Roderick Herman Frey v. Thomas A. Fulcomer, Warden, State Correctional Institution at Huntingdon

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by Roderick Frey, who was convicted by a Pennsylvania state court jury of murder in the first degree and was sentenced to death, from a final order of the district court denying his petition for a writ of habeas corpus. Frey’s appeal requires us to consider whether the jury charge at the penalty phase of his trial violated the Eighth Amendment as construed in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). These cases hold that…