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April 25, 2001


The opinion of the court was delivered by: Van Antwerpen, District Judge.



On October 6, 1994, Petitioner filed a pro se petition for collateral post-conviction relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa.Cons.Stat. § 9541 et seq. On October 7, 1985, the FCRA court entered an order staying Petitioner's execution for ninety days, pending the filing of a counseled PCRA petition. Barnaby C. Wittles, Esq. ("PCRA counsel") was appointed to represent Petitioner in his post-conviction proceedings. Three evidentiary hearings were held in conjunction with Petitioner's claims for state post-conviction relief. The first was held on July 13, 1995, the second on December 14, 1995, and the third on May 22, 1996. Petitioner's post-conviction claims were denied in the Court of Common Pleas of Philadelphia County, Criminal Trial Division, on September 16, 1996. Petitioner then filed a timely appeal to the Pennsylvania Supreme Court, which was denied on April 1, 1999.*fn1 See Commonwealth v. Holland ("Holland II"), 556 Pa. 175, 727 A.2d 563 (1999).

This case comes before us under § 2254 of the AEDPA, which permits federal courts to grant, under certain circumstances, a writ of habeas corpus to prisoners convicted in state court. Petitioner filed his Petition for a Writ of Habeas Corpus in this Court on January 14, 2000. His Petition was followed by a Memorandum of Law in Support of Petition for a Writ of Habeas Corpus on April 28 of that year. The Commonwealth submitted its Response to Petition for Writ of Habeas Corpus on November 15, 2000, to which Petitioner responded on March 12, 2001 with Petitioner's Reply Brief in Support of His Petition for Writ of Habeas Corpus. All papers were timely filed and have been considered herein. We have placed the burden of proof on Petitioner to establish by a preponderance of the evidence any or all of the twelve claims included in his Petition, and find that he has satisfied this burden with respect to one of his claims. We therefore vacate Petitioner's death sentence and remand his case to the Pennsylvania courts with an order that there be a resentencing.


In the early morning hours of August 11, 1984, Petitioner entered the basement apartment of Jewel Stevens at 7829 Langdon Street in Northeast Philadelphia by cutting a screen and climbing through the window. (See N.T. 6/5/85, at 1.70-1.71.) Ms. Stevens, who was seventy-one years old, was asleep. After cutting the phone line, Petitioner proceeded to stab Ms. Stevens in her side and abdomen with an onion peeler. (See N.T. 6/6/85, at 2.67.) She suffered a deep laceration on her right arm in an attempt to defend herself. (See N.T. 6/10/85, at 4.35.) Petitioner then forcefully removed Ms. Stevens' pajama bottoms, used them to tie her wrists together, and sexually assaulted her. (See N.T. 6/6/85, at 2.67-2.68.) He stuck Ms. Stevens' toes with straight pins, leaving one in her right foot. (See N.T. 6/6/85, at 2.4.) He took a few dollars from a table in the apartment and smoked a cigarette. (See N.T. 6/6/85, at 2.57, 2.68.)

At approximately 5 a.m., Betty Roman, Ms. Stevens' upstairs neighbor, was awakened by noises in Ms. Stevens' apartment, including the Victim's cries for help. Ms. Roman called the police. (See N.T. 6/5/85, at 1.44-1.49.) When he became aware of the police's arrival, Petitioner hid the bloody onion peeler above a neighbor's door and fled the building. (See N.T. 6/5/85, at 1.60-1.62.) Officer Randall Straw arrived on the scene first and tended to Ms. Stevens in her apartment. Officer Bridgette McGinnis arrived after Officer Straw, and proceeded to the back of the Ms. Stevens' apartment building, where she observed Petitioner for about twenty seconds before he fled. (See N.T. 6/5/85, at 1.101-1.110.) The next evening, Officer Mitsos, a member of the Sex Crimes Unit of the Philadelphia Police Department, received a call from Ms. Susan Dorfman. Ms. Dorfman identified a man named "Bill" who lived in the building behind Ms. Stevens', as the potential perpetrator. At approximately 1:30 a.m., Officer Mitsos went to the building behind Ms. Stevens' in an attempt to ascertain if anyone named Bill lived there. He met Petitioner, who successfully fled Officer Mitsos' pursuit. The building superintendent notified Officer Mitsos that Petitioner lived with there his mother, Ms. Pauline Rogers, and advised the officer that Petitioner may have Mitsos was, however, unable to locate Petitioner at his grandmother's house. (See N.T. 6/5/85, at 1.140-1.150.)

Two days later, on August 14, 1984, Officer Dennis Graeber, Petitioner's half-brother, informed Detective Joseph Descher that Petitioner was currently at his grandmother's house. Detective Descher proceeded to that location, where he found Petitioner and his grandmother. Detective Descher asked Petitioner to accompany him to the police station for questioning, making clear to Petitioner that he was under no legal obligation to do so. Petitioner agreed. (See N.T. 6/6/85, at 2.25-2.33.) When they arrived at the station, Officer Descher and his partner, Officer Schol, began to question Petitioner about the incident at Ms. Stevens' apartment. When Petitioner made it clear that he was in Ms. Stevens' apartment on the night of the attack, the officers read Petitioner his Miranda rights and recorded his full confession. (See N.T. 6/6/85, at 2.40-2.69.) On August 24, 1984, Jewel Stevens died from wounds sustained during the incident on August 11. (See N.T. 6/6/85, at 2.9.) Petitioner was charged with, among other things, the first degree murder of Jewel Stevens. He was convicted by a jury and sentenced to death. He has been denied relief from his conviction and sentence both on direct appeal and in state collateral proceedings under the PCRA. He now petitions this court for federal habeas corpus relief pursuant to § 2254 of the AEDPA.


A. Exhaustion

Before filing a petition for habeas corpus relief under 28 U.S.C. § 2254, a petitioner must exhaust all available state court remedies. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is a rule of comity, not jurisdiction, Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989), and is designed to allow state courts the opportunity to correct a state's alleged violation of federal constitutional law before federal courts consider the matter. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

Exhaustion requires that petitioner fairly present his claims to every level of state court, including offering each claim for discretionary review by a State's highest court, and afford each reviewing court a fair opportunity to act on those claims.*fn2 O'Sullivan, 526 U.S. at 845, 119 S.Ct. 1728; Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).*fn3 The petitioner bears the burden of proving that he has exhausted available state remedies. See Landauo v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir. 1982). The petitioner is not, however, required to revisit claims raised on direct appeal in state collateral proceedings, see O'Sullivan, 526 U.S. at 844, 119 S.Ct. 1728 (citing Brown v. Allen, 344 U.S. 443, 447, 73 S.Ct. 397, 97 L.Ed. 469 (1953)), or seek alternatives to state habeas such as "a suit for injunction, a writ of prohibition, or mandamus or a declaratory judgment in the state courts." Id. (citing Wilwording v. Swenson, 404 U.S. 249, 249-50, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam)). If the petitioner is unable to prove that all claims in his petition satisfy the statutory exhaustion requirements, his entire petition must be dismissed without prejudice and returned to the state courts for consideration of the unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Lines v. Larkins, 208 F.3d 153, 159-60 (3d Cir. 2000). In the absence of any colorable federal claim, unexhausted claims may be dismissed on their merits. See Lambert v. Blackwell, 134 F.3d 506, 515 (3d Cir. 1997) (interpreting 28 U.S.C. § 2254(b)(2): "An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").

If, however, state procedural rules bar a petitioner from seeking further relief in state courts, "the exhaustion requirement is satisfied because there is `an absence of available State corrective process.'" McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (citing 28 U.S.C. § 2254(b)); see also Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) ("Because [the exhaustion] `requirement . . . refers only to remedies still available at the time of the federal petition,' it is satisfied `if it is clear that [the habeas petitioner's] claims are now procedurally barred under [state] law.'" (citations omitted)); Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ("A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him.").

The Commonwealth argues that at least eight of Petitioner's twelve claims are not exhausted and are therefore not reviewable in federal court. It alleges that four of these claims, Claims I, II, IV, and VII, have been amended and are now so altered that they are not substantially equivalent to those presented in state court ("altered claims"). It further alleges that four other claims, Claims V, VI, VIII, and IX, were never presented in state proceedings at all ("omitted claims") and therefore remain unexhausted. (See Resp. Pet. Writ Habeas Corpus at 25.) We believe Petitioner's claims are exhausted under 28 U.S.C. § 2254 by virtue of their having been either fairly presented in state court or precluded from further state court review by an absence of available process. Petitioner is currently barred from pursuing state habeas review by state law under 42 Pa.C.S.A. § 9545(b)(1), which requires that all state habeas claims be presented within one year of the date that the judgment against Petitioner becomes final. A conviction is deemed final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3). Because Petitioner's eligibility for certiorari to the United States Supreme Court expired on or about August 20, 1988, see 28 U.S.C. § 2101(d); Sup.Ct. R. 11, we find that Petitioner's omitted claims are precluded from state court review under 42 Pa.C.S.A. § 9545(b) and, therefore, that he has satisfied the exhaustion requirement of 28 U.S.C. § 2254(b) & (c) due to an "absence of available state corrective process." McCandless, 172 F.3d at 260 (citing 28 U.S.C. § 2254(b)).

B. Procedural Default

A federal court may not, however, proceed to the merits of a claim simply because that claim satisfies the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A) and § 2254(c) because of a lack of available state process. Rather, "[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred." Coleman, 501 U.S. at 750, 111 S.Ct. 2546; see also Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000) (quoting McCandless, 172 F.3d at 260).

Like exhaustion, the procedural default doctrine is based on principles of comity, and is intended to "reduce[] friction between the state and federal court systems by avoiding the `unseem[liness]' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." O'Sullivan, 526 U.S. at 844-45, 119 S.Ct. 1728. A claim is procedurally defaulted if the state court of last resort refuses to consider its merits. See Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) ("If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available."); County Court v. Allen, 442 U.S. 140, 152-53, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) (finding that, because the trial court "ruled on the merits" rather than on some state procedural ground, that the court "implicitly decided that there was no procedural default").

We have noted that Petitioner is presenting four omitted claims and four amended claims to this court for review. Respondent argues that all of these challenged claims are procedurally defaulted and therefore precluded from review by this Court. Petitioner, however, presents three arguments in favor of federal review. First, he maintains that these claims were all reviewed on their merits by the Pennsylvania Supreme Court pursuant to 42 Pa.Cons.Stat. § 9711(h)(3)(i). Second, he contends that none of the aforementioned claims can properly be deemed procedurally defaulted because the state procedural rule forbidding court state consideration of them, 42 Pa.Cons.Stat. § 9545(b), is not an adequate and independent state ground barring collateral review. Alternatively, Petitioner argues that he can show cause and prejudice for failing to present the contested issues in state court.*fn4 We address the first two of these theories below, and find both of them unconvincing. Neither Petitioner's "automatic exhaustion" theory under § 9711(h) nor his claim that § 9545(b) is an inadequate procedural rule forbidding collateral review are consistent with the existing law of this circuit or with the overwhelming majority of federal cases in other circuits.*fn5

1. Automatic Exhaustion

Petitioner asserts that none of his challenged claims are procedurally defaulted because the Pennsylvania Supreme Court considered all of them on their merits pursuant to 42 Pa.Cons.Stat. § 9711(h)(3)(i). Section 9711(h)(3)(i) requires that the Supreme Court of Pennsylvania review all death sentences to ensure that they were not the "product of passion, prejudice or any other arbitrary factor." This review is mandatory and does not depend on Petitioner's preservation of particular issues for appeal. See id. (referring to the Supreme Court's review of death sentences under this section as "automatic"). Many other states have similar mandatory review procedures. See, e.g., Mu'min v. Pruett, 125 F.3d 192, 197 (4th Cir. 1997) (interpreting Virginia statute requiring review of death sentences for "passion, prejudice or any other arbitrary factor"); Kornahrens v. Evatt, 66 F.3d 1350, 1362 (4th Cir. 1995) (addressing the scope of South Carolina's in favorem vitae review); Nave v. Delo, 62 F.3d 1024, 1039 (8th Cir. 1995) (involving a Missouri statute requiring review of death sentences for "passion, prejudice or any other arbitrary factor"). According to Petitioner, the Pennsylvania Supreme Court's mandatory review of his death sentence under § 9711(h)(3)(i) "satisfies the exhaustion requirement for all record-based claims of constitutional error" as it provides the "state court system an opportunity to correct its own constitutional errors." (Mem. Law Supp. Pet. Writ Habeas Corpus at 4 (citing Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)) (emphasis added).) Petitioner cites three cases in support of his "automatic exhaustion" theory, none of which represent binding authority in this circuit and all of which are distinguishable from the case at hand. The Commonwealth, however, cites case law within the Third Circuit as well as numerous analogous decisions from other circuit courts in opposition to Petitioner's argument. We find that Petitioner's challenged claims are not all "automatically exhausted" by virtue of the Pennsylvania Supreme Court's mandatory review of his death sentence under 42 Pa.Cons.Stat. § 9711(h)(3)(i).*fn6

Petitioner first relies on the Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68, 74-75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), for the proposition that mandatory state appellate review of trial records for "fundamental error" constitutes at least an implicit ruling on the merits of all potential constitutional issues. (See Mem. Law Supp. Pet Writ Habeas Corpus at 5.) Such a ruling on the merits preserves, according to Petitioner, the right to federal collateral review of those issues. Ake, however, did not address whether specific federal claims were fairly presented in state court. The Supreme Court in Ake focused instead on whether state appellate review of a record for fundamental (constitutional) error was an independent and adequate state ground for decision, thus precluding United States Supreme Court jurisdiction.*fn7 See Ake, 470 U.S. at 75, 105 S.Ct. 1087. The Ake Court was not concerned with whether a state appellate review for fundamental error included every conceivable constitutional issue, and therefore refrained altogether from defining the breadth of such a review. This left open the possibility, particularly relevant in this case, that some potential federal claims were not considered in state court and therefore were not fairly presented for procedural default purposes, despite the statutory requirement that the state supreme court review the record for "fundamental errors."

Petitioner next cites the Ninth Circuit decision in Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993), which concerned an Idaho mandatory appellate review statute nearly identical to the Pennsylvania statute applied here. The Beam court interpreted the Idaho statute to mean that the Idaho Supreme Court could, sua sponte, consider any constitutional errors evident in the trial record and that those issues would be deemed considered on the merits and exhausted for purposes of federal collateral review. See id. at 1306. Since we are not in the Ninth Circuit, we are not required to follow this decision. Furthermore, the Ninth Circuit refrained from basing its ultimate decision on such a theory. It instead decided the case on the grounds that Mr. Beam had explicitly challenged the Idaho death penalty statute on direct review in state court as "unconstitutionally arbitrary." Id. at 1305. The Beam court found that this language encompassed petitioner's federal habeas challenge to the constitutionality of the "continuing threat" aggravating circumstance, and therefore that Mr. Beam had exhausted his state court remedies by specifically presenting all of his federal claims in state court. See id. at 1305-06. Because the exhaustive effects of the Idaho Supreme Court's mandatory appellate review were never relied on to decide the case, the court's finding that the mandatory review statute satisfied petitioner's exhaustion requirement is merely dicta, and can be considered as no more than persuasive authority in this circuit in support of Petitioner's present case.

Finally, Petitioner argues that Falcone v. Lewis, 1994 WL 316022 (9th Cir. 1994) (unpublished opinion),*fn8 also supports his automatic exhaustion theory. The court in Falcone held that "[w]hen a state court is required to review the record for federal constitutional error, even if the petitioner fails to properly raise that issue in state court, the state court's determination that there was no such error constitutes a decision on the merits of the petitioner's claim." Id. at *3. The statute at issue, Ariz.Rev.Stat. § 13-4035,*fn9 required the Arizona Supreme Court to review the record of every death penalty case for any fundamental (constitutional) errors. By contrast, § 9711(h)(3)(i) requires only that the Pennsylvania Supreme Court review the "sentence of death" for "passion, prejudice or any other arbitrary factor." This more limited review distinguishes Petitioner's case from Falcone by implying that § 9711(h)(3)(i) does not encompass as broad a review of Petitioner's potential constitutional claims as § 13-4035.

Although the Third Circuit itself has never addressed the issue of § 9711(h)(3)'s effect on the exhaustion doctrine, the Commonwealth relies on case law from other district courts within the circuit as well as holdings from the Pennsylvania Supreme Court and an analysis of legislative intent to demonstrate that § 9711 is not a vehicle for blanket exhaustion of post-conviction constitutional claims.

In Banks v. Horn, 49 F. Supp.2d 400 (M.D.Pa. 1999), the district court clearly set out both of Respondent's arguments regarding the exhaustive effect of § 9711(h). Although the court acknowledged that the Pennsylvania statute contained language identical to the statute at issue in Beam, it went on to note that "the Supreme Court of Pennsylvania has never held that, if it affirms a conviction and sentence under this provision [§ 9711(h)(3)(i)], all constitutional claims should be deemed to have been resolved against the defendant". Id. at 406 (citing Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439, 454 n. 12 (1995) ("[W]e decline counsel's invitation to scour the record for additional errors caused by counsel and sua sponte raise said issues [under § 9711(h)]; the request is inappropriate and nonsensical in that such advocacy would be beyond the scope of our appellate review.")). Rather, the state supreme court's mandatory review generally seems to be for a sufficiency of the evidence." Id (citing Commonwealth v. Thomas, 552 Pa. 621, 717 A.2d 468, 473 (1998) ("We first note that this Court is required to review the sufficiency of the evidence to sustain a conviction for first degree murder in every case in which the death penalty has been imposed.")); see also Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31, 34 (1998) ("In all cases where the sentence of death has been imposed this court will conduct an independent review of the sufficiency of the evidence supporting the verdict. . . ."); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982) ("While appellant does not contest the sufficiency of the evidence to sustain a conviction of murder in the first degree, this Court will nevertheless review for sufficiency . . . 42 Pa.C.S.A. § 9711(h)."). Petitioner's challenged claims do not address the sufficiency of the evidence or the arbitrariness of his death sentence, and therefore do not fall within the scope of the Pennsylvania Supreme Court's mandatory review under § 9711(h)(3)(i).

Numerous other circuit courts have likewise concluded that mandatory state statutory review of death sentences does not constitute automatic exhaustion of all of a petitioner's constitutional claims. See, e.g., Smith v. Moore, 137 F.3d 808, 821 (4th Cir. 1998) (citing Kornahrens v. Evatt, 66 F.3d 1350, 1362 (4th Cir. 1995) ("Even with in favorem vitae review, unless the prisoner raises the specific objections before the state court, we cannot determine whether the state court has properly applied federal constitutional principles, or for that matter, whether the state court has even considered these issues at all.")); Mu'min v. Pruett, 125 F.3d 192, 197 (4th Cir. 1997) (finding that Virginia statute requiring review of death sentences for "passion, prejudice or any other arbitrary factor" did not include all possible constitutional claims for purposes of determining procedural default); Nave v. Delo, 62 F.3d 1024, 1039 (8th Cir. 1995) (finding that a Missouri statute requiring state supreme court review of death sentences for "passion, prejudice or any other arbitrary factor" does not mandate that the court "review death penalty cases sua sponte for constitutional or instructional errors that are not specified in the direct appeal"); Julius v. Johnson, 840 F.2d 1533, 1546 (11th Cir. 1988) ("[T]he assertion by an Alabama court that it did not find any errors upon its independent review of the record does not constitute a ruling on the merits of claims not raised in that court or in any court below.").

The structure of the PCRA itself also makes it extremely unlikely that the Pennsylvania legislature intended for § 9711(h)(3)(i) to trigger the "automatic exhaustion" result Petitioner desires. Pennsylvania statute 42 Pa.Cons.Stat. § 9543(a)(3) states that "[t]o be eligible for relief under this subchapter, the petitioner must plead and prove . . . [t]hat the allegation of error has not been previously litigated or waived." Section 9544 goes on to explain that "an issue has been previously litigated if . . . the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." Petitioner's automatic exhaustion theory cannot be valid within the current structure of the PCRA, because application of the theory would make § 9544 unnecessary. If the Supreme Court's mandatory review of death sentences for "the product of passion, prejudice or any other arbitrary factor" is said to represent a decision by that court on the merits of all of Petitioner's potential constitutional claims, then collateral review in death penalty cases would never be available under § 9543(a)(3); all of Petitioner's potential claims would be precluded from such review for being previously litigated. We are forced to conclude that § 9711(h)(3)(i) was not meant to eradicate all state collateral review in capital cases, and cannot therefore accept Petitioner's interpretation of the exhaustive effect of § 9711(h)(3)(i).

In short, Petitioner's reliance on 42 Pa.Cons.Stat. § 9711(h)(3)(i) to prove exhaustion of his challenged federal habeas claims is mislaid. We, as well as other district courts in the Third Circuit and circuit courts interpreting similar statutes around the nation, have concluded that mandatory state supreme court review of death sentences for "passion, prejudice or any other arbitrary factor" does not constitute a review on the merits of all of Petitioner's potential constitutional claims.

2. Independent and Adequate Grounds

If Petitioner's omitted or altered claims were not fairly presented and exhausted in state court, our review of those claims is barred by the doctrine of procedural default if state court review of those claims is precluded by an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A state procedural rule is considered independent if it does not rely on the merits of a federal claim or "rest[] its decision primarily on federal law." Harris v. Reed, 489 U.S. 255, 260-61, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); see also Ford v. Stepanik, 1998 WL 297626, at *3 (E.D.Pa. June 2, 1998). Such a rule is adequate under the procedural default doctrine if it is "firmly established and regularly followed" within the state. James v. Ken tucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984); see also Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (stating that a state procedural rule may not be adequate if "the defendant . . . could not be `deemed to have been apprised of its existence'"); Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) ("[A] state procedural ground is not `adequate' unless the procedural rule is `strictly or regularly followed.'" Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964).). But see Jamison v. Collins, 100 F. Supp.2d 521, 559 (S.D.Ohio 1998) ("A state procedural rule that was not firmly established at the time it should have been complied with by the petitioner, and therefore is applied retroactively, is not an adequate state ground that bars federal habeas review."). The phrase "firmly established and regularly followed" requires that a petitioner have some sort of notice, at the time of his state court procedural default, of a state procedural rule's potential impact on his case before that rule can be considered adequate. See Ford v. Georgia, 498 U.S. at 423-24, 111 S.Ct. 850; N.A.A.C.P. v. Alabama, 357 U.S. 449, 457, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) ("[A] local procedural rule, although it may now appear in retrospect to form part of a consistent pattern of procedures . . . cannot avail the State here, because petitioner could not fairly be deemed to have been appraised of its existence. Novelty in procedural requirements cannot be permitted to thwart review in this Court. . . ."); Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir. 1999) ("The reason for these requirements is that a petitioner should be on notice of how to present his claims in the state courts if his failure to present them is to bar him from advancing them in a federal court."). The Third Circuit found this notice requirement satisfied when a presiding judge in a collateral proceeding specifically asked a petitioner if he had anything else to present. Cabrera, 175 F.3d at 313 (finding that petitioner had "ample opportunity" to present his defaulted claims in state court because "the judge at the hearing repeatedly gave Cabrera, who was present at the hearing, an opportunity to say `anything'").

Petitioner contends that none of his claims are procedurally defaulted because the PCRA's one year filing limit, 42 Pa.Cons.Stat. § 9545(b)(1), which precludes him from currently pursuing his challenged claims in state court, is not an independent and adequate state procedural rule sufficient to foreclose federal postconviction review. (See Mem. Law Supp. Pet. Writ Habeas Corpus at 7-12.) Section 9545(b) was enacted on November 17, 1995, and became effective on January 16, 1996. It states that "[a]ny petition under [the PCRA] . . . shall be filed within one year of the date the judgment becomes final."*fn10 Section 9545 is clearly an independent state ground for reviewing habeas corpus claims, as it does not rely on federal law for its determination of the availability of state post-conviction review. The parties do not dispute this conclusion.

The question before us, then, is whether § 9545 represents an adequate procedural rule, pursuant to which Petitioner should have sought state post-conviction review of his challenged claims before presenting them for the first time in federal court. More specifically, the debate centers around the notice afforded Petitioner regarding the application of § 9545(b)'s one year time limit for filing state habeas claims. Petitioner argues that § 9545(b)'s filing limit is not an adequate state ground barring adjudication of his claims because it effectively foreclosed his ability to present claims to the state court retroactively; the provision's one year filing limit became effective on January 16, 1996 and immediately barred any claim, according to Petitioner, filed after August 15, 1989, or one year after his state court conviction became final. This set of circumstances, argues Petitioner, did not present sufficient notice to satisfy the adequate and independent state ground requirement of the procedural default doctrine.*fn11

The Commonwealth, however, claims that Petitioner did in fact have adequate notice to file his challenged claims under § 9545(b), as there existed a sixty-day window of opportunity from November 17, 1995, when § 9545(b) was enacted, until it took effect on January 16, 1996, during which Petitioner could have amended his initial state petition to include the challenged claims without running afoul of the statute's one year time limit. Such an amendment would not have been particularly arduous for Petitioner to seek, argues the Commonwealth, because during this sixty-day notice period, Petitioner was already involved in evidentiary hearings in state trial court pursuant to his initial PCRA petition. Amendment at that stage of the proceedings would not have delayed or interrupted the proceedings at all, but rather simply introduced additional issues that could have been made available for hearings themselves. Respondent also argues that such an amendment would have likely been permitted, noting that the presiding judge specifically asked Petitioner if he had "anything further" to raise in conjunction with his petition, and explained that it might well be his "very last opportunity in life" to do so. (N.T. 12/14/95, at 100.)

Two district court cases have addressed the adequacy of § 9545(b) as a grounds for finding procedural default, and have come to seemingly conflicting conclusions. In Banks v. Horn, 49 F. Supp.2d 400 (M.D.Pa. 1999), the petitioner made a claim of inadequacy very similar to the one Petitioner makes here. Banks argued that § 9545(b) was not an adequate ground on which to find procedural default because it was applied "retroactively" to prevent state court review of his collateral claims. See Banks, 49 F. Supp.2d at 403. The court, however, found that the relevant date for examining the applicability of § 9545(b) was not the one year filing limit after Banks' conviction became final, but rather the date on which he filed a second PCRA petition. Since this was after the effective date of § 9545(b), it assured that the statute only be applied prospectively. The court determined that § 9545(b) was an adequate state procedural ground for denying state court review because it was not the retroactive application of a new statute that prevented Banks from having his claims heard in state court, but instead his "failure to raise the claims in the approximately 13 years that they were available for raising that prevented him from pursuing them. That period included the 60 day window of opportunity in which it was clear (due to the passage of the amendments to the PCRA) that the time for filing a petition would not be unlimited." Id. at 405; see also Catanch v. Larkins, 1999 WL 529036, at *7 (E.D.Pa. July 23, 1999) ("As the judgment against [petitioner] became final on November 18, 1990, . . . the statute of limitations [§ 9545(b)] would bar a PCRA petition filed after November 18, 1991. There is no indication that the Pennsylvania courts do not apply this rule consistently, and the rule is thus an adequate and independent state ground for denying habeas relief." (citation omitted)).

Other circuit court decisions have come to similar conclusions. See, e.g., Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997) ("A state procedural rule enjoys a presumption of adequacy when the state court expressly relies on it in deciding not to review a claim for collateral relief."); Hornbuckle v. Groose, 106 F.3d 253, 255-56 (8th Cir. 1997) (finding that a state procedural rule requiring petitioner to file collateral claims concurrently with his direct appeal was adequate under the procedural default doctrine because petitioner had at least four months within which to file a valid state claim and failed to do so); O'Dell v. Netherland, 95 F.3d 1214, 1241 (4th Cir. 1996), aff'd, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997); Duvall v. Purkett, 15 F.3d 745, 748 (8th Cir. 1994) (holding that petitioner's confusion as to the applicability of a 90-day time limit for filing state collateral claims does not excuse his procedural default because "such confusion should have persuaded [petitioner] to file a state habeas petition," rather than do nothing and wait for a possible default); Barksdale v. Lane, 957 F.2d 379, 382-83 (7th Cir. 1992) (finding that the retroactive application of a shortened statute of limitations was not a freakish or unexpected occurrence under state law, and therefore that petitioner's failure to comply with the statute constituted procedural default). But see Moore v. Parke, 148 F.3d 705, 710 (7th Cir. 1998) (concluding that, in case where new state procedural rule required collateral claim to be raised on direct appeal after petitioner's direct appeal was already completed, such a procedural rule was an inadequate ground for state post-conviction relief and procedural default will not preclude federal review of such claim).

A more recent decision in another district court, however, arrived at a slightly different result. In Whitney v. Horn, No. 99-1993 (E.D. Pa. June 7, 2000), petitioner Raymond Whitney included in his federal habeas petition numerous claims not presented in any state proceedings. He argued that these claims were not procedurally defaulted because the state provision denying him access to state review, § 9545(b), was not an adequate state ground on which to base such a finding of default. The court recognized the applicability of the statute and the opportunity for amendment during the sixty-day window of opportunity between the statute's enactment and its effectiveness. See id. at 11-12. The court distinguished Banks, however, on the grounds that, unlike Banks, Whitney had a petition for collateral relief pending before the Pennsylvania Supreme Court during the sixty-day window of opportunity, and that filing a second petition while another is pending is forbidden under Pennsylvania law. See id. at 14 ("The 60 day window between passage and the effective date of the PCRA amendments was of no help to Whitney because his first petition was pending during that period."); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 (2000) ("[W]hen an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought. . . ."). Under the facts in Whitney, the petitioner was not afforded an adequate opportunity to pursue state review of his collateral claims because of the difficulties in amending a petition once it has reached the state supreme court: "Not giving [Whitney] a grace period before the revised PCRA took effect runs afoul of the fair notice requirement enunciated by the Supreme Court in Ford and by our Court of Appeals in Cabrera." Whitney, No. 99-1993, at 14.

In the case at hand, any attempt by Petitioner to raise his challenged claims in state court was clearly barred when § 9545(b) took effect on January 16, 1996. Petitioner's conviction became final long before that on August 15, 1988, and the one year filing limit had long since run on August 15, 1989. Nevertheless, Petitioner had a PCRA proceeding underway in state court during the sixty-day window of opportunity between the enactment and effective date of § 9545(b). Unlike Whitney, the proceeding was before a state trial court during that window, thereby making it relatively easy for Petitioner to amend his petition within the statutory restrictions. The Pennsylvania Supreme Court expressly pointed out that, despite its holding that a petitioner could not file a subsequent PCRA petition while one was pending in state court, it "will not preclude a trial court from granting leave to amend a PCRA petition that is currently pending before that court." Lark, 746 A.2d at 588 n. 2. Furthermore, we believe and find that in December 1995, during the window of opportunity, the trial court judge brought this issue squarely to Petitioner's attention when he asked Petitioner during his initial PCRA hearings if he had anything else he would like to present and explained to Petitioner that this opportunity may be Petitioner's last to raise further issues in a collateral proceeding. (See N.T. 12/14/95, at 100.) This warning was couched in terms which any lay person could not fail to understand.

Petitioner's case is much more closely analogous to Banks than to Whitney. Banks had notice of § 9545(b) and sufficient opportunity to file any eventually defunct claims before the statute became effective. By contrast, Whitney faced much greater legal and practical obstacles to amending his PCRA petition before the sixty-day notice period expired. We find that our present Petitioner, Mr. Holland, had adequate opportunity to include his claims in his first petition for state collateral relief. Not only was he better able to amend his claims than Whitney, Petitioner was specifically warned by the trial judge at his state PCRA hearings that he may have no future opportunity to be heard. This warning satisfies the fair notice standards set forth by the Supreme Court in Ford and by the Third Circuit in Cabrera. In short, § 9545(b) was an adequate state procedural ground upon which Petitioner should have sought timely relief in state court.*fn12

C. Petitioner's Substantive Claims

1. General Standards of Review

Having rejected both of Petitioner's theories of complete exhaustion of all claims, we will move on to analyze each of his twelve claims individually. In so doing, we will examine any portions of each claim that may have been procedurally defaulted in state court to determine if cause and prejudice exists to excuse the default and permit us to address the issue on its merits.

Federal review of defaulted claims is prohibited, unless Petitioner is able to "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law."*fn13 Coleman, 501 U.S. at 750, 111 S.Ct. 2546. The Supreme Court has since identified three circumstances in which procedural default may be excused for cause: (1) if the "factual or legal basis for a claim was not reasonably available to counsel," (2) if some "interference by officials made compliance [with state procedural rules] impracticable," or (3) "if the procedural default is the result of ineffective assistance of counsel."*fn14 Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). If cause is established, a petitioner must then also demonstrate actual prejudice as a result of the procedural default. Actual prejudice requires that the petitioner "shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis in original). Petitioner does not contend that either of the first two circumstances demonstrating cause are relevant to his claims, and we agree and so find. He instead relies solely on assertions that his trial and appellate counsel were constitutionally ineffective in not raising his defaulted claims. (See Mem. Law Supp. Pet. Writ Habeas Corpus at 12-13.) We will therefore limit our analysis of Petitioner's defaulted claims to the adequacy of his legal representation.*fn15

Ineffective assistance of counsel is a violation of the Sixth Amendment, which guarantees every defendant "[i]n all criminal prosecutions . . . the Assistance of Counsel for his defense." A showing of ineffective assistance requires satisfaction of two components. First, counsel must have been so deficient that his "representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, a petitioner must show that counsel's "deficient performance prejudiced the defense." Id. In determining whether counsel acted reasonably, there remains a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052; Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987). Counsel's actions are evaluated "`on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). A lack of success is not proof of unreasonableness, see Strickland, 466 U.S. at 689, 104 S.Ct. 2052, and strategic and tactical decisions are not grounds for an ineffective assistance claim unless counsel displayed "ineptitude, inexperience, lack of preparation or unfamiliarity with basic legal principles." Commonwealth of the Virgin Islands v. Weatherwax ("Weatherwax I"), 20 F.3d 572, 579 (3d Cir. 1994), rev'd on other grounds, Commonwealth of the Virgin Islands v. Weathervax ("Weatherwax II"), 77 F.3d 1425, 1435 (3d Cir. 1996).

Prejudice exists if 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 694, 104 S.Ct. 2052; see also United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993) (defining prejudice as deprivation of "a trial whose result is reliable"). A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Outcome determination is not, however, the sole consideration in establishing prejudice. "[T]he `benchmark' of an ineffective assistance claim is the fairness of the adversary proceeding." Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). In order to establish prejudice as a result of deficient representation, a defendant must demonstrate that "counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." Lockhart, 506 U.S. at 369, 113 S.Ct. 838 (citing Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)). The prejudice standard applied in the ineffective assistance context is nearly identical to the actual prejudice standard for excusing a procedural default articulated in Coleman. As a result, we may rely on any findings of prejudice within our ineffectiveness inquiry to satisfy any claims of actual prejudice to Petitioner. Furthermore, the standard used to determine ineffective assistance as grounds for cause is identical to that applied with respect to substantive claims for relief under the Sixth Amendment. As a result, we rely on our above explanation of the Strickland standard in all our ineffective assistance inquiries.

If we do find sufficient cause and prejudice to excuse procedural default, then those federal habeas claims that were not submitted to state adjudication should be reviewed by us de novo. See, e.g., Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000) ("[U]nder the AEDPA the limitation on the granting of an application for a writ of habeas corpus is only `with respect to any claim that was adjudicated on the merits in state court proceedings.' Hence we exercise pre-AEDPA independent judgment. . . ."); Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir. 1999) (finding that under AEDPA "we are generally subject to two different frameworks of review, depending upon whether the state courts addressed the merits of the claim for relief. If the state courts have not heard the claim on its merits, we review the district court's legal conclusions de novo and its factual findings, if any, for clear error"); Appel v. Horn, 1999 WL 323805, at *5 (E.D.Pa. May 21, 1999) ("By the statutory terms, however, AEDPA . . . appl[ies] only when the issue facing the reviewing court has been `adjudicated on the merits in State court proceedings.' When the state court fails to reach the merits of an issue presented to a federal habeas court, AEDPA's deferential standards do not apply . . . The district court must, therefore, `exercise plenary review over state court conclusions on mixed questions of law and fact and pure issues of law,' as the court would have done prior to the enactment of AEDPA."). Of course if cause and prejudice are not present, we cannot review the defaulted portions of a claim and may examine only the remaining exhausted portions in accord with the AEDPA.

Under the AEDPA, a petitioner may not be granted federal habeas relief if his claims were adjudicated on the merits in state court, unless the state court decision was

(1) . . . contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) . . . based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Factual issues decided by the state court "shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).*fn16

The "threshold question under AEDPA is whether [petitioner] seeks to apply a rule of law that was clearly established at the time his state court conviction became final." Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000). An existing federal law is "clearly established" unless it either "breaks new ground or imposes a new obligation on the States," id. at 1495, or was not "dictated" by precedent existing when the petitioner's conviction became final. Id.; see also Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The fact that a federal standard "of necessity requires a case-by-case examination of the evidence, obviates neither the clarity of the rule nor the extent to which the rule must be seen as `established' by this Court." Williams, 120 S.Ct. at 1512 (citation omitted) (finding the Strickland standard for ineffective assistance of counsel to be clearly established).

A state court decision is contrary to federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams, 120 S.Ct. at 1523. "[I]t is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999). It is likewise not necessary for a petitioner to cite factually identical Supreme Court precedent. He may instead rely on a Supreme Court rule that, by virtue of its factual similarity or intention to apply to variant factual situations, "can fairly be said to require a particular result in a particular case." Id. at 888-89.

A state court adjudication is an "unreasonable application" of clearly established federal law if the court "identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 120 S.Ct. at 1523. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1521 (emphasis added). Although the term "unreasonable" is often difficult to define, the most important distinction is that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 1522 (emphasis in original). A state court decision cannot be found unreasonable unless, "evaluated objectively and on the merits, [it] resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo, 171 F.3d at 890. The Third Circuit is of the view that in evaluating reasonableness, federal habeas courts are not precluded from considering the decisions of lower courts. Matteo, 171 F.3d at 890 (citing O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998)). In fact, such lower court decisions may serve as "helpful amplifications" of Supreme Court precedent. Id.*fn17

2. Claims I and II

Petitioner's Claims I and II raise two main claims: ineffective assistance of counsel; and an assertion that Petitioner was denied his Fifth Amendment right to a court-appointed defense expert to assist in developing mental health defenses at trial. (See Pet. Writ Habeas Corpus at 5-31, 63-81.) Petitioner offers seven subclaims in support of his two main claims. Six of these subclaims address the ineffectiveness of counsel. He argues that his trial counsel was ineffective (1) for failing to obtain potentially helpful records; (2) for failing to investigate, develop, and present expert testimony; (3) for failing to properly interview and present testimony from Petitioner's family and other acquaintances; (4) for presenting harmful arguments and evidence on Petitioner's behalf; (5) for improperly investigating and introducing the testimony of two lay witnesses about Petitioner's level of intoxication on the night of Jewel Stevens' murder; and (6) for making inaccurate and prejudicial statements in association with Petitioner's intoxication defense at the penalty phase. The seventh subclaim argues that Petitioner was denied his Fifth Amendment due process right to a court-appointed defense mental health expert for assistance in developing trial defenses. Respondent argues that both of Petitioner's main claims are defaulted at least in part because they contain "different facts and legal theories" from those presented in prior state proceedings.*fn18 We find that Petitioner did raise the first two subclaims in state court. (See Holland II Brief at 12-38.) They were in turn decided on their merits under federal and state law and, as a result, are properly before this court for review under § 2254 of the AEDPA. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995).

Petitioner did not, however, present any of the five remaining subclaims in state court. Both on direct appeal and in his state collateral proceedings, he failed to argue that his trial counsel was ineffective at sentencing due to his failure to properly interview Petitioner's family and friends, his introduction of arguments and evidence harmful to Petitioner's defense, his misuse of two intoxication witnesses, or his and the trial court's inaccurate and prejudicial statements regarding Petitioner's intoxication. He likewise failed to present to the state courts that he was allegedly denied his Fifth Amendment right to a courtappointed defense expert. We find that Petitioner procedurally defaulted these issues by failing to present them in state court. Petitioner nonetheless contends that these five defaulted subclaims are properly before this Court because he can demonstrate cause and actual prejudice to excuse his default.*fn19 See Coleman, 501 U.S. at 750, 111 S.Ct. 2546.

a. Defaulted Ineffectiveness Subclaims

Petitioner's third subclaim is that his trial counsel was ineffective at the penalty phase of his trial for failing to properly interview and present testimony from Petitioner's family members and other acquaintances. Although he failed to present this claim in state court, Petitioner argues that it is properly before this Court for review because his appellate counsel was constitutionally ineffective for failing to raise it on appeal, thereby demonstrating cause and prejudice for Petitioner's default. We reject Petitioner's contention that his appellate counsel was constitutionally ineffective on the ground that the underlying claim against his trial counsel is completely meritless. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (finding that counsel cannot be ineffective for failing to raise a meritless claim). Trial counsel did interview multiple members of Petitioner's family in preparation for the penalty phase. He presented testimony from Petitioner's mother, grandmother, and a neighbor and family friend in an attempt to establish Petitioner's history of mental illness and substance abuse and bolster his case for mitigation in sentencing. Nevertheless, Petitioner claims that counsel asked too few questions of his witnesses, and argues that counsel should have uncovered that Petitioner's mother drank during her pregnancy, that his step-father was a "cruel, alcoholic gambler," and that Petitioner's basic physical needs were not provided for as a child. (Mem. Law Supp. Pet. Writ Habeas Corpus at 31-33.)

Petitioner next contends in subclaim (4) that his trial counsel was constitutionally ineffective for making arguments and introducing evidence at sentencing that proved harmful to Petitioner's defense. Petitioner cites seven separate examples of such conduct, none of which were presented in state court. Petitioner, however, contends that he can demonstrate cause and prejudice for his default through the ineffective assistance of his appellate counsel in failing to challenge his trial counsel's conduct on direct appeal. Because we find that all seven of Petitioner's arguments are entirely without merit, we in turn conclude that they cannot be grounds for finding cause, as counsel cannot be found ineffective for failing to raise meritless claims. See Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Petitioner asserts in his first example that his trial counsel was somehow deficient for referring to the Commonwealth's attorney as "my respected friend," "my respected colleague," and "my learned friend." (Mem. Law Supp. Pet. Writ Habeas Corpus at 39.) Petitioner argues that an attorney is not permitted to vouch for her own integrity, and therefore that vouching for one's opponent is equally prejudicial and represents a constitutionally deficient performance. (See id. (citing United States v. Pelullo, 964 F.2d 193, 218 (3d Cir. 1992) (finding the prosecutors may not vouch for their own integrity)).) In order for such a finding to be made, however, Petitioner must demonstrate that his counsel "fail[ed] to subject the prosecution's case to meaningful adversarial testing." United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Our independent review of the record shows that Petitioner's trial counsel did no such thing.*fn20 He never actually affirmed his opponent's credibility before the jury. In fact, in his closing argument, trial counsel called both the witnesses and counsel for the Commonwealth liars. (N.T. 6/11/85, at 5.33, 5.35, 5.39, 5.42, 5.44-5.45, 5.48-5.53, 5.74, 5.76.) Petitioner's counsel knows full well that trial counsel's references to opposing counsel were simply a common form of trial courtesy. In our view such remarks only serve to increase a lawyer's credibility with a jury and introduce a degree of proper demeanor, calm, and professionalism into a trial. Such an atmosphere helps to prevent a jury from being swept up by emotion, rather than to create prejudice. Petitioner's argument is at best borderline frivolous. We do not find that trial counsel acted unreasonably or that his statement in any way prejudiced his client's position. In turn, no cause exists to excuse Petitioner's procedural default of this issue and we are thereby precluded from reviewing it on its merits.

Petitioner's second example of trial counsel's detrimental representation focuses on counsel's stipulation to statements made by the victim, Jewel Stevens, to police from her hospital bed on the morning of August 11, 1984. (See N.T. 6/7/85, at 3.49.) Counsel permitted police officers to read the statements into the record in front of the jury. Petitioner argues that counsel permitted the introduction of otherwise inadmissible hearsay statements that were inflammatory and prejudicial to Petitioner's defense. Petitioner fails to recognize two circumstances, however, that support trial counsel's decision to admit the statement. First, Petitioner's primary defense at the guilt stage of the proceeding was mistaken identity. His trial counsel permitted the victim's statement to be entered into the record because it further demonstrated the Victim's inability to identify her assailant; she was unable to describe the man who attacked her in any detail. (See id. at 3.50, 3.56-3.57, 3.59.) By preserving this uncertainty on the record, defense counsel was able to strengthen his client's misidentification defense. Second, counsel permitted the statement into evidence because he did not want to seem as if he were hiding some important information from the jury. Ms. Stevens' statement added little to the medical reports and signed confession already presented as evidence against Petitioner. By refraining from disputing what was an essentially redundant account of information already available, counsel was able to present himself as forthcoming and cooperative, two qualities that any attorney would like to convey to a jury. We find that trial counsel's strategic decisions to permit the victim's statement to be read to the jury were not unreasonable or the product of ineptitude or unfamiliarity with the facts or legal principles relevant to Petitioner's case. We likewise find that Petitioner was not unduly prejudiced by the statement's introduction. As a result, trial counsel was not constitutionally deficient in failing to object to the introduction of such statement, and therefore no cause exists to excuse Petitioner's procedural default of this issue. This question may not be submitted for federal habeas review.

Third, Petitioner cites as an example of his counsel's harmful tactics counsel's reference during the penalty phase to the Victim's age, her family, and to the terrible nature of the crime. Trial counsel acknowledged to the jury that they may be influenced by the age of the victim and that they may also be inclined to grant a harsher sentence out of "sympathy" or "outrage" as a result of the violent nature of the crime. Petitioner argues that counsel's references incited the jury toward an outcome detrimental to Petitioner's defense, and that such conduct, if performed by a prosecutor, would constitute reversible misconduct and ineffective assistance of counsel. (See Mem. Law Supp. Pet. Writ Habeas Corpus at 40 (citing Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130, 145-48 (1996) and Commonwealth v. McNeil, 545 Pa. 42, 679 A.2d 1253, 1259-60 (1996)).) Petitioner fails to recognize, however, that after confronting these rather obvious facts trial counsel went on to argue strongly against the jury's succumbing to emotional reactions.*fn21 Counsel's recognition of the harsh realities of the case and of the jury's potentially severe reaction to those circumstances was an attempt at placating any vindictive or aggressive feelings by the jury toward Petitioner. By acknowledging the emotional aspect of his client's case, counsel was better able to expose any of the jurors' potentially damaging tendencies and to convince them that following such visceral reactions was not the most appropriate way to decide Petitioner's fate. Furthermore, the effects of such statements are obviously completely different when uttered by defense counsel as opposed to a prosecutor. We find that trial counsel was not at all unreasonable in his decision to be honest with the jury about the victim's age and the severity of the crime at issue. This was a strategic decision designed to secure the jury's trust, and Petitioner presents no evidence convincing us that decision was the product of either incompetent or inadequate representation. Trial counsel was therefore not constitutionally ineffective, and no cause exists to excuse Petitioner's default of this argument in state court. We are, as a result, without authority to review this issue.

Petitioner's fourth example argues that trial counsel was ineffective at the guilt phase of the proceeding for permitting evidence that Petitioner was guilty of multiple uncharged offenses. According to Petitioner, counsel's failure to object to two different witnesses' implications that Petitioner was a suspect in a "series of burglaries in the area that were similar to th[e] type of offense" Petitioner had been convicted of in the past added weight to the Commonwealth's position that the (d)(9) aggravating circumstance applies.*fn22 Petitioner further highlighted the fact that counsel, in his closing argument at the penalty phase, referred to Petitioner's past convictions as "rather light sentences" in an attempt to establish that counsel was ineffective for acting to Petitioner's detriment.

We find that counsel was not constitutionally ineffective for choosing not to object to the aforementioned testimony, as his decision was actually part of his overarching trial strategy. Detectives Descher and Schol testified at trial that Petitioner had recently been in jail for a robbery conviction and that they were aware of numerous recent burglaries in Petitioner's neighborhood. They also testified that they wanted to talk to Petitioner about these burglaries because he previously fled from police and "may have known something about the[m]." (N.T. 6/6/85, at 2.29.) Under cross-examination, however, both detectives admitted to simply wanting to garner information from Petitioner; neither ever referred to him as a suspect in the robberies or claimed to have questioned him about anything other than why he fled from a prior encounter with police. (See N.T. 6/6/85, at 2.75, 2.77, 2.78, 2.83, 2.147.) Trial counsel's acceptance of the detectives' testimony reinforced his misidentification and scapegoat defenses. Counsel intended to demonstrate to the jury that the investigating officers knew of Petitioner's prior record and that their desire to question him despite being unable to connect him directly to the crime was solely a product of their singling Petitioner out as a suspect in the attack on Jewel Stevens without proper foundation. Counsels' failure to object therefore represents a valid strategic decision designed to impugn the investigatory motives of the two detectives and create doubt in the jury's mind as to the true identity of the victim's attacker. Such a tactical choice is not the product of ineptitude, inexperience, or a lack of preparation or adequate legal knowledge, and therefore deserves considerable deference from this court under Strickland and Weatherwax I, 20 F.3d at 579. Furthermore, due to our conclusion that trial counsel's decision may have assisted Petitioner's defense, we find that counsel's actions were not unduly prejudicial to that defense.

With regard to Petitioner's allegation that his trial counsel was ineffective at sentencing for referring to Petitioner's prior sentences as "rather light," we find that counsel had ample strategic justification for such comments and therefore that he was also not constitutionally ineffective on that ground. Counsel mentioned the leniency of Petitioner's prior sentences for robbery to demonstrate that Petitioner had never been convicted of a crime as serious as the one he was charged with in this case. (See N.T. 6/12/85, at 6.26.) This point is consistent with counsel's strategy at the penalty phase, which relied in part on the uncharacteristic nature of Petitioner's conduct to support his argument for mitigation on the grounds of mental infirmity. We find that counsel's attempt to strengthen his mental health defense by showing that the crime at issue in this case was out of character for Petitioner is a reasonable tactical choice within the Sixth Amendment's broad range of acceptable legal representation. Petitioner's argument that this choice may have supported the Commonwealth's argument in favor of an aggravating circumstance under (d)(9) does not change the fact that counsel acted within his professional discretion in permitting the jury to hear certain evidence. Counsel did not perform deficiently or unduly prejudice Petitioner. As a result, Petitioner's claim that cause and prejudice exist excusing his state court default of this issue is rejected, and his argument is found inappropriate for federal review under 28 U.S.C. § 2254.

Petitioner's fifth example insists that his trial counsel was ineffective for using inflammatory and prejudicial language in describing the crime to the jury. Petitioner rests his argument on the fact that "these statements were made by defense counsel in a case where the evidence was overwhelming that Mr. Holland was the assailant." (Mem. Law Supp. Pet. Writ Habeas Corpus at 41.) What Petitioner fails to acknowledge, however, is that trial counsel made a decision to pursue a defense of misidentification. Although Petitioner argues that overwhelming evidence existed that Petitioner was the assailant, he does not address the presence of even more overwhelming evidence that the crime was brutal and violent. Accounts from police at the scene, as well as numerous medical reports and the statement of the victim herself describe a horrific scene in Jewel Stevens' apartment on the morning of August 11, 1984. (See, e.g., N.T. 6/5/85, at 1.72-1.75; N.T. 6/6/85, at 2.4-2.11; N.T. 6/7/85, at 3.47-3.49, 3.55-3.59.) Any attempt to prove otherwise would have seemingly been an exercise in futility; Petitioner's trial counsel was left with little choice but to argue that his client was not the man at the scene.*fn23 Recognizing the seemingly obvious fact that the crime committed against Jewel Stevens was brutal and cruel, counsel continuously presented evidence to the jury that Petitioner was not the assailant, arguing that Petitioner's prior criminal record served as evidence that such a brutal, violent crime was completely out of character for him.*fn24 (See, e.g., N.T. 6/12/85, at 6.26.) This decision was not unreasonable and did not unduly prejudice Petitioner. Counsel attempted to further an understandable defense strategy by admitting to the jury that which they already knew. Any attempt to argue otherwise ran the risk of seeming disingenuous and desperate. We find that Petitioner's trial counsel was not ineffective by virtue of his description of the crime against Jewel Stevens, and therefore that Petitioner is unable to demonstrate cause for his procedural default. We are therefore barred from further review of this issue.

Sixth, Petitioner offers as an example of his trial counsel's ineffectiveness his counsel's comments to the jury at the penalty phase regarding Petitioner's choice not to testify. At the trial's outset, Petitioner stated on the record that he did wish to testify on his own behalf. (See N.T. 6/5/85, at 1.3-1.5.) He later changed his mind. At the close of the penalty phase, Petitioner's counsel explained on the record that Petitioner had changed his mind and no longer wished to testify. (See N.T. 6/12/85, at 6.22-6.23.) Petitioner now claims that such an explanation by counsel constituted a violation of his Fifth Amendment right against self-incrimination under Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). We find that Petitioner's counsel was not ineffective for failing to raise such a claim. Petitioner's public insistence that he testify required an explanation by counsel when Petitioner changed his mind. Not presenting such an explanation may have led the jury to believe that Petitioner had been scared by something that happened at trial or had given up in his attempt to prove either his innocence or the presence of mitigating circumstances. By entering a brief explanation on the record, counsel tried to alleviate any speculation as to why Petitioner never took the stand. We find that this was a reasonable tactical decision under Strickland. We likewise find that Petitioner was not prejudiced by counsel's actions, as it would have been obvious to the jury that Petitioner failed to testify and, as a result, extremely unlikely that trial counsel's comments in any way affected the jury's decision or compromised the adversarial process required by the Sixth Amendment. Because we find that trial counsel was not constitutionally ineffective for explaining Petitioner's decision not to testify to the jury, we also find that Petitioner is unable to show proper cause for his procedural default. Petitioner's argument is therefore inadmissible before this court.*fn25

Petitioner's seventh and final example of his trial counsel's harmful conduct focuses on the language in counsel's closing argument. Petitioner objects to his counsel's comments that

Now, sometimes it is argued that the whole purpose that should appreciate you to pass the death penalty, that is the victim, whoever he or she may be will never change. That is why it is introduced records of his past, so we show you that this is the way he has been in the past. And if you are to say that he should get a life sentence, he will never change. Should he ever get out of prison, this is the way he will be in the future. That, really, is the essence of whether a person should get a life sentence or the death penalty. Is he going to change? Is the society always going to be threatened by this human being? And the Commonwealth, of course, always does its best, as it must, to convince you that the defendant will never change, that he will always be a predator among civilized people. I urge you, ladies and gentlemen, to think carefully on that. Who are we to say that a person will never change? Who are we to say that a person should not by given a chance to live?"

(N.T. 6/12/85, at 6.25-6.26.) According to Petitioner, counsel's reference to whether the defendant is capable of change represents "an appalling ignorance of Pennsylvania's capital sentencing scheme." (Mem. Law Supp. Pet. Writ Habeas Corpus at 44.) He contends that counsel's comments implied that a life sentence should only be granted in cases where the defendant will eventually be capable of reentering society. Pennsylvania law, however, permits a capital jury to sentence a defendant to either death or life in prison without parole. Petitioner insists that his counsel's improper implication increased his likelihood of receiving a death sentence because the jury mistakenly thought Petitioner may eventually be eligible for release Counsel, however, never mentioned release in his closing. Any talk of personal change can be assumed to apply as easily to people in prison as to those outside. Counsels' comments were meant to appeal to the jury's sympathies in an attempt to have them recognize ...

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