No. 08-9003.

642 F.3d 126 (2011)

Mark BREAKIRON, Appellant v. Commissioner Martin HORN; Pennsylvania Department of Corrections; Conner Blaine, Superintendent of the State Correctional Institution at Greene; Joseph Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview.

United States Court of Appeals, Third Circuit.

Opinion filed April 18, 2011.

Attorney(s) appearing for the Case

Stuart B. Lev, Esq. , Claudia Van Wyk, Esq. (Argued), Defender Association of Philadelphia, Federal Capital Habeas Corpus Unit, Philadelphia, PA, for Appellant.

James P. Barker, Esq. (Argued), Office of the Attorney General of Pennsylvania, Appeals & Legal Services, Harrisburg, PA, for Appellees.

Before: AMBRO, FUENTES and NYGAARD, Circuit Judges.


NYGAARD, Circuit Judge.

A Pennsylvania jury found Mark Breakiron guilty of first-degree murder and robbery for killing a bartender and stealing her purse and money bags from the bar. At the penalty phase, the jury found as an aggravating factor that he committed the murder "while in the perpetration of a felony"—i.e., the robbery. 42 Pa. Cons.Stat. § 9711(d)(6). The trial court sentenced him to death. On Breakiron's petition...

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