Harvey Miguel Robinson v. Secretary, Pennsylvania Department of Corrections

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-9001
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HARVEY MIGUEL ROBINSON,
Appellant
v.
SECRETARY, PENNSYLVANIA
DEPARTMENT OF CORRECTIONS;
SUPERINTENDENT, GREENE SCI;
SUPERINTENDENT, ROCKVIEW SCI
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:06-cv-00829)
District Judge: Honorable Joseph F. Leeson, Jr.
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Argued: November 28, 2023
Before: JORDAN, HARDIMAN, and BIBAS, Circuit Judges
(Filed: April 4, 2024)
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Eric J. Montroy
Eric P. Motylinski [ARGUED]
FEDERAL COMMUNITY DEFENDER OFFICE
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Heather F. Gallagher [ARGUED]
LEHIGH COUNTY DISTRICT ATTORNEY’S OFFICE
455 W. Hamilton Street
Allentown, PA 18101
Counsel for Appellees
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
In weighing life and death, a jury must understand its options.
It may not sentence a defendant to die because it falsely fears
that he might one day be paroled. If the prosecution raises the
specter of the defendant’s future dangerousness and clarification
is needed, the judge must make sure the jury understands the law.
The judge here did that. Harvey Robinson was not eligible
for parole. Yet at his capital sentencing, the judge first spec-
ulated that parole law might change. He then retracted that
speculation and correctly told the jury: “There won’t be any
parole. Life is life.” Because that correction cured any error,
we will affirm the District Court’s denial of habeas.

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I. THE MURDER CONVICTION AND DEATH SENTENCE
Three decades ago, Robinson stalked, raped, and killed
three women. He also raped another woman and repeatedly
tried to kill her. A Pennsylvania jury convicted him of one
count of rape and multiple counts of burglary and other crimes,
plus three counts of first-degree murder.
For each murder, the prosecution sought the death penalty.
To persuade the jury, the prosecution repeatedly warned that
Robinson was a dangerous predator who would continue to
commit crimes if he ever got out of prison. After hearing these
arguments, a juror asked the judge: “On the life in prison, is
that without parole, just so we’re sure? Would there be a
chance of parole if [we sentence Robinson to] life in prison?”
App. 209. The judge responded, “that’s the present law, [b]ut
… the legislature [might] change[ ] the law.” App. 210. After
the prosecution asked for a sidebar, the judge realized he “ha[d]
misspoken.” Id. He then changed his instruction to retract his
prior speculation: “I’m to tell you, and it’s accurate, ‘Life is
life.’ There won’t be any parole. Life is life.” App. 211. The
jury then sentenced Robinson to death.
On appeal, the Pennsylvania Supreme Court affirmed.
Commonwealth v. Robinson, 864 A.2d 460, 520 (Pa. 2004). It
held that (1) the prosecution had not made an issue of Robin-
son’s future dangerousness; and (2) in any event, there was no
error in the instruction given by the trial court. See id. at 515–
16. State courts then denied him collateral relief, as did the
federal district court. Commonwealth v. Robinson, 82 A.3d
998, 1000 (Pa. 2013); App. 3, 22. We granted him a certificate
of appealability to consider whether the trial court’s

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instructions on parole ineligibility violated Simmons v. South
Carolina, 512 U.S. 154 (1994).
We review deferentially. Because no facts are disputed, we
can grant habeas only if the Pennsylvania Supreme Court’s rul-
ing on the merits “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). It was not. The state court’s second rationale—
that the sentencing judge answered the juror’s question
properly—was not just reasonable, but right.
II. THE JURY INSTRUCTIONS SATISFIED SIMMONS
Jurors sometimes sentence defendants to death out of fear
for public safety. And prosecutors sometimes play on this fear
by emphasizing a defendant’s dangerousness. A defendant’s
best response may be that he will never get out of prison. Sim-
mons, 512 U.S. at 163–64 (plurality opinion); see id. at 176
(O’Connor, J., concurring in the judgment). So when a prose-
cutor suggests that a capital defendant will be dangerous, “due
process entitles the defendant to inform the jury of his parole
ineligibility.” Shafer v. South Carolina, 532 U.S. 36, 39 (2001)
(cleaned up). Either the judge or defense counsel must then tell
the jury that the defendant is not eligible for parole, despite the
prosecution’s contrary suggestion. Simmons, 512 U.S. at 177
(O’Connor, J., concurring in the judgment).
Robinson would not have been eligible for parole. And
though the prosecution did argue that he was dangerous, the
judge instructed the jury that he was not eligible for parole.
That was enough.

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A. The prosecution put future dangerousness at issue
The prosecution raised “the clear implication of future dan-
gerousness … and placed the case within the four corners of
Simmons.” Kelly v. South Carolina, 534 U.S. 246, 255 (2002).
First, it called Robinson “a territorial predator,” “somebody
who goes out and commits crimes.” App. 136, 179. Then it
went further, warning: “when he gets out, ladies and gentle-
men, watch out.” App. 179 (emphasis added). That statement
implied not only that he could get out, but that he would. Any
one of these statements could have triggered a Simmons instruc-
tion. Collectively, they certainly do. So on this point, the state
court’s contrary holding was unreasonable under any standard.
B. The court explained that Robinson could not get parole
But the Pennsylvania Supreme Court got the other merits
issue right. An effective Simmons instruction must clarify that
the defendant cannot get parole. Simmons, 512 U.S. at 177–78
(O’Connor, J., concurring in the judgment). It is not enough to
say that the defendant will “die in prison after spending his nat-
ural life there” or that “life imprisonment means until the death
of the defendant.” Kelly, 534 U.S. at 257 (cleaned up) (quoting
Shafer, 532 U.S. at 52). True, the jury may hear “truthful infor-
mation regarding the availability of commutation, pardon, and
the like.” Simmons, 512 U.S. at 177 (O’Connor, J., concurring
in the judgment). Yet it must also hear that, apart from those
exceptions, the defendant will not be eligible for parole, at least
under current law. Id. at 178.
Here, both sides agree that the judge’s first statement was
problematic. When asked about parole, he speculated about
possible changes to the law, suggesting that the law was

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unsettled. Even if that speculation did not violate Simmons, the
wiser course would have been to state current law without
speculating.
But we need not decide whether this speculation violated
Simmons because the judge promptly fixed it. After the prose-
cution objected, the judge stated, “I must have misspoken
somewhere.” App. 210. And after the sidebar, he told the jury,
“I’m to tell you, and it’s accurate, ‘Life is life.’ There won’t be
any parole. Life is life.” App. 211. That answer cleared up any
doubt. These final words rang in the jurors’ ears as they went
to deliberate. See Weeks v. Angelone, 528 U.S. 225, 234 (2000)
(“A jury is presumed to follow [the court’s] instructions …
[and] to understand a judge’s answer to its question.” (citation
omitted)). So even if the judge’s first statement was wrong, he
quickly retracted it, curing any error. Thus, under any standard
of review, the Pennsylvania Supreme Court properly rejected
Robinson’s claim.
* * * * *
When the prosecution indicates that a capital defendant
who is ineligible for parole will be dangerous to society, the
defendant has a right to inform the jury of the law. The trial
judge did that: He retracted his speculation and gave a clear
Simmons instruction. Because there was ultimately no error,
we will affirm the District Court’s denial of habeas corpus.

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