Robert Wharton v. SUPERINTENDENT GRATERFORD SCI On Appeal from the United States District Court for…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-9001
___________
ROBERT WHARTON,
Appellant
v.
SUPERINTENDENT GRATERFORD SCI
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-01-cv-06049)
District Judge: Honorable Mitchell S. Goldberg
____________
Argued on October 11, 2023
Before: HARDIMAN, BIBAS, and PHIPPS, Circuit Judges.
(Filed: March 8, 2024)
Helen Marino
Stuart B. Lev [ARGUED]
Elizabeth McHugh

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Federal Community Defender Office
Eastern District of Pennsylvania
Capital Habeas Corpus Unit
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
Counsel for Appellant
Lawrence S. Krasner
Paul M. George [ARGUED]
Nancy Winkelman
Carolyn Engel Temin
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107
Counsel for Appellee
Michelle A. Henry
Michelle K. Walsh
Ronald Eisenberg
Hugh Burns
Cari L. Mahler [ARGUED]
Office of the Attorney General of Pennsylvania
Criminal Law Division
1000 Madison Avenue, Suite 310
Norristown, PA 19403
James P. Barker
Office of the Attorney General of Pennsylvania
Appeals & Legal Services
Strawberry Square, 16th Floor
Harrisburg, PA 17120
Court-appointed Amicus Curiae for Appellee

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____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
A Philadelphia jury convicted Robert Wharton of
murder in 1985. The jury found that the crime’s aggravating
factors outweighed the mitigating factors, so the court
sentenced Wharton to death. After exhausting his state court
options, in 2003 Wharton petitioned for a writ of habeas corpus
in the District Court. He claimed his lawyer was ineffective for
failing to introduce Wharton’s prison records as mitigation
evidence during the penalty phase. The District Court held an
evidentiary hearing and denied Wharton’s petition. The Court
found that Wharton did not suffer any prejudice from his
counsel’s failure to introduce the prison records because
evidence of Wharton’s positive adjustment to prison would
have opened the door to negative behavior while in custody,
most notably his repeated escape attempts.
Because we perceive no error in the District Court’s
judgment, we will affirm.
I
A
Wharton and his co-defendant Eric Mason were
convicted of murdering Bradley and Ferne Hart after the
couple refused to pay for unsatisfactory construction work. In
the six months before the murders, Wharton and Mason
terrorized the Harts, burglarizing their home twice. During the

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second burglary, they vandalized the home so severely that it
was temporarily uninhabitable. As they ransacked the house,
Wharton and Mason urinated and defecated on the floor,
slashed furniture, defaced family pictures, wrote a threatening
note on the wall, and left a doll hanging with a rope tied around
its neck. They also burglarized a church founded by Bradley’s
father, stabbing a photo of Bradley to the wall with a letter
opener.
In January 1984, Wharton and Mason forced their way
into the Harts’ home at knifepoint while the Harts were home
with their infant daughter, Lisa. They forced Bradley to write
them a check and then tied up the couple. After watching
television for several hours, Wharton and Mason decided to
murder the couple to avoid being identified. Wharton covered
Ferne’s eyes and mouth with duct tape before strangling her
with a necktie and forcing her head underwater in a bathtub
until she drowned. Mason placed his foot on Bradley’s back as
he strangled him with an electrical cord and pressed his face
into a shallow pan of water. Both men stole silverware,
jewelry, cameras, wallets, and even Lisa’s crib. They also
turned off the heat and left Lisa alone in the house in the dead
of winter. Bradley’s father discovered the gruesome scene
three days later. Although Lisa was severely dehydrated and
suffered respiratory arrest on the way to the hospital, she
survived.
Wharton was arrested about one week later and
confessed. Wharton and Mason were convicted in a joint trial,
and the jury sentenced Wharton to death while returning a
verdict of life in prison for Mason. The Pennsylvania Supreme
Court affirmed Wharton’s conviction but vacated his sentence
because of an erroneous jury instruction on the aggravating
factor of torture.

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B
Wharton was resentenced in 1992. At that hearing, the
prosecution highlighted the prolonged terror campaign against
the victims and recounted the gruesome details of the murders,
portraying Wharton as a brutal killer who callously left Lisa
Hart to freeze to death after torturing and killing her parents.
In response, the defense “presented testimony from numerous
members of [Wharton’s] family regarding his positive
attributes as a child and as an adult . . . as well as his positive
behavior towards family while incarcerated between his two
penalty phase hearings.” Amicus Supp. App. 260. The jury
heard that Wharton was “very kind,” and a “good human,”
App. 191, 197, as well as “loving” and “very protective” of his
mother and sister, App. 142. The jury also learned that
Wharton’s father suffered a stroke when Wharton was in his
late teens, prompting Wharton to tell his mother he would stay
and take care of them after his brother left for the military.
Wharton’s mother testified that he pursued construction work
to help build a home for her. She also explained that he stayed
in touch with his family and became religious after going to
prison. Lamenting that her “son [would] never be free,” she
broke down in tears and implored the jury to spare his life so
they could at least “talk or write to each other.” App. 216–18.
Testimony from the defense witnesses contained
frequent references to religion, forgiveness, and the value of
life. Some of Wharton’s family members asked the jury to
spare his life for the sake of his family, and because executing
him would not take away “the pain that everybody’s been
going through.” App. 168. In closing, the defense tried to
undermine the prosecution’s list of aggravating factors,
arguing that Wharton did not torture the Harts or create a grave
risk of death to their infant daughter. Counsel “emphasized to

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the jury that, if [Wharton] was sentenced to life imprisonment,
he . . . would stay there for the rest of his life.” Amicus Supp.
App. 261. Although the defense briefly raised Wharton’s age
as a mitigating factor, its general strategy was to plead for
mercy based on Wharton’s positive character traits and his
family’s anguish.
During its deliberations, the jury asked whether
“evidence of mitigation concerning the character and record of
the defendant ha[d] to be present at [the] time of the offense.”
App. 330 (emphasis added). The judge instructed the jury that
it could consider mitigation evidence since the murders. The
jury also requested that testimony from Wharton’s sister-in-
law, who had testified to his spiritual growth in prison, be read
back to them. After about seven hours of deliberations, the jury
declared itself deadlocked. But the judge determined that the
jurors had “not deliberated nearly long enough,” so he
instructed them to continue. In total, the jury deliberated for a
little under thirteen hours spread across three days before
deciding that Wharton deserved the death penalty.
C
After the Pennsylvania Supreme Court affirmed his
death sentence, Wharton sought collateral relief under
Pennsylvania’s Post Conviction Relief Act (PCRA). Wharton
asserted ineffective assistance of counsel at his resentencing
hearing based on his counsel’s failure to obtain or introduce
into evidence prison records purportedly showing that Wharton
made a positive adjustment to prison after his first death
sentence was imposed. After the PCRA court denied Wharton
relief, the Pennsylvania Supreme Court affirmed.

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Wharton then filed a federal habeas petition. The
District Court denied relief but granted a certificate of
appealability on one of Wharton’s ineffective assistance of
counsel claims. This Court expanded the certificate to include
defense counsel’s failure to investigate or raise evidence of
positive prison adjustment, after concluding that Wharton had
made a prima facie showing that there was “a reasonable
probability that at least one juror would have changed his or
her vote if presented with this evidence.” Wharton v. Vaughn,
722 F. App’x 268, 283 (3d Cir. 2018). So this Court vacated
the District Court’s order denying Wharton’s habeas petition
and remanded for the District Court to hold an evidentiary
hearing on that ineffective assistance of counsel claim.
D
On remand, the Philadelphia District Attorney’s Office
(DAO), which had pursued the death penalty against Wharton
for decades, reversed course and conceded Wharton’s habeas
claim. It also said that it would not pursue the death penalty on
resentencing. The District Court rejected this concession and
appointed the Pennsylvania Office of the Attorney General
(OAG) as amicus curiae to investigate the evidence. A
multiday evidentiary hearing followed, at which the Court
heard evidence of Wharton’s behavior in prison during the
approximately seven years between his two sentencing
hearings.
The first significant event occurred on April 21, 1986,
while Wharton was still in the custody of Philadelphia County.
While at the Philadelphia County Courthouse for sentencing
on an unrelated robbery conviction, Wharton tried to escape as
deputies escorted him from the courtroom. Wharton unlocked
his handcuffs with a key he was hiding. He then pushed a

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deputy and fled the building, stopping only when the deputy
shot Wharton in the thigh. Wharton later pleaded guilty to the
escape attempt.
When he entered death row at SCI-Huntingdon on
September 25, 1986, Wharton’s prison intake assessment noted
that he “used a good deal of denial and rationalization” during
his interview and “minimized the few transgressions he
admitted to.” App. 1554. It also described Wharton “as a
sociopath with dependent features and [dis]social attitudes”
and characterized him as “an extremely high public risk,” both
because of his murder convictions and his escape attempt. App.
1550, 1554.
The prison’s Program Review Committee (PRC)
expressed positive views of Wharton’s adjustment. Examples
of PRC comments include: “Mr. Wharton has exhibited no
adjustment problems,” App. 1593; “[t]he attending psychiatrist
found Mr. Wharton to be pleasant and cheerful,” App. 1600;
and “[a]ccording to the counselor, Mr. Wharton has completed
another month of positive adjustment. . . . He is pleasant and
polite in his counselor contacts.” App. 1616. Wharton
continued his education in prison by receiving materials in his
cell and participating in an education program. He successfully
used the prison grievance system to request access to the
General Education Degree (GED) test, leading prison officials
to commend him for his interest in taking the test. Wharton also
played chess, learned Spanish, and participated in a poetry
competition.
Wharton exhibited negative behaviors in prison as well,
accruing six misconduct violations. The two most serious
incidents occurred days apart in May 1989. First, a corrections
officer found two pieces of a metal antenna hidden behind the

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toilet in Wharton’s cell, one of which was fashioned into a
handcuff key. A corrections officer testified that it was the only
time in his 28-year career that he had found a makeshift
handcuff key he “thought would work.” App. 962. Several
days later, prison officials conducted a random search of
Wharton’s cell and found another unmodified piece of antenna
hidden in his legal papers. This uncommon offense—
possessing implements of escape—was one of the most serious
offenses an inmate could commit at SCI-Huntingdon. A prison
official who oversaw misconduct hearings for the
Pennsylvania Department of Corrections testified that he had
encountered only about a dozen homemade keys in the
thousands of disciplinary cases he had handled.
Wharton “was less than truthful with [the] PRC and
denied having anything to do with the . . . handcuff key.” App
1614. He received the maximum punishment of 90 days in
disciplinary custody for the infractions. Wharton behaved well
in disciplinary custody and the prison returned him to
administrative custody three weeks early. Yet when Wharton
asked the PRC to reinstate his television privileges several
months later, he “refused to even discuss why he had . . . two
lengths of antenna” because “[h]e did the time.” App. 1618.
Wharton also had four other less serious misconducts.
In 1986, Wharton refused to submit to a strip search, claiming
a back injury. In 1988, he and other inmates refused to leave
the exercise yard when ordered to do so by prison officials. In
1989, he broke the rules by circulating a petition related to
phone privileges. Finally, in 1992, Wharton and another inmate
disobeyed orders to stop practicing martial arts in the exercise
yard.

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Wharton’s defense counsel testified at the evidentiary
hearing and confirmed that he did not obtain or review
Wharton’s prison records as part of the 1992 resentencing. He
conceded that “[t]here was no strategy involved”; he simply
did not know he could introduce prison adjustment records as
mitigation evidence under Skipper v. South Carolina, 476 U.S.
1 (1986). App. 534, 571.
After assessing this evidence, defense experts testified
that Wharton’s prison adjustment was positive, concluding that
Wharton was unlikely to present a danger in the future because
he was older and had no major mental illnesses, sociopathic
behaviors, or violent misconduct while in prison. The defense
experts also concluded that Wharton’s frequent use of the
grievance system “demonstrat[ed] a relative acceptance of his
incarceration.” Amicus Supp. App. 335. And although they
acknowledged the seriousness of the escape attempts, they
argued that prison records contemporaneous with the 1989
makeshift key incident “did not indicate that Mr. Wharton
[posed] an imminent threat of escape.” Dist. Ct. Dkt. No. 219,
Ex. 13, at 3; see also App. 1411 (“[T]here was no indication
that he tried to use the handcuff key[,] and he certainly had
opportunity to do so.”).
Contrary to that testimony, experts called by the OAG
emphasized Wharton’s “longstanding” “pattern of antisocial
behavior” and expressed concerns about his “future intentions”
given his escape attempts and “[h]is continued failure . . . to
accept responsibility” for them. Amicus Supp. App. 24, 32
(cleaned up). They stated that the positive behaviors Wharton
exhibited in his interactions with others were shallow and that
his use of the grievance system “reflect[ed] a certain
impulsivity” “because a lot of what he grieved could have been
handled without a grievance.” Amicus Supp. App. 39–40. The

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OAG experts concluded that presenting evidence of Wharton’s
adjustment to prison would have made the jury more likely to
sentence him to death.
E
After the evidentiary hearing, the District Court held
that Wharton had not shown prejudice under Strickland v.
Washington, 466 U.S. 668 (1984), from his counsel’s failure to
present evidence of positive prison adjustment. On appeal,
Wharton makes two arguments: (1) the District Court erred in
finding that he failed to establish prejudice; and (2) the case
should “be remanded for a new hearing before a different
judge” because the District Court’s actions “created an
appearance of unfairness and partiality.” Wharton Br. 1.
II
The District Court had jurisdiction under 28 U.S.C.
§§ 2241 and 2254. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253. The District Court considered Wharton’s
Strickland claim de novo on remand because we had found that
the Pennsylvania Supreme Court’s application of Strickland in
Wharton’s post-conviction proceedings was unreasonable and
not entitled to deference under the Antiterrorism and Effective
Death Penalty Act of 1996. We review the District Court’s
legal conclusions de novo and its factual findings for clear
error. Saranchak v. Sec’y, Pa. Dep’t of Corr., 802 F.3d 579,
589 (3d Cir. 2015); Lambert v. Blackwell, 134 F.3d 506, 512
(3d Cir. 1997).

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III
A
A petitioner claiming ineffective assistance of counsel
must show that: (1) his lawyer’s performance was
unreasonable under “prevailing professional norms”; and
(2) there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 688, 694. Courts
should, as we will here, “dispose of an ineffectiveness claim
on the ground of lack of sufficient prejudice” when it is the
easier of the two issues. Id. at 697. A “reasonable probability”
means one “sufficient to undermine confidence in the
outcome” of the proceeding. Id. at 694. It is a lower standard
than a preponderance of the evidence, but that distinction
matters “only in the rarest case.” Harrington v. Richter, 562
U.S. 86, 112 (2011).
When assessing whether the result of the proceeding
would have been different, courts reweigh the aggravating
factors “against the totality of available mitigating evidence.”
Wiggins v. Smith, 539 U.S. 510, 534 (2003) (emphasis added).
This includes any rebuttal evidence the prosecution would
have introduced, as well as any new evidence presented during
the post-conviction review. See Williams v. Beard, 637 F.3d
195, 227 (3d Cir. 2011). In a capital case, the court must decide
whether the new evidence “would have convinced [even] one
juror” to find that the mitigating factors outweighed the
aggravating factors. See Blystone v. Horn, 664 F.3d 397, 427
(3d Cir. 2011) (cleaned up). We agree with the District Court
that there is not a “reasonable probability” that Wharton’s
prison records would have caused a juror to change his or her

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sentencing vote given the compelling rebuttal evidence the
prosecution would have presented.
1
Wharton’s prison records show that he complied
generally with prison behavioral standards, but he was
disciplined multiple times for various infractions. His behavior
improved over time, especially during the second half of his
incarceration. He was non-violent during his incarceration on
death row, but he shoved a deputy during his 1986 escape
attempt while in county custody. Though Wharton sometimes
demonstrated positive behaviors, such as his efforts to continue
his education and expand GED testing access to capital
inmates, the District Court did not clearly err in finding that
most of “the behavior Wharton characterized as positive [was]
the ‘minimum’ expectation” for inmates. Wharton v. Vaughn,
2022 WL 1488038, at *14 (E.D. Pa. May 11, 2022).
At the same time, the prison records contained strong
evidence adverse to Wharton. The jurors would have learned
that Wharton tried to escape shortly after his murder conviction
and was caught with escape tools in his cell three years later.
This serious misconduct would have suggested to jurors that
life imprisonment was inadequate because Wharton posed a
risk of future danger. The prosecution also could have framed
Wharton’s actions as evidence of ongoing manipulative
behavior and his pattern of engaging in superficially positive
behaviors while planning his next escape. In fact, the new
evidence may have strengthened the prosecution’s sentencing
case because Wharton’s repeated escape attempts undermined
one of the defense’s strongest arguments: that Wharton would
die in prison if the jury gave him a life sentence. So while the
prison records provide some evidence that Wharton was

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reforming himself, his escape attempts during this same period
negate any reasonable probability that a juror would have
changed his or her vote during Wharton’s resentencing
hearing.
2
Expert testimony would not have altered this outcome.
Experts on both sides acknowledged the severity of Wharton’s
escape attempts. Though Wharton’s experts sought to portray
his overall prison adjustment as positive, jurors would have
been skeptical of their conclusions. For instance, it strains
credulity to claim, as one defense expert did, that though
Wharton crafted and concealed a makeshift handcuff key three
years after his first escape attempt, the fact that he never used
the key demonstrates “a positive adjustment to his
confinement.” App. 460. The same expert wrote in his report
that Wharton “ha[d] not displayed any problematic behavior,”
Dist. Ct. Dkt. No. 219, Ex. 13, at 4, but then acknowledged on
cross-examination that he ignored all of Wharton’s prison
misconduct in reaching this conclusion.
The DAO nevertheless argues that jurors may have
found the defense experts more credible than the OAG’s
experts because one of the latter showed an “unwillingness to
concede the positive aspects of [Wharton’s] prison record.”
DAO Br. 31. Fair enough. But one of Wharton’s experts
expressed a similarly biased viewpoint by ignoring Wharton’s
misconduct when forming an opinion about his behavior in
prison. The most likely result is that jurors would have
distrusted the experts on both sides.
Even if jurors had credited the defense’s expert
testimony that rash behavior diminishes with age, they would

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not likely have attributed Wharton’s creation of a makeshift
handcuff key to youthful impulsivity. Handcuff keys were
uncommon and, as a corrections officer testified, Wharton’s
key was unusually well constructed. This testimony, coupled
with Wharton’s prior escape attempt and his concealment of
the key, suggests Wharton was preparing for a second escape
attempt, not acting on impulse. At best, expert testimony on the
role of brain development might have led jurors to discount the
significance of Wharton’s less-serious prison misconduct from
the early years of his incarceration. But there is no reasonable
probability it would have changed the jurors’ sentencing
decision given Wharton’s more serious misconduct.
B
Wharton and the DAO raise several other arguments on
the ineffective assistance of counsel claim. None is persuasive.
First, Wharton asserts that the jury’s deadlock note
shows that this was a close case, making it more likely that
evidence of his prison adjustment, if viewed as positive, would
have swayed one juror. It is true that “the length of jury
deliberations may be one consideration in assessing the
strength of the prosecution’s case,” which can inform the
likelihood that mitigating evidence could have affected the
outcome. Johnson v. Superintendent Fayette SCI, 949 F.3d
791, 805 (3d Cir. 2020). But the jurors declared themselves
deadlocked after just over seven hours of deliberation, and they
reached a verdict after about six additional hours of
deliberation. The jury could not likely have worked through its
disagreements so quickly had this truly been a deadlock. So the
probative value of the deadlock note is minimal in view of the
total length of deliberations.

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Second, Wharton argues that there is a “reasonable
probability” that evidence of his April 1986 county escape
attempt “might not have been admitted at the resentencing
trial” because it “does not necessarily rebut the evidence of his
behavior once he was sent to state custody.” Wharton Br. 36
(emphasis added). We reject this argument because: (1) his
state prison intake form directly mentioned Wharton’s 1986
escape attempt; and (2) the sentencing judge would not have
excluded rebuttal evidence from just one month before
Wharton’s transition from county to state custody where doing
so would have misled the jury about the mitigation evidence.
Third, Wharton contends that the District Court
improperly relied on a subjective rather than objective view of
the evidence. Wharton bases this argument mainly on the
Court’s use, in two instances, of the phrase “I agree with . . .”
while describing testimony from OAG experts. Reading the
Court’s statements in context shows that such phrases were
shorthand for crediting the evidence as persuasive and
explaining how the Court believed jurors would view the
evidence. This does not reflect a substantive analytical
problem.
Finally, Wharton contends that the District Court erred
by rejecting his proposed stipulation of testimony for one of
his experts who was unavailable to testify. The District Court
did so based on objections from the OAG, which the Court had
appointed as amicus curiae. Consistent with its role as the
evidentiary gatekeeper, a district court need not accept
stipulations between parties. See United States v. Barnes, 602
F.3d 790, 796 (7th Cir. 2010); see also 83 C.J.S. Stipulations §
18. Because the adversarial process broke down after the
DAO’s about-face, the District Court had reason to be skeptical
of a proposed stipulation that would have prevented cross-

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examination of an expert and impaired the Court’s ability to
review evidence.
The DAO’s arguments are unpersuasive as well. The
DAO contends that the jury’s question on whether it could
consider mitigating evidence that occurred after the murders
increases the likelihood that one juror would have changed his
or her vote in response to Wharton’s prison records. But this
argument ignores the fact that the jury would have been
presented with all of Wharton’s post-conviction behavior,
including his violent first escape attempt and his continuing
efforts to escape years later, both of which would have
outweighed his positive behaviors. The DAO also claims that
the negative behavioral assessments by OAG experts were
inaccurate because, contrary to their predictions, Wharton has
been well-behaved since 1992. But the sentencing jury in 1992
would have known none of that when making its decision.
* * *
For all of these reasons, the District Court did not err
when it held that Wharton’s ineffective assistance of counsel
claim failed for want of prejudice.
IV
On top of his ineffective assistance of counsel claim,
Wharton accuses the District Court of “creat[ing] an
appearance of unfairness and partiality,” Wharton Br. 47, by:
(1) allowing an amicus curiae to participate extensively in the
evidentiary hearing; (2) rejecting a stipulation involving one of
Wharton’s experts; (3) allowing the victims’ family members
to testify at the evidentiary hearing; (4) expressing frustration
with the concession from the DAO on the merits of Wharton’s

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case; and (5) considering the imposition of sanctions against
the DAO during the evidentiary hearing.
An appearance of impropriety exists if “a reasonable
person, with knowledge of all the facts, would conclude that
the judge’s impartiality might reasonably be questioned.”
United States v. Kennedy, 682 F.3d 244, 258 (3d Cir. 2012)
(cleaned up). But “a party’s displeasure with legal rulings does
not form an adequate basis for recusal.” Securacomm
Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.
2000). After all, an adverse ruling is not by itself evidence of
partiality or unfairness even if the ruling is erroneous.
Arrowpoint Cap. Corp. v. Arrowpoint Asset Mgmt., LLC, 793
F.3d 313, 330 (3d Cir. 2015). And “judicial rulings alone
almost never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).
Rather, evidence of bias normally stems from an “extrajudicial
source” rather than “facts introduced or events occurring in the
course of the current proceedings, or of prior proceedings.” Id.
None of the District Court’s actions that Wharton identifies
constitute evidence of partiality.
First, the OAG’s “extraordinary level of participation in
the hearing” as an amicus curiae did not create an appearance
of partiality. Wharton Br. 52. Because the DAO yielded to
Wharton after decades of opposition, the OAG’s involvement
was necessary for the Court both to account for the
Commonwealth’s interests and to make an informed ruling on
the issues. See Commonwealth v. Brown, 196 A.3d 130, 146
(Pa. 2018) (“After trial and the entry of a capital verdict . . .
[t]he community now has an interest in the verdict, which may
. . . be disrupted only if a court finds legal error.”).

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Second, Wharton offers no extrajudicial evidence to
support his claim that the District Court appeared to act with
partiality by rejecting the stipulation involving testimony from
a defense expert. Under Securacomm, Wharton must provide
evidence of partiality that goes beyond mere disagreement with
a legal ruling. But he failed to do so.
Third, federal law affords the families of murder victims
“[t]he right to be reasonably heard at any public proceeding . .
. involving . . . sentencing.” 18 U.S.C. § 3771(a)(4). That right
includes “[f]ederal habeas corpus proceeding[s] arising out of
a State conviction.” § 3771(b)(2)(A). The proceeding here
involved sentencing because the DAO announced it would not
seek the death penalty again, and the Court had questions about
whether the DAO had obtained input from family members on
this sentencing decision. The District Court also acknowledged
that “the victims’ family’s testimony has no bearing on the
merits of Wharton’s Sixth Amendment claim,” Wharton, 2022
WL 1488038, at *4 n.3, so we have no reason to believe that
the District Court was improperly influenced by the family’s
testimony. After all, “[t]rial judges are presumed to know the
law and to apply it in making their decisions.” Walton v.
Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds
by Ring v. Arizona, 536 U.S. 584 (2002).
Fourth, Wharton offers no examples of how “the
[C]ourt appeared increasingly frustrated” with the DAO.
Wharton Br. 55. Even if the District Court had expressed
frustration, a reasonable person would understand it to be
directed at the DAO rather than at Wharton or the merits of his
case. The DAO abruptly changed course, without explanation,
on a position it had staunchly defended for over 30 years.
Moreover, under Pennsylvania Supreme Court precedent, the
DAO lacked authority to concede relief on a jury-imposed

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death sentence absent a finding of legal error. Brown, 196 A.3d
at 144–46. So even had the District Court expressed frustration
with the DAO, it would hardly make a reasonable person
question the Court’s impartiality.
Finally, Wharton argues that the Court “assumed the
[conflicting] roles of both adjudicator and inquisitor” by
evaluating his habeas petition while also considering the
imposition of sanctions against the DAO. Reply Br. 20.
Wharton says that these functions conflict “because a
determination that the ineffective assistance claim had merit
would demonstrate that the DAO had acted properly in
conceding the merits of the claim.” Id. at 19–20. Not so. The
Court could have found for Wharton on his habeas petition
while also concluding that the DAO, despite being correct on
the merits, made misrepresentations to the Court.
Wharton tries to analogize his case to the situation in
In re Murchison, 349 U.S. 133, 133–35 (1955), where a judge
served as a “one-man grand jury” as permitted by state law and
charged two of the grand jury witnesses with contempt. The
same judge then improperly presided over the witnesses’
public contempt trial and convicted both. Id. at 135. That case
is inapt. While Murchison held that criminal trials cannot have
the same accuser and adjudicator, it acknowledged that
“contempt committed in a trial courtroom can under some
circumstances be punished summarily by the trial judge.” Id.
at 137. The Court also said in Murchison that the judge could
not be both the accuser and adjudicator in the same dispute. See
id. But the DAO’s conduct and Wharton’s habeas petition are
distinct issues; they are connected, but the outcome of one does
not dictate the outcome of the other. Discussing both issues in
the evidentiary hearing would not lead a reasonable person to
question the judge’s impartiality or fairness.

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21
* * *
For all of these reasons, the District Court did not create
an appearance of unfairness or partiality.
V
Wharton cannot show that he suffered prejudice from
his counsel’s failure to offer his prison records as mitigation
evidence at sentencing. If the jury had seen the prison records,
there is not a reasonable probability one of the jurors would
have found that the mitigation evidence in Wharton’s case
outweighed the aggravating factors such that his sentence
would have been different. And Wharton’s arguments that the
District Court acted with an appearance of unfairness and
partiality are unpersuasive because they are based on the
District Court’s legal rulings rather than evidence of unfairness
or partiality. We will affirm.

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