Ronald Rompilla v. Martin Horn, Commissioner, Pennsylvania Department of Corrections-- Part II

Press Release

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)

OPINION OF THE COURT

ALITO, Circuit Judge:

PART II

BREAK IN TRANSCRIPT

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 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).

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 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 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 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 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 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. I d. 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 . . . 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 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.

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 alcoholabuse 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 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 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 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 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, 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.

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 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.

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.

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 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 - 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 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 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 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. 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 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 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., 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.

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:

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 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.

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