NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                              Nos. 05-9004 & 06-9005
                                   ___________

                               SAHARRIS ROLLINS,
                                              Appellant in No. 06-9005

                                         v.

 MARTIN HORN, Commissioner, Pennsylvania Department of Corrections; CONNER
BLAINE, JR., Superintendent of the State Correctional Institution at Greene; JOSEPH P.
 MAZURKIEWICZ, Superintendent of the State Correctional Institution at Rockview,
                                                     Appellants in No. 05-9004
                    ____________________________________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                            (D.C. Civil No. No. 00-1288)
                     District Judge: Honorable J. Curtis Joyner
                    ____________________________________

                                Argued June 15, 2010

           Before: BARRY, GREENBERG, AND COWEN, Circuit Judges

                             (Opinion filed: July 7, 2010)

                                    ___________

Thomas W. Dolgenos, Esq. (Argued)
Helen T. Kane, Esq.
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107

Counsel for Appellants/Cross-Appellees Martin Horn, Conner Blaine, and Joseph
Mazurkiewicz
Matthew C. Lawry, Esq. (Argued)
Billy H. Nolas, Esq.
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106

Edward M. Dunham, Jr., Esq.
Duane Morris
30 South 17th Street
United Plaza
Philadelphia, PA 19103

Counsel for Appellee/Cross-Appellant Saharris Rollins

                                       ___________

                                        OPINION
                                       ___________

PER CURIAM

       In this appeal and cross-appeal in a capital case, the Commonwealth of

Pennsylvania and Saharris Rollins ask us to review the District Court’s partial grant of

Rollins’ petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We will

affirm the judgment of the District Court.

       On March 5, 1987, Rollins was convicted by a jury in the Court of Common Pleas

of Philadelphia County of first degree murder and related offenses.1 The next day,




   1
     The District Court’s opinion provides a comprehensive account of the underlying
crime and the procedural history. See Rollins v. Horn, 

, at *1 (E.D. Pa.
July 26, 2005).

                                             2
following a separate penalty hearing, the jury found that two aggravating circumstances

outweighed one mitigating circumstance. The Court of Common Pleas denied Rollins’

post-verdict motions and sentenced him to death for the first degree murder conviction.

Rollins’ post-trial motions were denied. On direct appeal, the Pennsylvania Supreme

Court affirmed Rollins’ conviction and sentence. See Commonwealth v. Rollins, 

, 745 (Pa. 1990). The Pennsylvania Supreme Court also rejected the claims

raised in Rollins’ Post Conviction Relief Act (“PCRA”) petition. See Commonwealth v.

Rollins, 

(Pa. 1999).

       In March 2000, Rollins filed a petition pursuant to 28 U.S.C. § 2254, alleging,

inter alia, that the prosecutor exercised peremptory strikes in violation of Batson v.

Kentucky, 

(1986), that his attorney was ineffective at the guilt and penalty

phases of trial, and that the jury instructions violated Mills v. Maryland, 

(1988). The District Court granted habeas relief, finding that Rollins’ attorney rendered

constitutionally deficient assistance at the penalty phase and that the trial court improperly

instructed the jury that it must unanimously agree on mitigating circumstances before it

could consider them at sentencing. See Rollins v. Horn, 

, at *45 (E.D.

Pa. July 26, 2005). As to all other claims, however, the District Court denied relief and

declined to issue a certificate of appealability. See 

a motion pursuant to

Federal Rule of Civil Procedure 59(e), which the District Court denied. See Rollins v.

Horn, 

(E.D. Pa. Aug. 17, 2006).



                                              3
       Both Rollins and the Commonwealth timely appealed.2 We exercise jurisdiction

under 28 U.S.C. §§ 1291 and 2253. Rollins’ petition for a writ of habeas corpus was filed

after April 1996 and is therefore subject to the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). We granted Rollins’ request for certificate of appealability

(“COA”) with regard to the Batson claim and the allegation that his attorney rendered

ineffective assistance at the guilt phase by failing to adequately investigate and present

serological evidence and evidence concerning which hand the murderer used to hold the

gun.

        We will begin by addressing the issues on which we granted a COA because they

involve events occurring first in time, at the guilt phase of trial. In Batson, the Supreme

Court held that discriminatory use of a peremptory challenge during jury selection

violates Equal Protection. Notably, “a timely objection is required to preserve [a Batson]

issue on appeal.” Abu-Jamal v. Horn, 

, 284 (3d Cir. 2008), vacated and

remanded on other grounds sub nom., Beard v. Abu-Jamal, 

(2010).

Rollins’ attorney failed to make such an objection. Although the prosecutor’s allegedly

improper use of peremptory strikes was briefly discussed at voir dire, Rollins’ attorney

never called for a ruling regarding the Batson issue. Accordingly, by failing to “give[] the

trial judge an opportunity to promptly consider alleged misconduct during jury selection




   2
    The Commonwealth’s appeal was docketed in this Court at C.A. No. 05-9004.
Rollins’ cross-appeal was docketed here as C.A. No. 06-9005.

                                              4
and develop a complete record,” Rollins has forfeited this claim. 

(footnotes

omitted).

       Rollins also alleged that his attorney performed ineffectively at the guilt phase of

trial by failing to argue that Rollins’ blood type (type O) did not match the blood type

evidence collected by the police (type A), and that an eyewitness to the murder told police

that the killer held the gun in his left hand while witnesses who saw Rollins fire a gun in a

separate shooting incident claimed that he held the gun in his right hand. To prevail,

Rollins must demonstrate that his attorney’s performance was so deficient that it fell

below an objective standard of reasonableness under prevailing professional norms and

that the deficient performance was prejudicial. See Strickland v. Washington, 

, 687 (1984). It is appropriate to evaluate the prejudice prong first “because it is

preferable to avoid passing judgment on counsel’s performance when possible.” United

States v. Cross, 

, 315 (3d Cir. 2002).

       We agree with the District Court that Rollins did not suffer prejudice in light of the

significant evidence of his guilt. See 

(“a verdict or conclusion

only weakly supported by the record is more likely to have been affected by errors than

one with overwhelming record support.”). Violeta Cintron, who was present with the

victim and the shooter in a small room when the murder occurred, testified that she had

seen Rollins on previous occasions (including earlier that day), that she knew him to be a

friend of her husband’s, and that he was the killer. In addition, Violeta had identified



                                              5
Rollins in a police lineup almost one month after the murder. Likewise, Nilda Cintron,

Angel Rivera, and Dalia Cintron, who all saw the perpetrator as he fled from the scene of

the shooting, each picked Rollins out of a police lineup and identified him at trial.

Furthermore, Dalia was able to identify Rollins from a photo array. Violeta’s husband,

Jose Carrasquillo, also identified Rollins because he was the only person with whom

Carrasquillo swapped cocaine for methamphetamine, which Rollins sought to do just

prior to the murder. Carrasquillo picked out Rollins from a photo array, and further

testified that after the murder Rollins threatened to harm him if he did not change his

testimony and tell Violeta not to testify. Similarly, a witness who had spent time in prison

with Rollins testified that Rollins confessed to the murder and indicated that he planned

to send people to kill Violeta. Finally, the three witnesses to a separate shooting, where

the murder weapon was used, identified Rollins as the shooter. Given this evidence,

Rollins has not established a “reasonable probability that, but for counsel’s” alleged

failure at the guilt phase to adequately investigate and present blood type evidence and

evidence concerning which hand the murderer used to hold the gun, “the result of the

proceeding would have been different.” 

.

       As to penalty phase ineffectiveness, however, we agree with the District Court that

Rollins is entitled to habeas relief. Rollins’ attorney performed deficiently by failing to

adequately investigate and present evidence of mitigating circumstances. See Taylor v.

Horn, 

, 453 (3d Cir. 2007) (holding that in the penalty phase of a death



                                              6
penalty case “counsel has an ‘obligation to conduct a thorough investigation’ for

mitigating evidence.”) (quoting Williams v. Taylor, 

, 396 (2000)). In

particular, Rollins’ attorney did not begin to prepare mitigation evidence until 4:30 p.m.

on the day before the penalty proceeding commenced, did not attempt to speak with

Rollins’ sister who had been present throughout the trial, and did not otherwise seek

“[i]nformation concerning [Rollins’] background, education, employment record, mental

and emotional stability, family relationships, and the like.” Bobby v. Van Hook, 130 S.

Ct. 13, 17 (2009) (citing ABA guidelines that were in effect in 1987); see also Jermyn v.

Horn, 

, 308 (3d Cir. 2001) (holding that counsel’s conduct fell below the

standards required for reasonable representation where “counsel and his law clerk

admitted that they began preparing for the penalty phase the night before it began.”).

       We also conclude that there is a reasonable probability that the result of the

sentencing proceeding would have been different if the jury had heard the evidence that

was presented at the PCRA proceeding. See Bond v. Beard, 

, 285 (3d Cir.

2008) (noting that prejudice exists if “‘there is a reasonable probability that, but for

counsel’s unprofessional errors . . .’ one juror [would have] voted to impose a sentence of

life imprisonment rather than the death penalty.”) (quoting 

)).

That evidence included accounts of abuse and tragedy in Rollins’ childhood, as well as

expert opinions about Rollins’ mental deficiencies. See, e.g., Porter v. McCollum, 130 S.

Ct. 447, 453 (2009) (holding that counsel was ineffective for failing to uncover and



                                               7
present any evidence of petitioner’s mental health or mental impairment, his family

background, or his military service); see also Kindler v. Horn, 

, 83-87 (3d Cir.

2008) (concluding that Strickland standard was satisfied based on affidavits from

petitioner’s counsel, his parents, his sister, a friend, and a psychologist and a psychiatrist),

rev’d on other grounds sub nom., Beard v. Kindler, 

(2009). Therefore, the

state courts’ denial of Rollins’ penalty phase ineffectiveness claim was an unreasonable

application of established federal law, as determined by the Supreme Court.

       In sum, we conclude that Rollins was denied effective assistance of counsel during

the penalty phase, but find no merit in the remainder of his claims.3 For these reasons, we

will affirm the judgment of the District Court granting Rollins’ petition for a conditional

writ of habeas corpus and ordering the Commonwealth to either conduct a new

sentencing hearing within 180 days or sentence Rollins to life imprisonment.




   3
     Because we conclude that Rollins’ sentence must be vacated due to ineffective
assistance of counsel, his Mills claim is moot.

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