Wetzel v. Abu-Jamal Reply Brief in Support of Petition for Certiorari

    No. 11-49

IN THE
SUPREME COURT OF THE UNITED STATES

JOHN WETZEL, et al.
Petitioners

v.

MUMIA ABU-JAMAL,
Respondent

On Petition for Writ of Certiorari to the United 
States Court of Appeals for the Third Circuit

REPLY BRIEF IN SUPPORT OF PETITION 
FOR CERTIORARI

HUGH J. BURNS, Jr.
Chief, Appeals Unit 
RONALD EISENBERG 
Deputy District Attorney 
(counsel of record)

Philadelphia District EDWARD F. McCANN, JR.
Attorney’s Office First Assistant
3 South Penn Square District Attorn,ey
Philadelphia PA 19107 R. SETH WILLIAMS 
(215) 686-5700 District Attorney
ronald.eisenberg@phila.gov

mailto:ronald.eisenberg@phila.gov


1

Capital case: Question presented

This Court issued a GVR to the Third Circuit to 
consider Smith v. Spisak, which had not been 
decided when that court ruled for respondent under 
Mills v. Marlyand. The circuit court nevertheless 
reinstated its original decision.

The issue is whether the circuit court on remand 
misapplied Spisak and applied not a deferential, 
but a deprecatory, standard of review.



Table of contents

Question presented i

Table of authorities iii

Reasons for granting the writ:

1. The GVR confirmed that this case
is important. 1

2. Abu-Jamal effectively concedes
that jurors were not instructed to 
disregard mitigating factors not 
found unanimously. 4

3. The Third Circuit’s refusal to
acknowledge its own contrary 
precedent is inexplicable. 8

4. Abu-Jamal’s makeweight
arguments fail. 11

5. Summary reversal remains
warranted. 13

11

Conclusion 15



Ill

Table of authorities

FEDERAL CASES

Abu-Jamal v. Horn, 520 F.3d 272
(3d Cir. 2008) 6, 9

Commonwealth v. Abu-Jamal, 30 Phila. 1,
110 (1995) 8

Banks v. Horn, 271 F.3d 527 (3d Cir. 2001) 6

Beard v. Banks, 542 U.S. 406 (2004) 4, 9

Bell v. Cone, 543 U.S. 447 (2005) 3

Boyde v. California, 494 U.S. 370 (1990) 6,7

Brown v. Payton, 544 U.S. 133 (2005) 2

Frey v. Fulcomer, 132 F.3d 916
(3d Cir. 1997), cert, denied, 524 U.S. 911 (1998) 6

Harrington v. Richter, 131 S. Ct. 770
(2011) 1, 2, 4, 11, 14

Lawrence v. Chater, 516 U.S. 163 (1996) 3

Mumia Abu-Jamal v. Sec'y, Pa. Department of 
Correction, 643 F.3d 370
(3d Cir. 2008) 4, 11, 13, 14



IV

Noland v. French, 134 F.3d 208 (4th Cir.),
cert, denied, 525 U.S. 851 (1998) 10

Price v. Vincent, 538 U.S. 634 (2003) 3

Renico v. Lett, 130 S. Ct. 1855 (2010) 7

Smith v. Spisak, 130 S. Ct. 676 (2010) 1, 4, 14

Strickland v. Washington, 466 U.S. 668 (1984) 7

Wellons v. Hall, 130 S. Ct. 727 (2010) 3

Yarborough v. Gentry, 540 U.S. 1 (2003) 3

Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.), 
cert, denied, 502 U.S. 902 (1991) 8, 9



1

Reasons for granting the writ

1. The GVR confirmed that this case is 
important.

On December 9, 2011, Officer Daniel
Faulkner’s murderer will have outlived him by thirty 
years. But this case goes on -  and on -  because the 
Third Circuit has failed across the board to 
accurately apply the law that mandates deference on 
federal habeas review.

This Court unanimously granted certiorari and 
issued the GVR in this case notwithstanding the 
same arguments Abu-Jamal repeats here. It is the 
usual litany: the case is complex, fact-bound, has no 
broader import, and if the lower court erred it was 
merely wrong. None of this is any more valid now 
than when this Court granted certiorari the first 
time.

In effect the GVR tested the Third Circuit’s 
understanding of the § 2254 deference standard, 
which appeared to conflict with the law as stated by 
this Court and by Congress. Given the directly-on- 
point ruling in Smith v. Spisak, 130 S. Ct. 676 (2010), 
and such cases as Harrington v. Richter, 131 S. Ct. 
770, 786 (2011), the circuit court would surely 
rethink its undeferential approach on remand.

The result is alarming. Here the state court 
followed the Third Circuit’s own precedent, yet the



2

circuit court again deemed the state decision not even 
reasonable — in an opinion that does not even cite, 
much less discuss, that precedent. The circuit court 
relied on Mills v. Maryland even though no one told 
the jurors that mitigators were barred if not found 
unanimously.

The state conviction should easily have been 
upheld. As a matter of ordinary grammar, telling 
jurors to unanimously decide if aggravating factors 
outweigh mitigating factors is far different from 
telling them to unanimously decide what the 
mitigating factors are. And though respondent 
(unlike jurors) can endlessly find hidden meanings in 
ordinary grammar, the state judgment need only be 
reasonable. If fairminded jurists can disagree, the 
state conviction stands. That is the law. Indeed, it is 
“the only question that matters” under AEDPA. 
Harrington, 131 S. Ct. at 786.

But it is not what matters in the Third Circuit.

The Third Circuit recognizes the deference 
standard only in words, not deeds.1 It will not afford

1 The type of “recognition” of AEDPA deference 
exhibited by the Third Circuit here has in other cases 
warranted reversal, and sometimes summary reversal. E.g., 
Broum v. Payton, 544 U.S. 133, 140 (2005) (circuit court 
“purported” to decide “under the deferential standard 
AEDPA mandates,” but proceeded to overturn a reasonable

(continued...)



3

the actual deference mandated in habeas cases 
absent direct guidance from this Court. All pending 
and future federal habeas cases in this jurisdiction 
are thus directly impacted by this case.

That is why this case is important — as, indeed, 
this Court recognized when it previously granted 
certiorari. In light of the results on remand the need 
for review has only become more pronounced.1 2

1(...continued)
state decision); Bell v. Cone, 543 U.S. 447, 451-452 (2005)
(per curiam) (6th Circuit cited “contrary to” standard but 
misapplied it);Yarborough v. Gentry, 540 U.S. 1, 11 (2003)
(per curiam) (circuit court cited correct “objectively 
unreasonable” standard but in applying it gave “too little 
deference to the state courts that have primary responsibility 
for supervising defense counsel in state criminal trials”);
Price v. Vincent, 538 U.S. 634, 639 (2003) (unanimous court) 
(“Although the Court of Appeals recited [the AEDPA] 
standard ... it proceeded to evaluate respondent's claim de 
novo rather than through the lens of § 2254(d)”) (citation 
omitted).

2 Relying on a dissenting opinion in another case by a 
Justice who joined the grant in this case, Abu-Jamal deems 
the GVR meaningless (brief for respondent at 5 n.2). On the 
contrary, this Court issues a GVR “[wjhere intervening 
developments ... reveal a reasonable probability that the 
decision below rests upon a premise that the lower court 
would reject if given the opportunity for further 
consideration^]” Wellons v. Hall, 130 S. Ct. 727, 731 (2010); 
Lawrence v. Chater, 516 U.S. 163, 167 (1996).



4

2. Abu-Jamal effectively concedes that jurors 
were not instructed to disregard mitigating 
factors not found unanimously.

Mills stated a rule that “applies fairly 
narrowly,” precluding “capital sentencing schemes 
that require juries to disregard mitigating factors not 
found unanimously.” Beard v. Banks, 542 U.S. 406, 
408, 420 (2004). Federal habeas review, meanwhile, 
imposes a “modified res judicata rule” that forbids 
relief absent “extreme malfunctions in the state 
criminal justice system” demonstrated by error that 
is “beyond any possibility of fairminded 
disagreement.” Harrington, 131 S. Ct. at 786.

It is quite simple to establish a Mills error 
beyond any possibility of fairminded disagreement: 
cite the instruction that prevented jurors from 
applying mitigating factors not found unanimously.

The Third Circuit could not, despite repeated 
attempts. On remand it distinguished “find, 
unanimously ... that each of the aggravating factors 
outweighed any mitigating circumstances” (Spisak, 
130 S. Ct. at 684) by stating that “ [w]e, the jury, have 
found unanimously . . . one or more aggravating 
circumstances which outweigh any mitigating 
circumstances” would have been “read by the jury to 
mean that both aggravating and mitigating 
circumstances must be found unanimously.” Mumia



5

Abu-Jamal v. Sec'y, Pa. Dep't ofCorr., 643 F.3d 370, 
377 (3d Cir. 2008) (emphasis added); App. 18-19.3

There is no other reference to unanimity in the 
penalty phase. Apart from an instruction that the 
penalty verdict must be unanimous, “unanimously” 
appears only in the direct reference to weighing 
shown above, both in the oral instructions and on the 
form. Nowhere else is unanimity even mentioned.

There is no difference between Spisak’s “find 
unanimously ... that each of the aggravating factors 
outweighed any mitigating circumstances” and the 
instruction here, “[find] unanimously . .. one or more 
aggravating circumstances which outweigh any 
mitigating circumstances.” Neither formulation tells 
jurors that they may not use mitigating 
circumstances not found unanimously. Both simply 
tell them to be unanimous in the weighing decision. 
The Third Circuit’s conclusion that the latter — but 
somehow not the former — actually told the jurors 
that “mitigating circumstances must be found 
unanimously” is, with due respect, absurd.4

3 As in all Pennsylvania cases, this instruction was 
derived from the statute, 42 Pa.C.S. § 9711(c)(l)(iv), and was 
the same in the oral instructions and on the verdict form.

4 The source of this absurdity is the Third Circuit’s 
own unique precedent, under which any reference to 
unanimity creates a Mills error because of its proximity to

(continued...)



6

Abu-Jamal concedes that the language 
requiring unanimity in weighing “does not violate 
Mills’ (brief for respondent, 9). But there is no other 
mention of unanimity. He tries to hedge his 
concession by referring to “the rest of the instructions 
and verdict form” and claiming there is “additional” 
language imposing an “express” mitigation unanimity 
requirement (brief for respondent 13-14, 23). But 
there is no “additional” reference to unanimity. The 
instruction that he concedes was proper and that 
which supposedly said mitigating circumstances 
must be decided unanimously are one and the same.

Like the circuit court, Abu-Jamal purports to 
see an “express” mitigation unanimity requirement 
by simply ignoring the words between “unanimously” 
and “mitigating.” Only a lawyer could imagine that 
jurors revise instructions that way. Boyde v. 
California, 494 U.S. 370, 380-381 (1990) (“Jurors do 4

4(...continued)
any mention of mitigation. E.g., Abu-Jamal u. Horn, 520 
F.3d 272, 303 (3d Cir. 2008) (that word “unanimity” appeared 
“in close relation” to instructions on mitigation violated 
Mills); Banks v. Horn, 271 F.3d 527, 548, 550 (3d Cir. 2001), 
reversed on other grounds sub nom. Beard v. Banks, supra 
(asserting that Mills error can arise from “proximity” of 
words, and that a mitigation unanimity requirement arose 
“by implication”); Frey v. Fulcomer, 132 F.3d 916, 923 (3d 
Cir. 1997), cert, denied, 524 U.S. 911 (1998) (Mills violated 
because “unanimous” and “mitigating” were seven words 
apart, which implies that mitigation must be found 
unanimously).



7

not sit in solitary isolation booths parsing 
instructions for subtle shades of meaning in the same 
way that lawyers might”). The jurors were told to 
unanimously decide whether aggravating 
circum stances “outweigh  any m itigating 
circumstances.” Even Abu-Jamal admits that, if this 
instruction meant what it plainly said, it was sound. 
It did, and it was.5

The Third Circuit also exhibited no awareness 
that its review was to be “doubly” deferential. Abu- 
Jamal in effect concedes this error as well, asserting 
that this standard applies “only” to ineffective 
assistance issues (brief for respondent, 27 n.8). There 
is no such restriction. Enhanced deference follows 
from the generality of the applicable rule. E.g., Renico 
v. Lett, 130 S. Ct. 1855, 1864 (2010) (because relief is 
limited to “unreasonable” rulings, “it follows that 
‘[t]he more general the rule’ at issue — and thus the 
greater the potential for reasoned disagreement 
among fair-minded judges -  ‘the more leeway [state] 
courts have in reaching outcomes in case-by-case 
determinations’”) (citations omitted). As Abu-Jamal 
admits (8 n.3), the “reasonable likelihood” standard 
of Boyde, 494 U.S. at 380, applied here. That is a 
general rule, as is the “reasonable probability” rule of

5 Abu-Jamal also refers, without citation, to 
instructions that supposedly “explained] how to find” 
mitigating circumstances (brief for respondent, 25). There 
are no such instructions, which perhaps explains why he 
does not cite them.



8

Strickland v. Washington, 466 U.S. 668, 694 (1984). 
Thus, the circuit court was required to afford 
enhanced deference, but apparently did not notice, as 
it afforded no deference at all.

3. The Third Circuit’s refusal to acknowledge 
its own contrary precedent is inexplicable.

The state collateral review court expressly 
relied on the Third Circuit’s own precedent in 
Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir.), cert, 
denied, 502 U.S. 902 (1991).6 Recognizing that 
Zettlemoyer was directly on point, in the state 
supreme court Abu-Jamal designed his argument to 
distinguish it.7 But by the time this case reached 
federal habeas review, the Third Circuit had changed 
its mind about Zettlemoyer.8

6 Commonwealth v. Abu-Jamal, 30 Phila. 1, 110 
(1995); App. 121.

' He now deems this “untrue” because the Third 
Circuit “rejected this exact argument” (brief for respondent, 
29). The circuit court, however, is not the arbiter of truth. It 
is a verifiable historical fact that Abu-Jamal sought in his 
state supreme court brief to distinguish cases such as 
Zettlemoyer on the ground that they “dealt with deficient 
instructions, not verdict forms” (Abu-Jamal’s state supreme 
court brief, No. 119 Capital Appeal Docket, pp. 114-116 & 
n.143).

8 The change of mind was noted in a question from
(continued...)



9

Under § 2254 the state court decision must be 
upheld if it is reasonable. Zettlemoyer proves exactly 
that, and so cannot be disregarded merely because 
the Third Circuit no longer wishes to follow it. Yet 
the circuit court dismissed this question by vaguely 
referring to “tension” with its later decisions, Abu- 
Jamal v. Horn, et.al., 520 F.3d 272, 304 (3d Cir. 
2008), and on remand it ignored Zettlemoyer entirely.

As shown in the Commonwealth’s petition, the 
operative instructions here and in Zettlemoyer are 
the same.8 9 Abu-Jamal keeps repeating that there are 
“important distinctions,” “vast differences,” and 
“substantial differences” between this case and 
Zettlemoyer (brief for respondent, 35), but the two he 
offers are meaningless. He first says that the 
Zettlemoyer form required unanimity to find 
aggravating but not mitigating circumstances, while 
the form here supposedly required unanimity to find 
both. Actually, in both cases the sole reference to 
unanimity concerned the weighing decision. Compare 
Zettlemoyer, 923 F.3d at 307-308 (“unanimously

8(...continued)
the Court at oral argument in Beard v. Banks, supra 
(Transcript of oral argument, 11 [“... the court of appeals has 
changed its mind in this area, has it not?”]).

9 Abu-Jamal asserts that the Commonwealth quoted 
only a “single sentence” to this effect (brief for respondent, 
35, italics omitted). He did not read the petition very 
carefully. Page 24 reproduces the critical portions of the 
verdict forms in both cases for comparison.



10

agree and find beyond a reasonable doubt that... the 
aggravating circumstance outweighs any mitigating 
circumstances”) with this case (“[w]e, the jury, have 
found unanimously . . . one or more aggravating 
circumstances which outweigh any mitigating 
circumstances”). He also argues that the jurors here, 
unlike in Zettlemoyer, were told to write the 
mitigating circumstances on the form. What alone 
matters, however, is that the jurors were not barred 
from using mitigating factors not found unanimously.

There is no difference between this case and 
Zettlemoyer. There, as here, the sole reference to 
unanimity applied to weighing. The Third Circuit has 
yet to explain, or even address, the question of how 
the state court could have been “unreasonable” in 
following the Third Circuit’s own precedent. No 
explanation is possible.10

10 And to Zettlemoyer must be added the plethora of 
federal appellate decisions that parallel the state supreme 
court (petition for certiorari, 27-27 & n.9). One is Noland u. 
French, 134 F.3d 208, 213-214 (4th Cir.), cert, denied, 525 
U.S. 851 (1998), decided nine months before the state 
supreme court ruled here, where the federal court found no 
Mills error even though the trial court required “a 
unanimous decision as to each issue.” Perhaps the Third 
Circuit considers all of these federal decisions wrong too, hut 
it is difficult to say because it declines to discuss them. Abu- 
Jamal meanwhile tries to dismiss Noland by refusing to 
admit that it involved an explicit, global unanimity 
instruction (brief for respondent, 36 n.10). This oddly

(continued...)



11

4. Abu-Jamal’s makeweight arguments fail.

It should be simplicity itself to point to the 
state court error that is “beyond any possibility of 
fairminded disagreement.” Harrington, 131 S. Ct. at 
786. Abu-Jamal’s 40-page brief fails this simple task.

His remaining arguments are a series of 
makeweights, reminiscent (and repeating some) of 
those in Spisak. His claim that the state supreme 
court’s ruling was “unreasonable” rests on the 
circular proposition that it rejected such arguments 
-  each of which concerns anything and everything 
except the only actual reference to unanimity actually 
made by the trial court. While space does not permit 
refutation of each, the following is illustrative.

Abu Jamal argues that the words “we the jury” 
meant that “everything” had to be found 
unanimously, and that the same effect followed from 
addressing the jurors as “you” (brief for respondent, 
11, 13, 14, 21, italics omitted). Yet the words “we the 
jury” were repeatedly stated on the form in Spisak, 
as the circuit court itself noted. 643 F.3d at 378; App. 
22-23. Spisak made the same argument (Spisak, brief 
for respondent, 21, App. 137 [claim that unanimity 10

10(...continued)
contrasts with his ability to perceive exactly the opposite 
here, where unanimity was in fact required only in the 
weighing decision.



12

was implicitly required because the jury was 
addressed “in the collective ‘y °u ”])- It remains 
frivolous. Whether jurors were called “we”or “you” 
has nothing to do with whether they were prevented 
from giving effect to mitigating factors not found 
unanimously.

Abu-Jamal complains that the jurors were 
required to sign the verdict form (brief for 
respondent, 14, 26). Spisak made the same argument 
(.Spisak brief for respondent, 21 [citing the verdict 
form which said “... there is a spot for twelve 
signatures. All twelve of you will sign if that is your 
verdict in this case”]), and again it is frivolous. That 
the jurors had to sign the form did not prevent them 
from giving effect to mitigating factors not found 
unanimously.

Abu-Jamal contends that the instructions 
treated aggravating and mitigating circumstances 
“identically”(brief for respondent, 11, 18, 25). The 
identical treatment, however, consisted of the fact 
there was no unanimity requirement to find 
aggravating circumstances, just as there was none to 
find mitigating circumstances. The instructions told 
the jurors to unanimously decide if aggravators 
“outweighed any mitigating circumstances.”

The form here was even worse than the one in 
Mills, according to Abu-Jamal, because the latter 
required a “yes” or a “no” decision for each potential 
mitigating circumstance (brief for respondent, 15).



13

But in fact, the absence of such lockstep rigidity 
allowed the jurors here to consider any relevant fact 
up to the point of the final verdict. That is a far cry 
from instructions preventing them from giving effect 
to mitigating factors not found unanimously.

Such arguments are window dressing without 
a window. None even remotely suggests that the 
jurors in this case were precluded from using 
mitigating factors not found unanimously.

5. Summary reversal remains warranted.

The Third Circuit’s failure to understand and 
apply the deference required by § 2254 is particularly 
striking given the nature of this case. If the circuit 
court will not defer to the judgment of the state court 
in a prominent three-decades-old murder of a police 
officer, it is not likely to do so in any case.

This deference was due years ago when the 
Third Circuit first denied it. This Court gave the 
circuit court the benefit of the doubt in issuing the 
GVR, but on reconsideration the result was 
unchanged. The circuit court not only misapplied 
Spisak and Mills, it criticized the state supreme court 
for focusing on the verdict form — ignoring the fact 
that Abu-Jamal had thus framed his own claim. Yet 
the circuit court itself recognized that the form and 
the instructions said the same thing. 643 F.3d at 377; 
App. 18-19 (concluding that the operative portions of 
the form and the instructions “read similarly” and



14

noting the “parallel structure of the form and 
instructions”). The circuit court took the inscrutable 
position that “[w]e, the jury, have found unanimously 
. . . one or more aggravating circumstances which 
outweigh any mitigating circumstances” — language 
indistinguishable from Spisak — would somehow have 
been “read by the jury to mean that both aggravating 
and mitigating circumstances must be found 
unanimously.” Id. To contend that this was a 
conclusion “beyond any possibility of fairminded 
disagreement,” Harrington, 131 S. Ct. at 786, is 
preposterous. This analysis was not even fair.

The decision of the circuit court should be 
summarily reversed.



15

Conclusion

For the reasons set forth above, the 
Commonwealth respectfully requests this Court to 
grant its petition for writ of certiorari.

Respectfully submitted:

HUGH J. BURNS, Jr. 
Chief, Appeals Unit 
RONALD EISENBERG 
Deputy District Attorney 
(counsel of record) 
EDWARD F. McCANN, JR. 
First Assistant 
District Attorney 
R. SETH WILLIAMS 
District Attorney

Philadelphia District 
Attorney’s Office 
3 South Penn Square 
Philadelphia, PA 19107 
(215) 686-5700 

ronald.eisenberg@phila.gov

mailto:ronald.eisenberg@phila.gov