Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-1997

Banks v. Horn
Precedential or Non-Precedential:

Docket
96-9003




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Recommended Citation
"Banks v. Horn" (1997). 1997 Decisions. Paper 224.
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Filed September 19, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-9003

GEORGE E. BANKS,

       Appellant

v.

MARTIN HORN, Commissioner, PA Department of
Corrections; JAMES PRICE, Superintendent of the State
Correctional Institution at Greene; JOSEPH P.
MAZURKIEWICZ, Superintendent of the State Correctional
Institution at Rockview; THE COMMONWEALTH OF
PENNSYLVANIA

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 96-00294)

Argued August 12, 1997

BEFORE: SLOVITER, Chief Judge, and GREENBERG and
MCKEE, Circuit Judges

(Filed: September 19, 1997)

       Albert J. Flora, Jr. (argued)
       William Ruzzo
       Office of Public Defender
       Luzerne County Courthouse
       Wilkes-Barre, PA 18711

        Attorneys for Appellant




       Peter P. Olszewski, Jr. (argued)
       Scott C. Gartley
       Office of District Attorney
       Luzerne County Courthouse
       200 North River Street
       Wilkes-Barre, PA 18711

        Attorneys for Appellees

OPINION OF THE COURT
GREENBERG, Circuit Judge.

I. INTRODUCTION

George E. Banks appeals to this court from a final
judgment entered in the district court on August 30, 1996,
denying his petition for a writ of habeas corpus under 28
U.S.C. S 2254. Banks committed the crimes leading to his
conviction and sentencing in the state court and finally to
his petition for habeas corpus on September 25, 1982,
when he shot 14 people in Wilkes-Barre, Pennsylvania,
killing 13 of them. The victims included Banks' four
girlfriends and their children, most of whom were Banks'
children as well. Banks, who was born from an interracial
relationship, apparently committed the murders because he
preferred his children to die rather than grow up in what he
thought was a racist world. See Commonwealth v. Banks,

, 4-7 (Pa. 1987) ("Banks I").

Prior to trial in the Luzerne County Court of Common
Pleas, Banks' attorney raised issues with respect to Banks'
competency to stand trial. Accordingly, the common pleas
court held several pre-trial competency hearings pursuant
to the Pennsylvania Mental Health Procedures Act of 1976,
Pa. Stat. Ann. tit. 50 SS 7402-7403 (West Supp. 1986), each
time concluding that Banks was competent to stand trial.
In addition, during the trial, Banks' attorney made several
unsuccessful motions seeking competency determinations.

During the trial, Banks' attorney attempted to establish
that Banks was legally insane at the time of the offenses,

                                2



or, alternatively, that his capacity was diminished by
alcohol and pills, thereby precluding a finding offirst
degree murder. Against the advice of counsel, Banks
testified and offered a defense that the police, the Wilkes-
Barre mayor, and the district attorney were conspiring
against him. Banks also cross-examined a ballistic expert,
and directed counsel with respect to questions for cross-
examination of several of the Commonwealth's witnesses.

On June 21, 1983, the jury convicted Banks of 12 counts
of first degree murder, as well as of third degree murder,
attempted murder, and other related counts. The next day
the jury voted to impose the death penalty. Accordingly, the
court sentenced Banks to 12 "consecutive" death sentences
and various consecutive terms of imprisonment.

Banks filed an appeal, and the Pennsylvania Supreme
Court affirmed his convictions and sentences in Banks I.
The court upheld the trial court's determination that Banks
was competent to stand trial, found that there was ample
evidence that Banks had the requisite intent to kill his
victims, and resolved the remaining issues on appeal
against Banks. Chief Justice Nix and Justice Zappala
dissented on the ground that the common pleas court made
the trial a mockery of justice by allowing Banks to take over
his own defense.

In February 1989 Banks filed a petition in the common
pleas court under the Pennsylvania Post Conviction Hearing
Act ("PCHA"), 42 Pa. Cons. Stat. S 9541 et seq. (West 1982),
seeking relief from the judgment of conviction and
sentence. The Pennsylvania courts treated this petition as
if filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.
Cons. Stat. S 9541 (West Supp. 1997), which had replaced
the PCHA. See Commonwealth v. Banks, 

, 469
n.4 (Pa. 1995) ("Banks II"). The common pleas court denied
him relief, and on appeal, the Pennsylvania Supreme Court,
finding all his claims meritless, affirmed in Banks II.

On February 21, 1996, after Governor Ridge signed a
warrant for his execution, Banks filed a motion in the
district court seeking leave to proceed in forma pauperis, a
motion to stay the execution, and a motion for appointment
of counsel. The district court granted the motion to proceed

                                3



in forma pauperis stayed the execution, provided for the
appointment of counsel, and directed Banks to file a
habeas petition by March 22, 1996. Banks v. Horn, 928 F.
Supp. 512, 514 (M.D. Pa. 1996) ("Banks III"). Banks then
filed a petition raising the following claims:

       1. He did not make a knowing, intelligent and
       voluntary waiver of his Sixth Amendment right to
       counsel before the trial court allowed him to assume
       control of the presentation of evidence and cross-
       examination of witnesses;

       2. He was not competent to waive his right to counsel;

       3. He did not make a knowing, intelligent and
       voluntary waiver of his Fifth Amendment right against
       self-incrimination before the trial court allowed him to
       assume control of the presentation of evidence and
       cross-examination of witnesses;

       4. He was not competent to waive his Fifth
       Amendment right against self-incrimination;
       5. He was not competent to be tried and sentenced;
       therefore, the trial court's judgment violated the Due
       Process Clause of the Fourteenth Amendment and the
       Cruel and Unusual Punishment Clause of the Eighth
       Amendment;

       6. During the penalty phase of the trial the court's
       instructions to the jury, the verdict slip, and the jury
       poll all required the jury to find unanimously both
       aggravating and mitigating circumstances in violation
       of the Eighth Amendment;

       7. The trial court's failure in the capital sentencing
       part of the trial to instruct the jury on life
       imprisonment without parole violated the holding in
       Simmons v. South Carolina, 

, 

(1994), that the Eighth Amendment required
       such an instruction;

       8. The lack of uniformity in death penalty procedures
       in Pennsylvania did not provide a narrowing of
       discretion in the imposition of a death sentence as the
       Eighth Amendment requires;

                                4



       9. The trial court's failure to instruct the jury that it
       could render a verdict of life imprisonment based on a
       finding of mercy violated the Eighth Amendment as
       applied in California v. Brown, 

, 

(1987);

       10. Pennsylvania's Proportionality Review Statute
       deprived Banks of his right to due process under the
       Fourteenth Amendment;

       11. The trial court's failure to voir dire prospective
       jurors on whether they automatically would impose
       death on a finding of first degree murder was in
       violation of Morgan v. Illinois, 

, 

(1992).

Banks v. Horn, 

, 1166 (M.D. Pa. 1996)
("Banks IV").

Banks recognized that his habeas corpus petition faced a
procedural hurdle because he had not raised claims 7, 9,
and 11 in the state courts. Consequently, he filed a motion
to remand the petition to the state courts and to stay the
proceedings in the district court pending exhaustion of
claims 7, 9, and 11 in the state courts. See Banks 

. The Commonwealth opposed the motion
and urged the district court to dismiss the petition as
mixed under Rose v. Lundy, 

, 

(1982), because it included both exhausted and
unexhausted claims. By order of April 29, 1996, the district
court denied Banks' motion because in its view the
adoption in 1995 of the Capital Unitary Review Act, 42 Pa.
Cons. Stat. Ann. S 9570 et seq. (West Supp. 1997), which
limited death penalty appeals to one "unitary" direct appeal
of all issues, barred further review of Banks' case in the
state courts. See Banks 

. The
Commonwealth then filed a motion for reconsideration on
the ground that the Capital Unitary Review Act does not
apply to cases in which the death penalty was imposed
before January 1, 1996.

The district court agreed with the Commonwealth's
contention. It concluded, however, that in Pennsylvania "an
issue is waived for purposes of post conviction relief if the
petitioner failed to raise the issue and it could have been

                                5



raised before trial, at trial, on direct appeal, or in prior
collateral proceedings. 42 Pa. Cons. Stat. Ann.S 9544(b)
[(West Supp. 1997)]." Banks 

. The
court then indicated that second or subsequent petitions
for post conviction relief will not be entertained in
Pennsylvania unless the petitioner makes a strong prima
facie showing that a miscarriage of justice may have
occurred. There is a miscarriage of justice if the
proceedings resulting in conviction were so unfair that no
civilized society could tolerate them or if the defendant was
actually innocent of the crimes charged. 

found the innocence prong inapplicable to the
unexhausted claims and interpreted the other prong as
referring to errors which undermine the truth-determining
process. The court concluded from its analysis of
Pennsylvania cases addressing similar claims that a
Pennsylvania court would not find that the allegations in
any of the unexhausted claims set forth circumstances
amounting to a miscarriage of justice. 

Therefore, the district court held that state law clearly
foreclosed review by the state courts of the unexhausted
claims which thus were procedurally barred. 

citing Toulson v. Beyer, 

(3d Cir. 1993).
Consequently, it concluded that Banks' petition was not
mixed under Rose v. Lundy, and it therefore denied the
Commonwealth's motion to dismiss the petition.

The Commonwealth then moved again to dismiss the
petition under Rose v. Lundy, this time alleging that Banks
had not exhausted his claim concerning waiver of his right
to counsel. The district court denied the motion because
Chief Justice Nix in Banks I based his dissenting opinion
precisely on that issue. Banks v. Horn, Civ. No. 96-0294, at
(M.D. Pa. July 11, 1996). Consequently, the district court
believed that the waiver of counsel contention was available
to the entire Pennsylvania Supreme Court, and thus had
been "fairly presented" to that court, even if only by the
dissent. The district court also found that the Pennsylvania
Supreme Court sufficiently addressed the issue in Banks II.

Thus, the stage was set for the district court to address
the exhausted claims on the merits and it did so in Banks
IV. The court began its analysis by discussing the effect of

                                6



the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which was
enacted on April 24, 1996, two months after Banksfiled his
habeas petition. The court noted that the courts of appeals
were divided on whether the AEDPA applies to cases
pending on the date of its enactment, but found that it
need not resolve that question because it would make no
difference "if no factual matters arise which require the
application of the new standard of proof, or if no rule of law
is applicable which may not be `clearly established.' " Banks

, citing Dickerson v. Vaughn, 

, 90 (3d Cir. 1996).

The court found that the outcome of this case would be
the same under the AEDPA and under prior law. 

The court also found that the provisions in the
AEDPA pertaining to death penalty litigation procedures did
not apply because Pennsylvania's Capital Unitary Review
Act only applies to cases in which the death penalty was
imposed after January 1, 1996. Banks 

. The district court ultimately rejected all of Banks'
exhausted claims on the merits but did not address claims
7, 9, and 11, which were procedurally barred.

In view of its conclusions, the court denied Banks'
petition. Nevertheless, it found that there was "probable
cause" to appeal, indicating that "[w]hile most of the claims
raised by Banks do not seem to be particularly close issues,
those issues related to the procedural bar at least are
sufficiently close for a certificate of probable cause. We
therefore shall so certify. . . ." 

The court
extended the stay of execution "until final disposition of any
appeal . . . ." 

appealed. We exercise plenary
review on this appeal. See Ross v. Petsock, 

,
640 (3d Cir. 1989).
Significantly, on January 15, 1997, after he filed this
appeal, Banks filed a second PCRA petition in the Luzerne
County Court of Common Pleas in which he raised claims
7, 9, and 11, the claims which the district court found were
procedurally barred, as well as one additional claim. On
August 20, 1997, the common pleas court denied the
petition holding that it was procedurally barred.
Commonwealth v. Banks, Nos. 1290 etc., slip op. at 7 (C.P.

                                7



Ct. Aug. 20, 1997). Nevertheless, the court indicated that
"it may well be that the Supreme Court will review the
merits, and accordingly we will take the time to explain why
we believe and find each of the issues raised is without any
legal merit." 

then did exactly that.

II. DISCUSSION

We first address a preliminary procedural issue. As we
have indicated, Banks filed his petition before the effective
date of the AEDPA, but the district court adjudicated the
matter after that date. Nevertheless, in conformity with
prior law, the district court issued a certificate of probable
cause rather than a certificate of appealability as provided
in AEDPA. We have determined that under the AEDPA, 28
U.S.C. S 2253(c)(1), district courts can issue certificates of
appealability. United States v. Eyer, 

, 472-74
(3d Cir. 1997). In this case we need not decide whether the
district court should have issued a certificate of
appealability rather than of probable cause as we will treat
the certificate of probable cause as both a certificate of
probable cause and a certificate of appealability because we
ultimately may hold in some future case that the AEDPA
governs procedural issues on appeals filed after its effective
date. Furthermore, we face no issue regarding the scope of
the certificate, see 28 U.S.C. S 2253(c)(3), as we are
confining our disposition to the single issue on which the
district court granted the certificate. See 

.

Banks argues that the district court erred in finding that
the relaxed waiver standard, applicable to death penalty
cases in Pennsylvania state courts, does not apply to
second or subsequent PCRA petitions. He contends that
"waiver will never be applied in a capital case where the
result would be the imposition of a sentence of death in a
manner clearly contrary to the express law of the land," br.
at 18, even in a proceeding initiated by a second PCRA
petition. Thus, he urges that his petition was mixed
because the Pennsylvania courts would not hold that his
unexhausted claims are procedurally barred. Therefore, in
his view the district court erred in not dismissing his
petition under Rose v. Lundy.

                                8



In order to prevent federal habeas corpus review, a state
procedural rule must be "consistently or regularly applied."
Johnson v. Mississippi, 

, 588-89, 

, 1988 (1988); see also Ford v. Georgia, 

,
423-24, 

, 857 (1991). Nevertheless, the
Supreme Court has held that if a state supreme court
faithfully has applied a procedural rule in "the vast
majority" of cases, its willingness in a few cases to overlook
the rule and address a claim on the merits does not mean
that it does not apply the procedural rule regularly or
consistently. Dugger v. Adams, 

, 410 n.6, 

, 1217 n.6 (1989). Accordingly, "an occasional
act of grace by a state court in excusing or disregarding a
state procedural rule does not render the rule inadequate"
to procedurally bar advancing a habeas corpus claim in a
district court. Amos v. Scott, 

, 342 (5th Cir.
1995).

Therefore, we examine the decisions of the Pennsylvania
Supreme Court in death penalty cases to ascertain whether
that court consistently or regularly bars second or
subsequent PCRA petitions which may not meet the court's
criteria for such petitions, which include the existence of "a
strong prima facie showing . . . that a miscarriage of justice
may have occurred." Commonwealth v. Beasley, 

, 771 (Pa. 1996), cert. denied, 

(1997).
We also consider whether the Pennsylvania Supreme Court,
in reviewing petitions, will treat particular issues on the
merits even though they appear to be procedurally barred
because, as the district court noted, under the PCRA, 42
Pa. Cons. Stat. Ann. S 9544(b) (West Supp. 1997), Banks'
claims 7, 9, and 11 appear to be waived and thus to be
procedurally barred in the state courts. See 42 Pa. Cons.
Stat. Ann. S 9543(a)(3) ("To be eligible for relief under [the
PCRA], the petitioner must plead and prove . . .[t]hat the
allegation of error has not been previously litigated or
waived."). We consider both points because in Pennsylvania
a procedural bar may arise with respect to a second or
subsequent PCRA petition as a whole or with respect to
particular issues within the petition.

Of course, review of the Pennsylvania Supreme Court
decisions is critical because as we explained in Toulson v.

                                9


, in the absence of a state court
decision indicating that a habeas corpus petitioner is
clearly precluded from state court relief, the district court
should dismiss the claim for failure to exhaust even if it is
not likely that the state court will consider petitioner's
claim on the merits. We more recently applied this policy in
Doctor v. Walters, 

, 683 (3d Cir. 1996) (internal
quotation marks and citation omitted):

       [W]e must be certain that state review is clearly
       foreclosed lest we deprive state courts of an
       opportunity to correct their own errors, if any. It is
       therefore not for this Court to decide whether the
       Pennsylvania courts will conclude that the defects in
       the proceedings surrounding Doctor's conviction rise to
       the level of a miscarriage of justice as defined by
       Pennsylvania law. We cannot conclude that there is no
       chance that the Pennsylvania courts would find a
       miscarriage of justice sufficient to override the waiver
       requirements and permit review under the PCRA.

See also Peoples v. Fulcomer, 

, 831-32 (3d Cir.
1989).

Fortunately, we are not without guidance from the
Pennsylvania Supreme Court on whether that court
consistently or regularly applies procedural bars to second
or subsequent PCRA petitions in death penalty cases either
to the petition as a whole or as to issues within it. In
Commonwealth v. Szuchon, 

, 1099-1100 (Pa.
1993), the court initially rejected the petitioner's claims on
the merits. The court then found that those claims had
been litigated previously and thus could not be addressed
in a PCRA action, and ended by finding that because the
petitioner failed to meet the criteria for a second or
subsequent petition, the PCRA court did not err in denying
the petition. Thus, the court rejected the petitioner's claims
on the merits before finding them procedurally barred.

In Commonwealth v. Travaglia, 

(Pa. 1995),
a death penalty case involving a second PCRA petition, the
court began by outlining the criteria for post conviction
relief under the PCRA. Then, after quoting the then existing
PCRA waiver provisions, it stated: "We note, however, that

                                10



it is this Court's practice to address all issues arising in a
death penalty case, irrespective of a finding of waiver." 

n.6. The court then set forth the criteria for
entertaining a second PCRA petition, after which it noted:
"[i]t is with awareness of this standard that we proceed to
consider Appellant's claims." 

In the balance of its Travaglia opinion, the court
extensively discussed the merits of all of petitioner's
numerous claims except for a claim previously litigated. 

The court even assumed arguendo for the
purposes of several claims that there is a right to effective
assistance of counsel on collateral attack under the state
constitution, 

"[i]n the interest of giving a
condemned man the benefit of every possible doubt," 

The court's extensive discussion of claims pertaining
to post-conviction proceedings, 

makes clear
that it did not limit its inquiry to whether there had been
a miscarriage of justice at trial, the applicable criterion for
entertaining a second petition. Indeed, the court did not
expressly address that question at all.

Finally, in Commonwealth v. Beasley, 

, a
death penalty case, the Pennsylvania Supreme Court stated
that a "second or subsequent post-conviction request for
relief will not be entertained unless a strong prima facie
showing is offered to demonstrate that a miscarriage of
justice may have occurred." 

This standard
requires a showing of either actual innocence or that the
proceedings resulting in conviction were "so unfair that a
miscarriage of justice occurred which no civilized society
can tolerate." 

found that the petitioner did not
meet either test, so that the PCRA petition "could be
dismissed on this ground alone." 

court
went on to state that "[n]evertheless, since this is a capital
case, this court will address appellant's claims." 

then noted that the petitioner still must comply
with the general requirements for filing a PCRA petition,
that is that the claims have not been previously litigated or
waived, or, if waived, that the waiver is excused. 

The court found that pursuant to these requirements the
petitioner's ineffective assistance of counsel claims should
be addressed. Yet the court went further and addressed a

                                11



claim, the withholding of exculpatory evidence, unrelated to
the claim of ineffective assistance of counsel, without even
mentioning whether the issue had been previously litigated
(which we recognize is not likely) or waived. 

The
court therefore decided Beasley on the merits rather than
on the basis of either of the two procedural bar rules: one
limiting second petitions as a whole, and one barring
consideration of waived or previously litigated claims.
Indeed, the passage quoted above -- "since this is a capital
case, this court will address appellant's claims" -- suggests
that the general rule concerning second PCRA petitions
does not apply to capital cases.

We conclude from Szuchon, Travaglia, and Beasley that,
notwithstanding a procedural bar, it is possible that in a
death penalty case the Pennsylvania Supreme Court will
not refuse either to entertain a second PCRA petition or to
address the claims raised in it. Indeed, as we explained
above, the common pleas court in Banks' second petition
apparently thought the same thing as it indicated that
despite its determination that the petition was barred "it
may well be that the Supreme Court" will review its merits.1
Accordingly, we conclude that the district court erred in
finding Banks' unexhausted claims procedurally barred.
Although the district court correctly found in Banks III that
Banks' unexhausted claims do not meet the stated criteria
for Pennsylvania courts to consider a second PCRA petition,
we believe that Banks III did not give adequate recognition
to the Pennsylvania Supreme Court cases demonstrating
that it effectively looks beyond those criteria in death
penalty cases.

In reaching our result, we have not overlooked the
Commonwealth's arguments that the Pennsylvania
Supreme Court has declared issues waived in some death
penalty cases. However, in the cases the Commonwealth
_________________________________________________________________

1. The common pleas court set forth that possibility because it believed
that the Supreme Court "may not always have found and enforced the
waiver rules." Commonwealth v. Banks, slip op. at 6. It was of the view,
however, that "a trial court has no authority to ignore the clear letter
and spirit of the legislative directions contained in the [PCRA]." 

we are deciding this case on the basis of what the Supreme
Court is likely to do.

                                12



cites, which we note in the main are direct appeals,
notwithstanding having declared the issues in question
waived, the court nevertheless discussed their merits. See
Commonwealth v. Fisher, 

, 136, 139-40 (Pa.
1996) (issue held waived but rejected on the merits);
Commonwealth v. Lewis, 

, 1381 (Pa. 1989)
(noting that "[a]lthough waiver of any claim in a capital case
appears to be contradictory to the relaxed waiver rules
afforded [death penalty] appellants" claims may be waived,
but still considering the merits of the claim);
Commonwealth v. Peterkin, 

, 378-79 (Pa.
1986).
The Commonwealth also cites Commonwealth v. Jasper,

, 953 n.6 (Pa. 1992), but that case merely
reaffirms "the rule that challenges to the selection of a jury
can be waived by a failure to object appropriately." The
court nevertheless refused to address the waiver problem
"[b]ecause our law firmly disposes of the issue of
excludability on the merits." On the other hand,
Commonwealth v. DeHart, 

, 43 (Pa. 1994),
which the Commonwealth also cites, was a PCRA case, and
it provides some support for the Commonwealth's
arguments because there the court refused to address a
previously litigated claim. However, the court vacated the
sentence on other grounds.

We also have not overlooked the Commonwealth's
contention that Banks does not meet the criteria cited in
Szuchon for entertaining a second PCRA petition. 

. Yet in Szuchon the court
entertained a petition which also failed to meet those
criteria, apparently considering the case on the merits
rather than according to the procedural rule. 

At most, the cases on which the Commonwealth relies,
including Szuchon, demonstrate that the Pennsylvania
Supreme Court does not apply the Pennsylvania procedural
bar rules consistently in death penalty cases. The cases do
not indicate that an examination of the merits of Banks'
claims is "clearly foreclosed" as Toulson requires for us to
find them procedurally barred. We said in Toulson that "we
are uncertain how the New Jersey state courts would
resolve the procedural default issue. In light of this, we will

                                13



not presume how the state courts would rule on
[petitioner's] claims." Toulson v. 

. We
are no more certain as to how the Pennsylvania Supreme
Court will view Banks' claims 7, 9, and 11.

In this regard we point out that federal courts should be
most cautious before reaching a conclusion dependent
upon an intricate analysis of state law that a claim is
procedurally barred. Toulson surely made that point clear
and the enactment of the AEDPA, which overall is intended
to reduce federal intrusion into state criminal proceedings,
reenforces the point. In questionable cases, even those not
involving capital punishment, it is better that the state
courts make the determination of whether a claim is
procedurally barred.

Finally, the Commonwealth contends that the 1995
amendments to the PCRA, as distinguished from the
inapplicable Capital Unitary Review Act procedures, show
that Banks' petition is barred. See 42 Pa. Cons. Stat. Ann.
S 9545(b)(1) and (2) (West Supp. 1997). The Commonwealth
argues that any second PCRA petition Banks filed would be
untimely (a third basis for erection of a procedural bar),
and that even if timely his unexhausted claims fail to meet
the criteria for granting post-conviction relief. Br. at 19-22.

While it is true that the text of the 1995 PCRA
amendments supports these contentions, it is not clear that
these amendments are dispositive. The Commonwealth
does not refer us to a Pennsylvania Supreme Court case
applying the PCRA as amended in 1995 to support its
views. Furthermore, in Szuchon and Beasley the
Pennsylvania Supreme Court addressed the merits of
claims which seemingly were precluded by the PCRA
provisions then in force. We also point out that the
Pennsylvania Supreme Court seems to exercise strong
control of procedures in death penalty cases. Indeed, on
August 11, 1997, the court issued an order pursuant to its
administrative powers in Pa. Const. art. 5, S 10, in In re:
Suspension of the Capital Unitary Review Act etc., No. 224,
in which it suspended permanently the Capital Unitary
Review Act.

In the circumstances, we are not confident that the

                                14



Pennsylvania Supreme Court, even in the face of the 1995
amendments to the PCRA, will abandon its practice of
reaching the merits of claims in PCRA petitions in capital
cases regardless of the failure of the petition to meet the
appropriate procedural criteria.2 Consequently, applying
Toulson, we cannot find that review of Banks' unexhausted
claims has been foreclosed.3

III. CONCLUSION

In concluding we make two points. First, we are well
aware that notwithstanding this opinion, the Pennsylvania
Supreme Court may hold that Banks' unexhausted claims
are procedurally barred on any of the possible bases to
which we have made reference. Indeed, we are not holding
that they are not barred and certainly our opinion could
not have a preclusive effect on that point in the
Pennsylvania courts. We are holding only that we cannot
say with confidence that they are barred. Second, in
reaching our result we are sensitive to the independence of
the Pennsylvania courts and of that state's sovereignty.
Thus, we are reluctant to consider a habeas corpus claim
at a time when a petitioner may be able to invoke a state
procedure to grant a remedy in the state courts if he is
_________________________________________________________________

2. In writing this opinion we have assumed, as did the common pleas
court when it denied Banks' petition on August 20, 1997, that the
Pennsylvania Supreme Court ultimately will decide whether claims 7, 9,
and 11 are procedurally barred. That assumption, however, may not be
correct because the 1995 amendments to the PCRA provide that an
order denying a petitioner relief in a case in which the death penalty has
been imposed "shall be reviewable only by petition for allowance of
appeal to the Supreme Court." 42 Pa. Cons. Stat. Ann. S 9546(d) (West
Supp. 1997). However, because Banks has at least the opportunity to
seek leave to appeal in the Supreme Court (and failing to obtain that
leave may be able to appeal to the Superior Court) we cannot say that
he has no further state remedies.

3. It is, of course, possible in death penalty cases (and other cases as
well) that future experience will show that the Pennsylvania Supreme
Court consistently and regularly applies the 1995 amendments to the
PCRA and thereby creates a procedural bar sufficient to satisfy the
standard of Johnson v. 

, 108 S.Ct. at 1988.
That time, however, has not yet been reached.

                                15



entitled to relief. In view of our conclusions, we will vacate
the judgment of August 30, 1996, and will remand the case
to the district court to dismiss the petition without
prejudice as mixed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                16