25
    
    
       What we have said about the relationship between the
    Pennsylvania formulation of the test for ineffective
    assistance and the Strickland formulation is sufficient to
    dispose of Rompilla’s criticism of the state supreme court
    for failing to discuss Strickland in so many words.
    Rompilla’s criticism of the state supreme court for failing to
    decide whether the prejudice prong of Strickland was
    satisfied is further flawed because, in light of the state
    supreme court’s holding that counsel’s performance was
    reasonable, the court had no need to address the issue of
    prejudice. See Strickland, 466 U.S. at 697 (“[T]here is no
    reason for a court deciding an ineffective assistance claim
    to . . . address both components of the inquiry if the
    defendant makes an insufficient showing on one.”); Sistrunk
    v. Vaughn, 
    96 F.3d 666
    , 673 n.8 (3d Cir. 1996) (if counsel’s
    performance is objectively reasonable, there is no need to
    decide prejudice).
       Finally, Rompilla’s complaint that the state supreme
    court “failed to discuss any aspect” of his arguments
    regarding evidence of alcoholism and intoxication goes to
    the style of the state court’s opinion, not the question
    whether the state court rendered an adjudication on the
    merits. There are many different theories about how judicial
    opinions should be written. While some opinions make a
    point of specifically addressing every argument and every
    significant legal authority offered by counsel, others favor
    brevity and comment on only those points that the court
    finds most important. Because the state supreme court in
    this case rendered an “adjudication on the merits” of
    Rompilla’s Sixth Amendment claim, Rompilla’s criticisms of
    the state court’s opinion cannot free him from the
    restrictive standards of review set out in 28 U.S.C.
    § 2254(d)(1).
    
                                 B.
      There is similarly no merit in Rompilla’s contention that
    the decision of the state supreme court was “contrary to”
    Strickland because it did not “identify and apply actual
    Sixth Amendment standards.” Rompilla Br. at 101. A
    decision is “contrary to” a Supreme Court holding if the
    state court “contradicts the governing law set forth in [the
                                  26
    
    
    Supreme Court’s] cases” or if it “confronts a set of facts that
    are materially indistinguishable from a decision of th[e
    Supreme] Court and nevertheless arrives at a [different]
    result.” Williams, 529 U.S. at 405-06.
       In this case, the critical standard applied by the state
    supreme court — whether trial counsel had a “reasonable
    basis for the act[s] or omission[s] in question” — did not
    contradict Strickland but rather, as we have explained, was
    entirely consistent with Strickland. In Wertz v. Vaughn, 228
    F.3d at 202-04, as noted, we compared Pennsylvania’s
    ineffective-assistance test with the test enunciated in
    Strickland, and we found that a state court decision that
    applied the Pennsylvania test did not apply a rule of law
    that contradicted Strickland and was thus not “contrary to”
    established Supreme Court precedent. Id. at 204. In the
    instant case, the state court applied the same state test.
    Accordingly, here, as in Wertz, the state court’s application
    of that test does not mean that its decision is “contrary to”
    established Supreme Court precedent.
       Rompilla also argues that the state court decision is
    contrary to Strickland because counsel’s failure to obtain
    records, without knowing the contents of the records,
    “cannot be deemed a reasonable strategy/tactic, as a matter
    of Sixth Amendment law,” and because “Sixth Amendment
    law does not condition [the] obligation [to obtain records] in
    any way on counsel’s duties with regard to expert
    evaluations.” Rompilla Br. at 106, 108 (emphasis in
    original). Rompilla is essentially challenging the manner in
    which the state court applied the law to the facts, and thus
    this argument must be analyzed under the “unreasonable
    application” clause of § 2254(d)(1). See Williams, 529 U.S.
    at 406 (a “run-of-the-mill state court decision” that is “in
    accord with . . . Strickland as to the legal prerequisites for
    establishing an ineffective-assistance claim . . . may be
    contrary to the federal court’s conception of how Strickland
    ought to be applied in that particular case” but is not
    contrary to Strickland itself). For these reasons, we reject
    Rompilla’s arguments under the “contrary to” clause of
    § 2254(d)(1).
                                 27
    
    
                                 VI.
       We now turn to the ‘unreasonable application’ clause of
    § 2254(d)(1). To obtain relief under this clause, Rompilla
        must do more than show that he would have satisfied
        Strickland’s test if his claim were being analyzed in the
        first instance, because under § 2254(d)(1), it is not
        enough to convince a federal habeas court that, in its
        independent judgment, the state-court decision applied
        Strickland incorrectly. Rather, he must show that the
        [state court] applied Strickland to the facts of his case
        in an objectively unreasonable manner.
    Bell, 122 S. Ct. at 1852 (citation omitted). In other words,
    Rompilla must demonstrate that “the state court decision,
    evaluated objectively and on the merits, resulted in an
    outcome that cannot reasonably be justified under
    Strickland.” Wertz, 228 F.3d at 204.
       We hold that the Pennsylvania Supreme Court’s
    conclusion that trial counsel acted reasonably and rendered
    effective assistance was not an unreasonable application of
    Strickland. The findings of the PCRA court and
    uncontradicted testimony at the PCRA hearing establish
    that trial counsel conducted an extensive investigation for
    mitigating evidence. According to their testimony, trial
    counsel got to know Rompilla well during the course of
    their representation and established a good relationship
    with him. Rompilla was questioned about his background
    but provided no useful information or leads. Trial counsel
    also spoke to three of Rompilla’s siblings, as well as a
    sister-in-law and Rompilla’s ex-wife. Family members were
    questioned “in a detailed manner,” but they did not allude
    to any of the new evidence adduced at the PCRA
    proceeding.
      Trial counsel retained three well-qualified mental health
    experts to examine Rompilla. Dr. Cooke, a psychologist,
    testified that in a case of this type he would have looked for
    mitigating evidence and would have performed a battery of
    tests, including an IQ test. Based on his letter to the Public
    Defender’s office, he concluded that Rompilla’s IQ test must
    not have shown mental retardation and that his evaluation
    must not have revealed any abnormalities that would have
                                  28
    
    
    been useful in showing mitigation. Dr. Sadoff, a
    psychiatrist, interviewed Rompilla and evaluated him for
    the presence of mitigating factors, but Dr. Sadoff inferred
    that he also found nothing useful. A second psychiatrist,
    Dr. Gross, was also retained but similarly found nothing
    useful. In view of this record, we cannot say that the
    Pennsylvania Supreme Court unreasonably applied
    Strickland in concluding that trial counsel’s investigation
    regarding mitigating evidence relating to Rompilla’s family
    background and mental condition did not fall below the
    Sixth Amendment floor.
      Rompilla criticizes many aspects of trial counsel’s
    performance at the penalty phase, but we see no ground for
    relief under the habeas statute. Rompilla faults his trial
    attorneys for failing to interview two sisters who testified at
    the PCRA hearing — Barbara Harris, the oldest of
    Rompilla’s siblings, and Randi Rompilla, the second
    youngest. But trial counsel did interview three other
    siblings, including two who were a few years older than
    Rompilla (Nicholas Rompilla and Sandra Whitby) and one
    Robert Rompilla, who was younger. At least some of the
    siblings who were interviewed must have been aware of the
    lurid conditions in the family home that were portrayed at
    the PCRA hearing, but they never mentioned anything
    about these matters to trial counsel despite being
    interviewed “in a detailed manner.” It was thus not
    constitutionally ineffective for trial counsel to fail to
    anticipate that interviewing Barbara Harris or Randi
    Rompilla would have yielded important new information
    about the family home.
       Rompilla also criticizes his trial attorneys for allegedly
    failing to ask sufficiently specific questions when
    interviewing family members and for allegedly failing to ask
    Nicholas Rompilla about any time period other than the
    three and one-half months just before the murder. This
    argument is defeated by findings of fact made by the state
    courts. The PCRA found that trial counsel “spoke with
    members of the family in a detailed manner.” App. 2028.
    The PCRA court also rejected Nicholas Rompilla’s testimony
    insofar as it contradicted “what defense counsel indicated
    was asked . . . during numerous conversations prior to
                                 29
    
    
    trial.” Id. at 2030. Testimony at the PCRA hearing supports
    these findings. See, e.g., id. at 1303 (“I remember [Dantos]
    specifically going one by one and talking to him. ‘Is there
    anything you can tell me? Tell me about yourself. Tell by
    about your background.’ She was, you know, meticulous to
    cover points.”). The state courts’ findings must be
    presumed to be correct, and Rompilla has not rebutted that
    presumption “by clear and convincing evidence.” 28 U.S.C.
    § 2254(e)(1). We accordingly reject Rompilla’s argument
    regarding the interviewing of family members.
      Rompilla contends that trial counsel should have sought
    out school, medical, police, and prison records, but this
    argument also falls short of meeting the AEDPA standard.
    With the benefit of hindsight, we know that these records
    contain useful information about Rompilla’s childhood
    home environment, his mental problems, and his problems
    with alcohol, but trial counsel had grounds for believing
    that if there was any mitigating evidence of this sort to be
    found, at least a hint of its availability would be disclosed
    in the interviews with Rompilla and his family members or
    in the testing and evaluations performed by the three
    mental health experts whom they retained.
       Charles, the lead trial attorney who had the final say on
    every issue in the case, App. 1258, explained why these
    records were not sought out. He testified that he would
    have done whatever was needed to get records if there had
    been any indication from the interviews or from the
    information provided by the mental health experts that
    such records would be helpful. Id. at 1307. But since these
    interviews and evaluations suggested that Rompilla’s home
    environment, schooling, and mental condition were not
    promising avenues of investigation in the search for
    mitigating evidence, he did not think that obtaining those
    records would have represented a sound allocation of his
    office’s resources. Id. at 1293-94.
      This explanation provides a reasonable basis for
    counsel’s decision not to seek the records. Defense counsel
    was permitted to rely on statements made by their client in
    deciding on the extent of the investigation that should be
    conducted in particular areas. See Strickland, 466 U.S. at
    691 (“The reasonableness of counsel’s actions may be
                                 30
    
    
    determined or substantially influenced by the defendant’s
    own statements or actions.”); id. (“[W]hen a defendant has
    given counsel reason to believe that pursuing certain
    investigations would be fruitless or even harmful, counsel’s
    failure to pursue those investigations may not later be
    challenged as unreasonable.”). As noted counsel’s
    interviews with Rompilla himself and with family members
    provided no indication of Rompilla’s abusive childhood or
    mental problems. See Thomas, 144 F.3d at 515 (“if the
    client and his family and friends throw the lawyer off the
    scent . . . by denying the existence of psychological
    problems that might have provided an alternative theory of
    mitigation, the lawyer cannot be faulted for failing to go
    down the path thus closed off ”). “The right to counsel does
    not require that a criminal defense attorney leave no stone
    unturned and no witness unpursued. [Although] it does
    require a reasoned judgment as to the amount of
    investigation the particular circumstances of a given case
    require[,] [a]n attorney need not fully investigate every
    potential avenue if he or she has reasonable grounds for
    not doing so.” Berryman v. Morton, 
    100 F.3d 1089
    , 1101
    (3d Cir. 1996). See also Thomas v. Gilmore, 
    144 F.3d 513
    ,
    515 (7th Cir. 1998) (“A reasonable investigation is not . . .
    the investigation that the best criminal defense lawyer in
    the world, blessed not only with unlimited time and
    resources but also with the inestimable benefit of hindsight,
    would conduct.”) cert. denied, 
    525 U.S. 1123
     (1999).
       It was likewise not unreasonable for trial counsel to rely
    on its mental health experts to detect whether there was
    any basis for further pursuit of mitigating evidence relating
    to their client’s mental condition. Trial counsel retained no
    fewer than three highly qualified experts. Dr. Cooke and Dr.
    Sadoff looked for any evidence that could be used as
    mitigation but found none. A battery of tests was performed
    but yielded no indication of mental retardation or anything
    else that would have been useful for mitigation. Although
    all three of the experts testified that the records that PCRA
    counsel subsequently obtained would have caused them to
    do further investigation, none of the experts asked for
    records or suggested that any further testing be done.
      In view of these circumstances, it was not unreasonable
                                       31
    
    
    for the state courts to conclude that trial counsel did not
    fall below the constitutionally mandated level of
    representation by failing to search out the records at issue
    and by failing to provide those records to their mental
    health experts. This was not a case where counsel knew of
    the defendant’s mental health or other problems and failed
    to inform or provide the experts with the information. See
    Caro v. Calderon, 
    165 F.3d 1223
    , 1228 (9th Cir. 1999) (“A
    lawyer who knows of but does not inform his expert
    witnesses about . . . essential pieces of information going to
    the heart of the case for mitigation does not function as
    ‘counsel’ under the Sixth Amendment.”) cert. denied, sub
    nom, Woodford v. Caro, 
    527 U.S. 1049
     (1999). Despite
    counsel’s attempts to find out otherwise, counsel had no
    knowledge of Rompilla’s problems and/or childhood abuse.11
      In Card v. Dugger, 
    911 F.2d 1494
     (11th Cir. 1990), the
    court addressed an argument very similar to Rompilla’s
    argument regarding trial counsel’s failure to provide records
    to their mental health experts. In Card, a capital case, the
    mental health expert spoke to members of the defendant’s
    
    11. For this reason, the authority cited by Rompilla is inapposite. See
    Jermyn, 266 F.3d at 275 (counsel knew that expert was willing to testify
    regarding defendant’s abusive childhood and its mitigating effects on the
    defendant’s adult life); Profitt v. Waldron, 
    831 F.2d 1245
    , 1246-49 (5th
    Cir. 1987) (counsel knew defendant escaped from mental hospital shortly
    before the crime); Beavers v. Balkcom, 
    636 F.2d 114
    , 115-16 (5th Cir.
    1981) (counsel knew of defendant’s prior hospitalization in mental
    institution); Glenn v. Tate, 71 F.3d 1204,1208 (6th Cir. 1995) (counsel
    knew defendant had received mental health counseling) cert. denied, 
    519 U.S. 910
     (1996); Antwine v. Delo, 
    54 F.3d 1357
    , 1365-66 (8th Cir. 1995)
    (counsel knew that defendant was acting “odd” prior to the offense) cert.
    denied sub nom, Bowersox v. Antwine, 
    516 U.S. 1067
     (1996); Hill v.
    Lockhart, 
    28 F.3d 832
    , 838-40, 845 (8th Cir. 1994) (counsel knew of
    defendant’s prior hospitalization); Kenley, 937 F.2d at 1300, 1304-06
    (counsel knew of but failed to contact a doctor who had previously
    treated the defendant); Clabourne v. Lewis, 
    64 F.3d 1373
    , 1377, 1388
    (9th Cir. 1995) (counsel knew defendant was mentally impaired at the
    time of the offense, and had “display[ed] a broad spectrum of psychiatric
    and emotional disorders”); Wallace v. Steward, 
    184 F.3d 1112
    , 1114,
    1116 (9th Cir. 1999) (counsel knew from first sentencing hearing of
    defendant’s “chaotic upbringing,” substance abuse, and mother’s mental
    illness) cert. denied, 
    528 U.S. 1105
     (2000).
                                 32
    
    
    family and was provided copies of pre-trial reports
    indicating that the defendant was competent to stand trial.
    Id. at 1512. The expert testified at the sentencing hearing
    that the defendant suffered from a sociopathic personality
    disorder and that his abusive childhood was consistent
    with the development of the disorder. Id. at 1508. The
    defendant claimed that counsel was ineffective in failing to
    provide the expert with various school, incarceration, army,
    and medical records and information from family members.
    Id. at 1512. This information, the defendant argued, would
    have enabled the expert to diagnose the defendant as
    suffering from organic brain damage and schizophrenia,
    rather than merely a sociopathic personality. Id. at 1512-
    13. The Eleventh Circuit rejected this argument observing
    that
        [t]here is no indication that the experts felt incapable of
        basing their conclusions on the information they
        obtained through their own testing and examinations.
        Nor is there any reason that, after receiving the
        experts’ reports, counsel was obligated to track down
        every record that might possibly relate to [the
        defendant’s] mental health and could affect a
        diagnosis.
    Id. at 1512.
       We find this reasoning persuasive. As in Card, there was
    no indication in the present case that Drs. Cooke, Sadoff,
    and Gross “felt incapable of basing their conclusions on the
    information they obtained through their own testing and
    examinations.” Card, 911 F.2d at 1512. Thus, it was not
    unreasonable for counsel to rely on the expertise and
    experience of the mental health professionals in
    determining the need for any records. Such deference to the
    legitimate role of experts is well within the wide range of
    reasonable professional assistance.
      Furthermore, it was permissible for Charles to consider
    his office’s limited investigative resources in determining
    the extent of the investigation that should be conducted
    with respect to Rompilla’s childhood, family, and mental
    condition. See McWee v. Weldon, 
    283 F.3d 179
    , 188 (4th
    Cir. 2002) (“the reasonableness of an investigation . . .
                                   33
    
    
    must be considered in light of the scarcity of counsel’s time
    and resources in preparing for a sentencing hearing”), cert.
    denied, 
    537 U.S. 893
     (2002); Mahaffey v. Page, 
    151 F.3d 671
    , 685 (7th Cir.) (“A ‘reasonable investigation’ does not
    mandate a ‘scorch-the-earth strategy,’ a requirement that
    would fail to consider the limited time and resources that
    defense lawyers have in preparing for a sentencing
    hearing.”) (citations omitted), vacated in part on other
    grounds, 
    162 F.3d 481
     (7th Cir. 1998); Rogers v. Zant, 
    13 F.3d 384
    , 387 (11th Cir. 1994) (the focus on whether a
    decision not to conduct a particular investigation was
    reasonable “reflects the reality that lawyers do not enjoy the
    benefit of endless time, energy or financial resources”).
       Rompilla argues that his trial attorneys were deficient
    because they did not provide adequate information or
    instructions to Drs. Cooke, Sadoff, and Gross. Rompilla
    maintains that his attorneys should have instructed Dr.
    Cooke to test for brain damage, but Charles testified that
    he relied on the experts to do whatever testing was
    appropriate. App. 1307-08. Dr. Cooke was aware of the
    need for mitigating evidence. He testified that in a capital
    case he would have looked for indications of “any mental
    illness, emotional disturbance, or other sorts of problems
    that might be a psychological mitigating circumstance,” and
    he performed the battery of tests that he felt was called for.
    Id. at 1808-09. He stated that if the results of some of
    those tests had provided a reason to do a “neuropsyche
    test,” he would have done so. Id. at 1809. Thus, Rompilla
    is in effect faulting his trial attorneys for failing to instruct
    an expert to do a test that the expert apparently did not
    think was warranted under the circumstances. This
    argument demands much more than the Sixth Amendment
    requires.
      Rompilla criticizes his trial attorneys for allegedly failing
    to educate Dr. Sadoff about the meaning of mitigating
    evidence. Based on a snippet of Dr. Sadoff ’s testimony,
    Rompilla suggests that Dr. Sadoff thought that “mitigating
    evidence was limited to evidence about the offense itself,”
    Rompilla Br. at 87 (citing App. 1874), whereas under the
    law, “mitigation is anything that ‘might serve as a basis for
    a sentence less than death’ and need ‘not relate specifically
                                       34
    
    
    to [the defendant’s] culpability for the crime he
    committed.’ ” Rompilla Br. at 88 (quoting Skipper v. South
    Carolina, 
    476 U.S. 1
    , 4-5 (1986)) (emphasis and brackets in
    original). There are at least three weaknesses in this
    argument.
       First, in light of Dr. Sadoff ’s background — which
    included extensive experience relating to the criminal
    justice system (see App. 1876-1892) — it is far from clear
    that trial counsel had a constitutional obligation to brief
    him on the meaning of exculpatory evidence.12 Second, it
    also is not clear that Rompilla’s argument accurately
    represents what Dr. Sadoff said. Asked by Rompilla’s PCRA
    attorney whether he thought that evidence was mitigating
    only “if it relates to the defendant’s state of mind at the
    time of the commission of the offense,” Dr. Sadoff
    answered: “It relates to that and the kind of person he is
    . . . .” App. 1874. (emphasis added). He continued that in
    the past he had not “used irrelevant material that had
    nothing to do with the crime itself as a mitigating factor. It
    had to be something that would have impacted on [the
    defendant’s] state of mind at the time.” Id. Thus, Dr. Sadoff
    did not say that he thought that mitigating evidence had to
    be evidence “about the offense.” Rompilla Br. at 87
    (emphasis in original removed). Rather, he said that the
    mitigating evidence that he had used in the past was
    evidence of something that had an impact on the
    defendant’s mind at the time. App. at 1874. It is not
    apparent that mental health evidence is likely to be
    persuasive for mitigation purposes if it cannot have had
    any impact on a murderer’s mind at the time of offense.
    
    12. Both Drs. Sadoff and Cooke had previously testified in criminal
    proceedings. See, e.g., United States v. Green, 
    544 F.2d 138
    , 144 (3d Cir.
    1976) (Sadoff and Cooke); New Jersey v. Zola, 
    548 A.2d 1022
    , 1030 (N.J.
    1988) (Sadoff and Cooke); Commonwealth v. Comitz, 
    530 A.2d 473
    , 603-
    04 (Pa. Super. Ct. 1987) (Sadoff); Commonwealth v. Stark, 
    526 A.2d 383
    (Pa. Super. Ct. 1987) (Sadoff). They had also previously testified in
    capital cases. See, e.g., New Jersey v. Pitts, 
    562 A.2d 1320
    , 1325-27
    (N.J. 1989) (Sadoff and Cooke); Commonwealth v. Aulisio, 
    522 A.2d 1075
    ,
    1087 (Pa. 1987) (Cooke); Commonwealth v. Terry, 
    521 A.2d 398
    , 405,
    409 (Pa. 1987) (Cooke); Commonwealth v. Whitney, 
    512 A.2d 1152
    , 1157
    (Pa. 1986) (Cooke); Commonwealth v. Terry, 
    462 A.2d 676
     (Pa. 1983)
    (Sadoff and Cooke).
                                 35
    
    
       Third and most important, even assuming for the sake of
    argument that Dr. Sadoff ’s understanding of the range of
    mental health evidence that can be mitigating was unduly
    narrow, we see absolutely no reason to believe that Dr.
    Sadoff ’s understanding contributed in any way to his
    failure to detect the conditions that Rompilla now claims.
    Rompilla argues that he “suffers from organic brain
    damage, including damage to the frontal lobes and parietal
    area” and that these impairments, among other things,
    prevent him from “adequately control[ling] and guid[ing] his
    behavior,” “emotions,” and “impulses.” Rompilla Br. at 58.
    He argues that these conditions “substantially impair[ ] his
    capacity to appreciate criminality of conduct or conform
    conduct to the requirements of law.” Id. at 96. Accordingly,
    these impairments surely would have “impacted” his mind
    at the time of the Scanlon murder and thus fall squarely
    within the scope of the sort of mitigating evidence to which
    Dr. Sadoff referred.
       Rompilla argues that his trial attorneys were ineffective
    because they did not ask Dr. Gross to look for mitigating
    evidence. Rompilla Br. at 65 (citing App. 1535-36, 1545).
    However, Drs. Cooke and Sadoff did look specifically for
    mitigating evidence, and the scope of Dr. Gross’s evaluation
    encompassed at least some mitigating evidence. He stated:
    “I was looking to see if he knew what he was doing, whether
    he was suffering from any kind of psychiatric disorder,
    whether he may have been intoxicated, exactly what his
    emotions and cognitive processes were.” App. 1506. In light
    of what Drs. Cooke and Sadoff were asked to do and in fact
    did, trial counsel’s instructions to Dr. Gross do not show
    that trial counsel were ineffective.
       Finally, Rompilla argues that trial counsel were
    ineffective in failing to do further investigation relating to
    Rompilla’s alcohol use. Rompilla never explains exactly
    what alcohol-related mitigation argument he believes his
    trial attorneys should have made, but he refers to
    information suggesting that there is a history of alcohol-
    abuse in the Rompilla family, that he is an alcoholic, that
    his alcoholism was caused by his traumatic childhood, that
    he suffers from alcohol-induced blackouts, and that he was
    intoxicated on the night of the murder. While these
                                      36
    
    
    elements can be woven into an attractive mitigation
    argument, most of the elements are based on information
    in the records that trial counsel was not, for the reasons we
    have explained, constitutionally obligated to obtain. This
    includes evidence of drinking in the Rompilla family,
    Rompilla’s abusive childhood home, blackouts, and
    Rompilla’s alcoholism.
       The only alcohol-related mitigation argument that trial
    counsel could have made without obtaining the previously
    discussed records — namely, that Rompilla was so
    intoxicated at the time of the Scanlon murder that his
    judgment was impaired — would not have been particularly
    compelling. Moreover, while evidence to support this
    argument was available,13 the argument would have to have
    been made without the support of testimony from Rompilla,
    who did not take the stand at either phase of the trial and
    denied intoxication or alcohol problems. We cannot say that
    it was objectively unreasonable for trial counsel not to put
    on such a defense.
       Finally, Rompilla argues that the Supreme Court’s recent
    decision in Wiggins v. Smith, 
    123 S. Ct. 2527
     (2003), shows
    that his trial attorneys conducted an unreasonably
    abbreviated investigation of potential mitigating factors, but
    there is a sharp contrast between the conduct of the
    attorneys in Wiggins and those in this case. In Wiggins, the
    trial attorneys claimed that they made a tactical decision
    not to present mitigating evidence but instead to pursue
    the alternative strategy of attempting to prove that someone
    other than the defendant actually killed the victim. Id. at
    2533. Accordingly, they made little effort to investigate the
    defendant’s background although they had reason to
    believe that such an investigation would have been fruitful.
      The Supreme Court found that defense counsel’s
    investigation of their client’s background was based entirely
    on the presentence investigation report (PSI) and
    documents from the Baltimore City Department of Social
    Services (DSS). Id. at 2540. Although funds were available
    
    13. As Rompilla points out, police reports on the Scanlon case indicated
    that “Rompilla was drinking heavily and was intoxicated and incoherent
    around the time of the offense.” Rompilla Br. at 92.
                                  37
    
    
    for the preparation of a social history of the defendant,
    counsel did not commission such a report. Id. at 2536. But
    even the limited documents that counsel reviewed
    contained information that should have alerted counsel
    that an expanded investigation into their client’s
    background was likely to yield mitigation evidence. The PSI
    reported that the defendant had spent most of his
    childhood in foster care and quoted the defendant as
    describing his background as “disgusting.” Id. at 2536. The
    DSS records disclosed that the defendant’s “mother was a
    chronic alcoholic; Wiggins was shuttled from foster home to
    foster home and displayed some emotional difficulties while
    there; he had frequent, lengthy absences from school; and,
    on at least one occasion, his mother left him and his
    siblings alone for days without food.” Id. at 2537.
       Wiggins’s trial counsel nevertheless failed to follow these
    leads. Counsel moved for bifurcation of the penalty phase
    trial so that they could first attempt to show that their
    client did not kill the victim by his own hand and then, if
    that defense was rejected, offer evidence in mitigation. Id. at
    2532. When bifurcation was denied, defense counsel made
    a brief reference in her penalty phase opening to the
    defendant’s “difficult life” but “introduced no evidence of
    [his] life history.” Id. And although counsel proffered some
    evidence that would have been introduced if the bifurcation
    had been allowed, no evidence of the defendant’s life history
    or family background was included. Id. After the defendant
    was sentenced to death, new counsel commissioned the
    preparation of a social history. Id. at 2532. A social worker
    interviewed Wiggins and family members, obtained
    additional documents, and compiled evidence of severe
    physical and sexual abuse by Wiggins’s mother. Id. at
    2532, 2542.
      Faced with these facts, the Supreme Court held that it
    was objectively unreasonable for counsel not to conduct a
    further investigation for mitigating evidence regarding
    Wiggins’s background. Id. at 2541. The Court stated that
    “any reasonably competent attorney” would have realized
    that it was necessary to follow the leads in the PSI and DSS
    documents before making a choice among potential
    defenses. Id. at 2537. The Court stressed that “counsel
                                  38
    
    
    uncovered no evidence in their investigation to suggest that
    . . . further investigation would have been fruitless.” Id. The
    Court also emphasized that Strickland does not require
    counsel to investigate every conceivable line of mitigating
    evidence no matter how unlikely the effort would be to
    assist the defendant at sentencing. Id. Instead, the Court
    reiterated that “[a] decision not to investigate . . . ‘must be
    directly    assessed     for  reasonableness     in    all  the
    circumstances.’ ” Id. (quoting Strickland, 466 U.S. at 691).
       There are critical differences between the conduct of
    Wiggins’s and Rompilla’s trial attorneys. Wiggins’s attorneys
    were presented with leads that “any reasonably competent
    attorney” would have realized were promising. Rompilla’s
    attorneys had no comparable leads. Wiggins described his
    childhood as “disgusting”; Rompilla insisted that his was
    “normal.” In Wiggins, postconviction interviews with
    Wiggins himself and with members of his family produced
    evidence of severe abuse. 123 S.Ct. at 2542. In the present
    case, Rompilla’s attorneys interviewed their client and
    numerous family members in detail before the penalty
    proceeding but discovered no mitigating evidence. Wiggins’s
    attorneys “uncovered no evidence in their investigation to
    suggest that . . . further investigation would have been
    fruitless.” Id. at 2537. Rompilla’s trial attorneys had a body
    of evidence that suggested that a further investigation into
    Rompilla’s family background would not have been
    productive. Not only did Rompilla’s attorneys probe their
    client for mitigating evidence, but they interviewed
    numerous members of his family, including siblings who
    bracketed him in age. At least one of these siblings,
    Nicholas Rompilla, later revealed that he knew about the
    conditions in the home on which Rompilla now relies, but
    he never provided that information to trial counsel, and
    although he now claims that trial counsel never asked him
    about any period of time other than the months
    immediately preceding the murder, the PCRA court found
    that this testimony was not believable.
      In short, the attorneys in Wiggins did little to investigate
    their client’s background although they possessed
    information that should have prompted them to do so.
    Rompilla’s    attorneys   conducted    a     much      greater
                                  39
    
    
    investigation, but their interviews with their client and his
    family provided a reasonable basis for concluding that
    additional investigation would not have represented a wise
    allocation of limited resources. In our view, Wiggins is
    critically different from the present case.
       Rompilla asserts that Dr. Gross’s report “explicitly
    recommend[ed] that counsel investigate alcoholism,”
    Rompilla Br. at 66, but this is not exactly what Dr. Gross
    wrote. Dr. Gross said that “[t]he possibility does remain . . .
    that Mr. Rompilla while under the influence of alcohol, can
    become prone to violent behavior although he himself
    strongly     denies    this.”  Dr.    Gross     added:    “My
    recommendation is that this area should be further
    evaluated before any definitive conclusions are drawn.”
    (emphasis added). Thus, Dr. Gross did not say that further
    evaluation was likely to produce evidence that Rompilla
    becomes violent when drunk, only that this was a
    “possibility.” Nor did he recommend further evaluation as a
    promising strategy for the defense. Instead, he merely said
    that “no definitive conclusions” should be drawn about this
    possibility unless there was a further evaluation. And
    finally, it should be noted that he referred to a further
    “evaluation” (a term that suggests a psychiatric
    examination), not an “investigation.” Rompilla’s brief
    repeatedly uses the term “investigate” in an apparent
    attempt to suggest that Dr. Gross recommended that trial
    counsel search for evidence such as the records discussed
    above. The use of this term obscures the fact that trial
    counsel did precisely what Dr. Gross recommended: they
    had Rompilla “evaluated” further, i.e., examined by another
    psychiatrist, Dr. Sadoff.
      In conclusion, it appears to us that Rompilla is now
    arguing that his trial counsel were constitutionally derelict
    in failing to take all the steps that might have been pursued
    by the most resourceful defense attorneys with bountiful
    investigative support. But while we may hope for the day
    when every criminal defendant receives that level of
    representation, that is more than the Sixth Amendment
    demands. See Strickland, 466 U.S. at 689 (“the purpose of
    the effective assistance guarantee of the Sixth Amendment
    is not to improve the quality of legal representation,
                                        40
    
    
    although that is a goal of considerable importance to the
    legal system”); Burger, 483 U.S. at 794 (“The record at the
    habeas corpus hearing does suggest that [counsel] could
    well have made a more thorough investigation than he did.
    Nevertheless, in considering claims of ineffective assistance
    of counsel, ‘[w]e address not what is prudent or
    appropriate, but only what is constitutionally compelled.’ ”)
    (quoting Cronic, 466 U.S. at 665 n.38) (alteration in
    original). The Sixth Amendment is satisfied when “counsel’s
    conduct falls within the wide range of reasonable
    professional assistance,” thereby “ensur[ing] that criminal
    defendants receive a fair trial.” Strickland, 466 U.S. at 689.14
    
    14. In finding the state courts’ analysis unreasonable, the District Court
    relied in part on the absence of any “in depth analysis” of the duty to
    investigate, including the lack of any reference to the ABA Standards for
    Criminal Justice. Rompilla, 
    2000 WL 964750
    , at *9. Three important
    observations must be made about the District Court’s treatment of this
    point. First, the state court’s failure to discuss these standards does not
    mean that the standards themselves or the principles they embody were
    not considered. Second, we see nothing in the quoted portions of the
    ABA standards that dictates that records of the sort at issue here must
    always be sought. Third, although the ABA standards are important
    guides, they cannot be viewed as a codification of the requirements of
    the Sixth Amendment. In Strickland, the Supreme Court recognized that
    “[p]revailing norms of practice as reflected in American Bar Association
    standards and the like . . . are guides to determining what is
    reasonable.” Strickland, 466 U.S. at 688 (emphasis added). See also
    Williams, 529 U.S. at 396. However, the Supreme Court has made it
    clear that the ABA standards
        are only guides. No particular set of detailed rules for counsel’s
        conduct can satisfactorily take account of the variety of
        circumstances faced by defense counsel or the range of legitimate
        decisions regarding how best to represent a criminal defendant. Any
        such set of rules would interfere with the constitutionally protected
        independence of counsel and restrict the wide latitude counsel must
        have in making tactical decisions. . . . [T]he purpose of the effective
        assistance guarantee of the Sixth Amendment is not to improve the
        quality of legal representation, although that is a goal of
        considerable importance to the legal system. The purpose is simply
        to ensure that criminal defendants receive a fair trial.
    Strickland, 466 U.S. at 688-89 (citation omitted). See also Roe v. Flores-
    Ortega, 
    528 U.S. 470
    , 481 (2000) (the Court has “consistently declined
    to impose mechanical rules on counsel — even when those rules might
    lead to better representation”).
                                  41
    
    
    See also Waters, 46 F.3d at 1512 (“The test has nothing to
    do with what the best lawyers would have done. Nor is the
    test even what most good lawyers would have done . . . . We
    are not interested in grading lawyers’ performances; we are
    interested in whether the adversarial process at trial, in
    fact, worked adequately.”) (quoting White v. Singletary, 
    972 F.2d 1218
    , 1220-21 (11th Cir. 1992)). Here, the state
    court’s determination that counsel acted reasonably was
    not “contrary to” or an “unreasonable application” of
    Strickland.
    
                                 VII.
       Rompilla advances three claims related to the trial court’s
    response to the jury’s questions about accomplice liability.
    First, Rompilla argues that his federal constitutional right
    to due process was violated because the court instructed
    the jury on accomplice liability without providing “notice or
    fair warning that he might be subjected to liability as an
    accomplice.” Rompilla Br. at 14. Second, he contends that
    his federal constitutional right to due process was abridged
    because the accomplice-liability comments did not state
    that “accomplice liability must be proven beyond a
    reasonable doubt and that conviction for murder, even
    based on accomplice liability, required proof of a specific
    intent to kill.” Id. at 20. Third, he maintains that his rights
    under the Sixth, Eighth, and Fourteenth Amendments were
    violated because the trial judge’s remarks prevented the
    jury “from considering and giving exculpatory and
    mitigating effect to evidence that someone other than
    Rompilla was the killer.” Id. at 22 (emphasis in original
    removed).
    
                                  A.
       Under 28 U.S.C. § 2254(b)(1), a state prisoner’s
    application for a writ of habeas corpus “shall not be granted
    unless it appears that . . . the applicant has exhausted the
    remedies available in the courts of the State” or the case
    falls within one of two exceptions to the exhaustion
    requirement, i.e., “there is an absence of available State
    corrective process” or “circumstances exist that render such
                                   42
    
    
    process ineffective to protect the rights of the applicant.”
    Moreover, under 28 U.S.C. § 2254(b)(3), a state may not be
    deemed to have waived exhaustion or be estopped from
    relying on exhaustion “unless the State, through counsel,
    expressly waives the requirement.” In order to exhaust state
    remedies, a habeas petitioner must present the petitioner’s
    federal claim in the state courts. See Keller v. Larkins, 
    251 F.3d 408
    , 413 (3d Cir. 2001). It is not enough for a
    petitioner to advance a similar state-law claim. Duncan v.
    Henry, 
    513 U.S. 364
    , 366 (1995). Rather, a petitioner must
    “present a federal claim’s factual and legal substance to the
    state courts in a manner that puts them on notice that a
    federal claim is being asserted.” McCandless v. Vaughn, 
    172 F.3d 255
    , 261 (3d Cir. 1999).
       Three sections of Rompilla’s brief on direct appeal to the
    state supreme court raised claims concerning the
    accomplice liability instruction. First, Rompilla argued that
    the judge erred in giving the instruction because the
    defense had no prior notice that this theory of liability was
    in the case and because the judge refused a defense
    request that “the jury be specifically instructed that under
    an accomplice theory every element must be proven beyond
    a reasonable doubt.” Appellant’s Br. at 11, Commonwealth
    v. Rompilla, Supreme Court of Pennsylvania, Philadelphia
    District, No. 53 Capital Appeal Docket (hereinafter
    “Rompilla Direct Appeal Br.”). Although this section of
    Rompilla’s brief did refer to the requirement of proof beyond
    a reasonable doubt — something demanded by both the
    federal Constitution and Pennsylvania law15 — the brief
    made no reference to the federal Constitution and did not
    cite any federal authorities. Second, Rompilla argued that
    the judge erred in refusing to poll the jury as to whether
    the guilty verdict was based on the theory of accomplice
    liability. Rompilla Direct Appeal Br. at 15-17. This
    contention was based exclusively on state law. Third,
    Rompilla repeated the argument that the trial judge erred
    in refusing to give the requested defense instruction to the
    effect that conviction as an accomplice required proof
    beyond a reasonable doubt. Id. at 17-18. Only state
    authorities grounded on state law were cited.
    
    15. See Commonwealth v. Bonomo, 151 A2d 441, 446 (Pa. 1959).
                                     43
    
    
      Based on our examination of Rompilla’s brief to the
    Pennsylvania Supreme Court, it is not clear that Rompilla
    properly presented any federal constitutional claim to that
    court.16 Moreover, even if Rompilla’s brief to the state
    supreme court is read as having raised the federal claim
    that the trial judge erred in refusing to give the requested
    instruction on the requirement of proof beyond a
    reasonable doubt, it seems clear that the remaining federal
    constitutional claims advanced by Rompilla in this appeal
    were not presented to the state supreme court. Rompilla’s
    argument in the state supreme court concerning the lack of
    prior notice was based solely on state authorities, and the
    argument that Rompilla has made to us that the trial
    judge’s instruction effectively prevented the jury from
    considering exculpatory and mitigating evidence was never
    made, either as a state- or federal-law claim, in Rompilla’s
    direct appeal brief.
       In view of these deficiencies, if Rompilla could still return
    to the state courts and present the federal constitutional
    claims that he has made here, we would probably be
    obligated to regard those claims as unexhausted. It is clear,
    however, that Rompilla can no longer raise those claims in
    state court, 42 Pa. Cons. Stat. Ann. § 9545(b), and therefore
    it appears that those claims are exhausted but are probably
    procedurally defaulted. See Fahy v. Horn, 
    240 F.3d 239
    ,
    245 (3d Cir. 2001). The Commonwealth has not raised the
    defense of procedural default, but we have the discretion to
    do so in appropriate circumstances. See Sweger v.
    Chesney, 
    294 F.3d 506
    , 520 (3d Cir. 2002) cert. denied,
    
    123 S. Ct. 1902
     (2003). Nevertheless, we do not rely on the
    doctrine of procedural default in deciding this appeal.
    Assuming for the sake of argument that our consideration
    of those claims on the merits is not barred, we find that the
    claims do not provide a basis for habeas relief.
    
    16. On direct appeal, the state supreme court described Rompilla’s
    argument as follows:
        by being instructed on an accomplice theory and then being told to
        disregard it, the jury might have been confused and convicted
        [Rompilla] as an accomplice.
    Rompilla-1, 653 A.2d at 631.
                                 44
    
    
                                 B.
       When language in jury instructions is challenged, the
    language in question “must be considered in the context of
    the instructions as a whole and the trial record.” Estelle v.
    McGuire, 
    502 U.S. 62
    , 72 (1991). We then consider
    “ ‘whether there is a reasonable likelihood that the jury has
    applied the challenged instructions in a way’ that violates
    the Constitution.” Smith v. Horn, 
    120 F.3d 400
    , 411 (3d Cir.
    1997) (quoting McGuire, 502 U.S. at 72.)) Under these
    standards, the trial judge’s comments about accomplice
    liability did not violate Rompilla’s constitutional rights.
    
                                 1.
      Since there were no eyewitnesses to the killing, the
    Commonwealth’s case was based almost entirely on the
    previously noted circumstantial evidence. See Rompilla-1,
    653 A.2d at 629. The defense argued that someone other
    than Rompilla was the actual assailant.
      During jury deliberations in the guilt phase, the jury
    asked:
        If Defendant was an accomplice to the Charge of
        Criminal Homicide, can he be charged with Murder in
        the First Degree?
    App. at 585. In response, the trial judge began by informing
    the jury that the Commonwealth had not proceeded on the
    theory that Rompilla was liable for the murder as an
    accomplice and that no instruction on accomplice liability
    had been given. The judge stated:
        Well, preliminarily, let me say this. If you recall, the
        Court, in [its] Charge, at no time referred to any theory
        of accomplice in this case. It is not the Commonwealth’s
        theory in this case that the Defendant was an
        accomplice. I’m not quite sure what prompted the
        question. If it arose because of something that was
        argued by Counsel in the closing speeches, if you
        recall, I indicated that you are to give — and you
        should be guided by each Lawyer’s arguments to the
        extent they’re supported by the evidence and in so far
        as they aid you in applying your own reason and
                                       45
    
    
         common sense. However, you are not required to
         accept the arguments of either Lawyer. It is for you
         alone — you and you alone to decide this case based
         on the evidence as it was presented from this witness
         stand and in accordance with the instruction which the
         Court gave you. Now, again, as I say, I’m not quite sure
         what prompted the question, but you did ask the
         question, and I assume you want an answer, is that
         correct?
    Id. at 585-86 (emphasis added). The jury foreman nodded
    in the affirmative, and the trial court then attempted to
    explain when an accomplice could be held liable for a crime
    committed by another. Id. at 586-87. The court concluded,
    however, with the following comments:
         I can only say this to you, that you should determine
         this case based on the Charge of the Court as it had
         given you originally. There was no evidence in this case
         with regard to the question as posed but a simple clear
         answer to the question is yes, you could be charged
         with, and you could be convicted of Murder in the First
         Degree if, indeed, you’re an accomplice, but it requires
         other proof or findings on your part that were not a part
         of this case nor were they made a part of this case, all
         right.
    Id. at 587-88 (emphasis added).
       On direct appeal, the state supreme court did not decide
    whether the trial judge’s comments about accomplice
    liability were flawed but instead held that any error was
    cured by the judge’s admonition to the jury that it should
    not consider that theory of liability. Id.17 The District Court
    
    17. In the PCRA appeal, Rompilla again attempted to challenge the trial
    judge’s instruction on accomplice liability, but the state supreme court
    held that relief was unavailable because the claim had already been
    litigated on direct appeal. Commonwealth v. Rompilla, 
    721 A.2d 786
    , 793
    (Pa. 1999).
      In the federal habeas proceeding, the District Court also found that the
    instruction did not prevent consideration of exculpatory and mitigating
    evidence and that Rompilla’s claim that there was evidence of an
    accomplice was not supported by the record. Id.
                                 46
    
    
    — presented with arguments notably different from those
    advanced in the state supreme court — went beyond the
    state supreme court in holding that the judge’s explanation
    of accomplice liability was incomplete, but the District
    Court agreed with the state supreme court that any flaw
    was cured by the trial court’s admonition that the theory of
    accomplice liability was not before the jury in this case.
    Rompilla, 
    2000 WL 964750
    , at *14. Similarly, we conclude
    that, even assuming arguendo that the challenged
    comments were constitutionally flawed, there is no basis for
    habeas relief. The state supreme court’s decision that any
    defect in the challenged comments was cured by the judge’s
    admonition that the jury was not to consider the theory of
    accomplice liability did not “involve an unreasonable
    application of Federal law,” 28 U.S.C. § 2254(d)(1), namely,
    the rule that jury instructions do not violate the
    Constitution unless there is a reasonable probability that
    they were applied in a way that abridged constitutional
    rights. Moreover, even under a standard of plenary review,
    we would find no constitutional violation.
       Here, the clear thrust of the trial court’s response to the
    jury’s question was that the Commonwealth was not relying
    on the theory that Rompilla was liable as an accomplice
    and that the jury should not consider that theory as a
    possible basis for conviction. As noted, when the judge first
    responded to the jury’s question, the judge began by
    reminding the jury that the court’s instructions “at no time
    referred to any theory of accomplice in this case. It is not
    the Commonwealth’s theory in this case that the Defendant
    was an accomplice.” App. 585-86. In addition, the judge
    told that jury that they were required to decide the case “in
    accordance with the instruction which the Court gave you.”
    Id. Since “the instruction which the Court gave [the jury]”
    “at no time referred to any theory of accomplice in this
    case,” id. at 585-86, the judge’s comments meant that the
    jury was to decide the case without relying on the theory of
    accomplice liability. The judge’s final statements regarding
    accomplice liability made exactly the same point. The judge
    stated: “I can only say this to you, that you should
    determine this case based on the Charge of the Court as it
    had given you originally.” Id. at 587. Jurors are presumed
    to follow the court’s instructions. Richardson v. Marsh, 481
                                 
    47 U.S. 200
    , 211 (1987). In view of the instructions given here,
    it is not reasonably likely that the jury interpreted the
    judge’s comments to mean anything other than that they
    were not to consider accomplice liability as a possible
    ground for conviction.
       Once the meaning of the judge’s comments is
    understood, it is apparent that there is no merit in
    Rompilla’s argument that his right to due process was
    violated because he did receive prior notice that he might
    be subjected to liability as an accomplice or in his
    argument that the judge’s explanation of accomplice
    liability was constitutionally flawed. Since the trial judge
    told the jury that it was to decide the case without relying
    on the theory of accomplice liability, these arguments fail.
       Rompilla contends that the trial court told the jury that
    it should not consider accomplice liability because no
    evidence was presented during the trial to support such a
    finding. Rompilla Br. at 16. Rompilla then maintains that
    the trial judge gave contradictory instructions in that, on
    the one hand, he told the jury not to consider accomplice
    liability because there was no evidence to support such a
    finding and, on the other hand, he told the jury that it was
    the sole factfinder and its recollection of the evidence
    should therefore control. According to Rompilla, the jury
    was left with two irreconcilable options — either to
    disregard the theory of accomplice liability because the trial
    court believed there was no evidence to support the theory
    or to consider the theory if the jury, as sole factfinder,
    believed, as suggested by its question, that there was
    evidence of an accomplice.
      This elaborate argument rests on the faulty premise that
    the trial judge instructed the jury that the reason why the
    theory of accomplice liability was not in the case was
    because there was no supporting evidence. In fact, however,
    the judge never made such a statement. The trial judge did
    state that “[t]here was no evidence in this case with regard
    to the question as posed,” but he did not state that this
    was why the theory was not in the case. Rather, as noted,
    the judge twice told the jury that they were not to consider
    accomplice liability because it was not in the original
    charge, and the judge also noted that “[i]t [was] not the
                                       48
    
    
    Commonwealth’s theory in this case that the Defendant
    was an accomplice.”
      Rompilla’s remaining argument (that the trial judge’s
    statements prevented the jury from considering exculpatory
    and mitigating evidence) entirely misconstrues the judge’s
    words. The judge did not, as Rompilla contends, say that
    there was no evidence that another person was involved.
    Rather, the judge stated that “[t]here was no evidence in
    this case with regard to the question as posed.” The
    “question as posed” was: “If Defendant was an accomplice
    to the Charge of Criminal Homicide, can he be charged with
    Murder in the First Degree?” Thus, the judge essentially
    said that there was no evidence to support a conviction
    under an accomplice liability theory; the judge did not say
    that there was no evidence that might justify reasonable
    doubt, or residual doubt for purposes of sentencing
    mitigation, as to whether Rompilla committed the killing
    with the requisite intent. Accordingly, nothing that the
    judge said foreclosed consideration of exculpatory or
    mitigating evidence.
      In sum, after considering all of Rompilla’s arguments
    regarding accomplice liability, we see no ground for habeas
    relief.
    
                                     VIII.
      Rompilla contends, finally, that his future dangerousness
    was put at issue during the sentencing phase of his trial
    and that therefore, under Simmons v. South Carolina, 
    512 U.S. 154
     (1994), the trial court was required to inform the
    jury that “life” imprisonment under Pennsylvania law
    means “life without parole.” We agree with the District
    Court, however, that the Pennsylvania Supreme Court’s
    rejection of this claim cannot be disturbed under the
    narrow standard of review prescribed by AEDPA.
    
                                       A.
      Rompilla maintains that the state supreme court’s
    decision was “contrary to” and represented “an
    unreasonable application” of Simmons.18 The actual holding
    in Simmons, however, as set out in Justice O’Connor’s
    
    18. Simmons applies here because it was decided before Rompilla’s
    conviction became final upon conclusion of his direct appeal in 1995. Cf.
    O’Dell v. Netherland, 
    521 U.S. 151
    , 156-57 (1997).
                                   49
    
    
    controlling  opinion,     is    narrower     than    Rompilla
    acknowledges.
       In Simmons, the defendant was convicted of capital
    murder for the killing of an elderly woman. Simmons, 512
    U.S. at 156. The defendant had a history of assaulting
    elderly women, and both defense and state witnesses
    agreed that the defendant posed a continuing danger to
    elderly women. Id. at 157. During the penalty phase, the
    state argued that the question for the jury was “what to do
    with [the defendant] now that he is in our midst.” Id. The
    state also urged that a death sentence would be “a
    response of society to someone who is a threat. Your verdict
    will be an act of self-defense.” Id. The defendant sought to
    rebut the state’s argument by presenting evidence that his
    dangerousness was limited to elderly women and that there
    was no reason to expect acts of violence once he was in a
    prison setting. Id. The trial court denied defense counsel’s
    request for a parole ineligibility instruction. Id. at 158-60.
    During deliberations, the jury asked if a life sentence
    included the possibility of parole. Id. at 160. The trial court
    instructed the jury not to consider parole or parole
    eligibility and told the jury that life imprisonment and
    death were to be understood in their plain and ordinary
    meaning. Id. Shortly thereafter, the jury returned with a
    sentence of death. Id.
       The United States Supreme Court held that, under these
    circumstances, due process required the trial judge to
    inform the jury that the defendant would not have been
    eligible for parole if sentenced to imprisonment for life. The
    plurality opinion endorsed by four Justices reasoned that
        the jury reasonably may have believed that petitioner
        could be released on parole if he were not executed. To
        the extent this misunderstanding pervaded the jury’s
        deliberations, it had the effect of creating a false choice
        between sentencing petitioner to death and sentencing
        him to a limited period of incarceration. This grievous
        misperception was encouraged by the trial court’s
        refusal to provide the jury with accurate information
        regarding petitioner’s parole ineligibility, and by the
        State’s repeated suggestion that petitioner would pose a
        future danger to society if he were not executed.
                                       50
    
    
    Id. at 161-62 (plurality)(emphasis added). The plurality
    found that the jury was then “left to speculate about . . .
    parole eligibility when evaluating petitioner’s future
    dangerousness, and was denied a straight answer . . . even
    when it was requested.” Id. at 165-66. Consequently, the
    plurality stated that “where the defendant’s future
    dangerousness is at issue, and state law prohibits the
    defendant’s release on parole, due process requires that the
    sentencing jury be informed that the defendant is parole
    ineligible.” 512 U.S. at 156 (plurality)(emphasis added). Id.
    at 161-62.19
        The controlling opinion in Simmons — Justice O’Connor’s
    concurrence in the judgment, in which the Chief Justice
    and Justice Kennedy joined — seemed to phrase the
    holding more narrowly. Justice O’Connor stated that a
    “defendant should be allowed to bring his parole ineligibility
    to the jury’s attention . . . in cases in which the only
    available alternative sentence to death is life imprisonment
    without possibility of parole and the prosecution argues that
    the defendant will pose a threat to society in the future.” Id.
    at 177 (O’Connor, J., concurring in the judgement)
    (emphasis added). Other passages in Justice O’Connor’s
    opinion pointed in the same direction. She referred to cases
    “ ‘[w]here the prosecution specifically relies on a prediction of
    future dangerousness in asking for the death penalty,’ ” id.
    at 175 (emphasis added)(citation omitted)(brackets in
    original) and cases where “the State seeks to show the
    defendant’s future dangerousness.” Id. 177. See also id. at
    176 (“the State sought to show that petitioner is a vicious
    predator who would pose a continuing threat to the
    community”); id. at 177 (“The prosecutor in this case put
    petitioner’s future dangerousness in issue”).
      In short, whereas the Simmons plurality opinion may be
    read to state that the Simmons rule applies whenever a
    
    19. Justice Souter’s concurring opinion, in which Justice Stevens joined,
    was phrased in seemingly broader terms. See 512 U.S. at 172 (Souter,
    J., concurring)(“at least when future dangerousness is an issue . . . .”).
    The Simmons dissenters interpreted the plurality opinion as apparently
    requiring admission of parole ineligibility even when the prosecution
    does not argue future dangerousness. Id. at 183 (Scalia, J., joined by
    Thomas, J., dissenting).
                                     51
    
    
    defendant’s future dangerousness is “at issue” (whether or
    not the prosecution makes that argument), Justice
    O’Connor’s controlling opinion may be read more narrowly
    to hold that the rule governs only where the prosecution
    actually “argue[s]” that a defendant poses a future threat.
    Neither position, of course, has perfectly clear boundaries.
    There is a sense in which future dangerousness is “at
    issue” at the penalty phase of virtually all capital cases. The
    possibility that a first-degree murderer will kill again is
    likely to be present in the jurors’ mind in all cases except
    those where the defendant committed the murder for which
    he or she was convicted only because of unusual
    circumstances that are very unlikely to occur again even if
    the defendant is released from prison. As the Chief Justice
    has put it, “[i]t is difficult to envision a capital sentencing
    hearing where the State presents no evidence from which a
    juror might make [an inference of future dangerousness to
    society].” Kelly v. South Carolina, 
    122 S. Ct. 726
    , 735
    (2002)(Rehnquist, C.J., dissenting). Thus, read liberally, the
    plurality’s position in Simmons would mandate that the
    jury be informed about parole ineligibility in almost all
    capital cases in which the only possible sentences are
    death or life without parole.
      On the other hand, the fine line that Justice O’Connor’s
    opinion seemed to draw — between cases in which the
    prosecution “argue[s]” future dangerousness and cases in
    which future dangerousness is inferred by the jury from the
    evidence that is brought to its attention — is difficult to
    police and arguably superficial. A prosecutor may
    encourage a jury to think about future dangerousness
    without expressly referring to that concept.
      Last year, in Kelly v. South Carolina, 
    122 S. Ct. 726
    (2002),20 the Court arguably broadened the holding in
    Simmons. In Kelly, the state told the jurors in its opening
    at the penalty phase: “I hope you never in your lives again
    
    20. Kelly was decided after briefing was completed and before oral
    argument in this case. Rompilla submitted a Notice of Supplemental
    Authority, pursuant to Fed. R. App. P. 28(j). After oral argument both
    parties submitted supplemental memoranda addressing the issue of
    whether Kelly was applicable to the instant matter.
                                  52
    
    
    have to experience what you are experiencing right now.
    Being some thirty feet away from such a person. Murderer.”
    Kelly, 122 S. Ct. at 729. The state then presented evidence
    that while in prison, Kelly had made a knife, had attempted
    to escape from prison, and had planned to hold a female
    guard as a hostage. Id. The state also brought out evidence
    of “Kelly’s sadism at an early age, and his inclination to kill
    anyone who rubbed him the wrong way.” Id. (citation
    omitted). During closing arguments, the state referred to
    Kelly as “the butcher of Batesburg,” “Bloody Billy,” and
    “Billy the Kid.” Id. The state also told the jurors that “Kelly
    doesn’t have any mental illness. He’s intelligent . . . He’s
    quick-witted. Doesn’t that make somebody a little more
    dangerous . . . . for this lady . . . doesn’t that make him
    more unpredictable for [the victim] . . . . murderers will be
    murderers. And he is the cold-blooded one right over there.”
    Id. at 729-30. The trial court did not give a parole
    ineligibility instruction. Id. at 730.
       The     Supreme     Court     held    that    Kelly’s  future
    dangerousness was sufficiently put at issue that he was
    entitled to a parole ineligibility instruction. Id. at 731, 733-
    34. In the body of its opinion, the Court stated that
    “[e]vidence of future dangerousness under Simmons is
    evidence with a tendency to prove dangerousness in the
    future; its relevance to that point does not disappear merely
    because it might support other inferences or be described
    in other terms.” Id. at 732. The Court recognized that “it
    may well be that the evidence in a substantial proportion,
    if not all, capital cases will show a defendant likely to be
    dangerous in the future,” but the Court declined to address
    the issue of whether a defendant is entitled to a parole
    ineligibility instruction when the state’s evidence shows
    future dangerousness but the prosecutor does not argue it.
    Id. at 732 n.4. The Court concluded that “[t]he prosecutor
    accentuated the clear inference of future dangerousness
    raised by the evidence and placed the case within the four
    corners of Simmons.” Id. at 732.
      The Kelly dissenters, including two of the Justices who
    had joined Justice O’Connor’s opinion in Simmons, argued
    that the Court had improperly extended Simmons’s reach.
    See id. at 735 (Rehnquist, C.J., joined by Kennedy, J.,
                                 53
    
    
    dissenting) (“the test is no longer whether the State argues
    future dangerousness to society[,] [as the Court found in
    Simmons]; the test is now whether evidence was introduced
    at trial that raises an ‘implication’ of future dangerousness
    to society”) and id. at 737 (Thomas, J., joined by Scalia, J.,
    dissenting) (“the Court dilutes the Simmons test, now
    requiring that a parole ineligibility instruction be given
    where the prosecution makes arguments that have a
    ‘tendency to prove dangerousness in the future.’ ”).
       Even if Kelly broadened Simmons, however, Kelly cannot
    aid Rompilla here. Under 28 U.S.C. § 2254(d)(1), our review
    is limited to deciding whether a state court decision is
    “contrary to” or an “unreasonable application” of Supreme
    Court precedent “as of the time of the relevant state-court
    decision.” Williams, 529 U.S. at 412 (emphasis added). The
    state court decisions in this case preceded Kelly.
    Accordingly, regardless of whether Kelly expands the
    circumstances when future dangerousness is at issue for
    purposes of requiring a parole ineligibility instruction, the
    case is not applicable to the instant matter. We are limited
    to deciding whether the state court decisions in this case
    were contrary to or an unreasonable application of the
    holding in Simmons itself — which is to say Justice
    O’Connor’s controlling concurrence. We must thus
    determine whether the Pennsylvania Supreme Court was
    reasonable in concluding that the prosecutor in the present
    case did not “argue[ ]” that Rompilla would present a future
    danger if not sentenced to death. We therefore turn to the
    relevant events at the penalty phase of Rompilla’s trial.
    Volume 2 of 2
                                  56
    
    
                                  B.
       During the penalty phase, the Commonwealth attempted
    to establish the aggravating factor that Rompilla had a
    “significant history of felony convictions” as specified in 423
    Pa. C.S. § 9711(d)(9). In doing this, the Commonwealth read
    into the record the testimony of J.M., a female bar owner
    whom Rompilla had previously robbed, slashed with a
    knife, and raped. During closing arguments, the
    Commonwealth argued:
        [T]he woman that was raped, was raped pretty brutally.
        She was raped at knife point. . . . [I]sn’t it frightening,
        the similarity between that case and this case. I mean,
        it is absolutely astounding. Both take place around the
        bar. The Defendant gets in after closing or right before
        closing. . . . On both occasions, a knife was used.
        Steals money both times. Isn’t it frightening the
        similarities in those crimes. Takes a taxi away from
        [J.M.’s] Bar, takes a taxi the night of this crime. He
        slashes [J.M.] in the breast with a knife. He uses a
        knife on Jimmy Scanlon. It’s absolutely frightening to
        think of the similarities in those two crimes. But there
        is one difference, one major difference, [J.M.] lived
        through her experience. Jimmy Scanlon didn’t. . . . I
        keep wondering, why did the Defendant wait till Jimmy
        Scanlon left the Bar? He knew he was closing up. Why
        didn’t he just wait until he had left to break in and
        steal the money, no problem, nobody gets hurt? You
        have to ask yourselves, why didn’t he wait for Jimmy
        Scanlon to leave? Was it his intent to kill right from the
        start? Was it his intent to do serious bodily injury right
        from the start? Because if he had waited maybe a half
        hour, an hour later, Jimmy Scanlon would have been
        gone. This wouldn’t be a homicide case. Jimmy
        Scanlon would still be living. I think the Defendant
        learned a lesson from [J.M.] in that case, that Rape
        case. That lesson was, don’t leave any witnesses. Don’t
        leave anybody behind that can testify against you.
    App. at 779-80.
      During deliberations the jury asked:
                                 57
    
    
        If a life sentence is imposed, is there any possibility of
        the Defendant ever being paroled?
    Id. at 802. The trial judge answered:
        I’m sorry to say, I can’t answer that question. That’s
        not before you as such. The only matter that you can
        consider in the Sentencing Hearing is the evidence that
        was brought out in the course of the Hearing and the
        Law with respect to the Court’s Charge. That’s the only
        consideration you have, I’m sorry to say. I — if there
        were other alternatives that you should consider, we
        would have outlined them in the Charge, all right.
    Id. at 802-03.
      Several hours later, the jury asked to see the docket
    entries for Rompilla’s prior convictions for the purpose of
    ascertaining Rompilla’s prior sentence. The judge denied
    the request, and the following exchange took place:
        Juror No. 3: . . . we want to know if it was — the
                     sentence was — if he got released on
                     behavioral —
        Foreman:      It was commuted        in   any   way,   the
                      original sentence.
        Court:        Well, that we can’t give you.
        Prosecutor:   You can’t tell them.
    Id. at 823-24.
      The next day, after two more hours of deliberation, the
    jury asked:
        Was the Defendant offered any type of rehabilitation
        either while in prison or after his release from prison?
    Id. at 842. The following colloquy then occurred:
        Court:        Well, I’m sorry to say, I can’t answer
                      that. I can only tell you that you’re going
                      to have to make your decision based
                      upon the evidence that was presented
                      and in accordance with the Law with
                      respect to Sentencing Hearing. First of
                                58
    
    
                      all, I couldn’t even answer it if I wanted
                      to or if I could, I don’t know.
        Foreman:      Could I change the question to the point
                      that is — isn’t rehabilitation available in
                      prison?
        Court:        Well, again, I would like to even answer
                      that, and I can’t. You’re going to have to
                      rely upon your own knowledge of that
                      aspect if, indeed, that is a part that
                      troubles the area that you’re interested
                      in. The penology system, I’ll be quite
                      frank with you, is not an issue before —
                      before you with respect to the Law that
                      it’s a decision that you must make. I can
                      understand your interest, however, as I
                      say, we’re constrained to, you know,
                      comply with whatever evidence that was
                      put on in the hearing and then your
                      decision must be based upon whatever
                      the Law says and whatever you may
                      find. All right.
    Id. at 842-43. Three hours later the jury returned a
    sentence of death.
       The PCRA court found that Simmons did not apply
    because    the    prosecutor    did   not    argue   future
    dangerousness. App. at 2025. The District Court similarly
    found that a “fair reading of [the prosecutor’s summation]
    leads to the conclusion that the state’s reasoning for the
    death penalty was not based upon future dangerousness,”
    but rather upon Rompilla’s “despicable, savage and
    cowardly beating” of the victim. Rompilla, 
    2000 WL 964750
    ,
    at *15. The District Court concluded that although a “close
    issue,” the state supreme court’s decision was not an
    unreasonable application of federal law. Id.
    
                                C.
      As noted, Rompilla relies on both the “contrary to” and
    “unreasonable application” prongs of 28 U.S.C. § 2254(d)(1).
    We will discuss each prong separately.
                                  59
    
    
                                  1.
      A result is “contrary to” a Supreme Court holding if the
    state court “contradicts the governing law set forth in [the
    Supreme Court’s] cases” or if it “confronts a set of facts that
    are materially indistinguishable from a decision of [the]
    Supreme] Court and nevertheless arrives at a [different]
    result.” Id. at 405—06. Williams v. Taylor, 
    529 U.S. 362
    ,
    412 (2000). This prong is not met here because the
    Pennsylvania Supreme Court applied the holding of
    Simmons and because the facts of Simmons and the present
    case are materially distinguishable.
       Rompilla argues that the state supreme court’s decision
    is “contrary to” Simmons because the state supreme court
    did not inquire whether there was “a ‘reasonable likelihood’
    that parole and future dangerousness affected the
    sentencing decision.” Rompilla Br. at 42 (citing Simmons,
    512 U.S. at 170). We reject this argument. Neither the
    Simmons plurality nor Justice O’Connor’s concurrence
    stated that the test for entitlement to an instruction on
    parole ineligibility hinges on whether there is a reasonable
    likelihood that future dangerous might figure in the jury’s
    verdict. Rather, the Simmons plurality opinion referred to
    the concept of “reasonable likelihood” in considering a
    different question — whether, once future dangerousness
    was put at issue, there was a “reasonable likelihood” that
    a jury instruction “directing juries that life imprisonment
    should be understood in its ‘plain and ordinary’ meaning”
    dispelled any misunderstanding that the jurors might have
    had as to the meaning of life imprisonment. Simmons, 512
    U.S. at 169-70 (citing Boyde v. California, 
    494 U.S. 370
    ,
    380 (1990)).
      Rompilla contends that the prosecution necessarily put
    his future dangerousness at issue by presenting evidence of
    his prior criminal conduct to establish the aggravating
    factor that he had a significant history of felony convictions.
    According to Rompilla, the state supreme court rendered a
    decision that was “contrary to” Skipper v. South Carolina,
    
    476 U.S. 1
     (1986) and Ramdass v. Angelone, 
    530 U.S. 156
    (2000), when it rejected this argument on the “formalistic”
    ground that this aggravator concerns past conduct rather
    than future behavior. Rompilla Br. at 42. This argument is
                                       60
    
    
    also meritless. It overlooks the scope of Justice O’Connor’s
    Simmons concurrence, which, as noted, can reasonably be
    read as focusing on the prosecution’s arguments, not the
    inferences that arise from the facts that are proven. On this
    view, proving past crimes that may cause jurors to worry
    about future dangerousness is quite different from arguing
    that a defendant presents a future threat.
      In addition, Skipper does not hold or even state that
    proving prior felony convictions is tantamount to arguing
    that a defendant presents a future threat for Simmons
    purposes. In Skipper, the Court held that the capital
    defendant’s right to present all relevant mitigating evidence
    at the sentencing stage of the trial was violated by the state
    court’s refusal to admit evidence that the defendant had
    made a good adjustment to jail during the time between his
    arrest and the trial. Thus, Skipper had nothing to do with
    an instruction on parole ineligibility.21
      Rompilla’s reliance on Ramdass is also misplaced. Not
    only does Ramdass post-date the decision of the
    Pennsylvania Supreme Court, but Ramdass does not
    address the question of when future dangerousness is
    sufficiently put in issue to require an instruction on parole
    ineligibility. In Ramdass, the prosecution expressly argued
    future dangerousness as an aggravating circumstance, and
    thus that point was not disputed. Ramdass, 530 U.S. at
    161. Instead, the issue in Ramdass was whether the
    defendant was eligible for parole at the time that was
    relevant for Simmons purposes. See id. at 166-68.
    
    21. Rompilla refers to the Skipper Court’s statement that “[c]onsideration
    of a defendant’s past conduct as indicative of his probable future
    behavior is an inevitable and not undesirable element of criminal
    sentencing.” 476 U.S. at 5. If this dictum is true — that people will
    inevitably draw inferences of probable future behavior from evidence of
    past conduct — it may argue against drawing the line suggested in
    Justice O’Connor’s Simmons concurrence between cases in which the
    prosecution argues that a defendant presents a future danger and cases
    in which the facts give rise to an inference of future dangerousness. But
    that plainly does not make the decision of the Pennsylvania Supreme
    Court in this case “contrary to” Skipper, which was not even a Simmons
    case.
                                 61
    
    
      Third, Rompilla argues that his case is “materially
    indistinguishable” from Simmons, but we disagree. In
    Simmons, as noted, the prosecution expressly argued that
    the defendant posed a future threat, stating that “a verdict
    for death would be ‘a response of society to someone who
    is a threat. Your verdict will be an act of self-defense.’ ”
    Simmons, 512 U.S. at 157. In this case, by contrast, the
    Commonwealth made no specific references to any possible
    future conduct by the defendant. We thus hold that the
    decision of the Pennsylvania Supreme Court was not
    “contrary to” Simmons.
    
                                 2.
       Rompilla next contends that the state supreme court’s
    decision represents an “unreasonable application” of
    Simmons, but while we agree with the District Court that
    the application of Simmons to the present case would be
    “close” if we were exercising plenary review, we are
    convinced that the state supreme court’s decision was
    reasonable.
       Rompilla maintains that the state supreme court’s
    decision was unreasonable because its opinion did not
    discuss all of evidence on which he relies in arguing that
    his future dangerousness was sufficiently put at issue
    during the penalty phase of his trial. Rompilla Br. at 45. As
    we have already explained, however, 28 U.S.C. § 2254(d)(1)
    calls upon us to decide whether the adjudication of a claim
    on the merits in state court “resulted in a decision” that
    “involved an unreasonable application of . . . clearly
    established Federal law.” This standard applies even when
    a claim is adjudicated on the merits without any discussion
    at all. See Weeks, 528 U.S. at 237; Chadwick v. Janecka,
    312 F.3d at 606. Accordingly, we must look to the
    reasonableness of what the state supreme court decided,
    not the detail included in its opinion.
      Rompilla argues that the prosecution raised the issue of
    future dangerousness in its closing by stating that Rompilla
    had “learned a lesson” from the prior rape, namely, that he
    should not leave any witnesses and by repeatedly asking
    the jury whether the similarities between the rape and his
                                62
    
    
    murder of Scanlon were not “frightening.” Rompilla
    contends that these comments painted a picture of him as
    a “hardened, frightening, violent recidivist who, if ever
    released, would commit additional violent crimes and would
    not ‘leave any witnesses.’ ” Rompilla Br. at 34-35.
      We have given this argument careful consideration, but
    in the end it does not persuade us that the difficult
    standard    of   § 2254(d)(1)    is   met.    Reading    the
    Commonwealth’s remarks in the context of the entire
    sentencing proceedings, it appears to us that the
    Commonwealth did not argue future dangerousness. In her
    emotional closing argument at the penalty phase, defense
    counsel argued over and over that, although the jury had
    found the defendant guilty, they must have had some
    doubts about his guilt in view of the evidence and that they
    should therefore not impose a sentence of death. She
    stated:
        You, as a Jury, convicted him of First Degree Murder.
        You convicted him, in your minds, beyond a reasonable
        doubt, but you must have some doubt. There has got
        to be some doubt there with no eye witness, with
        circumstantial evidence . . . .
        So I know that you have to have some doubt as to
        what actually happened that night. We may never
        know what actually happened that night . . . .
        Don’t you want to be sure before you condemn that
        man to die because don’t fool yourselves. A death
        sentence is death. . . . No more questions after that.
        . . .
        I saw you all struggling with this. I saw it Monday
        night at 10:00 o’clock when we let you go for the
        evening. You looked tired, you looked nervous, and you
        looked like you’ve been struggling. . . . [I]f you’re
        struggling with it, the fact that you had some doubt
        should also stay in your mind, now. If there was any
        doubt, and I submit to you that there has to be some
        doubt. There has to be. You don’t know what
        happened. You’ll never know exactly what happened.
        There’s got to be some doubt here. . . .
                                 63
    
    
        What if you’re wrong? Can you live with that? . . . .
        You’ve rendered what you felt was a just verdict. I have
        no quarrel with you, that was your job, you came back
        with a verdict but none of you can tell me that you
        have no doubts and if you have a doubt, then you
        better think very, very, carefully about what you’re
        going to do here. . . .
        Don’t take a chance that you may be making a wrong
        decision that you can’t live with. Please, spare his life,
        thanks.
    App. 767-774.
       The prosecutor’s remarks upon which Rompilla now
    relies came in response to these defense comments
    suggesting that the jury should still have doubts about the
    defendant’s guilt. Seeking to dispel any such doubts, the
    prosecutor’s obvious point in stressing the similarities
    between the circumstances of the rape for which Rompilla
    had previously been convicted and the Scanlon murder was
    to convince the jury that the same man had committed
    both crimes. Although the prosecutor at times termed the
    similarities between the two crimes “frightening,” it seems
    clear that he did not use this term to suggest that Rompilla
    was “frightening” in the sense that he posed a future threat,
    but simply that the similarities were, as he more aptly put
    it at another point, “astounding.” That his argument did not
    go to future dangerousness is illustrated by the fact that
    many of the features of the two crimes that he highlighted
    — both occurred at a bar, both took place at around closing
    time, and in both instances the perpetrator used a taxi —
    are    not    features    that  naturally    suggest   future
    dangerousness. The prosecutor’s further comment that
    Rompilla had learned a lesson from the rape, i.e., that he
    should not leave any witnesses, came immediately after this
    litany of similarities, and the comment seems to have had
    two likely purposes: to explain why there was no eyewitness
    to the most recent crime and to explain why the two crimes
    differed in the important respect that one involved a killing
    and the other did not.
      In any event, even if this interpretation of the
    prosecutor’s comments is incorrect and even if they were
                                         64
    
    
    meant to imply that Rompilla would present a future
    danger if he was ever released from prison, the fact remains
    that the prosecutor never actually argued that Rompilla
    presented a future threat. Concluding that these facts did
    not bring the case within the holding of Simmons, as set
    out in the controlling concurrence, is by no means
    “unreasonable.” Particularly in view of the fact that the
    Justices who endorsed the controlling concurrence in
    Simmons apparently felt that it was important to draw the
    line where they did, rather than approving the arguably
    broader reach of the plurality, the state court’s failure to
    extend Simmons to situations in which the prosecution
    does not argue future dangerousness was not an
    “unreasonable application” of Simmons.22
       Rompilla also argues that the state supreme court’s
    decision is an unreasonable application of Supreme Court
    law because it “flies in the face of ” the state court’s prior
    decisions regarding future dangerousness and prior
    criminal history and thus violates the Eighth and
    Fourteenth     Amendment      requirements      that   capital
    sentencing be applied consistently and with an even hand
    (citing Eddings v. Oklahoma, 
    455 U.S. 349
    , 361 (1977), and
    Gardner v. Florida, 430 U.S. at 349, 361 (1977). Rompilla
    Br. at 44. In making this argument, Rompilla points to the
    passage in the state supreme court opinion addressing his
    argument that his future dangerousness was put at issue
    for Simmons purposes by the prosecution’s effort to prove
    as an aggravating circumstance that he had a significant
    history of violent felony convictions. Rompilla-2, 721 A.2d
    at 795. Rejecting this contention, the state supreme court
    
    22. Rompilla points to the testimony regarding his parole status and the
    lack of rehabilitative services as indicating that his future dangerousness
    was an issue for the jury. This evidence was brought out by defense
    counsel on direct examination of Rompilla’s witnesses and was not
    argued by the Commonwealth. Rompilla also points to the jury’s
    questions regarding parole and future dangerousness. Although the
    questions may demonstrate that the jury did not know the meaning of
    “life” imprisonment, see Simmons, 512 U.S. at 170 n.10; id. at 178
    (O’Connor, J., concurring); Rompilla-2, 721 A.2d at 795 (Flaherty, C.J.,
    dissenting), a jury’s uncertainty as to parole ineligibility is insufficient to
    require an instruction under Simmons.
                                 65
    
    
    stated that “this aggravating circumstance only addresses
    Appellant’s past conduct, not his future dangerousness. Id.
    Rompilla attacks this reasoning on the ground that the
    underlying rationale for this aggravating circumstance is
    that a history of violent felony convictions is a “barometer
    of future danger.” Rompilla Br. at 44. He therefore contends
    that the state supreme court’s holding in the present case
    violates the principle that a state must administer its death
    penalty statute evenhandedly. There is no merit in this
    argument.
      The constitutional principle on which Rompilla relies
    demands consistency in a state’s treatment of its capital
    cases, and we have not been presented with any evidence
    that Pennsylvania does not apply the Simmons standard
    evenhandedly. On the contrary, it appears to us that
    Pennsylvania has uniformly required a Simmons instruction
    when the prosecutor specifically raised the issue of future
    dangerousness, see, e.g., Commonwealth v. Trivigno, 
    750 A.2d 243
    , 252-54 (Pa. 2000) (prosecutor asked jury to use
    prior convictions as a “weather vane looking into the
    future” and a “determinant of where [the defendant] is
    going, not just where he’s been”); Commonwealth v.
    Chandler, 
    721 A.2d 1040
    , 1046-47 (Pa. 1998) (prosecutor
    asked jury to “stop [the defendant] from ever killing another
    woman again”), and has not required the instruction when
    the prosecutor only presented evidence of prior convictions.
    E.g., Commonwealth v. Robinson, 
    721 A.2d 344
    , 355 (Pa.
    1999) (prosecutor only made references to defendant’s past
    dangerousness); Commonwealth v. King, 
    721 A.2d 763
    , 779
    (Pa. 1998) (prosecutor only made reference to defendant’s
    past violent acts); May, 710 A.2d at 47 (prosecutor did not
    argue future dangerousness). See also Robinson, 721 A.2d
    at 355 (recognizing that the court requires a Simmons
    instruction only when future dangerousness is “expressly
    implicated”).
      Rompilla does not dispute the fact that Pennsylvania
    applies the Simmons rule evenhandedly. Instead, his
    complaint is that there is, in his view, a logical
    inconsistency between the rationale for the aggravator in
    question    and   the  Pennsylvania    Supreme    Court’s
    interpretation of Simmons. This argument, however, is
                                 66
    
    
    invalid for numerous reasons. First, the constitutional
    principle on which Rompilla relies concerns consistency in
    the treatment of cases, not logical consistency in all aspects
    of a state’s death penalty jurisprudence. Second, Rompilla
    has not identified a logical inconsistency. The Legislature
    may have adopted the aggravating circumstance in question
    wholly or partially for the purpose of retribution, not to
    protect the public from those defendants who are likely to
    pose a threat. Moreover, even if this aggravating
    circumstance was intended solely to serve as a “barometer
    of future danger,” there is nothing illogical about taking the
    position that, while proof of a defendant’s past history of
    violence may tend to suggest that the defendant may pose
    a future danger if released, the jury should be instructed
    about parole only in those cases in which there is a
    particularly strong reason to think that concern about
    future danger will decisively influence the jury’s sentence.
    Informing a jury about the correctional consequences of a
    verdict is an exception from usual practice, and it is not
    illogical to confine this exception to narrow circumstances.
    Third, if there is a logical inconsistency, it flows from the
    fine line drawn by the controlling opinion in Simmons, not
    from the Pennsylvania Supreme Court. For all these
    reasons, Rompilla’s argument is rejected.
    
                                 IX.
      For the reasons set out above, the decision of the District
    Court is reversed with respect to the ineffective assistance
    of counsel claim and affirmed as to the accomplice liability
    instruction and parole ineligibility claims.
                                 67
    
    
    SLOVITER, Circuit Judge, dissenting.
       I respectfully dissent from the well-crafted (albeit, in my
    view, flawed) decision of the Majority that, in effect,
    reinstates the death penalty for appellant Ronald Rompilla.
    There are two claims that I believe warrant the grant of a
    writ of habeas corpus. One, which was the basis for the
    District Court’s grant of the writ requiring a new sentencing
    hearing, is the shocking ineffective assistance of counsel at
    the sentencing phase. Rompilla’s trial counsel failed to
    obtain Rompilla’s school, medical, court and prison records
    as part of their investigation and, as a result, failed to
    present to the jury any mitigating evidence regarding
    Rompilla’s “childhood, alcoholism, mental retardation, or
    possible organic brain damage.” Rompilla v. Horn, 
    2000 WL 964750
    , at *9. Counsel also failed to communicate with two
    of Rompilla’s siblings who lived nearby and would have
    advised counsel of evidence that Rompilla was raised by
    alcoholic parents in a cold, violent, frightening and abusive
    home.
      The standard for establishing ineffective assistance of
    counsel was set forth in the Supreme Court’s seminal
    decision in Strickland v. Washington, 
    466 U.S. 668
     (1984).
    Strickland was applied in Williams v. Taylor, 
    529 U.S. 362
    (2000), to the issue of the investigation required of counsel
    at the penalty phase. Holding, in “a straightforward
    application of Strickland,” that trial counsel was ineffective
    because he “failed to discover or failed to offer” certain
    mitigating evidence, id. at 393, the Court held that the
    Virginia Supreme Court decision denying the requested writ
    of habeas corpus was both contrary to and involved an
    unreasonable application of Strickland. Id. at 391.
       As I will discuss, the Pennsylvania Supreme Court’s
    failure to grant relief to Rompilla because of trial counsel’s
    grossly inadequate investigation also was both contrary to
    and involved an unreasonable application of Strickland and
    Williams. The Majority’s decision overturning the District
    Court’s grant of a writ of habeas corpus and rejecting
    Rompilla’s claim of ineffective assistance of counsel is
    inexplicable in light of the Supreme Court’s most recent
    application of Strickland in Wiggins v. Smith, 
    123 S. Ct. 68
    
    
    2527 (2003), under circumstances remarkably similar to
    those presented here.
       The second ground on which I would grant a writ of
    habeas corpus is the refusal of the trial judge to advise the
    jury as to the meaning of a life sentence in Pennsylvania,
    notwithstanding the jury’s questions on that issue on three
    different occasions during its sentencing deliberations. As a
    result, the jury imposed a death sentence, rather than a life
    sentence, without ever being told by the trial court in
    response to the jury’s question that a life sentence in
    Pennsylvania means life without parole. The Pennsylvania
    courts’ rule in this respect is, in my judgment, an
    unreasonable application of the Supreme Court’s decisions
    in Simmons v. South Carolina, 
    512 U.S. 154
     (1994), and
    Kelly v. South Carolina, 
    534 U.S. 246
     (2002). Because this
    appeal is literally, not figuratively, a matter of life or death,
    I elaborate on each of these grounds.
    
                                   I.
    
                 Ineffective Assistance of Counsel
      There is no need to restate the facts of this case and its
    procedural history, both of which are fully and accurately
    set forth in the majority opinion. The ineffective assistance
    of counsel claim is before us on the Commonwealth’s
    appeal.
       The applicable legal principles are not in dispute. Under
    the Antiterrorism and Effective Death Penalty Act of 1996
    (AEDPA), 28 U.S.C. § 2254(d)(1), the federal court may
    grant a petition for habeas corpus only if the state’s
    adjudication resulted in a decision that is “contrary to, or
    involved an unreasonable application of, clearly established
    Federal law, as determined by the Supreme Court,” or
    § 2254(d)(2), the state decision was based on an
    unreasonable determination of the facts. Both parties agree
    that it is section 2254(d)(1) that is at issue here. Strickland
    supplies the standard for addressing a claim of ineffective
    assistance of counsel:
        A convicted defendant’s claim that counsel’s assistance
        was so defective as to require reversal of a conviction or
                                  69
    
    
        death sentence has two components. First, the
        defendant must show that counsel’s performance was
        deficient. This requires showing that counsel made
        errors so serious that counsel was not functioning as
        the “counsel” guaranteed the defendant by the Sixth
        Amendment. Second, the defendant must show that
        the deficient performance prejudiced the defense. This
        requires showing that counsel’s errors were so serious
        as to deprive the defendant of a fair trial, a trial whose
        result is reliable.
    466 U.S. at 687.
       In Williams, the Supreme Court held that “the rule set
    forth in Strickland qualifies as clearly established federal
    law, as determined by the Supreme Court.” 529 U.S. at 391
    (internal quotation marks omitted). The Court further held
    that a state decision is “contrary to . . . clearly established”
    federal law if, inter alia, “the state court confronts a set of
    facts that are materially indistinguishable from a decision
    of this Court and nevertheless arrives at a result different
    from our precedent.” Id. at 406. As the decision in Williams
    made clear, relief should be granted under the
    “unreasonable application” clause “if the state court
    identifies the correct governing legal principle from [the
    Supreme Court’s] decisions but unreasonably applies that
    principle to the facts of the prisoner’s case.” Id. at 413.
    Williams instructs that “clearly established Federal law”
    refers “to the holdings, as opposed to the dicta, of this
    Court’s decisions as of the time of the relevant state-court
    decision.” 529 U.S. at 412. The Court in Wiggins decided
    the ineffectiveness of counsel claim before it using the
    standards articulated in Strickland, noting that Williams did
    not create new law, but illustrated “the proper application”
    of these standards. 123 S. Ct. at 2535. Because Williams
    fell squarely within Strickland, Williams, 529 U.S. at 390,
    and Wiggins was decided pursuant to the same standards
    of Strickland, these two later cases demonstrate how
    Strickland should be applied.
      Under Strickland, a petitioner seeking to prove    ineffective
    assistance of counsel must show that                  counsel’s
    performance was deficient and that the               deficiency
    prejudiced the defense. 466 U.S. at 687. To          make the
                                  70
    
    
    requisite showing of deficiency, the petitioner must show
    that counsel’s representation “fell below an objective
    standard of reasonableness.” Id. at 688. Among counsel’s
    responsibilities with regard to the sentencing phase is the
    “obligation to conduct a thorough investigation of the
    defendant’s background.” Williams, 529 U.S. at 396.
    Coincidentally, in both Williams and Wiggins, two of the
    principal Supreme Court cases dealing with ineffective
    assistance of counsel, the Court found that a writ of habeas
    corpus was appropriate because the failure of counsel to
    conduct the requisite thorough investigation was objectively
    unreasonable and prejudicial.
      In Williams, the Court noted that counsel “failed to
    conduct an investigation that would have uncovered
    extensive    records  graphically   describing    Williams’
    nightmarish childhood, not because of any strategic
    calculation but because they incorrectly thought that state
    law barred access to such records.” Id. at 395. The Court
    continued,
        Had they done so, the jury would have learned that
        Williams’ parents had been imprisoned for the criminal
        neglect of Williams and his siblings, that Williams had
        been severely and repeatedly beaten by his father, that
        he had been committed to the custody of the social
        services bureau for two years during his parents’
        incarceration (including one stint in an abuse foster
        home), and then, after his parents were released from
        prison, had been returned to his parents’ custody.
    Id. (footnotes omitted). The Court, noting that mitigating
    evidence “may alter the jury’s selection of penalty, even if it
    does not undermine or rebut the prosecution’s death-
    eligibility case,” id. at 398, concluded that “the Virginia
    Supreme Court rendered a ‘decision that was contrary to,
    or involved an unreasonable application of, clearly
    established Federal law,’ thereby violating Williams’
    constitutional right to the effective assistance of counsel as
    defined in Strickland.” Id. at 399.
      Our court in Jermyn v. Horn, 
    266 F.3d 257
     (3rd Cir.
    2001), a decision following Williams, concluded that
    Jermyn’s trial counsel was ineffective “because he failed to
                                  71
    
    
    conduct an investigation, failed to prepare adequately for
    the penalty phase of Jermyn’s trial, and consequently,
    failed to present substantial mitigating evidence that would
    have directly undercut the state’s penalty-phase case.” Id.
    at 306. We explained,
          Counsel failed to investigate the circumstances
        surrounding Jermyn’s childhood, even though counsel
        admitted at the PCRA hearing that he was aware that
        Jermyn had claimed that he was abused as a child. Dr.
        Phillips told counsel before the original trial that
        Jermyn had been abused as a child, and told counsel
        that the abuse was a critical component to
        understanding Jermyn’s mental illness. Nonetheless,
        counsel did not attempt to locate any fact witness who
        witnessed the abuse and could testify about it
        specifically.
    Id. at 306 (internal citation omitted).
      We stated that if counsel had investigated further “he
    would have obtained powerful and, as the PCRA court
    noted, ‘credible,’ testimony” from witnesses who presented
    testimony at the PCRA hearing that
        was replete with first-hand accounts of instances of
        mental and physical abuse that Jermyn suffered at the
        hands of his father. . . . Counsel could have used that
        testimony to provide the jury with critical insight into
        the root of Jermyn’s mental illness. The [witnesses’]
        testimony also offered valuable insight into Jermyn’s
        mother’s role in the household, and how she failed to
        intervene on Jermyn’s behalf.
    Id. at 306-07. Counsel in Jermyn “also did not seek to
    obtain records from the school which corroborate the fact
    that Jermyn was abused as a child, and that his mother
    did not intervene on his behalf.” Id. at 307. Based on the
    ineffective assistance of counsel for this and other reasons
    set forth in that opinion, we affirmed the District Court’s
    grant of a writ of habeas corpus.
      With these cases as a background, we turn to the
    conduct of Rompilla’s trial counsel, informed by the
    Supreme Court’s recent decision in Wiggins.
                                 72
    
    
       Counsel in this case were two public defenders. Frederick
    Charles, the senior of the two, was a veteran attorney with
    significant criminal trial experience as a defense lawyer,
    who never before tried a capital case. His role here was as
    the principal counsel for Rompilla at the guilt phase. His
    colleague, Maria Dantos, who was two and a half years out
    of law school at the time of the trial, App. at 1060-61,
    1065-67, was given the responsibility of handling the
    penalty phase. She had the role of making the arguments
    and presenting witnesses at the penalty phase, under
    Charles’ supervision. This was her first capital case and
    first homicide trial. Counsel’s devotion to Rompilla’s cause
    has not been challenged. They impressed the District Court
    as “intelligent, diligent and devoted to their task of
    representing [Rompilla].” 
    2000 WL 964750
    , at *9. It is their
    competence and effectiveness that are at issue.
       The PCRA court determined that “counsel had a
    reasonable basis for proceeding as they did during the
    penalty phase,” Maj. Op. at 17 (quoting App. at 2028),
    because counsel retained three health professionals, two of
    whom, Drs. Cooke and Sadoff, are “recognized experts in
    the fields of psychiatry and psychology,” id., who
    administered tests, evaluated Rompilla and reported back
    to defense counsel that they found that nothing could be
    used in mitigation. Counsel also obtained an evaluation by
    a local psychiatrist, Dr. Paul Gross, who found nothing that
    would have been beneficial in the penalty phase.
       In affirming the PCRA court’s determination rejecting,
    inter alia, Rompilla’s claim of ineffective assistance of
    counsel, the Supreme Court of Pennsylvania concluded that
    counsel “reasonably relied upon their discussions with
    [Rompilla] and upon their experts to determine the records
    needed to evaluate mental health and other potential
    mitigating circumstances.” Commonwealth v. Rompilla, 
    721 A.2d 786
    , 790 (Pa. 1998).
      In accepting the Pennsylvania courts’ conclusions, the
    Majority also concludes that “trial counsel conducted an
    extensive investigation for mitigation evidence,” Maj. Op. at
    27, because trial counsel retained three well-qualified
    mental health experts to examine Rompilla. The Majority
    recognizes that counsel failed to seek out school, medical,
                                  73
    
    
    police, and prison records, which they recognize “contain
    useful information about Rompilla’s childhood home
    environment, his mental problems, and his problems with
    alcohol,” Maj. Op. at 29. Nevertheless, the Majority
    characterizes counsel’s decision as “reasonable” because
    Charles, who “had the final say on every issue in the case,”
    Maj. Op. at 29, “did not think that obtaining those records
    would have represented a sound allocation of his office’s
    resources.” Maj. Op. at 29. The question before us is not
    whether we believe counsel’s explanation for his failure to
    obtain the relevant records, some of which were available
    across the street from the trial and others in the same
    building as the trial, was “reasonable” but whether his
    failure to take such action to save money was objectively
    reasonable and consistent with his obligation to conduct a
    thorough investigation.
       A comparison of counsel’s actions in this case with those
    of counsel in Wiggins, where the Supreme Court concluded
    that counsel was ineffective, is instructive.
       Wiggins, who was represented by two public defenders,
    was convicted of capital murder in 1989 by a Maryland
    judge, and the jury sentenced him to death the same
    afternoon. A divided Maryland Court of Appeals affirmed.
    He filed a motion for post-conviction relief in which he
    challenged the adequacy of his representation at
    sentencing, “arguing that his attorneys had rendered
    constitutionally defective assistance by failing to investigate
    and present mitigating evidence of his dysfunctional
    background.” Wiggins, 123 S. Ct. at 2532. At the PCRA
    hearing, a licensed social worker testified regarding an
    elaborate social history in which he chronicled Wiggins’
    “bleak life history” based on state social services, medical
    and school records and interviews with Wiggins and
    numerous family members. Id. at 2533. His mother, a
    chronic alcoholic, frequently left him and his siblings alone
    for days, forcing them to beg for food and to eat paint chips
    and garbage. Her abusive behavior included beating the
    children and having the children present while she engaged
    in her active sexual life. Wiggins suffered severe physical
    and sexual abuse at the hands of his mother and father
    and while in the care of a series of foster parents. The
                                   74
    
    
    father in his second foster home repeatedly molested and
    raped him. In one foster home, he was gang raped on more
    than one occasion and was sexually abused by his
    supervisor on a job corps program. Id.
      Wiggins’ counsel decided to focus their request for post-
    conviction relief on retrying the factual case and disputing
    Wiggins’     direct   responsibility      for    the    murder.
    Notwithstanding that counsel, as a practical matter, did not
    compile a social history of Wiggins, the state post-
    conviction court concluded that when the decision not to
    investigate is a matter of trial tactics, there is no ineffective
    assistance of counsel. Wiggins, 123 S. Ct. at 2533. The
    Maryland Court of Appeals affirmed the denial of relief on
    the ground that trial counsel, although they knew of
    Wiggins’ unfortunate childhood and had available both the
    presentence investigation report and the more detailed
    social service records, “made a reasoned choice to proceed
    with what they thought was their best defense.” Id. at
    2533-34.
      In holding that Wiggins’ trial counsel provided
    constitutionally ineffective assistance of counsel and that
    the Maryland Court of Appeals unreasonably applied
    Strickland in failing to so conclude, the Supreme Court
    specified why counsel’s conduct was defective. The Court
    noted that trial counsel had limited their investigation to
    two sources. One was the presentence investigation report
    (PSI) prepared by the Division of Parole and Probation,
    “which included a one-page account of Wiggins’ ‘personal
    history’ noting his ‘misery as a youth,’ quoting his
    description of his own background as ‘disgusting,’ and
    observing that he spent most of his life in foster care,”123
    S. Ct. at 2536 (quoting PSI). The other source counsel
    examined was the records kept by the Baltimore City
    Department of Social Services (DSS) documenting Wiggins’
    various placements in the state foster care system. The
    Supreme Court noted that counsel chose not to expand
    their investigation beyond those records even though the
    Public Defender’s Office made funds available for the
    retention of a forensic social worker. Id. The Supreme Court
    thus    concluded     that,    “counsel     abandoned   their
    investigation of [Wiggins’] background after having acquired
                                 75
    
    
    only rudimentary knowledge of his history from a narrow
    set of sources.” Id. at 2537.
      The Supreme Court characterized the Maryland Court of
    Appeals’ application of Strickland’s governing legal
    principles as “objectively unreasonable.” Id. at 2538. That
    court merely assumed that counsel’s investigation was
    adequate and failed to focus on counsel’s failure to engage
    in further investigation, despite the information in the DSS
    records with respect to Wiggins’ mother’s alcoholism, his
    shuttling from foster home to foster home, and his lengthy
    absences from school. Further investigation would have
    discovered the sexual abuse that was later revealed during
    state post-conviction proceedings. Id.
       The investigation by Rompilla’s lawyers, albeit different
    from that conducted by Wiggins’ lawyers, was similarly
    defective. They did not present at the penalty phase
    evidence that was available, had they investigated
    thoroughly, and which was presented for the first time at
    Rompilla’s PCRA hearing. Rompilla’s parents were both
    severe alcoholics who drank constantly. His mother drank
    during her pregnancy with Rompilla, and he and his
    brothers eventually developed serious drinking problems.
    His father, who had a vicious temper, frequently beat
    Rompilla’s mother, leaving her bruised and black-eyed, and
    bragged about his cheating on her. His parents fought
    violently, and on at least one occasion his mother stabbed
    his father. App. at 1408, 1416-17, 1450, 1460, 1487, 1492,
    1495-96. He was abused by his father who beat him when
    he was young with his hands, fists, leather straps, belts
    and sticks. All of the children lived in terror. There were no
    expressions of parental love, affection or approval. Instead,
    he was subjected to yelling and verbal abuse. His father
    locked Rompilla and his brother Richard in a small wire
    mesh dog pen that was filthy and excrement filled. He had
    an isolated background, and was not allowed to visit other
    children or to speak to anyone on the phone. They had no
    indoor plumbing in the house, he slept in the attic with no
    heat, and the children were not given clothes and attended
    school in rags. These facts were not presented at the
    sentencing hearing because counsel did not know them
    and, more important for our purposes, failed to make the
    reasonable investigation that would have uncovered them.
                                76
    
    
      Rompilla’s counsel presented the testimony of three of
    Rompilla’s siblings at the sentencing hearing but did not
    interview two of Rompilla’s sisters, Barbara Harris and
    Randi Rompilla, both of whom lived nearby, prior to
    sentencing, App. at 1422, 1436-37, 1489-90, and did not
    present their testimony. Further, Rompilla’s brother,
    Nicholas Rompilla, Jr., who had briefly testified at the
    sentencing hearing, claimed at the post-conviction hearing
    that Rompilla’s counsel only asked him about the three
    months prior to the offense and did not ask him about
    Rompilla’s childhood. App. at 1462-63. We must then ask
    whether it was unreasonable for counsel not to have
    interviewed all of Rompilla’s siblings. It was these family
    members who testified at the PCRA hearing that, among
    other things, their parents were alcoholics and their mother
    drank while pregnant with Rompilla. They detailed the
    physical abuse referred to above. Rompilla was told he was
    stupid and would not amount to anything; they also
    testified that Rompilla was a “very nervous child,” who kept
    everything inside. App. at 1407-13, 1424, 1451, 1480-84,
    1487-88.
      It was Rompilla’s PCRA counsel, not trial counsel, who
    presented evidence from two mental health experts, Drs.
    Armstrong and Crown, both of whom evaluated and tested
    Rompilla post-conviction. Their evaluations included
    neuropsychological testing, review of Rompilla’s school,
    medical, and prison records (none of which had been
    examined by trial counsel), and review of declarations by
    Barbara Harris, Darlene Rompilla, and Nicholas Rompilla,
    Jr., App. at 1562-64, 1567, 1704, 1736, 1741, 1743, 1745;
    Commonwealth Response to Habeas Pet., Exh. B, C, & Pet.,
    Exh. B, C, & D. The doctors stated that Rompilla’s low IQ
    and achievement test results documented in his school
    records, his medical history, and his abusive background
    were all “red flags” indicating that further objective
    evaluation was necessary. App. at 1614, 1686, 1692-93,
    1739, 1743, 1745-46.
       These doctors determined that Rompilla suffers from
    organic brain damage, an extreme mental disturbance
    significantly impairing several of his cognitive functions:
    impulsivity, reasoning and judgment, ability to make sense
                                 77
    
    
    out of experience, ability to draw conclusions, ability to
    accept long-term consequences of immediate behavior,
    emotional liability, concentration, mental flexibility,
    recalling and integrating information, controlling behavior,
    and controlling motor movements (hands). App. at 1572-74,
    1577-79, 1581-84, 1617-18, 1707, 1717-18, 1721-22,
    1726, 1728-33. The doctors believe Rompilla’s problems
    relate back to his childhood, and were likely caused by fetal
    alcohol syndrome. App. at 1601-02, 1606, 1615. They
    concluded that Rompilla’s capacity to appreciate the
    criminality of his conduct or to conform his conduct to the
    law was substantially impaired at the time of the offense.
    App. at 1616, 1687-88, 1735-36.
      The PCRA court, applying Pennsylvania’s three-prong
    standard for ineffective assistance of counsel claims, stated
    that although Rompilla’s claim arguably had merit because
    he was “entitled to have relevant information of mental
    infirmity” presented to the jury, App. at 2028, “[g]iven the
    fact that three health care professionals, all of whom were
    experienced forensic experts, had provided opinions to
    defense counsel, and none of them asked for more
    information, it was hardly unreasonable or ineffective for
    defense counsel to have relied upon their opinions.” App. at
    2030.
      The PCRA court accepted Rompilla’s trial counsel’s
    testimony that they had spoken to family members in detail
    and that the family had not revealed the information that
    was claimed in the PCRA hearing. App. at 2029-30. The
    court also noted that Rompilla “made contradictory
    statements” to counsel during their representation, and
    that he had not indicated he had any mental problems or
    alcoholic blackouts. App. at 2029. The PCRA court
    concluded that counsel was reasonable in believing that
    seeking mercy was the only available strategy, and found
    that there was a reasonable basis for counsel’s actions.
    App. at 2029-30.
       The Pennsylvania Supreme Court, also citing the state’s
    three-prong test for ineffective assistance of counsel claims,
    agreed with the PCRA court’s conclusion that counsel was
    effective, concluding without discussion that counsel acted
    reasonably. Rompilla, 721 A.2d at 789-90. The Court,
                                 78
    
    
    relying on the conclusions of the PCRA court, noted that
    counsel had investigated Rompilla’s mental health by
    retaining three experts and reasonably relied on the experts
    and on their own discussions with Rompilla to determine
    the records needed to evaluate Rompilla, and it effectively
    adopted the PCRA court’s credibility determination of trial
    counsel’s conversations with family members, leading it to
    conclude that counsel had not failed to investigate. The
    Court rejected Rompilla’s argument that the experts
    received inadequate information because of counsel’s
    failure to investigate his background. Id.
       An examination of the record shows that Rompilla’s
    lawyers did less investigation into mitigating evidence than
    did counsel for Wiggins. The Pennsylvania Supreme Court,
    in affirming the decision of the PCRA court denying post-
    conviction relief, stated that there was no “arguable merit”
    in Rompilla’s claim that trial counsel failed to investigate
    Rompilla’s family background, Rompilla, 721 A.2d at 790.
    The Court never referred to counsel’s failure to speak to two
    of Rompilla’s siblings, Randi Rompilla and Barbara Harris,
    who lived nearby and who attended the trial. Dantos, when
    questioned at the post-conviction hearing, said that she
    didn’t remember whether she spoke to those sisters or not,
    App. at 1099-1100, but those sisters testified at the PCRA
    hearing that they would have testified at the penalty phase,
    if asked, and would have told counsel about Rompilla’s
    dysfunctional background, if they had been asked.
      Counsel certainly had reason to inquire further as to the
    availability of other family members. Counsel was aware
    that the family members whom she interviewed did not
    know a great deal about Rompilla. Charles testified that the
    family said “they hardly know him.” One said, “He was in
    a reformatory. He’s been away the whole time. We didn’t
    know him well.” Even Dantos testified that “[T]he
    overwhelming response from the family was that they didn’t
    really feel as though they knew him all that well since he
    had spent the majority of his adult years and some of his
    childhood years in custody. . . ,” App. at 1094, and that the
    family had “limited knowledge of their brother.” App. at
    1098. Dantos stated that “it seemed pretty clear that [the
    family members she interviewed] didn’t feel as though they
                                 79
    
    
    knew Ron very well,” App. at 1166. It is thus apparent that
    trial counsel had sufficient leads, as in Wiggins, to
    investigate further to find family members who did know
    more about Rompilla’s youth. Counsel never explained why
    she did not interview the other sisters.
      The Pennsylvania Supreme Court, in rejecting Rompilla’s
    PCRA claim that counsel did not obtain records that would
    have aided the mental health experts who evaluated him,
    agreed with the PCRA court that counsel reasonably relied
    on their experts to determine the record needed to evaluate
    his mental health. Rompilla, 721 A.2d at 790. Counsel
    cannot so easily shed their constitutional obligations.
    Moreover, it appears that counsel directed the experts to
    the guilt phase, giving no or little attention to the penalty
    phase.
      Rompilla’s lawyers sought opinions from the mental
    health experts they hired primarily about Rompilla’s
    “mental infirmity or mental insanity for the guilt phase.”
    App. at 1069-71. Although Dantos stated that she also
    instructed the experts to see if there was any issue “to
    possibly use in mitigation any mental infirmity,” id. at
    1067, Dr. Gross’ report says that counsel’s instruction as to
    the evaluation was “to determine Mr. Rompilla’s mental
    state during the time of the alleged charges.” Id. at 1069.
    That is supported by Dantos’ own testimony that the
    mental health professionals employed by the defense were
    asked to look into Rompilla’s “mental state at the time of
    the commission of the offense.” App. at 1071. Counsel did
    not themselves investigate Rompilla’s medical history, drug
    use, birth trauma or developmental delays; did not request
    or instruct the medical experts they retained to investigate
    those issues, and the medical experts did not make any
    such investigation. Counsel did not provide Drs. Sadoff and
    Cooke, who saw Rompilla, with any of the records that
    would have shown Rompilla’s long history of alcoholism
    and never themselves investigated the records that would
    have shown that history.
      Rompilla’s counsel did not seek or obtain any of
    Rompilla’s school records and therefore did not learn that
    Rompilla was in special education, left school in the 9th
    grade, and that his abilities had not advanced beyond the
                                 80
    
    
    third grade, suggesting mental retardation because of a
    possible organic brain disorder. Rompilla, 
    2000 WL 964750
    ,
    at *4-*7. Because they did not obtain these records, they
    did not provide them to the health experts they retained.
       The PCRA court, on which the Pennsylvania Supreme
    Court relied, did not explain its finding that the school
    records were “not entirely helpful” beyond noting that
    Rompilla’s IQ can “simply be part of the Bell Curve and a
    learning disability is not necessarily caused by an organic
    defect,”a statement made by Dr. Cooke, one of the experts
    retained by Rompilla’s trial counsel. App. at 2029. Trial
    counsel failed to investigate further into Rompilla’s retarded
    level IQ scores. Indeed, Dr. Cooke further testified at the
    PCRA hearing that had he been provided with Rompilla’s IQ
    scores at trial he would have done testing for brain damage,
    looked for evidence of prenatal damage to Rompilla’s brain,
    and looked at the family situation, whether it was an
    abusive situation, or dysfunctional situation. App. at 1800-
    01.
       Counsel did not investigate records from the
    Pennsylvania Department of Corrections where Rompilla
    was incarcerated for 14 years and therefore did not learn
    that his adult scores on achievement tests were very low,
    his spelling and arithmetic achievement scores were below
    96% of the population, App. at 1009, and that
    psychological tests performed showed serious abnormalities
    on     the   schizophrenia,    paranoia,    neurosis    and
    obsessive/compulsive scales. See App. at 1595-99. The
    court records, which counsel did not investigate, were used
    by the Commonwealth as an aggravating circumstance and
    were in the same courthouse where Rompilla’s case was
    tried. Because counsel failed to investigate into Rompilla’s
    prior correctional experience, they did not provide that
    information to the health experts they retained.
      In Wiggins, the Supreme Court quoted from the American
    Bar Association’s Guidelines for the Appointment and
    Performance of Counsel in Death Penalty Cases 11.4.1(C),
    p. 93 (1989), which provide that investigations into
    mitigating evidence “ ‘should comprise efforts to discover all
    reasonably available mitigating evidence and evidence to
    rebut any aggravating evidence that may be introduced by
                                  81
    
    
    the prosecutor.’ ” 123 S. Ct. at 2537 (emphasis in original).
    Because Wiggins’ counsel abandoned the investigation of
    his background by failing to pursue evidentiary leads
    provided in the DSS records, they fell short of these “well-
    defined norms.” Id.
      As shown by the above, the investigations by Rompilla’s
    counsel were no more thorough, perhaps less, than those
    found inadequate by the Supreme Court in Wiggins. The
    Majority’s attempt to reconcile its conclusion that
    Rompilla’s counsel provided effective assistance of counsel
    with the conclusion in Wiggins that defendant’s counsel
    were ineffective is nothing short of astonishing. The
    Majority states that “[t]here are critical differences between
    the conduct of Wiggins’s and Rompilla’s trial attorneys.”
    Maj. Op. at 38. It continues, “Wiggins’s attorneys were
    presented with leads that ‘any reasonably competent
    attorney’ would have realized were promising. Rompilla’s
    attorneys had no comparable leads.” Id.
       With due respect to my colleagues on the Majority, the
    distinction entirely misses the point. If it was ineffective for
    Wiggins’ counsel to fail to follow up the leads they had, was
    it not even more ineffective, indeed inexcusable, for
    Rompilla’s attorneys to fail to investigate to find the leads
    that could have been used by the experts they retained or
    to retain experts to testify at the penalty phase and present
    a viable case for mitigation? At the brief sentencing hearing,
    trial counsel called only five witnesses, Rompilla’s sister
    Darlene, older brother Nicholas, Jr., younger brother
    Robert, sister Sandy Whitby and Aaron, Rompilla’s
    fourteen-year old son. The total examination covered about
    26 pages of notes of testimony. The witnesses testified in
    general that Rompilla was a good family member and never
    had a problem. As described by the District Court, the
    “testimony was apparently presented to engender sympathy
    for [Rompilla].” 
    2000 WL 964750
    , at *4. “It seemed to be
    designed primarily as an emotional appeal to the jury to
    show mercy to [Rompilla] — he wasn’t as bad as he seemed
    and his family loved him.” Id. In lieu of the case trial
    counsel presented in mitigation, a case that the District
    Court described as “unreasonably brief and lacking in real
    substance,” 
    2000 WL 964750
    , at *4, had they investigated
                                  82
    
    
    they could have presented a case such as that presented by
    the PCRA counsel. Rompilla’s counsel shifted the
    responsibility for finding leads to the medical experts, and
    never even told their experts that they had the
    responsibility for uncovering that information.
      In Wiggins, trial counsel made the tactical decision to
    forego mitigating evidence of Wiggins’ dysfunctional
    background and mental health problems because they
    believed that Wiggins’ “best hope of escaping the death
    penalty was for one or more jurors to entertain a
    reasonable doubt as to his criminal agency.” Wiggins v.
    State, 
    724 A.2d 1
    , 15 (Md. 1999), a decision the Maryland
    Supreme Court termed a “deliberate, tactical decision”
    which, under Strickland, should not be second guessed. Id.
    at 15, 17-18. When the United States Supreme Court
    reviewed that decision under § 2254(d), it held that because
    counsel’s investigation was inadequate, the state court’s
    “subsequent deference to counsel’s strategic decision . . .
    despite the fact that counsel based this alleged choice on
    what we have made clear was an unreasonable
    investigation, was also objectively unreasonable.” Wiggins,
    123 S. Ct. at 2538.
      The PCRA court found that Rompilla’s counsel “had a
    reasonable basis for proceeding as they did,” App. at 2028,
    because they employed two experts and obtained an
    evaluation by another psychiatrist, who also advised
    counsel that he found nothing that would be beneficial in
    the penalty phase. The Pennsylvania Supreme Court agreed
    that “trial counsel was effective with respect to their
    investigation and presentation of mitigation evidence.”
    Rompilla, 721 A.2d at 790. Notwithstanding the decision in
    Wiggins, the Majority, applying § 2254(d)(1), holds that “the
    state court’s determination that counsel acted reasonably
    was not ‘contrary to’ or an ‘unreasonable application’ of
    Strickland.” Maj. Op. at 41.
       As noted above, I believe the Majority seriously errs. It is
    clearly established by both Williams and Wiggins that
    counsel or counsel’s experts cannot make a reasonable
    decision at the penalty phase if they do not investigate the
    relevant facts that could be used in mitigation. In holding
    that the Maryland Court of Appeals’ application of
                                  83
    
    
    Strickland’s governing legal principles was objectively
    unreasonable, Justice O’Connor, in Wiggins, stated that
    counsel’s failure to thoroughly investigate made “a fully
    informed decision with respect to sentencing strategy
    impossible.” Wiggins, 123 S. Ct at 2538. Therefore the state
    Supreme Court’s holding “reflected an unreasonable
    application of Strickland.” Id. What was true in Wiggins and
    before that in Williams is equally applicable here. It follows
    that the District Court properly determined that Rompilla’s
    trial counsel did not meet the performance standards
    required under Strickland.
       I believe that under the circumstances in which counsel
    presented an inadequate case for mitigation at the penalty
    phase of a capital sentencing hearing, the prejudice prong
    of constitutionally ineffective assistance of counsel is clearly
    met. The Pennsylvania Supreme Court did not reach this
    issue and therefore we may consider it de novo. A
    reasonable attorney, if aware of the evidence presented at
    the PCRA hearing following a thorough investigation, would
    have done more at sentencing than plead for mercy. As the
    Court stated in Wiggins, “had the jury been confronted with
    [the] considerable mitigating evidence, there is a reasonable
    probability that it would have returned with a different
    sentence.” 123 S. Ct. at 2543. Quoting from Williams, the
    Court stated, “we must evaluate the totality of the evidence,
    both that adduced at trial, and the evidence adduced in the
    habeas proceeding.” Wiggins, 123 S. Ct. at 2543, citing
    Williams, 529 U.S. at 397-98. In Williams, the Court
    recognized that the graphic description of the defendant’s
    childhood “filled with abuse and privation, or the reality
    that he was ‘borderline mentally retarded’ might well have
    influenced the jury’s appraisal of his morale culpability.”
    529 U.S. at 398 (citation omitted). The Court further stated
    that “[m]itigating evidence unrelated to dangerousness may
    alter the jury’s selection of penalty, even if it does not
    undermine or rebut the prosecution’s death-eligibility case.”
    Id.
      In considering prejudice to Rompilla from his trial
    counsel’s performance, we should look at the totality of
    evidence adduced at trial as well as that adduced at the
    state post-conviction hearing where counsel, after a
                                 84
    
    
    thorough investigation, found the evidence of Rompilla’s
    abusive background, his disfunctional family situation, his
    low IQ, his meager reading and understanding ability found
    in the prison records, and the medical evidence of brain
    disfunction. The jury could certainly have considered this
    matter as sufficiently mitigating to warrant a different
    sentence. Therefore, I believe that the Supreme Court of
    Pennsylvania failed to reasonably apply the Strickland
    standard when it held that Rompilla had not shown
    ineffective assistance of counsel.
      I therefore disagree with the majority and would affirm
    the District Court’s grant of a writ of habeas corpus
    because of trial counsel’s ineffective assistance of counsel.
    
                                 II.
    
             Failure to Give a Simmons Instruction
       Rompilla has cross-appealed from the District Court’s
    denial of a writ of habeas corpus on Rompilla’s claim that
    his right to due process was violated by the state trial
    court’s refusal to inform the jury in response to the jury’s
    inquiries that Rompilla was parole ineligible if sentenced to
    life imprisonment.
       While the jury was deliberating Rompilla’s penalty, life
    imprisonment or death, the jury asked in succession, “If a
    life sentence is imposed, is there any possibility of the
    Defendant ever being paroled?” App. at 802. The trial court
    responded:
        I’m sorry to say, I can’t answer that question. That’s
        not before you as such. The only matter that you can
        consider in the Sentencing Hearing is the evidence that
        was brought out in the course of the Hearing and the
        Law with respect to the Court’s Charge. That’s the only
        consideration you have, I’m sorry to say. I—if there
        were other alternatives that you should consider, we
        would have outlined them in the Charge, all right. Are
        there any other questions?
    App. at 802-03.
                                  85
    
    
      The jury later requested to examine information with
    respect to Rompilla’s prior sentence. The trial court refused
    because it was not entered into evidence. The jury foreman
    clarified that the jury wanted to know the sentence from
    Rompilla’s prior conviction. The trial court stated that he
    cannot give that. A juror then asked “if he got released on
    behavioral . . .” and the foreman added, “It was commuted
    in any way, the original sentence.” App. at 823. As before,
    the trial court refused to give the requested information.
    App. at 824.
       Finally, the next day, after more deliberation the jury
    asked, “Was the Defendant offered any type of
    rehabilitation either while in prison or after his release from
    prison?” App. at 842. Once again the trial court declined to
    answer, even after the foreman changed the question to ask
    “isn’t rehabilitation available in prison?” App. at 842. The
    trial court again refused to provide the information sought
    by the jury. It was only after the trial court declined to
    provide the information requested by the jury time after
    time that the jury returned a sentence of death.
      On Rompilla’s appeal from the denial of his PCRA
    petition, the Supreme Court of Pennsylvania rejected
    Rompilla’s contention that due process required that the
    jury be instructed that in Pennsylvania “life imprisonment
    means life,” ruling as follows:
          Under the current state of the law in Pennsylvania,
        the jury must be told that life means life without parole
        only when the defendant’s future dangerousness is at
        issue. Commonwealth v. Clark, 
    551 Pa. 258
    , 
    710 A.2d 31
    , 35-36 (Pa. 1998). Appellant argues that his future
        dangerousness     was     at     issue    because     the
        Commonwealth argued the aggravating circumstance
        that he has a significant history of felony convictions
        involving the use or threat of violence. The Court
        rejected this argument in Commonwealth v. May, 
    551 Pa. 286
    , 
    710 A.2d 44
    , 47 (Pa. 1998). As stated in that
        case, this aggravating circumstance only addresses
        Appellant’s    past    conduct,      not    his    future
        dangerousness. See id. Thus, no relief is due.10
        10
         This author [Justice Nigro] agrees with the dissent’s
        position that a Simmons instruction should be given in
                                 86
    
    
        all cases and has previously so stated. See Clark, 710
        A.2d at 43-44 (Nigro, J., concurring, joined by Flaherty,
        J. and joined in relevant part by Zappala, J.); May, 710
        A.2d at 49 (Nigro, J., concurring, joined by Zappala,
        J.). Under the current state of the law, however,
        Appellant’s argument that he was entitled to the
        instruction because the Commonwealth argued the
        aggravating circumstance identified above, is without
        merit. See May, 710 A.2d at 47.
    Commonwealth v. Rompilla, 
    721 A.2d 786
    , 795 (Pa. 1998).
    In his dissent, Chief Justice Flaherty wrote:
        I believe the majority is in error in its treatment of the
        issue pertaining to the jury’s question about the
        defendant’s parole eligibility. Under Simmons v. South
        Carolina, 
    512 U.S. 154
    , 
    114 S. Ct. 2187
    , 
    129 L. Ed. 2d 133
     (1994) and Commonwealth v. Clark, 
    551 Pa. 258
    ,
        
    710 A.2d 31
    , 35-36 (Pa. 1998), the court must tell a
        jury that a life sentence means life without parole, if
        the defendant requests the instruction and his future
        dangerousness is at issue. Here, during deliberations
        in the penalty phase, the jury asked, “If a life sentence
        is imposed, is there any possibility of the Defendant
        ever being paroled?” I view this question as a clear
        expression of the jury’s concern about the defendant’s
        future dangerousness. I would therefore hold that the
        trial court’s refusal to explain the meaning of life
        without parole constituted error under Commonwealth
        v. Clark, supra. I would therefore reverse the order of
        the court of common pleas and remand for proceedings
        consistent with this opinion.
        I would go further and require an explanation of the
        meaning of a life sentence in all capital cases. There
        can be no harm in instructing juries that in
        Pennsylvania appellant would be statutorily ineligible
        for parole if sentenced to life in prison, but that a life
        sentence might nonetheless be commuted by the
        governor. On the other hand, if we do not so instruct,
        a jury, erroneously believing that a prisoner sentenced
        to life may be paroled within a period of years, may
        impose the death penalty for reasons which are not
        based in law.
                                        87
    
    
    Id. at 795-96 (Flaherty, C.J., dissenting).1
       I believe that the Pennsylvania Supreme Court’s analysis
    of Rompilla’s Simmons claim was an “unreasonable
    application” of Supreme Court precedent, specifically
    Simmons v. South Carolina, 
    512 U.S. 154
     (1994), and Kelly
    v. South Carolina, 
    534 U.S. 246
     (2002), and therefore that
    it must be reversed under the standards of AEDPA.
       In Simmons, the Supreme Court held that the defendant’s
    due process right to answer an allegation against him
    requires the trial court to instruct the jury that the
    alternative to the death penalty is life without parole (in
    states where that is the alternative) if the prosecutor argues
    that the defendant will pose a danger to others. As Justice
    Blackmun, who authored the plurality opinion, wrote: “The
    State may not create a false dilemma by advancing
    generalized arguments regarding the defendant’s future
    dangerousness while, at the same time, preventing the jury
    from learning that the defendant never will be released on
    parole.” Simmons, 512 U.S. at 171. In Shafer v. South
    Carolina, 
    532 U.S. 36
     (2001), the Supreme Court described
    Simmons as holding that when “a capital defendant’s future
    dangerousness is at issue, and the only sentencing
    alternative to death available to the jury is life
    imprisonment without possibility of parole, due process
    entitles the defendant ‘to inform the jury of [his] parole
    ineligibility, either by a jury instruction or in arguments by
    counsel.’ ” Id. at 39 (quoting Ramdass v. Angelone, 
    530 U.S. 156
    , 165 (2000) (plurality opinion)).
    
    1. I find it difficult to glean much enlightenment from the two cases cited
    by the Pennsylvania Supreme Court. In Commonwealth v. Clark, 
    710 A.2d 31
     (Pa. 1998), the Court did not define what it meant to put future
    dangerousness “at issue” because the question did not arise. (In Clark it
    was not the Commonwealth that argued future dangerousness; rather,
    the defense argued the opposite, noting that chances of a commuted
    sentence in Pennsylvania were close to zero; the court gave an
    instruction defining life imprisonment.) As for Commonwealth v. May,
    
    710 A.2d 44
     (Pa. 1998), its proposition that “[t]he aggravating
    circumstance of appellant’s prior record for violent felonies addressed
    only appellant’s past conduct, not his future dangerousness,” is a mere
    unsupported assertion. Id. at 47.
                                 88
    
    
       The Simmons plurality and Justice O’Connor, concurring,
    believed there was no question that the prosecutor had
    made an issue of Simmons’s future dangerousness. As a
    result, the Court had no occasion to define what
    constitutes making an issue of future dangerousness. That
    issue was directly addressed eight years later in Kelly, an
    opinion of the Court authored by Justice Souter.
      In Kelly, the prosecutor stated that he would not argue
    future dangerousness and “that takes it out of Simmons
    anyhow.” Kelly, 534 U.S. at 249. The trial court then denied
    Kelly’s counsel’s request for a Simmons instruction, saying
    that the State’s evidence went to Kelly’s character and
    characteristics, not to future dangerousness. The South
    Carolina Supreme Court affirmed the conviction and death
    sentence, holding that the Simmons instruction was not
    required because future dangerousness was not at issue.
       In reversing, Justice Souter stated that the South
    Carolina Supreme Court’s statement that Kelly’s future
    dangerousness was not at issue “is unsupportable on the
    record before us.” Id. at 252. He continued, “It is not that
    the state court failed to pose the legal issue accurately, for
    in considering the applicability of Simmons it asked
    whether Kelly’s future dangerousness was ‘a logical
    inference from the evidence,’ or was ‘injected into the case
    through the State’s closing argument.’ ” Id. at 252 (internal
    citations omitted). In support of the appropriateness of this
    statement of the legal issue, Justice Souter included the
    following citations and explanatory parentheses: “Shafer,
    [532 U.S.] at 54-55 (whether prosecutor’s evidence or
    argument placed future dangerousness in issue) [and]
    Simmons, 512 U.S. at 165, 171, (plurality opinion) (future
    dangerousness in issue because ‘State raised the specter of
    . . . future dangerousness generally’ and ‘advanc[ed]
    generalized arguments regarding the [same]’).” Kelly, 534
    U.S. at 252.
      In addressing the trial court’s interpretation of the
    evidence, the Kelly Court explained why the trial court
    erred:
        To the extent that it thought that “[e]vidence that Kelly
        took part in escape attempts and carried a shank . . .
                                  89
    
    
        is not the type of future dangerousness evidence
        contemplated by Simmons,” . . . it overlooked that
        evidence of violent behavior in prison can raise a
        strong implication of “generalized . . . future
        dangerousness.” Simmons, [512 U.S.] at 171. (And, of
        course, the state court’s reasoning says nothing about
        the evidence of the crime, or of Kelly’s sadism
        generally, and his mercurial thirst for vengeance.) A
        jury hearing evidence of a defendant’s demonstrated
        propensity for violence reasonably will conclude that he
        presents a risk of violent behavior, whether locked up
        or free, and whether free as a fugitive or as a parolee.
    Id. at 253-54 (emphasis added).
      In language particularly relevant to this case, the Kelly
    Court stated, “The fallacy of the State Supreme Court’s
    attempt to portray the thrust of the evidence as so
    unrealistically limited harks back to a comparable mistake
    by the trial judge, who spoke of the evidence as going, not
    to future dangerousness, but ‘to [Kelly’s] character and
    characteristics.’ ” Id. at 254. The Court continued,
        The error in trying to distinguish Simmons this way lies
        in failing to recognize that evidence of dangerous
        “character”    may     show     “characteristic”  future
        dangerousness, as it did here. This, indeed, is the fault
        of the State’s more general argument before us, that
        evidence of future dangerousness counts under
        Simmons only when the State “introduc[es] evidence for
        which there is no other possible inference but future
        dangerousness to society.” . . . Evidence of future
        dangerousness under Simmons is evidence with a
        tendency to prove dangerousness in the future; its
        relevance to that point does not disappear merely
        because it might support other inferences or be
        described in other terms.
    Id. (emphasis in original).
      The Kelly Court thus made explicit what was implicit in
    Simmons: the prosecutor need not expressly and separately
    argue future dangerousness; rather, future dangerousness
    can be made an issue through implication by or inference
                                  90
    
    
    from arguments addressing such independent matters as
    the defendant’s character.
       At Rompilla’s sentencing hearing, the prosecutor, who
    was seeking the death penalty, focused on Rompilla’s
    “significant history of felony convictions,” as that is one of
    the statutory factors that can serve as “aggravators” in the
    balancing between mitigating factors and aggravating
    factors required under Pennsylvania’s death penalty law. 42
    Pa. Cons. Stat. Ann. § 9711(d)(9). During his closing
    argument the prosecutor referred to Rompilla’s prior
    offense, which involved the robbery, rape and slashing with
    a knife of a female bar owner, in the following terms:
        Joe Macrenna, the woman that was raped, was raped
        pretty brutally. She was raped at knife point. . . . [I]sn’t
        it frightening, the similarity between that case and this
        case. I mean, it is absolutely astounding. Both take
        place around the bar. The Defendant gets in after
        closing or right before closing. . . . On both occasions,
        a knife was used. Steals money both times. Isn’t it
        frightening the similarities in those crimes. Takes a taxi
        away from Joe’s Bar, takes a taxi the night of this
        crime. He slashes Joe in the breast with a knife. He
        uses a knife on Jimmy Scanlon. It’s absolutely
        frightening to think of the similarities in those two
        crimes. But there is one difference, one major
        difference, Joe Macrenna lived through her experience.
        Jimmy Scanlon didn’t. . . . I think the Defendant
        learned a lesson from Joe Macrenna in that case, that
        Rape case. That lesson was, don’t leave any witnesses.
        Don’t leave anybody behind that can testify against
        you.
    App. at 779-80 (emphasis added).
      At sentencing the jury also learned via testimony elicited
    by both parties that the instant crime occurred shortly after
    Rompilla had been released from prison, that there is a lack
    of rehabilitation services for prisoners, that Rompilla’s
    children were initially frightened of him when he was
    released on parole, and that he had been paroled from his
    previous sentence only three weeks before the instant
    crime.
                                91
    
    
      Rompilla argues that because the prosecutor placed
    Rompilla’s future dangerousness at issue, the trial court
    was required under Simmons to inform the jury that
    Rompilla is parole ineligible. The PCRA court disagreed,
    reasoning that Simmons does not apply because the
    prosecutor did not argue future dangerousness. The court
    stated, “The prosecution merely argued that Mr. Rompilla
    had a significant history of felony convictions which was
    proper argument as an aggravating factor under
    Pennsylvania law.” App. at 2025. The court did not find the
    jury’s question concerning whether he had received
    rehabilitation supportive of Rompilla’s argument: “This
    question . . . relates more to the issues raised by the
    defense witnesses during the penalty phase who
    complained that Mr. Rompilla had not received
    rehabilitation while in prison and while on parole after his
    1974 rape and burglary convictions. In fact, that was a
    mitigating factor found by the jury rather than an
    aggravating factor.” App. at 2026. The court did not
    address, perhaps did not recognize, the relevance of the
    jury’s question concerning whether rehabilitation is
    available in prison to Rompilla’s request for a Simmons
    instruction.
      On appeal, the Pennsylvania Supreme Court summarized
    the facts and issue, and analyzed Rompilla’s Simmons claim
    in one paragraph which I quoted in full near the beginning
    of this dissent. The Pennsylvania Supreme Court
    interpreted Pennsylvania law as requiring a Simmons
    instruction    “only    when     the    defendant’s   future
    dangerousness is at issue,” and expressly rejected
    Rompilla’s argument that in presenting Rompilla’s extensive
    criminal history the prosecutor ipso facto made future
    dangerousness an issue. The Pennsylvania Supreme Court
    thus    appears     to   have    determined    that   future
    dangerousness must be argued expressly and separately
    and may not be implied by or inferred from other
    arguments; consequently, the prosecutor’s recitation of
    defendant’s past criminal conduct cannot, without more,
    also amount to making an issue of future dangerousness.
    It is unclear whether the Pennsylvania Supreme Court
    believes this principle to be consistent with or required by
    Simmons.
                                      92
    
    
      When the Simmons issue was before the District Court on
    Rompilla’s habeas petition, that court also gave the issue
    only brief analysis and concluded:
         The prosecutor’s summation in this case covers 16
         pages of the notes of testimony2 and a fair reading of it
         leads to the conclusion that the state’s reasoning for
         the death penalty was not based upon future
         dangerousness but on the despicable, savage and
         cowardly beating the Petitioner inflicted upon his
         victim. This is a close issue, however, but the Supreme
         Court of Pennsylvania’s decision in the PCRA case was
         not an unreasonable application of federal law.
    Rompilla v. Horn, 
    2000 WL 964750
    , at *15 (E.D. Pa. July
    11, 2000). The District Court appears to have agreed with
    the Pennsylvania Supreme Court that if the prosecutor
    “based his argument on” the despicable nature of the
    defendant’s actions, he could not at the same time have
    made an issue of Rompilla’s future dangerousness for
    Simmons purposes without providing a separate, express
    argument to that effect. The Majority appears to agree, as
    its opinion states: “even if [the prosecutor’s comments] were
    meant to imply that Rompilla would present a future
    danger if he was ever released from prison, the fact remains
    that the prosecutor never expressly argued that Rompilla
    presented a future threat.” Maj. Op. at 63-64.
      I do not read Simmons as requiring an express argument
    of future dangerousness. In Simmons, the prosecutor put
    future dangerousness “at issue” in a few brief comments in
    his closing argument. As the Simmons plurality opinion
    describes it:
         In its closing argument the prosecution argued that
         petitioner’s future dangerousness was a factor for the
         jury to consider when fixing the appropriate
         punishment. The question for the jury, said the
         prosecution, was “what to do with [petitioner] now that
         he is in our midst.” . . . The prosecution further urged
         that a verdict for death would be “a response of society
         to someone who is a threat. Your verdict will be an act
         of self-defense.”
    
    2. That is not accurate: it covers eight pages. See App. at 774-782.
                                       93
    
    
    512 U.S. at 157.
      In his dissent, Justice Scalia takes issue with the
    conclusion of those Justices who formed the majority that
    the above statements constituted an argument for future
    dangerousness.3 The language used in the various opinions
    
    3. The dissent states:
        Both Justice Blackmun and Justice O’Connor focus on two portions
        of the prosecutor’s final argument to the jury in the sentencing
        phase. First, they stress that the prosecutor asked the jury to
        answer the question of “what to do with [petitioner] now that he is
        in our midst.” That statement, however, was not made (as they
        imply) in the course of an argument about future dangerousness,
        but was a response to petitioner’s mitigating evidence. Read in
        context, the statement is not even relevant to the issue in this case:
          “The defense in this case as to sentence . . . [is] a diversion. It’s
          putting the blame on society, on his father, on his grandmother,
          on whoever else he can, spreading it out to avoid that personal
          responsibility. That he came from a deprived background. That he
          didn’t have all of the breaks in life and certainly that helps shape
          someone. But we are not concerned about how he got shaped. We
          are concerned about what to do with him now that he is in our
          midst.”. . . .
        Both opinions also seize upon the prosecutor’s comment that the
        jury’s verdict would be “an act of self-defense.” That statement came
        at the end of admonition of the jury to avoid emotional responses
        and enter a rational verdict:
          “Your verdict shouldn’t be returned in anger. Your verdict
          shouldn’t be an emotional catharsis. Your verdict shouldn’t be . . .
          a response to that eight-year-old kid [testifying in mitigation] and
          really shouldn’t be a response to the gruesome grotesque
          handiwork of [petitioner]. Your verdict should be a response of
          society to someone who is a threat. Your verdict will be an act of
          self-defense.” . . . .
        This reference to “self-defense” obviously alluded, neither to defense
        of the jurors’ own persons, nor specifically to defense of persons
        outside the prison walls, but to defense of all members of society
        against this individual, wherever he or they might be. Thus, as I
        read the record (and bear in mind that the trial judge was on the
        lookout with respect to this point), the prosecutor did not invite the
        jury to believe that petitioner would be eligible for parole — he did
        not mislead the jury.
    Simmons, 512 U.S. at 181-182 (Scalia, J., dissenting) (emphasis in
    original).
                                 94
    
    
    of the Justices who formed the Simmons majority does not
    suggest that the prosecutor must expressly argue that
    defendant will be a serious threat if not sentenced to death
    before the Court will hold that future dangerousness has
    been placed before the jury. For example, Justice
    Blackmun’s opinion uses the following phrases (emphases
    added,      passim):    “where    the    defendant’s   future
    dangerousness is at issue,” id. at 156; “[t]he Due Process
    Clause does not allow the execution of a person ‘on the
    basis of information which he had no opportunity to deny or
    explain.’ ” Id. at 161; “the State’s repeated suggestion that
    petitioner would pose a future danger to society if he were
    not executed,” id. at 162; “[t]he State raised the specter of
    petitioner’s future dangerousness generally . . . ,” id. at
    165; “if the State rests its case for imposing the death
    penalty at least in part on the premise that the defendant
    will be dangerous in the future . . . ,” id. at 168-69; “[t]he
    State may not create a false dilemma by advancing
    generalized arguments regarding the defendant’s future
    dangerousness . . . ,” id. at 171.
      In his concurring opinion, Justice Souter writes, “when
    future dangerousness is an issue in a capital sentencing
    determination . . . .” Id. at 172 (emphasis added). Similarly,
    Justice O’Connor states, “When the State seeks to show the
    defendant’s future dangerousness,” and “a means of
    responding to the State’s showing of future dangerousness.”
    Id. at 177. “Moreover, the prosecutor, by referring to a
    verdict of death as an act of ‘self-defense,’ strongly implied
    that petitioner would be let out eventually if the jury did
    not recommend a death sentence.” Id. at 178 (emphasis
    added).
      There are indeed some statements that can be read to
    refer to arguments expressly made by the State as to
    Simmons’s future dangerousness, particularly in the
    concurring opinion of Justice O’Connor, but even she uses
    the phrase “strongly implied.” I therefore repeat my
    observation that neither Justice O’Connor nor the other
    Justices forming the majority suggest that the instruction
    must be given only if the prosecutor makes express,
    explicit, exclusive arguments for future dangerousness.
    Rather, the Court was willing to infer a future
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    dangerousness argument from what was, on Justice
    Scalia’s account, an argument about a different topic
    entirely (the merit of one of Simmons’s mitigating factors).
    Nothing in the Justices’ language supports the premise on
    which the Pennsylvania Supreme Court’s decision turns.
    Any doubts on the matter were dispelled by the Supreme
    Court’s subsequent decision in Kelly where the prosecutor
    did not expressly argue future dangerousness.
      The Majority concedes that Kelly “arguably broadened the
    holding in Simmons,” Maj. Op. at 51, and notes that two of
    the Justices who joined Justice O’Connor’s concurring
    opinion in Simmons dissented in Kelly because “the test is
    no longer whether the State argues future dangerousness
    to society . . . [but] whether evidence was introduced at trial
    that raises an ‘implication’ of future dangerousness to
    society.” Kelly, 534 U.S. at 261 (Rehnquist, C.J., joined by
    Kennedy, J., dissenting).
      The Majority declines to apply Kelly in Rompilla’s favor,
    stating, “Even if Kelly broadened Simmons . . . Kelly cannot
    aid Rompilla here” because Kelly was decided after the
    Pennsylvania Supreme Court’s decision in Rompilla’s case.
    Maj. Op. at 53. The Majority notes that under Williams v.
    Taylor, 
    529 U.S. 362
     (2000), federal review pursuant to
    section 2254(d)(1) is limited to the state court’s application
    of federal law “as of the time of the relevant state-court
    decision.” Id. at 412.
       The Supreme Court does not interpret the unreasonable
    application of Supreme Court precedent prong of
    § 2254(d)(1) as narrowly as does the Majority. In Wiggins,
    the Court viewed its opinion in Williams as “illustrative of
    the proper application” of the Strickland standard,
    notwithstanding that “Williams had not yet been decided at
    the time the Maryland Court of Appeals rendered the
    decision at issue in this case.” Wiggins, 123 S. Ct. at 2535.
    Just as the Williams opinion noted that “the merits of
    [Williams’s] claim are squarely governed by our holding in
    Strickland v. Washington,” Williams, 529 U.S. at 390, so
    also the Court’s opinion in Kelly represented an application
    of Simmons and did not make new law. There is no
    indication anywhere in the opinion that the Kelly majority
    thought that they were doing anything other than applying
                                 96
    
    
    Simmons. Rather, at every step of the way the Kelly
    majority cites Simmons. At one point, the Kelly majority
    states that the prosecutor “accentuated the clear
    implication of future dangerousness raised by the evidence
    and [thereby] placed the case within the four corners of
    Simmons.” Kelly, 534 U.S. at 255. Therefore, even if Kelly
    “arguably” broadened Simmons, it is dispositive for present
    purposes that the majority of the Supreme Court believed
    otherwise.
      To recapitulate, the Pennsylvania Supreme Court applied
    an unjustifiedly narrow test for determining whether the
    prosecutor made an issue of Rompilla’s future
    dangerousness. That test represented an unreasonable
    application of Simmons, especially as Simmons was applied
    in Kelly.
       In any event, I believe that the record shows that the
    prosecutor did make an issue of Rompilla’s future
    dangerousness. It is noteworthy that the prosecutor
    referred to the similarities between this crime and
    Rompilla’s previous crime as “frightening” no less than
    three times. The similarities can be “frightening” only if the
    prosecutor was sending the message that there is a
    possibility that Rompilla will repeat the crime. Similarly,
    the prosecutor’s emphasis on the one major difference
    between this crime and his previous crime — the murder of
    the victim — and his statement to the jury that Rompilla
    had learned not to leave any witnesses were tantamount to
    a warning about what would happen if Rompilla were
    allowed to commit another crime, i.e., that Rompilla would
    be dangerous. Moreover, as the Supreme Court has
    recognized, evidence of past criminal conduct may be
    indicative of future dangerousness. See Skipper v. South
    Carolina, 
    476 U.S. 1
    , 5 (1986).
      The Majority urges us to consider the prosecutor’s
    comments in context, claiming he was merely responding to
    counsel’s argument that the jury must have some doubt
    concerning Rompilla’s guilt and that his comments were a
    rebuttal of that argument, not an argument for future
    dangerousness. The Majority states, “Seeking to dispel any
    such doubts, the prosecutor’s obvious point in stressing the
    similarities between the circumstances of the rape for
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    which Rompilla had previously been convicted and the
    Scanlon murder was to convince the jury that the same
    man had committed both crimes.” Maj. Op. at 63.
      The Majority’s attempt to explain the remark is sheer
    conjecture. The prosecutor made his remarks in the course
    of outlining why three aggravating factors apply against
    Rompilla. After addressing the first two — torture and
    murder while committing other crimes — the prosecutor
    said:
        Commonwealth has more. Commonwealth submits to
        you that the Defendant has a significant history of
        felony convictions involving violence to the . . . person
        or the threat of violence to the person.
    App. at 779. The prosecutor then described the previous
    rape with his above-quoted use of “frightening” and gave
    the State’s explanation that Rompilla did not wait at the
    bar until Scanlon closed up before breaking in to steal
    because Rompilla did not want to leave any witnesses. App.
    at 780. This suggests dangerousness, not rebuttal.
      It is plain from Simmons and Kelly that the reasons for
    the prosecutor’s statements are not dispositive of whether
    they put future dangerousness at issue for the jury. They
    could have done so even if their principal thrust were to
    dispel doubt raised by the defense. After all, in Simmons
    the prosecutor’s remarks were made in response to defense
    counsel’s mitigating evidence (see Justice Scalia’s
    dissenting opinion, quoted above). Thus, even if the
    prosecutor in Rompilla’s case did not make an express
    argument, Simmons is still applicable because, as explained
    above, Simmons does not require “express arguments.”
       The Majority also asserts that the prosecutor merely used
    the word “frightening” as a synonym for “astounding,” a
    word that the prosecutor also used (“more aptly,” as the
    Majority puts it). Maj. Op. at 63. Accepting arguendo the
    Majority’s hypothesis, it does not negate the implication of
    future dangerousness. The meaning of a word or phrase
    depends in part on the reasonable understanding of the
    listener, not merely the intent of the speaker.
      The Majority also attempts to discount any future
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    dangerousness implications in the prosecutor’s statement
    that by the time of this crime Rompilla had learned to kill
    any eyewitnesses by explaining that “the comment seems to
    have had two likely purposes: to explain why there was no
    eyewitness to the most recent crime and to explain why the
    two crimes differed in the important respect that one
    involved a killing and the other did not.” Maj. Op. at 63.
    Again, even if those were the prosecutor’s purposes, it does
    not follow that he did not also thereby inject future
    dangerousness into the proceedings. The more immediate
    message learned by the jury was surely that if they put
    Rompilla in a position from which he could commit another
    crime, the jurors had better not be among the witnesses.
    Their repeated questions to the judge concerning parole
    and rehabilitation suggests that they had learned that
    lesson.4
    
    4. This court is limited to reviewing the Pennsylvania Supreme Court’s
    opinion for its consistency with federal law, and has no role in its
    application of state law. It is of interest, however, that there is
    disagreement among the Pennsylvania Supreme Court justices
    themselves as to whether the jury need be instructed that in
    Pennsylvania the jury may not be informed that life imprisonment means
    life without parole. Pennsylvania is one of only two states out of the 50
    United States where life imprisonment means life without parole that
    hold that the jury may not be so informed. South Carolina, the state that
    was the subject of the Supreme Court decisions in Simmons, Kelly, and
    Skipper, is the other such state.
       The Pennsylvania rule was enunciated in Commonwealth v. Mills, 
    39 A.2d 572
     (Pa. 1944), where the Pennsylvania Supreme Court stated that
    in a capital case the jury’s only function was to decide whether the
    penalty should be life imprisonment or the death penalty. More recently,
    the Pennsylvania Supreme Court, in addressing the effect of Simmons on
    the rule announced in Mills, stated that “the per se rule announced in
    Mills [that any reference to the possibility of parole was an improper
    consideration for the jury in their deliberation of the defendant’s guilt]
    has been superseded [by Simmons].” Clark, 710 A.2d at 36. The
    Pennsylvania Court then stated “that due process requires the court to
    instruct the jury on the law as it relates to the possibility of parole where
    that issue [the defendant’s future dangerousness] clearly arises from the
    arguments of either counsel in the penalty phase.” Id. Justice Nigro
    concurred, suggesting “that the better practice and policy is to require
    trial courts to give a Simmons instruction in all death penalty
    proceedings, regardless of whether counsel raises the issue of a
    defendant’s potential future dangerousness during the penalty phase.”
    Id. at 43. Justice Zappala concurred separately, agreeing with Justice
    Nigro that a Simmons charge should be mandated. Id.
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       Justice Souter, in his concurring opinion in Simmons,
    joined by Justice Stevens, wrote:
          The Eighth Amendment entitles a defendant to a jury
        capable of a reasoned moral judgment about whether
        death, rather than some lesser sentence, ought to be
        imposed. The Court has explained that the Amendment
        imposes a heightened standard “for reliability in the
        determination     that   death    is   the    appropriate
        punishment in a specific case,” Woodson v. North
        Carolina, 
    428 U.S. 280
    , 305 (1976) (plurality opinion of
        Stewart, Powell, and Stevens, JJ.); see also, e.g.,
        Godfrey v. Georgia, 
    446 U.S. 420
    , 427-428 (1980); Mills
        v. Maryland, 
    486 U.S. 367
    , 383-384 (1988). Thus, it
        requires provision of “accurate sentencing information
        [as] an indispensable prerequisite to a reasoned
        determination of whether a defendant shall live or die,”
        Gregg v. Georgia, 
    428 U.S. 153
    , 190 (1976) (joint
        opinion of Stewart, Powell, and Stevens, JJ.), and
        invalidates “procedural rules that ten[d] to diminish the
        reliability of the sentencing determination,” Beck v.
        Alabama, 
    447 U.S. 625
    , 638 (1980).
           That same need for heightened reliability also
        mandates recognition of a capital defendant’s right to
        require instructions on the meaning of the legal terms
        used to describe the sentences (or sentencing
        recommendations) a jury is required to consider, in
        making the reasoned moral choice between sentencing
        alternatives. Thus, whenever there is a reasonable
        likelihood that a juror will misunderstand a sentencing
        term, a defendant may demand instruction on its
        meaning, and a death sentence following the refusal of
        such a request should be vacated as having been
        “arbitrarily or discriminatorily” and “wantonly and . . .
        freakishly imposed.” Furman v. Georgia, 
    408 U.S. 238
    ,
        249 (1972) (Douglas, J., concurring) (internal quotation
        marks omitted); id., at 310 (Stewart, J., concurring).
    Simmons, 512 U.S. at 172-73 (Souter, J., concurring).
       In this case, the repeated questions by the jury as to the
    effect of a sentence by them of life imprisonment
    demonstrate unequivocally that the jury did not understand
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    that under Pennsylvania law a life prison term means life
    without parole. I believe the rationale for requiring that the
    jury be instructed about parole ineligibility when the
    prosecutor puts future dangerousness in issue — i.e., to
    ensure that the jurors have accurate information as to the
    effect of their sentence — is similarly applicable in a case,
    such as this one, where the jurors have requested accurate
    information. I do not understand the State to be arguing
    that the requested instruction was not legally accurate. The
    Majority has provided no rationale why the jury should not
    be informed of the applicable Pennsylvania law. Truth in
    advertising is now the byword of this generation. Truth in
    instructing the jury as to the effect of the sentence in a
    capital case is at least as important.
      I would grant a writ of habeas corpus on this issue as
    well as on the ineffective assistance of counsel issue.
    
    A True Copy:
            Teste:
    
                       Clerk of the United States Court of Appeals
                                   for the Third Circuit