Williams v. Beard

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-9002

_____________

TERRANCE WILLIAMS,

Appellant

v.

JEFFREY BEARD, Commissioner, Pennsylvania Department

of Corrections; LOUIS B. FOLINO, Superintendent of the

State Correctional Institution at Greene; FRANK TENNIS,

Acting Superintendent of the State Correctional Institution at

Rockview; THE DISTRICT ATTORNEY OF THE

COUNTY OF PHILADELPHIA; THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA

___________________________________

On appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 05-cv-03486

District Judge: The Honorable Michael M. Baylson

___________________________________

Argued December 7, 2010

Before: SMITH, CHAGARES, and ALDISERT, Circuit

Judges

(Filed: March 9, 2011)

Helen Marino

Michael Wiseman (argued)

Defender Association of Philadelphia

Federal Capital Habeas Corpus Unit

The Curtis Center, Suite 545 West

Independence Square West

Philadelphia, PA 19106

Counsel for Appellant

John W. Goldsborough (argued)

Office of the District Attorney

Three South Penn Square

Philadelphia, PA 19107

Counsel for Appellees

________________

OPINION

________________

SMITH, Circuit Judge.

Twenty-five years ago, petitioner Terrance Williams

was tried and convicted of first degree murder for the killing

of Amos Norwood. A jury then returned a sentence of death.

2

After two decades of appeals in the Pennsylvania state courts,

Williams filed a petition for federal habeas review pursuant to

28 U.S.C. § 2254. The District Court denied the petition but

certified two questions for our review, to wit: (1) whether trial

counsel was constitutionally ineffective during the penalty

phase of trial, and (2) whether the Commonwealth exercised

its peremptory strikes in a racially discriminatory manner in

violation of Batson v. Kentucky, 476 U.S. 79 (1986). We

permitted Williams to expand the certificate of appealability

to include a question regarding the constitutional propriety of

the trial court’s accomplice liability instructions. We

conclude that each issue is without merit and will affirm.

I

The story of Terrance Williams is reminiscent of Dr.

Jekyll and Mr. Hyde. As Dr. Jekyll, Williams was a local

football star, the quarterback of the Germantown High School

team that won the Philadelphia Public League championship

in 1982. He was presented with the sportsman of the year

award by the Philadelphia Board of Sports Officials, and he

was recruited by at least eight different collegiate institutions.

Nearly all of Williams’ coaches and teachers described him as

mild-mannered, law-abiding, and honest. In 1983, Williams

graduated from Germantown High and matriculated to

Cheney State College in Philadelphia. In the estimation of

one of his instructors, Williams was “highly respected and

admired by his teacher[s] and all of his classmates.” He was

“[n]ot only . . . the star of the school’s football team, but

[was] also . . . a classmate and student who showed respect

for others and accepted his popularity with modesty.”

3

But apparently Terrance Williams had a sinister side.

In the dead of night on Christmas Eve in 1982, a sixteen-year-

old Williams broke into the Philadelphia residence of Don

and Hilda Dorfman, aged sixty-nine and sixty-four,

respectively. He entered Mrs. Dorfman’s bedroom, wakened

her by pressing a .22 caliber Winchester rifle to her neck, and

then pulled a bedsheet over her face. When Mrs. Dorfman

attempted to remove the sheet, Williams ordered her to stop

“or her fucking head would be blown off.” Williams then

fired the rifle three times into the wall to show the victims he

was serious. Williams and an accomplice ransacked the

home before making off with cash, jewelry, and the

Dorfmans’ automobile.

It was not long before Williams was apprehended and

criminally charged for robbing and terrorizing the Dorfmans.

Although his age placed him under the jurisdiction of the

juvenile court, the Commonwealth moved to certify Williams

as an adult. In an attempt to avoid certification, Williams

produced no fewer than eight witnesses who attested to his

stable home life, loving parents, and supportive extended

family. Every character witness interviewed by the

Commonwealth believed Williams to be innocent. Even his

own attorney would testify years later, “I didn’t feel in my

own mind of mind[s] and heart of hearts that [Williams] was

involved in the matter.” Such was the nature of Williams’

dual existence.

In spite of the efforts to avoid it, Williams was

certified to stand trial as an adult. He was released pending

trial, however, and in January of 1984, he embarked in

4

earnest on a crime spree that would continue for the better

part of six months. Williams’ next victim was a fifty-one-

year-old man named Herbert Hamilton, an individual from

whom Williams had been receiving money in exchange for

sex. This relationship, like much else in Williams’ life, was

kept hidden from most who knew him. Hamilton apparently

threatened to publicize the secret, so Williams took action.

On January 26, 1984, Williams called on Hamilton at

his home. The two eventually retired to the bedroom and, as

they proceeded toward the bed, Williams withdrew a

concealed ten-inch butcher knife and attempted to stab

Hamilton. Hamilton fought back, wrestled the knife from

Williams, and stabbed Williams in the chest. Hamilton then

dropped the knife and ran into the kitchen to telephone for

assistance. Meanwhile, Williams retrieved a nearby baseball

bat, chased after Hamilton, and beat him with the bat until

Hamilton was bloody and severely wounded. Williams then

recovered the butcher knife and stabbed Hamilton

approximately twenty times—twice in the head, ten times in

the back, once in the neck, four times in the chest, and once

each in the abdomen, arm, and thumb. Finally, Williams

drove the butcher knife through the back of Hamilton’s neck

until it protruded through the other side. He then doused

Hamilton’s body with kerosene and unsuccessfully attempted

to set fire to it. When police officers later entered the

apartment, they found Hamilton’s kerosene-soaked body with

the knife jammed through his neck; on the bathroom mirror,

the phrase “I loved you” was scrawled in toothpaste.

Williams was then seventeen.

5

The Hamilton murder remained unsolved at the time

that Williams went to trial for the Dorfman robbery in

February of 1984. Williams maintained his innocence of the

robbery throughout trial. He and his counsel mustered at least

nine character witnesses who testified that Williams was a

peaceful, law-abiding, and honest young man. The jury was

not persuaded. They returned a conviction for two counts of

robbery as felonies of the first degree, one count of burglary,

one count of simple assault, one count of unauthorized use of

an automobile, and one count of conspiracy. Williams was

nevertheless released pending sentencing. Tragically, his

crime spree continued.

On June 11, 1984, Williams and a friend, Marc Draper,

were gambling with several others on a street corner in the

West Mount Airy neighborhood of Philadelphia. It was not

long before both young men lost all of their money. While

brainstorming potential means by which to recoup their

losses, Williams said that he knew a man who lived nearby

from whom they could extort cash. 1 According to Williams,

1

Approximately one month before this date, Williams and Draper

were arrested for the armed robbery of fifty-three-year-old Robert

Hill, an acquaintance of the late Herbert Hamilton. The

Commonwealth discontinued the prosecution for this offense after

Williams was sentenced to death for the Norwood killing.

Evidence of the crime was not presented to the Norwood jury

during the trial’s penalty phase and was not offered by the

Commonwealth during the PCRA proceeding. Given these

circumstances, we have not considered the facts relating to this

offense for purposes of our present inquiry.

6

this individual—fifty-six-year-old Amos Norwood—was a

closeted homosexual. With a plan that they would threaten to

reveal Norwood’s secret to his wife, Draper and Williams set

off for Norwood’s apartment.

When they arrived at Norwood’s residence, Williams

told Draper to wait outside. Williams emerged with $10 in

cash approximately twenty minutes later. Williams and

Draper were apparently satisfied with this amount because

they returned to the street corner to resume gambling. A

short time later, Norwood drove by the corner in his blue

Chrysler LeBaron. When he spotted the vehicle, Williams

said, “There goes my uncle,” flagged down the car, and

entered via the passenger side door. Norwood then drove

away.

The blue LeBaron returned to the intersection several

minutes later, whereupon Williams exited the vehicle,

approached Draper, and said quietly, “Play it off like you

going home, like you want a ride home, and we gonna take

some money.” Draper understood Williams to be proposing a

robbery. The two then got inside Norwood’s automobile and

Draper began to provide false directions to his “home.” In

reality, Draper’s directions led Norwood to a secluded area

adjacent to the Ivy Hill Cemetery. Once there, Draper

reached over the backseat, grabbed Norwood from behind and

ordered him “to be quiet and get out of the car.” Norwood

stopped the vehicle and complied.

Williams and Draper then led Norwood into the

cemetery and ordered him to lie facedown near a tombstone.

7

A quick search of Norwood’s person revealed $20 hidden in

his sock. At this point, Norwood began to plead for his life.

The two assailants responded by removing Norwood’s

clothing and tying him up; Norwood’s hands were bound

behind his back with his shirt, his legs were bound together

with his pants, and his socks were forcefully jammed into his

mouth. Once Norwood was bound, Williams said to Draper,

“Wait, I’m going to the car. We’re getting ready to do

something.” And he walked off.

Williams returned with a tire iron and a socket wrench,

the latter of which he gave to Draper. Draper, seemingly

having second thoughts, urged Williams to leave. Williams

replied, “I know what I’m doin, I know what I’m doin. Don’t

worry about it, I know what I’m doin.” He then began

battering Norwood’s head with the tire iron. When he noticed

that Draper was frozen in place, Williams said, “Man, you

with me[?] We got to do this together.” Draper then sprung

into action himself, striking Norwood repeatedly with the

socket wrench. This violent scene continued until Norwood

lay motionless and dead. Draper later recalled that there was

blood everywhere. On the day of his second murder,

Williams was four months past his eighteenth birthday.

Williams and Draper soon parted ways. Draper

reported to work, while Williams took Norwood’s automobile

downtown to meet a friend, Ronald Rucker. Rucker noticed

that Williams was “hyper” and asked him if everything was

okay. Williams then disclosed that he had just “offed a guy”

named Amos. Although Rucker initially did not believe his

friend, he began to reconsider after observing blood stains on

8

Williams’ shoes. Later that night, Williams told Rucker he

was “going to get some gas from a gas station to go back to

the scene of the crime.” Rucker surmised that Williams

intended to burn Norwood’s body. That is precisely what

Williams did.

Williams and Draper were eventually undone by their

use of a credit card and telephone calling card—both in

Norwood’s name—that they had taken from Norwood’s

automobile. Philadelphia police traced use of the calling card

back to Rucker; upon questioning, he implicated Williams

and Draper. When his interview with law enforcement

concluded, Rucker informed Williams that he had provided

police with Williams’ last name. Panicked, Williams boarded

a bus bound for San Francisco. In the meantime, Draper was

arrested and promptly confessed. He also told police about

the Herbert Hamilton killing. With this information, officers

proceeded to obtain a warrant for Williams’ arrest.

Approximately halfway through his cross-country bus

ride, Williams telephoned his girlfriend, Marlene Rogers.

Rogers informed him about the outstanding arrest warrant,

and urged her boyfriend to return to Philadelphia so that he

could defend the charges against him. Her entreaty was

apparently convincing, for Williams promptly boarded an

airplane and returned east. On July 23, 1984, he arranged to

be arrested in the Philadelphia office of his attorney, Ronald

White. Williams’ mother notified a reporter from the Daily

News that her son would surrender to authorities in White’s

office. Before his arrest, Williams told the newspaper, “I

wanted to come back and clear my name.” The reporter

9

snapped photographs as Williams was led out of White’s

office in handcuffs.

Two days later, Williams was sentenced to twelve-

and-a-half to twenty years’ imprisonment for his participation

in the Dorfman robbery. In February 1985, he was tried and

convicted of third degree murder for the Hamilton killing.

Finally, a jury trial for the Norwood murder commenced in

January of 1986 in the Philadelphia Court of Common Pleas.

Draper testified for the Commonwealth and detailed the

manner in which he and Williams guided Norwood to the Ivy

Hill Cemetery, robbed and bound him, and then beat him to

death. Williams later took the stand in his own defense and

pinned the murder on Draper and another individual, Michael

Hopkins. The jury rejected Williams’ testimony and returned

a conviction for first degree murder, robbery, and conspiracy.

The trial’s penalty phase began immediately after the

jury announced its verdict. 2 The Commonwealth introduced

evidence that Williams was recently convicted of armed

robbery and third degree murder. Williams, in turn, presented

three witnesses in mitigation. His mother, Patricia Kemp,

described her son’s athletic success and testified that he was

well-liked and respected by those who knew him. She also

2

At the time of Williams’ trial and conviction, Pennsylvania law

required that “[a]fter a verdict of murder of the first degree is

recorded and before the jury is discharged, the court shall conduct

a separate sentencing hearing in which the jury shall determine

whether the defendant shall be sentenced to death or life

imprisonment.” 42 Pa. Cons. Stat. § 9711(a)(1).

10

characterized Williams’ stepfather as a verbally abusive

alcoholic who routinely berated her son and once pushed him

down a flight of stairs. Ms. Kemp denied participating in any

abuse herself. Marlene Rogers, Williams’ girlfriend and the

mother of his thirteen-month-old child, said that Williams

was a “very supportive father” and had never been violent

towards her or anyone she knew. The defendant’s last

mitigation witness added little, rambling that “we all have

sinned and come short of the glory of God . . . . We all have

committed murder. We all have stolen some things that we

should not have done. We all have committed adultery. I

don’t believe you should kill another person. Blood will be

on your hands.”

After witness testimony was complete, Williams’ trial

counsel, Nicholas Panarella, closed by emphasizing the

defendant’s youth at the time of the murder and by urging the

jury to find that age was a mitigating factor in the offense.

He then asked that they consider any residual doubt

remaining from the guilt phase and argued that a sentence of

life imprisonment was sufficiently severe, for it would subject

Williams to “all of the brutalities that are associated with

prison life.” Panarella concluded by pleading for mercy. His

plea was rejected. The jury found two aggravating

circumstances, namely (1) that the murder occurred during

commission of a felony (robbery), 42 Pa. Cons. Stat. §

9711(d)(6), and (2) that Williams had a significant history of

felony convictions involving the use or threat of violence, 42

Pa. Cons. Stat. § 9711(d)(9). The jury found that there were

no mitigating circumstances present in the case. They

returned a sentence of death.

11

II

Williams has been contesting the jury’s death sentence

almost from the moment it was announced on February 4,

1986. Shortly after trial, he dismissed Panarella and obtained

new counsel, Norris Gelman. Gelman promptly filed a

motion for a new trial on ineffective assistance of counsel

grounds. On April 24 and July 1, 1987, the trial court held

hearings on the motion during which Panarella was called to

the stand to provide testimony on his mitigation strategy. He

indicated that his central focus was Williams’ youth, which

he believed to be the mitigating factor most applicable under

§ 9711 of the Pennsylvania Consolidated Statutes. Panarella

also explained that Williams provided him little, if any,

assistance, which frustrated efforts to present a strong cadre

of character witnesses on the defendant’s behalf. Finally,

when asked why he did not proffer evidence that Williams

was psychologically damaged, Panarella was frank:

My own personal observations of Mr. Williams

were and are that he is a very cold, calculating

person. I did not discern any area where there

was any doubt in my mind or that would have

caused me to consider the fact that he was either

not qualified or incapable of standing trial or

facing punishment.

At the conclusion of the hearing on July 1, 1987, Williams’

motion for a new trial was denied. The trial court thereafter

sentenced him to death on the first degree murder conviction.

12

On February 8, 1990, the Pennsylvania Supreme Court

affirmed the trial court’s judgment and conviction. See

Commonwealth v. Williams (Williams I), 570 A.2d 75 (Pa.

1990). Williams did not petition for certiorari in the United

States Supreme Court. He did, however, timely file a pro se

petition for relief under Pennsylvania’s Post Conviction

Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541 et seq. 3 New

counsel was appointed and filed an amended petition raising

twenty-three separate claims for relief. 4 Among them,

Williams argued that the Commonwealth exercised its

peremptory strikes in a racially discriminatory manner, in

violation of Batson v. Kentucky, 476 U.S. 79 (1986), and that

Panarella provided constitutionally ineffective assistance

during the trial’s penalty phase. The Court of Common Pleas

denied relief on October 20, 1998, and on December 22,

2004, the Pennsylvania Supreme Court affirmed over the

dissent of two justices. 5 See Commonwealth v. Williams

3

Williams’ PCRA petition was timely because he filed it before

the post-conviction statute was amended to require petitioners to

seek collateral relief within one year of the date that judgment

becomes final. See 42 Pa. Cons. Stat. § 9545(b); see also Lewis v.

Horn, 581 F.3d 92, 97 n.2 (3d Cir. 2009).

4

For a comprehensive compilation, see the May 8, 2007 order

filed by the District Court. Williams v. Beard, 2007 U.S. Dist.

LEXIS 41310, at *7–10 (E.D. Pa. May 8, 2007).

5

Williams filed a second PCRA petition on February 18, 2005.

The Common Pleas Court dismissed the petition as untimely under

42 Pa. Cons. Stat. § 9545, and the Pennsylvania Supreme Court

affirmed on September 27, 2006.

13

(Williams II), 863 A.2d 505 (Pa. 2004).

In July of 2005, Williams filed a timely petition for a

writ of habeas corpus in the United States District Court for

the Eastern District of Pennsylvania. He therein raised a total

of twenty-one claims, most of them not pertinent to the

instant appeal. The District Court denied the petition in a

thorough memorandum dated May 8, 2007, but granted

Williams a certificate of appealability on two issues: (1)

whether the Commonwealth exercised its peremptory strikes

in a racially discriminatory manner, and (2) whether trial

counsel was constitutionally ineffective during the penalty

phase. We later granted Williams’ motion to expand the

certificate of appealability, permitting him to contest the

constitutionality of the trial court’s jury instructions on

accomplice liability. 6 We address each of these issues in

turn.

III

The District Court had jurisdiction under 28 U.S.C. §§

6

We also granted Williams’ motion to certify a fourth issue for

review, namely: whether the aggravating circumstance set forth at

42 Pa. Cons. Stat. § 9711(d)(6) was improperly applied by the jury

in violation of due process and the Eighth Amendment. Williams

later abandoned this issue, stating, “Since the jury found another

valid aggravating circumstance and no mitigating factors,

Petitioner does not believe he can show prejudice resulting from

this error and will not pursue this claim.” Appellant Br. at 1 n.1.

Accordingly, we do not address this contention.

14

2241 and 2254. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253. The District Court did not conduct an

evidentiary hearing in this case, instead limiting itself to the

evidence contained in the state court record. Our review of

the District Court’s legal conclusions is therefore plenary, and

we evaluate “‘the state courts’ determinations under the same

standard that the District Court was required to apply.’”

Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (quoting

Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009)).

Review of the instant petition is governed by the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2241 et seq. Hardcastle v. Horn, 368

F.3d 246, 254 (3d Cir. 2004) (petitions filed after April 1996

subject to AEDPA standards). For inmates such as Williams,

who are incarcerated by the state, AEDPA prohibits federal

court relief on claims which have not been presented to the

state’s tribunals. See 28 U.S.C. § 2254(b). If a petitioner’s

claim has been adjudicated on the merits in state court, habeas

relief is precluded unless the state court’s 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) “was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” § 2254(d).

Thus, AEDPA erects “‘a substantially higher threshold’ for

obtaining relief than de novo review.” Renico v. Lett, --- U.S.

---, 130 S. Ct. 1855, 1862 (2010) (quoting Schriro v.

Landrigan, 550 U.S. 465, 473 (2007)). “[A] federal habeas

court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-

15

court decision applied clearly established federal law

erroneously or incorrectly,” Williams v. Taylor, 529 U.S. 362,

411 (2000); relief instead requires a determination that the

state court’s application was unreasonable, Renico, --- U.S. --

-, 130 S. Ct. at 1862.

In addition, AEDPA endows a state tribunal’s findings

of fact with a “presumption of correctness,” and this

presumption extends “to the factual determinations of state

trial and appellate courts.” Duncan v. Morton, 256 F.3d 189,

196 (3d Cir. 2001) (citing 28 U.S.C. § 2254(e)(1) and

Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). To

overcome the presumption, a habeas petitioner must proffer

clear and convincing evidence to show that a factual

determination is “objectively unreasonable in light of the

evidence presented in the state-court proceeding.”7 Miller-El

7

Section 2254(e)(1) refers to a state court’s specific factual

determinations—in other words, the discrete findings that “are

subsidiary to the ultimate decision.” Lambert v. Blackwell, 387

F.3d 210, 235 (3d Cir. 2004). These findings may be set aside

only upon a showing that there is clear and convincing evidence to

the contrary. A challenge to the state courts’ ultimate factual

determination proceeds under § 2254(d)(2). That section, which

refers to “an unreasonable determination of facts in light of the

evidence presented in the State Court proceeding,” requires a

federal habeas court to “assess whether the state court’s

determination was reasonable or unreasonable” given the totality

of the evidence adduced in the state tribunal. Lambert, 387 F.3d at

235. A challenge to the state court’s individual findings of fact

under § 2254(e)(1) may be based “wholly or in part on evidence

outside the state trial record.” Id. However, “even if a state

16

v. Cockrell, 537 U.S. 322, 340 (2003). Our review proceeds

under this AEDPA rubric.

A Batson Claim

Williams, who is an African American male, argues

that the Commonwealth’s use of peremptory challenges

during jury selection violated Batson v. Kentucky, 476 U.S.

79 (1986). In Batson, the Supreme Court held that deliberate

or purposeful exclusion of African Americans from jury

service violates the Equal Protection Clause. Batson, 476

U.S. at 84. The decision set forth a three-step procedure for

evaluating claims of discrimination in the jury selection

process:

First, a defendant must make a prima facie

showing that a peremptory challenge has been

exercised on the basis of race. Second, if that

showing has been made, the prosecution must

offer a race-neutral basis for striking the juror in

question. Third, in light of the parties’

submissions, the trial court must determine

whether the defendant has shown purposeful

discrimination.

court’s individual factual determinations are overturned, what

factual findings remain to support the state court decision must still

be weighed under the overarching standard of section 2254(d)(2).”

Id. at 235–36.

17

Miller-El, 537 U.S. at 328–29 (discussing three-step inquiry

and citing Batson, 476 U.S. at 96–98). Batson was handed

down in April 1986—four months after the jury was

empaneled to hear the Norwood murder trial. However,

because Williams’ conviction was pending on direct review at

the time Batson was decided, its holding applies retroactively

to jury selection in the Norwood case. See Griffith v.

Kentucky, 479 U.S. 314, 328 (1987). We thus begin our

review of Williams’ Batson claim by reconstructing the voir

dire, which commenced on January 6, 1986.

Each party was afforded a total of twenty peremptory

challenges. The Commonwealth exercised its first two strikes

on African American venirepersons; this prompted Panarella

to object and led to the following exchange:

MR. PANARELLA: Your Honor, I’m not sure

of the case but there was a recent case which

dealt with an attempt by the State or the

Commonwealth to systematically exclude

blacks from the jury. I think it would be

appropriate if we were to ask the

Commonwealth on what basis they exercised

the peremptory challenge.

THE COURT: Anything you want to say?

[PROSECUTOR]: No, your Honor, and I

might point out that the defense has exercised

its peremptory challenges. I believe that this

may be only the first challenge that I have

18

exercised at all.

THE COURT: So far, the defense has

challenged peremptorily two persons who,

incidentally, both of whom were white. The

Commonwealth has peremptorily challenged

two persons who, incidentally, both of whom

are black. The Court is very cognizant of the

law in that area; however, at this point, I can see

nothing that suggests that the peremptory

challenges are being based on race alone. I’m

not going to ask the Commonwealth to set forth

the reason; however, I will ask Miss Foulkes if

the peremptory challenges are being based on

race alone?

[PROSECUTOR]: Absolutely not, your Honor.

I might suggest they are not being based on race

at all.

THE COURT: Thank you very much. The

record will reflect your objection.

The Commonwealth then used its next two peremptory

challenges to strike two more African American members of

the venire. Panarella objected a second time, stating, “I have

raised an objection with respect to how she has raised her

19

peremptory challenges.” 8 The trial judge then stated,

With respect to your objection concerning the

use of peremptory challenges, that is your right

and if there’s anything you want to say further

regarding that, you are free to say it. . . . You

made your position plain the last time, Miss

Foulkes, and I continue to accept that you are

challenging people without respect to race but

with respect to what other determinations you

choose to make which you believe to be right

under the law.

In response, the prosecutor, Andrea Foulkes, simply noted

that “the record will speak for itself.”

The Commonwealth thereafter struck ten additional

African American venirepersons. Panarella did not object to

the exercise of any of these strikes. In sum, fourteen of the

sixteen peremptory challenges exercised by the prosecutor

were utilized to dismiss African Americans. She struck

fourteen of the nineteen African American venire members

that she had the opportunity to peremptorily dismiss. In

contrast, Foulkes struck only two of the twenty-one white

individuals she had the opportunity to peremptorily excuse.

8

The Commonwealth argues that Panarella’s statement does not

constitute an objection. This assertion is belied by the record. The

trial judge himself characterized the statement as an “objection,”

and certainly responded in a manner indicating that he was ruling

on a formal objection.

20

At the conclusion of voir dire, the trial court empaneled a jury

composed of five black jurors and seven white jurors.

Williams did not advance a Batson challenge on direct

appeal. He did, however, raise the issue in his PCRA

petition. Williams’ petition also asserted that his trial counsel

was ineffective “for failing to insist that [the prosecutor]

provide race neutral reasons for her challenges,” and that

appellate counsel was ineffective for neglecting to raise a

Batson claim on direct appeal. In April 1998, twelve years

after jury selection in the Norwood murder trial, the PCRA

court held an evidentiary hearing on the issue.

At the outset of the hearing, the PCRA court provided

Williams with several pages of notes that the judge had taken

during voir dire. 9 The court summarized its notes for the

record:

There were 111 prospective jurors called.

That’s [the] total composition of the jury panel

from which the jury was selected. Of those

111, 68 were white and 43 were black. The

composition of the jury, the 12 principal jurors,

was 7 white and 5 black. Total perempts—

9

Williams was tried in the Philadelphia Court of Common Pleas

before the Honorable David N. Savitt, Jr. Pursuant to 42 Pa. Cons.

Stat. § 9545, jurisdiction over a PCRA proceeding lies in the

Common Pleas court. Accordingly, Judge Savitt also presided

over Williams’ petition for collateral relief.

21

neither side used the full quota of 20 perempts.

The total perempts were 35, 18 of which were

applied to white prospective jurors, 17 to black

prospective jurors.

The Commonwealth utilized 16 peremptory

challenges, 2 of white jurors, 14 of black jurors.

The defense used 19 peremptory challenges, 16

of white jurors, 3 of black jurors.

Williams then called Foulkes to the stand. She provided an

explanation for each of her peremptory challenges and stated

that she “categorically did not” strike any venireperson on the

basis of race. Foulkes also testified that in order to prepare

for the PCRA hearing, she reviewed a transcript of voir dire

as well as the handwritten notes that she took during jury

selection. After reviewing both the transcript and the notes,

Foulkes created a one-page document that summarized, to the

best of her recollection, the rationale behind each peremptory

challenge. She used this summary to aid her PCRA

testimony, though she acknowledged that she was unable to

remember each of her reasons for exercising a strike.

Williams’ counsel was provided a copy of the one-page

summary and used it to question Foulkes during the hearing.

In addition, Williams moved for production of the

handwritten notes that Foulkes took contemporaneous with

voir dire. He argued that production of the notes was

necessary so that he could discover whether Foulkes recorded

the race of each potential juror, and to check the veracity of

her testimony. The PCRA court reviewed the

22

contemporaneous notes in camera and thereafter denied

Williams’ request. According to the court, the notes

contained

nothing [] that needs to be supplied to defense

counsel or to be made part of the record. Miss

Foulkes was called by the defense and testified

fully and completely using, in a very limited

way, the notes that are the subject of this

inquiry to refresh her recollection. Under the

circumstances, . . . no further discovery is

warranted.

In a written order dated January 13, 1999, the PCRA

court denied Williams’ Batson challenge, concluding that he

had failed to make out a prima facie case at step one of

Batson’s three-step analytical framework. 10 Williams

appealed, and the Pennsylvania Supreme Court ruled that the

Batson claim was waived because it was not presented on

direct appeal. It then turned to the derivative ineffective

assistance of counsel claims. To assess these claims, the

court looked to the underlying Batson challenge. Under

Pennsylvania law, as set forth in Commonwealth v. Uderra,

862 A.2d 74 (Pa. 2004), the failure to raise a Batson objection

during voir dire deprives a petitioner of Batson’s three-step

burden-shifting procedure. A petitioner so deprived must

instead shoulder the burden to prove actual, purposeful

10

The PCRA court did not address Williams’ derivative claims of

trial and appellate counsel’s ineffectiveness.

23

discrimination by a preponderance of the evidence. The

Pennsylvania Supreme Court found that Williams’ “trial

counsel did not raise a Batson objection during voir dire,” and

thus the Uderra rule applied. Williams II, 863 A.2d at 514. It

then determined that Williams had not marshaled evidence

sufficient to prove actual, purposeful discrimination. Id. at

515. In other words, the Pennsylvania Supreme Court held

that the underlying Batson claim was without merit. Because

the Batson claim was meritless, Williams’ trial and appellate

counsel could not have been ineffective for failing to raise it.

Finally, the court rejected Williams’ contention that he was

entitled to production of Foulkes’ contemporaneous

handwritten notes, concluding that he had “fail[ed] to

demonstrate exceptional circumstances existed which

required production of the actual notes.” Id. at 515 n.10

(citing 42 Pa. Cons. Stat. § 9545(d)(2) (“No discovery, at any

stage of proceedings under this subchapter, shall be permitted

except upon leave of court with a showing of exceptional

circumstances.”)).

Williams’ federal habeas petition presented both his

Batson claim and the derivative claims of ineffective

assistance of counsel. He also requested an evidentiary

hearing and an opportunity to discover Foulkes’ handwritten

notes. The District Court denied Williams’ request for

discovery, addressed the Batson claim on its merits, 11 and

11

The District Court correctly held that Williams did not

procedurally default his Batson claim by failing to raise it on direct

appeal. See Wilson v. Beard, 589 F.3d 651, 658 (3d Cir. 2009)

(“As we have held on numerous occasions, in capital cases where

the waiver occurred before the Pennsylvania Supreme Court made

24

held that the PCRA court unreasonably applied clearly

established federal law when it concluded that Williams had

not made a prima facie showing of racial discrimination at

step one of the Batson analysis. Even so, the District Court

found that the Commonwealth proffered clear and reasonably

specific race-neutral reasons for its peremptory strikes and

that, in the face of such a proffer, Williams was unable to

show purposeful discrimination in the Commonwealth’s

selection of jurors. Therefore, the Court held that Williams’

Batson challenge was without merit.

Williams contends that the District Court erred in three

respects: first, it should have compelled production of the

handwritten notes; second, it should have conducted an

evidentiary hearing to allow Williams to question Foulkes

regarding the content of the notes; and third, it should have

concluded that the Commonwealth’s use of peremptory

challenges contravened Batson. The Commonwealth offers

rejoinders to each of these arguments and identifies two

alleged errors of its own. Specifically, the Commonwealth

claims that (1) the Pennsylvania Supreme Court’s application

of the rule announced in Commonwealth v. Uderra, 862 A.2d

74 (Pa. 2004), is reasonable and governs the analysis of

Williams’ Batson challenge; and (2) even if the Uderra rule

does not apply, the PCRA court reasonably concluded that

Williams failed to make a prima facie showing of purposeful

it clear that it would no longer apply the relaxed waiver rule, the

waiver rule was not ‘firmly established and regularly followed’

and, therefore, the waiver is not an adequate basis for a finding of

procedural default.”). The Commonwealth does not contest this

aspect of the District Court’s opinion.

25

discrimination. 12 We address each of these competing claims

below.

1 Production of Prosecutor’s Notes &

Evidentiary Hearing

Williams argues that the PCRA court denied him a full

and fair opportunity to litigate his Batson claim when it

12

The Commonwealth also claims that under our recent decision

in Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir. 2008), Williams may

only challenge the prosecutor’s second peremptory strike, for this

is the only strike to which he contemporaneously objected. In

Abu-Jamal, we held that a timely, contemporaneous objection is

required in order to preserve a Batson issue for appeal. 520 F.3d at

284. We explained that the failure to object during voir dire

prevents the trial court from fulfilling responsibilities that are

critical to the Batson framework, namely: evaluating the

prosecutor’s credibility and demeanor and, if necessary, promptly

remedying defects in the selection process. See id. at 281–82. In

this case, there is no question that Williams raised an objection

after the Commonwealth exercised its second peremptory strike.

Williams then objected again following the prosecutor’s fourth

peremptory challenge. By raising two objections during jury

selection, Williams satisfied the contemporaneous objection

requirement. See Lewis, 581 F.3d at 102 (requiring “a timely

objection” to preserve a Batson claim under Abu-Jamal (emphasis

added)). He unequivocally put the trial court on notice of his equal

protection challenge and he allowed the court to inquire as

necessary. The court had an opportunity to evaluate the prosecutor

and, if it deemed appropriate, to investigate the reasons underlying

the strikes. This is all that Abu-Jamal requires. The

Commonwealth’s arguments to the contrary are without merit.

26

rejected his request to produce Foulkes’ contemporaneous

voir dire notes. He does not ask us to review the state court’s

evidentiary decision, but instead argues that under federal

law, he is entitled to production of the notes so that he may

pursue his § 2254 claims in federal court. Williams

petitioned the District Court for production of the notes and

for an evidentiary hearing in which to probe the rationale

underlying the Commonwealth’s exercise of peremptory

challenges. The District Court denied both requests.

Williams claims that this ruling was in error.

Discovery in § 2254 litigation proceeds according to

Rule 6 of the Rules Governing § 2254 Cases. That provision

states, “A judge may, for good cause, authorize a party to

conduct discovery under the Federal Rules of Civil Procedure

and may limit the extent of discovery.” Accordingly, habeas

petitioners are entitled to discovery only upon a showing of

“good cause,” and even then, the scope of discovery is subject

to a district court’s sound discretion. See Harris v. Nelson,

394 U.S. 286, 299–300 (1969) (discussing pre-Rule 6

discovery standard); Bracy v. Gramley, 520 U.S. 899, 909

(1997) (explaining that Rule 6 was meant to be consistent

with Harris); see also Deputy v. Taylor, 19 F.3d 1485, 1493

(3d Cir. 1994) (“A district court sitting in a habeas case

retains the discretion to permit additional discovery if the

petitioner presents ‘good cause’ to do so.”). A habeas

petitioner may satisfy the “good cause” standard by setting

forth specific factual allegations which, if fully developed,

would entitle him or her to the writ. See Harris, 394 U.S. at

300; see also Lave v. Dretke, 416 F.3d 372, 380 (5th Cir.

2005). The burden rests upon the petitioner to demonstrate

27

that the sought-after information is pertinent and that there is

good cause for its production. R. 6(b) R. Gov. § 2254 Cases;

Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004);

Murphy v. Johnson, 205 F.3d 809, 814–15 (5th Cir. 2000).

We review the District Court’s denial of a discovery

request for abuse of discretion. Smith v. Mahoney, 611 F.3d

978, 997 (9th Cir. 2010); Teti v. Bender, 507 F.3d 50, 60 (1st

Cir. 2007); Williams, 380 F.3d at 974; United States v. Roane,

378 F.3d 382, 403 (4th Cir. 2004); Newton v. Kemna, 354

F.3d 776, 783 (8th Cir. 2004); see also Bracy, 520 U.S. at

909. A district court abuses its discretion when discovery is

“‘essential for the habeas petitioner to develop fully his

underlying claim.’” Mahoney, 611 F.3d at 997 (quoting

Dung The Pham v. Terhune, 400 F.3d 740, 743 (9th Cir.

2005)).

The PCRA court afforded Williams considerable

latitude to develop the facts underlying his Batson challenge

during collateral proceedings. Williams was granted a six-

day evidentiary hearing; he called Foulkes to the stand and

conducted an extensive examination; he was provided with a

one-page document, created by Foulkes, summarizing her

concerns with each of the venire members that she struck; and

he was given several pages of the trial court’s voir dire-

related notes. What is more, although Williams was not

supplied with Foulkes’ handwritten voir dire notes, he was

expressly permitted to question the prosecutor regarding that

which she recorded in those notes.

On direct examination, Foulkes described the content

28

of her handwritten notes as follows:

I took notes with respect to each individual

prospective venire person as they came up and

as they spoke. My process of thinking requires

contemporaneously writing. It’s just something

that I do. And what I wrote down were

principally what it was that they said. It’s that

simple. If there was something overtly

extraordinary about the witness that I observed,

I would also write that down, but not always,

and that was not always necessary, and

whatever I didn’t write down would also be

reflected on the record.

Foulkes later explained that she “mostly wrote down things

like location, age, whether they had children, where they

worked, the things that we ask in voir dire routinely.” Thus,

according to Foulkes, much of what she recorded in her notes

was also reflected in the record; in other words, the

information was readily available for Williams to use as he

mounted his collateral attack.

When Williams queried whether Foulkes recorded

each prospective juror’s race, the prosecutor replied that she

generally did not, stating

No, I don’t believe I did. I would record both

black and white jurors in the couple of

occasions that I recorded race at all. I recorded

them more or less equally for black and white

29

jurors, and I don’t think I did it beyond the first

few prospective jurors, and then I just stopped

doing it. It wasn’t necessary, certainly, to do it.

Of course, the PCRA judge heard Foulkes’ testimony and her

description of the notes’ contents. When he later examined

the notes in camera, he was aware of the prosecutor’s

representations, as well as Williams’ specific concerns

regarding the veracity of those representations. Yet, the court

stated on the record that it found “nothing [in the notes] that

needs to be supplied to defense counsel or to be made part of

the record.” Furthermore, the court characterized Foulkes’

testimony regarding her notes as “full” and “complete,” and

ruled that “no further discovery is warranted.” 13

13

Prior to the PCRA court’s in camera review, Williams’ counsel

made several oral requests for production of the notes. His

arguments in favor of production were clear and well stated.

Foremost, he was concerned that Foulkes was not disclosing the

complete contents of the notes. Thus, counsel argued, “I should

not be in a position, with all due respect to the witness and her high

office, of taking her word for it. She’s got notes; I should be

allowed to look at her notes. She’s just like any other witness.

And I can’t—as my client’s attorney, I’m charged with a

responsibility to not take her word for it. My job is to get the notes

so I can check the veracity of her answers, and that’s why I’ve

sought the notes.” Counsel was also interested in evidence of

Foulkes’ thought process. He argued, “She may have a pattern of

what she recorded that could reflect what she thought at the time

she exercised her strikes.” Both of these contentions were

proffered directly prior to the PCRA court’s in camera review.

30

Williams now essentially asks that we disbelieve the

PCRA court, yet he presents us with no fact-based reason to

do so. Instead, he argues that the notes are imperative so that

he may inquire into the prosecutor’s state of mind. His

argument proceeds as if he has never had such an opportunity.

But Williams has subjected Foulkes to cross examination on

precisely this point. He has also discovered a summary

compilation of the motives underlying her strikes. The PCRA

judge compared this summary, in camera, to Foulkes’ raw

notes, and pronounced it a “full” and “complete” disclosure.

Thus, Williams has already been afforded significant

opportunity to discover the prosecutor’s state of mind; he fails

to set forth, in a colorable manner, exactly what he lacks.

Ultimately, Williams’ request amounts to an entreaty

to engage in a fishing expedition. The law is clear, however,

that such speculative discovery requests should be rejected.

See Murphy, 205 F.3d at 814 (“Simply put, Rule 6 does not

authorize fishing expeditions.”); see also Mayberry v.

Petsock, 821 F.2d 179, 185 (3d Cir. 1987). The District

Court reviewed the record of collateral proceedings, remarked

upon the significance of both the PCRA court’s in camera

review and subsequent characterization of the notes, and ruled

that Williams “received all the information he is

constitutionally entitled to in order to proceed with his Batson

When the PCRA court subsequently described the testimony as

“full” and “complete,” it was implicitly indicating that Foulkes

testified truthfully about the notes’ contents and that they

contained no relevant, undisclosed indicator of her subjective

motivation.

31

claim.” The District Court did not abuse its discretion in

reaching this conclusion.14 See Mahoney, 611 F.3d at 997

(stating that a district court abuses its discretion when it

denies discovery that is essential to development of the

petitioner’s claim).

In addition, the District Court did not abuse its

discretion by denying Williams’ motion for an evidentiary

hearing. District courts have discretion to grant such hearings

under § 2254(e)(2). Palmer v. Hendricks, 592 F.3d 386, 393

(3d Cir. 2010); Campbell v. Vaughn, 209 F.3d 280, 287 (3d

Cir. 2000). We have set forth two considerations to guide a

district court when confronted with such requests: first, it

“should determine whether the petition presents a prima facie

showing which, if proven, would enable the petitioner to

prevail on the merits of the asserted claim,” and second, even

14

The District Court incorrectly applied 28 U.S.C. § 2254(d) to

Williams’ request for production, holding that the PCRA court’s

“refusal to turn over the notes was not contrary to or an

unreasonable application of clearly established federal law,” and

that the decision was “not based on an unreasonable determination

of the facts in light of the evidence presented in the state court

proceedings.” Section 2254(d) applies only to a “substantive

request for habeas relief” and not a discovery request. Fahy v.

Horn, 516 F.3d 169, 180 (3d Cir. 2008). Application of § 2254(d)

to a habeas discovery request surely imposes an overly stringent

burden, one that a petitioner is unlikely to meet. The District

Court’s error is not fatal, however, for we exercise plenary review

over the Court’s legal conclusions, see Lewis, 581 F.3d at 100, and

ultimately reach the same result under Rule 6.

32

if the petitioner satisfies this first criterion, the court “may

decline to convene an evidentiary hearing if the factual

allegations are ‘contravened by the existing record.’” 15

Palmer, 592 F.3d at 393 (quoting Schriro, 550 U.S. at 474);

see also Morris v. Beard, --- F.3d ---, 2011 U.S. App. LEXIS

1551, at *28 (3d Cir. Jan. 26, 2011) (“‘[I]f the record refutes

the applicant’s factual allegations or otherwise precludes

habeas relief,’ no evidentiary hearing is required.” (quoting

Schriro, 550 U.S. at 474)). Moreover, we have stressed that

“courts [should] focus on whether a new evidentiary hearing

would be meaningful, in that a new hearing would have the

potential to advance the petitioner’s claim.” Campbell, 209

F.3d at 287.

The District Court held that an evidentiary hearing

would not advance Williams’ Batson inquiry. Williams was

afforded a full and complete hearing in the PCRA court. He

was provided with the trial court’s voir dire notes, as well as a

document summarizing the motivation for each of the

Commonwealth’s peremptory strikes. The prosecutor

appeared for several hours of testimony, almost all of which

15

“Under § 2254(e)(2), ‘a habeas court is barred from holding an

evidentiary hearing unless the petitioner was diligent in his attempt

to develop a factual basis for his claim in the state court.’” Morris

v. Beard, --- F.3d ---, 2011 U.S. App. LEXIS 1551, at *19 (3d Cir.

Jan. 26, 2011) (quoting Palmer v. Hendricks, 592 F.3d 386, 392

(3d Cir. 2010)). Williams diligently pursued—and obtained—an

evidentiary hearing in the PCRA court, during which his Batson

claim was explored in detail. He is therefore not barred from

seeking an evidentiary hearing in federal court.

33

centered upon her voir dire strategy and state of mind. She

proffered an explanation for each of her challenges and

supported most of these explanations by reference to the

record. The racial composition of the venire and jury was

clearly established. In short, the PCRA proceeding was

comprehensive. Williams identifies no potential facts which

a second evidentiary hearing is likely to unearth. The District

Court quite accurately observed that “[n]o additional, relevant

information would be gained from a federal hearing that

cannot be gleaned from the state court record.” We agree.

See Morris, --- F.3d ---, 2011 U.S. App. LEXIS 1551, at *29–

30 (explaining that an evidentiary hearing is warranted only if

there are “critical issues of material fact” that remain

unresolved). The District Court’s rejection of Williams’

discovery requests will be affirmed.

2 Application of the Uderra Rule

On collateral appeal, the Pennsylvania Supreme Court

determined that Williams waived his Batson claim because,

as a matter of fact, “trial counsel did not raise a Batson

objection during voir dire.” Williams II, 863 A.2d at 514.

This was an unreasonable determination of facts in light of

the evidence presented in the state court proceeding. The trial

record is plain—and both parties agree—that Williams

objected after the Commonwealth used its second peremptory

challenge to dismiss an African American venireperson.

Williams objected a second time after Foulkes exercised her

fourth strike. Thus, the Pennsylvania Supreme Court’s fact-

finding is clearly contradicted by the record. As a result of its

mistake of fact, the Court did not address the Batson claim on

34

its merits.

The Pennsylvania Supreme Court did, however,

indirectly address the Batson claim through its ineffective

assistance inquiry. Specifically, Williams argued that trial

counsel was ineffective for failing to insist that the

Commonwealth provide race-neutral reasons for its

challenges, and that appellate counsel was ineffective for

neglecting to raise a Batson challenge on direct appeal. To

assess the ineffective assistance claims, the Supreme Court

queried whether Williams’ underlying Batson challenge was

meritorious. It ultimately answered in the negative after

applying its then-recent precedent, Commonwealth v. Uderra,

862 A.2d 74 (Pa. 2004). Uderra held that when a post-

conviction petitioner fails to raise an adequate Batson

challenge at trial, he or she is not entitled to rely upon

Batson’s burden-shifting framework in a collateral attack;

rather, the petitioner must prove actual, purposeful

discrimination by a preponderance of the evidence. Uderra,

862 A.2d at 86–87. In Williams’ case, the Pennsylvania

Supreme Court held that the evidence did not meet the

threshold mandated by Uderra. The court thus determined

that the underlying Batson challenge lacked merit and,

accordingly, rejected both ineffective assistance claims.

Williams II, 863 A.2d at 514–15. Neither ineffective

assistance claim is before us today.

The Commonwealth argues that the Pennsylvania

Supreme Court’s application of the Uderra rule is reasonable

and must therefore guide our inquiry into the merits of

Williams’ Batson challenge. In other words, the

35

Commonwealth argues that we should not apply the three-

step Batson framework, but should instead simply ask

whether Williams proved racial discrimination by a

preponderance of the evidence. We disagree. As explained

above, the Pennsylvania Supreme Court determined that

Williams waived his Batson claim; thus, it did not apply

Uderra to the claim. In fact, it did not address the claim at

all. See Laird v. Horn, 414 F.3d 419, 424 (3d Cir. 2005)

(critiquing contention that a state court implicitly addresses

the merits of a claim when it rules on a derivative ineffective

assistance of counsel claim). What is more, the Pennsylvania

Supreme Court’s waiver holding is premised on an

unreasonable determination of facts, namely: the faulty

finding that Williams failed to raise a Batson objection during

voir dire. Given these circumstances, we need not assess the

appropriateness of the Uderra rule, nor will we express an

opinion on whether it represents an unreasonable application

of Batson. We now turn to the merits of this equal protection

challenge.

3 Batson Merits

The PCRA court denied Williams’ Batson claim on the

merits: it held that there was insufficient evidence from which

to infer that the Commonwealth exercised its peremptory

challenges in a racially discriminatory manner. As noted

above, the Pennsylvania Supreme Court did not address this

substantive determination, but instead resolved Williams’

Batson claim on procedural grounds. The Supreme Court’s

procedural resolution is the only decision entitled to

preclusive effect. See Thomas, 570 F.3d at 115. Thus, for

36

purposes of AEDPA, the Pennsylvania state courts have not

adjudicated the Batson claim on the merits. See id. at 114–

15; see also Lewis, 581 F.3d at 100 (explaining that when a

state court’s final resolution of a claim is based on procedural

grounds, that claim has not been “adjudicated on the merits”

for purposes of § 2254(d)). No AEDPA deference is due by

this Court. 16 Lewis, 581 F.3d at 100.

A Batson challenge presents a mixed question of law

and fact on federal habeas review. Hardcastle, 368 F.3d at

254; Holloway v. Horn, 355 F.3d 707, 719 (3d Cir. 2004).

When AEDPA deference does not apply, we review a mixed

16

The District Court incorrectly afforded AEDPA deference to the

PCRA court’s substantive resolution of the Batson claim. The

District Court concluded that, although the Pennsylvania Supreme

Court did not adjudicate the claim on the merits, the state courts—

in this case, the PCRA court—had resolved the claim on

substantive grounds, and thus there was an “adjudication on the

merits” under § 2254(d). An “adjudication on the merits” can, of

course, occur at any level of the state courts. See Thomas v. Horn,

570 F.3d 105, 115 (3d Cir. 2009). When the state supreme court

finally resolves a claim on procedural grounds, however, the

substantive determination of a lower state court is stripped of its

preclusive effect. Id. A substantive determination that lacks

preclusive effect is not an “adjudication on the merits.” Id. at 114

(explaining that an “adjudication on the merits” is “a decision

finally resolving the parties’ claims, with res judicata effect, that is

based on the substance of the claim advanced, rather than on a

procedural, or other, ground” (quoting Sellan v. Kuhlman, 261 F.3d

303, 311 (2d Cir. 2001))). As a result, the PCRA court’s Batson

ruling was not an “adjudication on the merits.”

37

question of law and fact de novo. Lewis, 581 F.3d at 100.

However, any of the state courts’ pure factual determinations,

whether explicit or implicit, retain the presumption of

correctness mandated by AEDPA. See id.; see also §

2254(e)(1); Simmons v. Beard, 590 F.3d 223, 231 (3d Cir.

2009). Batson announced a three-step burden-shifting

framework for judges to employ in order to determine

whether racial discrimination is at work in jury selection.

That procedure, which we have set forth above, requires a

defendant to make out a prima facie case of purposeful

discrimination before the prosecutor must articulate race-

neutral justifications for her strikes. Miller-El, 537 U.S. at

328 (citing Batson, 476 U.S. at 96–98). After the parties have

satisfied their respective burdens of production in these first

two steps, the defendant must prove purposeful

discrimination by a preponderance of the evidence. See id. at

328–29 (citing Batson, 476 U.S. at 98).

Establishment of a prima facie case requires the

defendant to show that “the totality of the relevant facts gives

rise to an inference of discriminatory purpose.” Johnson v.

California, 545 U.S. 162, 168 (2005) (quoting Batson, 476

U.S. at 93–94). This step is not intended to be particularly

onerous, and “the defendant is entitled to rely on the fact . . .

that peremptory challenges constitute a jury selection practice

that permits those to discriminate who are of a mind to

discriminate.” Abu-Jamal v. Horn, 520 F.3d 272, 288 (3d

Cir. 2008) (quoting Batson, 476 U.S. at 96). That said, we

have emphasized that “peremptory strikes are presumptively

valid” and “need not be supported by any reason” so long as

they are not “exercised on an unconstitutional basis, such as

38

race or gender.” United States v. DeJesus, 347 F.3d 500, 505

(3d Cir. 2003).

The Supreme Court has identified at least two

examples of circumstances relevant to step one’s totality

inquiry. First, the defendant may proffer evidence that the

government exercised a “‘pattern’ of strikes against black

jurors included in the particular venire, [which] might [then]

give rise to an inference of discrimination.” Batson, 476 U.S.

at 97. Second, “the prosecutor’s questions and statements

during voir dire examination and in exercising his challenges

may support or refute an inference of discriminatory

purpose.” 17 Id. In the instant matter, the venire was 39%

African American. The Commonwealth exercised a total of

sixteen peremptory challenges; fourteen of those were used to

remove African American members of the venire. Thus, the

prosecutor struck African Americans at a rate of 87.5%, but

struck white venirepersons at a rate of 12.5%. The District

Court called this pattern “stark” and held that these statistics

alone were sufficient to make out a prima facie case. That

ruling is consistent with our precedents.

Statistical evidence may be sufficient by itself to make

out a prima facie case of racial discrimination. See, e.g.,

17

Jurisprudence in this circuit has “identified several additional

relevant factors, including how many members of the cognizable

racial group are in the venire panel; the nature of the crime; and the

race of the defendant and the victim.” Lewis, 581 F.3d at 103

(internal quotations omitted).

39

Jones v. Ryan, 987 F.2d 960, 971 (3d Cir. 1993); Overton v.

Newton, 295 F.3d 270, 278 & n.9 (2d Cir. 2002) (citing cases

and stating “statistics, alone and without more, can, in

appropriate circumstances, be sufficient to establish the

requisite prima facie showing under Batson”). In Holloway v.

Horn, we had “little difficulty” finding a prima facie case

when the prosecutor used eleven of twelve strikes to remove

African American venirepersons. 355 F.3d at 722. Similarly,

we found a prima facie showing in Brinson v. Vaughn, where

the Commonwealth used thirteen of its fourteen strikes to

remove African Americans. 398 F.3d 225, 234–35 (3d Cir.

2005). Additionally, our decision in Hardcastle v. Horn

strongly implies that a prosecutor who removes twelve of

fourteen African American venire members exhibits a pattern

of strikes sufficient to raise an improper inference. See 368

F.3d at 256.

In each of these decisions, however, we were unable to

fully reconstruct the racial composition of the venire.

Reconstruction of the venire often provides crucial context to

a prosecutor’s strike rate. See Abu-Jamal, 520 F.3d at 291–

92. For example, a strike rate of 90% looks less stark when

the venire is 90% African American. When the record does

not illuminate the composition of the venire, there may be

insufficient evidence with which to mount a successful

collateral attack. Indeed, we rejected the petitioner’s

challenge in Abu-Jamal when he established that ten of the

prosecutor’s fifteen peremptory strikes were used to remove

African Americans, but was unable to reconstruct the

composition of the venire. See id. at 291–92.

40

What is telling about Holloway, Brinson, and

Hardcastle—in contrast to Abu-Jamal—is that the pattern of

strikes in these cases was sufficient to satisfy the prima facie

threshold even without evidence of the venire’s racial

makeup. In each case, the strike rate exceeded 85%, whereas

the rate in Abu-Jamal was 66.7%. Here, the strike rate also

exceeded 85%; consistent with Holloway, Brinson, and

Hardcastle, we find that evidence of the strike rate alone

satisfies Williams’ prima facie showing. After all, the

Commonwealth exercised fourteen of its sixteen peremptory

challenges on African Americans. In a venire that was less

than 40% black, it is hardly a leap to conclude that a strike

rate of 87.5% raises an inference of discrimination.

Although the strike rate data is sufficient by itself to

make a prima facie showing in this case, we need not rely

exclusively on the Commonwealth’s strike rate. Evidence

contrasting the rate at which the prosecution accepts black

and white jurors may also raise an inference of

discrimination. In Bond v. Beard, 539 F.3d 256 (3d Cir.

2008), the prosecutor accepted between 41% and 47% of the

black venirepersons that he had the opportunity to strike; his

acceptance rate for white members of the venire was 83%.

We held that the disparity between these acceptance rates was

sufficient to make out a prima facie case at step one of the

Batson analysis. Bond, 539 F.3d at 270. In this case, Foulkes

accepted five of the nineteen African Americans she had the

opportunity to strike. Her acceptance rate was thus 26.3%.

By contrast, she accepted nineteen of the twenty-one white

venirepersons she had the opportunity to strike. Her

acceptance rate for white venire members was therefore 90%.

41

Under Bond, this disparity raises an inference of

discrimination.

In sum, Williams has proffered statistical evidence

sufficient to suggest that the Commonwealth’s peremptory

challenges were based upon an improper motive. We must

therefore proceed to step two and three of the Batson inquiry.

The government’s burden of production at step two is

“relatively low,” Hardcastle, 368 F.3d at 257; “[u]nless a

discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race neutral,”

Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)

(quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)).

At the PCRA hearing, Foulkes provided an explanation for

each of her strikes. Williams does not contend that any of

Foulkes’ reasons were facially illegitimate. Nonetheless, we

have reviewed the record and conclude that the proffered

reasons, some of which are discussed in more detail below,

are facially race-neutral. The burden therefore rests upon

Williams to prove that the explanations offered by Foulkes

are not persuasive and are instead pretextual. See Miller-El,

537 U.S. at 338–39 (stating that step three of the Batson

framework centers upon “the persuasiveness of the

prosecutor’s justification”).

At step three of the Batson analysis, the petitioner

must show that “it is more likely than not that the prosecutor

struck at least one juror because of race.” Bond, 539 F.3d at

264. To determine whether the petitioner has carried his or

her burden, the court must evaluate “all evidence introduced

by each side (including all evidence introduced in the first

42

and second steps) that tends to show that race was or was not

the real reason” for each strike. Hardcastle, 368 F.3d at 259

(quoting Riley v. Taylor, 277 F.3d 261, 286 (3d Cir. 2001) (en

banc)); see also Snyder v. Louisiana, 552 U.S. 472, 478

(2008) (explaining that “all of the circumstances that bear

upon the issue of racial animosity must be consulted”). Step

three ultimately focuses upon the prosecutor’s subjective

motivation, which ideally includes an assessment of the

demeanor and credibility of the various voir dire participants.

See Snyder, 552 U.S. at 477 (“Step three of the Batson

inquiry involves an evaluation of the prosecutor’s credibility,

and the best evidence [of discriminatory intent] often will be

the demeanor of the attorney who exercises the challenges.”

(alteration in original) (internal citations and quotation marks

omitted)). To the extent that such assessments factor into the

court’s final ruling, they must be accorded significant

deference on appeal. See id. at 477; DeJesus, 347 F.3d at

507.

As we have stated, the PCRA court made no step-three

findings. The parties nonetheless developed a significant

record at the PCRA hearing and, while this is a very

imperfect substitute for a trial judge’s findings of fact, it

permits sufficient—though hardly ideal—collateral review.

In the District Court, Williams proceeded by method of

comparing stricken members of the venire to individuals the

Commonwealth deemed acceptable. We have previously

authorized such an evaluative procedure, explaining, “A

comparison between a stricken black juror and a sitting white

juror is relevant to determining whether the prosecution’s

asserted justification for striking the black juror is pretextual.”

43

Riley, 277 F.3d at 282; Holloway, 355 F.3d at 724; see also

Snyder, 552 U.S. at 479–86 (performing comparative

analysis); Miller-El v. Dretke, 545 U.S. 231, 241–52 (2005)

(finding Batson violation based in part on juror comparison).

An explanation that appears race neutral at step two may

betray an improper motive if it is invoked to strike African

Americans but not other non-black venirepersons exhibiting

the same characteristic. Williams focuses upon five stricken

members of the venire, all of whom were African American.

We will confine our comparative inquiry accordingly.

Lucille Dozier. Ms. Dozier was asked whether she

had any beliefs which would prevent her “from being able to

impose the death penalty in an appropriate case.” She

answered, “I would have to be absolutely certain, sure that

this person really deserves that.” After the prosecutor

rephrased the question, Dozier stated that she could impose

the death penalty if appropriate. At the PCRA hearing,

Foulkes testified that she struck Dozier on the basis of her

initial hesitancy. Foulkes explained, “[I]t appeared to me

from her answers [that it would be] very difficult for her to

apply the law in this case.”

Williams names two comparators, both of whom were

white: Debra Pagano, seated as juror number seven, and

Virginia Feo, who was accepted by the Commonwealth but

stricken by the defense. When Foulkes asked Pagano

whether she would have any difficulty imposing the death

penalty in an appropriate case, Pagano answered, “No.” Feo

was posed the same question and stated that although it would

not be “easy,” she “did not think” she would have any

44

difficulty imposing a penalty of death. Neither of these

comparators expressed a sentiment close to that exhibited by

Dozier; specifically, neither Pagano nor Feo required

“absolute certainty” in order to recommend the death penalty.

The comparative evidence thus fails to suggest that Foulkes’

reason for striking Ms. Dozier was pretext.

Shawn Kimble. Mr. Kimble was employed as a

purchasing agent, graduated from Central High School in

west Philadelphia, and studied business at Drexel University.

Foulkes observed that he was approximately the same age as

Williams and, in her opinion, he exhibited a “hostile affect.”

Foulkes testified that she struck Kimble due to concerns about

his attitude, his age, and because Williams asked Kimble no

questions during voir dire. Furthermore, Foulkes explained

that none of these factors alone moved her to exercise a

challenge; rather, it was the combination of concerns that

together led to the strike.

Because the PCRA court resolved the Batson claim at

step one, it did not assess Foulkes’ reasons for striking

Kimble and, consequently, made no finding with respect to

Kimble’s alleged hostility. We cannot presume that the

PCRA court credited Foulkes’ assertion that Kimble

displayed a hostile affect. See Snyder, 552 U.S. at 479

(declining to credit prosecutor’s justification that stricken

venireperson was excessively nervous when the state court

did not make an on-the-record determination regarding

venireperson’s demeanor). As a result, we will not consider

the prosecutor’s demeanor-based reason for striking Kimble

and will instead focus upon Foulkes’ remaining justifications:

45

age and the defendant’s decision not to question Kimble on

voir dire.

Williams attacks these rationales by proffering two

comparators to whom Williams posed no questions during

voir dire, and who were nonetheless accepted by the

Commonwealth. These two individuals—Isabelle Edmonson

and Robert Eberle—do not constitute true comparators for

purposes of our inquiry. Although Williams did not ask any

questions of either Edmonson or Eberle, both were

significantly older than the defendant. Therefore, neither can

be said to exhibit the same characteristics as Kimble (age and

lack of questioning). In a comparison analysis, it is

insufficient to proffer venire members who lack one or more

of the characteristics upon which the prosecutor exercised a

strike. This is not to erect an unreasonable roadblock; rather,

it ensures accuracy in an area often guided by guesswork and

hunches. See DeJesus, 347 F.3d at 505 (explaining that a

peremptory challenge “is usually based on educated guesses

about probabilities based on the limited information available

to an attorney about prospective jurors”). Because the focus

in step three is to uncover a prosecutor’s subjective

motivation, it is imperative to account for the complete

combination of factors that caused the prosecutor to exercise

a strike. Here, it was Kimble’s proximity to the defendant’s

age and the fact that defense counsel asked him no questions.

Williams identifies no comparators that meet these criteria;

therefore, his comparative evidence is unpersuasive.

Geraldine Hill. Ms. Hill was a married mother of five

living in southwest Philadelphia. During voir dire, Foulkes

46

asked Hill, “would you surrender your belief merely because

of the fact that other members of the jury, even a majority of

the jury, would believe contrary to what you believe?” Hill

replied, “Either way I believe, no one, and I mean no one[,]

would change my mind.” At the PCRA hearing, Foulkes

explained her dismissal of Hill as follows:

I have to say I can almost remember her saying

this, I know that’s rather remarkable, but she

said that no one would change her mind if she

came to a certain conclusion in the jury. Again,

the way she put it, the language that she used,

was such that it was not sufficient to challenge

her for cause, but the emphasis that she gave

that response indicated to me that if she came to

a conclusion, that she was not someone who

was responsive to deliberating further with her

fellow jurors. And again, this is something that

is a matter of affect and emphasis in the tone of

how she delivered her answers.

Williams contends that Hill subsequently clarified her

response, and that Foulkes’ concerns were thus unreasonable.

In particular, Foulkes later asked Hill, “So when you say that

you make up your mind and that’s it, that doesn’t mean that

you wouldn’t be able to deliberate with your fellow jurors?”

Hill answered, “No. You will have to show me where I am

wrong, either way. As long as I can be shown.”

There is no question that as a result of Hill’s

clarification, she could not be stricken for cause. However,

47

Foulkes’ lingering concern was not unreasonable. Hill’s

initial assertion that “no one, and I mean no one[,] would

change my mind” is emphatic and suggests that she may have

difficulty deliberating with other jurors. This is not to say

that she would, in fact, have had difficulty participating in

deliberations; but a peremptory strike is often no more than a

guess about future behavior, see DeJesus, 347 F.3d at 505. A

prosecutor—indeed, any trial advocate—has every reason to

hedge against empaneling an individual who might prove

unduly obstinate. What is more, Williams proffers no

comparators for Hill, rendering our post-hoc comparative

evaluation of little use. Given the guesswork inherent in the

jury selection process, Hill’s removal does not suggest

improper motives.

Lillie Moore & Dwayne Kitchen. Ms. Moore was

married, worked as a keypunch operator, and lived in the

Logan section of Philadelphia. Mr. Kitchen was twenty-two,

resided in north Philadelphia, and was employed as a

construction worker. Foulkes asked both of these venire

members whether they would require the Commonwealth to

prove Williams’ guilt “beyond all doubt.” Both answered

“Yes.” 18 After the prosecutor posed the question to Kitchen,

the court interjected: “I don’t think that’s an appropriate

question, and I think that you ought to not ask it anymore.” It

is undisputed that Foulkes posed a question to several African

American and white jurors that used similar “beyond all

18

Subsequent clarifications by both Moore and Kitchen prevented

each from being stricken for cause.

48

doubt” phrasing.

At the PCRA hearing, Foulkes testified that she struck

Moore and Kitchen because it appeared to her that both

individuals would “require[] proof beyond all doubt in a

serious matter like this.” The court pressed Foulkes on her

explanation, asking, “[I]f a juror adhered to the fact that they

couldn’t follow the Court’s instructions concerning

reasonable doubt, then [wouldn’t they] be available to be

challenged for cause?” Foulkes indicated that although

Moore and Kitchen were rehabilitated to the court’s

satisfaction, she believed both “were trying very hard to

satisfy the Court in their answers, that in their heart [they]

really simply couldn’t hold the government to a different

standard than [certainty beyond all doubt].”

By way of comparison, Williams proffers juror

number 176, Gloria Mastronardo. Foulkes did not ask

Mastronardo a question using the “beyond all doubt”

phrasing; however, Williams argues that Mastronardo’s

opinions regarding the death penalty are comparable to those

Foulkes attributed to Moore and Kitchen. The record does

not support such a contention. If anything, Mastronardo

expressed views that were somewhat more receptive to

imposition of the death penalty. When asked whether she had

any beliefs that might prevent her from recommending death,

she stated, “I used to think I would never be against capital

punishment but perhaps—it would depend on the nature of

the crime, to be honest” (emphasis added). Foulkes later

asked if Mastronardo was capable of “impos[ing] the death

penalty.” She answered, “I believe so.” In short,

49

Mastronardo articulated none of the reservations that Moore

and Kitchen expressed. Furthermore, while Foulkes posed an

improperly phrased question to both Moore and Kitchen, she

posed similar questions to several other individuals of each

race. Williams cannot point to any venireperson who

answered the “beyond all doubt” question like Moore and

Kitchen, yet who Foulkes failed to strike. We thus find no

value in the comparative evidence.

Although Williams’ juror-by-juror comparison

evidence falls short, we are mindful that we must consider the

totality of the available evidence, including that which was

proffered at steps one and two of the Batson inquiry. See

Hardcastle, 368 F.3d at 259. Here, Williams presents fairly

strong strike-rate evidence: the prosecutor exercised fourteen

of sixteen strikes to remove African Americans from a venire

that was 39% black. The rate at which she struck African

Americans was 87.5%, compared to a strike rate of 12.5% for

white venire members. There are also less revealing

statistics. The Commonwealth accepted black venire

members at a rate of 26.3%. In Bond v. Beard, we held that

at step three, an acceptance rate of 41-47% (compared to 83%

for whites) was “reasonably high,” and was evidence that the

prosecutor was not racially motivated. 539 F.3d at 270.

While the acceptance rate in Williams’ case is not equivalent

to Bond’s, it is much higher than the 9% rate criticized by the

Supreme Court in Miller-El v. Dretke, 545 U.S. at 240–41.

We find the acceptance rate data inconclusive at best.

The statistical data is but one portion of the totality

that we must consider at step three. Williams was tried by a

50

jury of five African Americans and seven white individuals.

Both defendant and victim were African American and there

was no racial component to the crime. See Lewis, 581 F.3d at

103 (explaining that the race of the defendant and victim, and

the nature of the crime, may be relevant circumstances to

consider); Abu-Jamal, 520 F.3d at 288 n.16 (same). These

facts cut in the Commonwealth’s favor. Furthermore,

Williams’ comparative evidence was exceedingly weak.

Foulkes provided plausible reasons for each of her strikes,

and supported her reasons by recourse to the record. More

importantly, she was consistent in the application of her

reasons; she did not, for example, accept white venire

members who articulated a refusal to deliberate or who would

require proof beyond all doubt to return a verdict of guilt. On

the totality of the record before us, the evidence offered by

Williams is simply insufficient to overcome the evidence that

favors the Commonwealth. 19 Accordingly, Williams’ Batson

19

Williams makes passing reference to the infamous Jack

McMahon training videotape, created in 1987 and featuring former

Philadelphia Assistant District Attorney Jack McMahon. In the

tape, which was intended as an educational tool for young

prosecutors in the Philadelphia District Attorney’s Office,

McMahon makes several comments suggesting that he made

conscious efforts to strike qualified African Americans from the

venire. See Wilson v. Beard, 426 F.3d 653, 656–58 (3d Cir. 2005)

(recounting in detail several of McMahon’s more inflammatory

comments). Since its public disclosure in 1997, many defendants

have sought to bolster a Batson claim by recourse to the tape. See,

e.g., Lewis, 581 F.3d at 104; Wilson, 426 F.3d at 653; Brinson v.

Vaughn, 398 F.3d 225 (3d Cir. 2005). In Lewis, we found the tape

to be of little significance where the petitioner was unable to show

that the district attorney responsible for his prosecution had seen

51

challenge fails on its merits.

B Accomplice Liability Instructions

Williams’ second claim sounds in due process: he

contends that the trial court’s accomplice liability instructions

permitted the jury to find that he was an accomplice to first

degree murder without finding that he possessed the specific

intent to kill. Intent to kill is an element of first degree

murder under Pennsylvania law. 18 Pa. Cons. Stat. § 2502(a).

This element must be proved whether the defendant is the

principal or merely an accomplice to the homicide. Everett v.

Beard, 290 F.3d 500, 513 (3d Cir. 2002) (explaining that

“since the legislature drafted the law on first-degree murder,

Pennsylvania law has clearly required that for an accomplice

to be found guilty of first-degree murder, s/he must have

intended that the victim be killed” (internal citations

omitted)). If, as Williams argues, the charge allowed the jury

to find that he was an accomplice to first degree murder

without finding that he possessed the mens rea required for

that offense, then the instructions were constitutionally

infirm, for due process requires that each element of the

the tape or followed its recommendations. See 581 F.3d at 104.

Similarly here, Williams cannot argue that Foulkes viewed the

tape, for it was created at least one year after Williams’ trial.

There is no evidence that Foulkes was aware of McMahon-like

practices which pre-dated the tape’s creation or that she utilized

such practices in any of her trials, let alone the Norwood murder

trial. Thus, we find the tape to be of no significance in the instant

matter.

52

charged offense be proved beyond a reasonable doubt. In re

Winship, 397 U.S. 358, 364 (1970); see also Smith v. Horn,

120 F.3d 400, 410 (3d Cir. 1997) (holding that petitioner

stated a due process claim when he successfully argued that

the trial court’s jury instructions “had the effect of relieving

the Commonwealth of its burden of proving beyond a

reasonable doubt one of the elements of first-degree murder

under Pennsylvania law”).

Williams did not object to the accomplice liability

instructions at trial, nor did he question this aspect of the

charge in post-trial motions to set aside the verdict. He also

did not raise the issue on direct appeal or in his PCRA

petition. It was not until November 2001, when the collateral

proceeding was pending before the Pennsylvania Supreme

Court, that Williams filed a motion to remand to the PCRA

court so that he might challenge the accomplice liability

instructions. The Pennsylvania Supreme Court denied this

motion. Williams raised the issue again in a second PCRA

petition filed in 2005. The PCRA court dismissed this

petition as untimely. See 42 Pa. Cons. Stat. § 9545 (requiring

any PCRA petition, including a second or subsequent

petition, to be filed within one year of the date that judgment

becomes final). The Pennsylvania Supreme Court affirmed.

Williams then petitioned the District Court for habeas

relief. The District Court held that Williams’ claim was not

time-barred because the PCRA’s one-year statute of

limitations was not firmly established and regularly applied at

the time the default occurred. The Court proceeded to the

merits and rejected Williams’ accomplice liability claim. It

53

concluded that even if the charge contained constitutional

error, it was harmless in light of the overwhelming evidence

adduced at trial.

We begin by considering whether Williams

procedurally defaulted his accomplice liability claim. The

Commonwealth argues that the claim was untimely under

state law and may not be reviewed by this Court. A federal

habeas court cannot review a claim rejected by the state

courts “‘if the decision of [the state] court rests on a state law

ground that is independent of the federal question and

adequate to support the judgment.’” Beard v. Kindler, ---

U.S. ---, 130 S. Ct. 612, 614 (2009) (alteration in original)

(quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).

State procedural rules, such as the PCRA’s statute of

limitations, are not an adequate bar to federal habeas review

unless they were “‘firmly established and regularly

followed’” at the time the rule was contravened. Wilson v.

Beard, 589 F.3d 651, 658 (3d Cir. 2009) (quoting Bronshtein

v. Horn, 404 F.3d 700, 707 (3d Cir. 2005)). Williams ran

afoul of the PCRA’s statute of limitations when he failed to

raise the accomplice liability claim in his initial petition for

PCRA relief in 1996. See Commonwealth v. Albrecht, 994

A.2d 1091, 1093 n.2 (Pa. 2010). This default occurred well

before October 20, 1998, the date by which the PCRA statute

of limitations was firmly established and regularly followed.

See Morris, --- F.3d ---, 2011 U.S. App. LEXIS 1551, at *12–

13 (explaining that prior to October 20, 1998, Pennsylvania

courts “refused to enforce procedural rules—such as the

PCRA’s one-year statute of limitations—in capital cases”);

Bronshtein, 404 F.3d at 707–09 (same). Because the

54

procedural rule under which the state courts dismissed

Williams’ accomplice liability claim was not firmly

established and regularly followed at the time of his default, it

is an inadequate bar to federal habeas review. We will

therefore proceed to the merits and consider the claim de

novo. See Lewis, 581 F.3d at 100.

The propriety of the court’s charge is closely

intertwined with the evidence and argument brought forth at

trial. Williams was tried alone. The Commonwealth argued

that Williams and Draper perpetrated the killing together.

Williams was portrayed as the principal. According to

Draper, Williams hatched the plan to rob Norwood and

recruited Draper to assist. Once the robbery was complete, it

was Williams who decided to kill Norwood. To that end, he

retrieved a tire iron and socket wrench with which to

bludgeon Norwood’s skull. Williams implored Draper to join

him in this endeavor, and the two beat Norwood until he was

bloody and lifeless. Simply put, Draper’s account left no

ambiguity regarding Williams’ role as the principal in the

offense.

This account was consistent with testimony supplied

by other Commonwealth witnesses. Williams was seen

driving Norwood’s vehicle approximately one hour after the

murder occurred. He told his friend Rucker that he “offed a

guy” named Amos earlier that evening. Rucker observed

blood stains on Williams’ shoes. Before they parted ways on

the night of the murder, Williams told Rucker that he was

“going to get some gas from a gas station to go back to the

scene of the crime.” Police officers later discovered

55

Norwood’s body in the cemetery, charred beyond recognition.

The Commonwealth’s narrative sharply conflicted

with Williams’ account. He claimed that on the day of the

murder, he had seen Norwood, Draper, and an acquaintance

named Michael Hopkins riding in Norwood’s blue Chrysler

LeBaron. They apparently pulled up alongside Williams, and

Draper indicated that they were headed to Draper’s mother’s

residence on Roumfort Road. Williams asked for a ride

because he happened to be going to a party in the same

vicinity. When the foursome neared the cemetery, Draper

and Hopkins—but not Williams—allegedly assaulted

Norwood. Williams stated that he was unaware that his

friends intended Norwood any harm. But when they initiated

the assault, Williams allegedly became agitated, demanded

that Draper and Hopkins abandon their criminal endeavor,

and then exited the vehicle when they refused. Williams

claimed that he then walked to the residence of an

acquaintance and borrowed bus fare to return home. As

Williams told it, he was not part of the robbery and was not

present when Norwood was killed.

The jury was thus presented with a stark choice: either

Williams was the principal in a first degree murder or he was

ignorant of his friends’ plans and nowhere near the cemetery

when the killing occurred. Neither party argued that

Williams was an accomplice to robbery or murder. Rather,

both the prosecutor and defense counsel stressed their

contrasting narratives. Foulkes was blunt: she called

Williams “a person who commits atrocious, murderous,

malicious acts and then spends the rest of his days lying,

56

covering up, . . . trying to make things seem as they’re not.”

And she emphasized, over and over again, that Williams was

a murderer who intended to kill. Defense counsel, by

contrast, urged the jury to adopt Williams’ version of events

and attempted to demonize Draper as a liar. Several times he

succinctly summarized the all-or-nothing proposition facing

the jury: “If you believe Mr. Williams, you will acquit him of

all charges.” Accomplice liability was simply not in play.

In light of these conflicting accounts, the trial court’s

decision to provide an accomplice liability charge is rather

curious. 20 Nevertheless, after charging the jury on the

elements of various degrees of murder (and accompanying

mens rea requirements), voluntary manslaughter, robbery,

and criminal conspiracy, the court stated, in pertinent part,

You may find a defendant guilty of a crime

without finding that he personally engaged in

the conduct required for commission of that

crime or even that he was personally present

when the crime was committed.

An accomplice is one who either plans,

cooperates, assist[s], counsels or otherwise aids

in the perpetration of the crime.

A defendant is guilty of a crime if he is an

20

During oral argument before the District Court, the parties were

asked why the accomplice liability instruction was given. Neither

could provide an answer.

57

accomplice of a person who commits that

crime. The defendant does not become an

accomplice merely by being present at the scene

or knowing about the crime. He is an

accomplice if, with the intent of promotion or

facilitating commission of the crime, he solicits,

commands, encourages or requests the other

person to commit it or aids, or agrees to aid or

attempts to aid the other person in planning or

committing it.

However, a defendant is not an accomplice if

before the other person commits the crime, he

stops his own efforts to promote or facilitate the

commission of the crime, and wholly deprives

his previous efforts of effectiveness or gives

timely warning to the law enforcement authority

or otherwise makes a proper effort to prevent

the commission of the crime.

You may find the defendant guilty of a crime on

the theory that he was an accomplice as long as

you are satisfied beyond a reasonable doubt that

the crime was committed, and that the

defendant was an accomplice of the person who

committed it.

Williams argues that this instruction “unconstitutionally

broadened the scope of accomplice liability” because it

permitted the jury to find that he was an accomplice to first

degree murder without finding that he possessed the specific

58

intent to kill. If the theory of accomplice liability were a

viable one in this case, Williams might have a point. But it is

not. Accordingly, the trial court’s charge reveals no

deficiency of constitutional dimension.

To show that a jury instruction violates due process, a

habeas petitioner must demonstrate both (1) that the

instruction contained “some ‘ambiguity, inconsistency, or

deficiency,’” and (2) that there was “‘a reasonable likelihood’

that the jury applied the instruction in a way that relieved the

State of its burden of proving every element of the crime

beyond a reasonable doubt.” Waddington v. Sarausad, 555

U.S. 179, 129 S. Ct. 823, 831 (2009) (quoting Middleton v.

McNeil, 541 U.S. 433, 437 (2004) and Estelle v. McGuire,

502 U.S. 62, 72 (1991)). Satisfaction of this two-part inquiry

requires a federal habeas court to “focus initially on the

specific language challenged,” Smith, 120 F.3d at 411

(citation and internal quotation marks omitted), and then to

review the challenged instruction in the context of the entire

charge and in light of the evidence and arguments presented

at trial. Estelle, 502 U.S. at 72 (“[T]he instruction ‘may not

be judged in artificial isolation,’ but must be considered in the

context of the instructions as a whole and the trial record.”

(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)));

Waddington, 555 U.S. 179, 129 S. Ct. at 833 (analyzing

accomplice liability charge in light of parties’ closing

arguments). In this fashion, a due process analysis depends

as much on the language of the court’s charge as it does on

the particularities of a given case. In other words, the inquiry

requires careful consideration of each trial’s unique facts, the

narratives presented by the parties, the arguments counsel

59

delivered to the jurors before they retired to deliberate, and

the charge as a whole. See Waddington, 555 U.S. 179, 129 S.

Ct. at 831–33; Estelle, 502 U.S. at 72.

Here, even if the trial court’s accomplice liability

charge was in some respect ambiguous, there is no reasonable

likelihood that the jury applied the instruction in a manner

that relieved the Commonwealth of its burden of proof with

respect to first degree murder. The trial record makes this

point plain: all of the evidence and argument indicated either

that Williams was the principal killer—with the specific

intent to kill—or that he played no role in the robbery and

murder. There simply was no viable third option. The charge

as a whole reflected this stark choice. The court mentioned

the concept of accomplice liability sparsely. Its first degree

murder instructions did not mention the concept of

accomplice liability at all. 21 Instead, the charge (rightly)

21

The first degree murder instruction explained that the jury must

first determine whether Williams participated in the murder and, if

he did so, whether he acted with a mens rea sufficient to meet the

first degree murder standard:

If you find the defendant guilty of murder; that is,

an unlawful killing with malice, you must then

determine whether he is guilty of murder of the first

degree, murder of the second degree, or murder of

the third degree.

Murder of the first degree is a criminal homicide

committed with a specific intent to kill. . . .

60

focused on Williams’ actions and mental state. Thus,

although the court provided instruction on the theory of

accomplice liability, it appears to have done so out of

oversight or, perhaps, carelessness. In either event, the mere

provision of this stray instruction does not alter the fact that

accomplice liability was a theory for which there was no

evidentiary support. By including the instruction in the final

charge, the court did not violate Williams’ right to due

process. 22

Therefore, in order to find the defendant guilty of

murder in the first degree, you must find that the

killing was a willful, deliberate and premeditated

act.

(emphasis added). The prosecutor’s closing argument was

consistent with these instructions. She repeatedly highlighted

evidence of Williams’ intent, stating, for example, “That, ladies

and gentlemen, is murder in the first degree, because . . . his

actions supply the inference that the defendant intended to take

life[.] . . . [H]e expressed, by his action, a specific intention, above

and beyond the robbery, to kill [Norwood], to kill him for the

purpose whatever, for whatever purpose.” In a due process

challenge, a strong consistency between argument and charge

makes it more likely that the jury understood the requirements of

the law and applied those requirements correctly. Cf. Smith v.

Horn, 120 F.3d 400, 404–05 (3d Cir. 1997) (finding infirmity

when prosecutor urged jury to apply erroneous theory of

accomplice liability).

22

Williams suggests that even if provision of the accomplice

liability instruction was unnecessary, we must nonetheless

61

Finally, Williams contends that the trial court’s

instruction was nearly identical to the accomplice liability

instruction that we held to be constitutionally deficient in

Laird v. Horn, 414 F.3d 419 (3d Cir. 2005). In Laird, co-

defendants Laird and Chester left a bar along with a third

individual named Milano. Milano’s body was discovered the

following evening in a nearby wooded area. Laird and

Chester were tried together for, inter alia, murder,

kidnapping, aggravated assault, false imprisonment, and

conspiracy. Both took the stand and admitted that they

participated in the kidnapping and were present for Milano’s

death. Id. at 422, 426. Each denied that he intended for

Milano to be killed. Id. at 422. Laird accused Chester of

killing Milano and vice versa. Id. at 422, 426. The jury

convicted both defendants of an array of offenses, including

first degree murder, kidnapping, aggravated assault, and

conspiracy.

The trial court in Laird provided an accomplice

liability instruction that was almost identical to the instruction

given in Williams’ case, but the similarities between the two

proceedings essentially end there. Laird was a two-defendant

trial wherein both of the accused admitted their participation

acknowledge the fact that the theory was presented to the jury. As

such, the jury may have concluded that Williams was an

accomplice to first degree murder. On habeas review, we do not

deal in “may haves.” The appropriate question is whether the

outcome proposed by Williams was reasonably likely. See

Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831–32

(2009). Our answer to this question is a resounding No.

62

in some aspect of the crime—i.e., the kidnapping. See id. at

426. Neither co-defendant, however, admitted he was an

accomplice to the actual homicide. It was therefore

imperative for the charge to distinguish between Laird’s

acknowledged role as an accomplice to kidnapping and his

disputed role as accomplice to first degree murder. Yet the

trial court failed to make such a distinction, and failed to

explain that an accomplice to kidnapping is not necessarily an

accomplice to murder. Given the circumstances present in

the case, it was incumbent upon the trial court to ensure that

the jury understood “that an accomplice for one purpose is

[not] an accomplice for all purposes.” Id. at 427 (quoting

Smith, 120 F.3d at 414). To put it differently, under the Laird

charge, the jury reasonably could have concluded that

because Laird was an accomplice to kidnapping, he must also

have been an accomplice to murder.

The problem in Laird was not the accomplice liability

instruction’s linguistic imprecision per se. Rather, the

instructional ambiguity worked a critical error when viewed

in the context of the trial record as a whole. Williams does

not acknowledge this aspect of the holding. Instead, he

argues that the similarity of both instructions demonstrates

constitutional error. But as we indicated above, a rote

comparison of the two instructions is insufficient in a due

process inquiry. See Waddington, 555 U.S. 179, 129 S. Ct. at

831–33; Estelle, 502 U.S. at 72. Although the trial judge in

Laird provided an accomplice liability instruction that was

nearly identical to that rendered here, there was a profound

difference between each proceeding’s evidence, argument,

and the charges as a whole. That difference is dispositive. In

63

Laird, the ambiguity in the charge, coupled with the balance

of pertinent considerations, made it reasonably likely that the

jury applied the instruction in a manner which relieved the

Commonwealth of its burden of proof. There is no such

likelihood here. Williams’ testimony—unlike that provided

by the co-defendants in Laird—attempts to exculpate him

completely. Accomplice liability is simply not in play.

In sum, we find that the trial court’s accomplice

liability instruction was not constitutionally infirm.

Williams’ arguments to the contrary are without merit. 23

C Ineffective Assistance of Counsel

Williams’ final claim invokes the Sixth Amendment

right to effective counsel. Under Strickland v. Washington,

466 U.S. 668 (1984), criminal defendants are entitled to

effective representation at both the guilt and penalty phases of

trial. To establish a constitutional violation under Strickland,

a defendant must demonstrate that counsel’s performance was

deficient, and that it prejudiced the defense. Id. at 687–88.

Where a Strickland claim is raised on federal habeas review,

however, the petitioner must not only show deficient

23

Williams also claims that both his trial counsel and his counsel

on direct appeal were ineffective for neglecting to challenge the

accomplice liability instruction. Because this claim lacks merit,

neither counsel was ineffective for failing to pursue it. See Premo

v. Moore, --- U.S. ---, 131 S. Ct. 733, 741 (2011); Werts v. Vaughn,

228 F.3d 178, 203 (3d Cir. 2000).

64

performance and prejudice; in addition, he or she must show

that “the state court’s rejection of [the] claim of ineffective

assistance of counsel was ‘contrary to, or involved an

unreasonable application of’ Strickland, or it rested ‘on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Porter v.

McCollum, --- U.S. ---, 130 S. Ct. 447, 452 (2009) (per

curiam) (quoting § 2254(d)).

Williams contends that he received deficient legal

representation during the trial’s penalty phase. Specifically,

he claims that Panarella—his trial counsel—failed to conduct

a reasonable investigation into his background. Such an

inquiry would have revealed extensive evidence of physical

and sexual abuse, as well as sundry concerns with Williams’

mental health. This evidence, in turn, could have been

presented to the jury to mitigate the brutality of Williams’

offense, or so the argument goes. 24 Panarella instead opted to

24

Mitigating circumstances are set forth by statute under

Pennsylvania law. See 42 Pa. Cons. Stat. § 9711(e). Had

Panarella presented the evidence described above, Williams argues

that the jury could have found either that he “was under the

influence of extreme mental or emotional disturbance,” §

9711(e)(2), or that his “capacity . . . to appreciate the criminality of

his conduct or to conform his conduct to the requirements of the

law was substantially impaired,” § 9711(e)(3). Williams also

contends that the jury could have found that the “catch-all”

mitigation provision set forth in § 9711(e)(8) was applicable. See

§ 9711(e)(8) (“Any other evidence of mitigation concerning the

character and record of the defendant and the circumstances of his

offense.”).

65

portray the defendant as a capable young man for whom the

crime was but an aberration. He did not present evidence of

sexual abuse or mental impairment, and there was only a

passing reference to Williams’ physically abusive stepfather.

The jury evidently rejected Panarella’s characterization, for it

concluded that there were no circumstances that mitigated the

severity of the offense. 25

Williams raised this ineffective assistance of counsel

claim in his petition for PCRA relief. Prior to ruling on the

petition, the PCRA court heard several days of testimony.

Three mental health experts testified that Williams was

psychologically damaged at the time of the offense. At least

eight additional witnesses took the stand and detailed the

physical and sexual abuse to which Williams was subjected

throughout his youth. Finally, Panarella testified concerning

his performance at trial. At the conclusion of these

proceedings, the PCRA court denied the ineffective assistance

of counsel claim on its merits. The Pennsylvania Supreme

Court affirmed, holding that Williams did not meet “his

burden of demonstrating there was [a] reasonable probability

the presentation of [prior abuse and mental health] evidence

would have resulted in a life sentence instead of the death

penalty.” Williams II, 863 A.2d at 521 n.12.

25

Most notably, the jury did not find that Williams’ age was a

mitigating factor in the offense. This finding is significant, and we

address it in more detail below.

66

On federal habeas review, the District Court concluded

that Panarella’s penalty-phase performance was

constitutionally deficient. The Court explained: “Panarella’s

efforts fell far short of . . . prevailing professional norms, and

the explanations he provided during post-trial and PCRA

hearings reflected inattention to the penalty phase rather than

tactical decision making.” On step two of the Strickland

inquiry, however, the Court concluded that under AEDPA’s

deferential standard of review, it could not find that

Panarella’s performance was prejudicial to the defense.

Accordingly, the District Court denied Williams’ claim. We

exercise plenary review over this decision. See Lewis, 581

F.3d at 100.

We will not revisit the District Court’s determination

that Panarella was constitutionally ineffective during the

trial’s penalty phase. We instead accept this finding for

purposes of our present analysis and proceed to the prejudice

inquiry. See Wong v. Belmontes, --- U.S. ---, 130 S. Ct. 383,

386 (2009) (per curiam) (assuming, for purposes of analysis,

that counsel’s performance was deficient when prejudice

inquiry was dispositive). The Pennsylvania state courts

resolved Williams’ ineffective assistance claim on the merits;

our review of the issue is thus governed by principles of

AEDPA deference. See Lewis, 581 F.3d at 100. We apply

these principles to the holding of the Pennsylvania Supreme

Court because it provides “the ‘last reasoned decision’ of the

state courts” on the Strickland claim. Simmons, 590 F.3d at

231–32 (quoting Bond, 539 F.3d at 289–90). Under § 2254,

“[t]he pivotal question is whether the state court’s application

of the Strickland standard was unreasonable.” Harrington v.

67

Richter, --- U.S. ---, 131 S. Ct. 770, 785 (2011). This means

that a habeas petitioner “must do more than show that he

would have satisfied Strickland’s test if his claim were being

analyzed in the first instance”; to prevail, the petitioner must

demonstrate that the state court “applied Strickland to the

facts of his case in an objectively unreasonable manner.” Bell

v. Cone, 535 U.S. 685, 698–99 (2002); see also Harrington --

- U.S. ---, 131 S. Ct. at 786 (“A state court’s determination

that a claim lacks merit precludes federal habeas relief so

long as ‘fairminded jurists could disagree’ on the correctness

of the state court’s decision.” (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004))).

To establish prejudice, the petitioner “must show that

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. A “reasonable

probability” is one “sufficient to undermine confidence in the

outcome.” Id. The Strickland prejudice standard is not

“stringent”—it is, in fact, “less demanding than the

preponderance standard.” Jermyn v. Horn, 266 F.3d 257, 282

(3d Cir. 2001) (quoting Baker v. Barbo, 177 F.3d 149, 154

(3d Cir. 1999)); see also Woodford v. Visciotti, 537 U.S. 19,

22 (2002) (explaining that Strickland “specifically rejected

the proposition that the defendant had to prove it more likely

than not that the outcome would have been altered”). In a

capital case arising from the Pennsylvania state courts,

prejudice exists if there is a reasonable probability that, but

for counsel’s deficient performance, “one juror [would have]

voted to impose a sentence of life imprisonment rather than

the death penalty.” Bond, 539 F.3d at 285 (citing 42 Pa.

68

Cons. Stat. § 9711(c)(1)(iv)).

A careful prejudice inquiry requires that we “consider

all the relevant evidence that the jury would have had before

it if [counsel] had pursued [a] different path.” Wong, --- U.S.

---, 130 S. Ct. at 386. This includes evidence that was

adduced at trial as well as that which was not presented until

postconviction review. See Porter, --- U.S. ---, 130 S. Ct. at

454. Stated differently, we must reconstruct the record and

assess it anew. In so doing, we cannot merely consider the

mitigation evidence that went unmentioned in the first

instance; we must also take account of the anti-mitigation

evidence that the Commonwealth would have presented to

rebut the petitioner’s mitigation testimony. See Wong, --- U.S

---, 130 S. Ct. at 390 (stating that “the reviewing court must

consider all the evidence—the good and the bad—when

evaluating prejudice”). Once we have reconstructed the

record, we must “reweigh the evidence in aggravation against

the totality of available mitigation evidence.” Wiggins v.

Smith, 539 U.S. 510, 534 (2003). Only then may we ask

whether there is a reasonable probability that, but for

counsel’s ineffectiveness, the result of the proceeding would

have been different.

Accordingly, we begin by reconstructing the record.

We will then reweigh the totality of the evidence and assess

whether Panarella’s deficient performance prejudiced the

defense.

1 Reconstructing the Record

69

The trial’s penalty phase was a brief affair. For the

Commonwealth, assistant district attorney Jeffrey Kolansky

took the stand and supplied the basic facts regarding the

Dorfman robbery. He stated that the incident occurred on

December 24, 1982; that the victims were Don and Hilda

Dorfman, aged sixty-nine and sixty-four, respectively; that

Williams was sixteen years of age at the time of the offense;

that Williams entered the Dorfmans’ home carrying a .22

caliber Winchester rifle, pointed it at Mrs. Dorfman and fired

it three times above Mr. Dorfman’s head; and that Williams

was convicted of two counts of first degree robbery, one

count of burglary, one count of simple assault, one count of

unauthorized use of an automobile, and one count of

conspiracy. Next, Philadelphia police detective Lawrence

Gerrard provided testimony pertaining to the Hamilton

murder. He explained that the incident occurred on January

26, 1984; that Hamilton was stabbed approximately twenty

times; that the murder weapon was left lodged in the back of

Hamilton’s neck; that Williams was seventeen years of age at

the time of the offense; and that Williams was convicted of

third degree murder, theft by unlawful taking, and possession

of an instrument of a crime. Finally, Philadelphia Quarter

Sessions court clerk Margie Frazier described the sentences

imposed for each of these offenses.

Williams presented three witnesses: his mother,

Patricia Kemp; his girlfriend, Marlene Rogers, and his first

cousin, Willie Dino James. Each witness testified to

Williams’ general good nature and athletic success. In

something of an understatement, the Pennsylvania Supreme

Court found that this rather generic testimony was “not

70

compelling.” Williams II, 863 A.2d at 520.

Kemp did provide limited evidence on cross

examination regarding her son’s childhood abuse. She denied

abusing Williams herself—a point she would contradict ten

years later at the postconviction proceeding—but she stated

that Williams’ stepfather, Ernest Kemp, was “abusive to my

son.” She continued:

He [Ernest Kemp] didn’t care about [Williams].

He accused my son of doing things, having girls

in the room. That was a lie.

My son would be asleep at night, and he

[Ernest] would be drunk and he would come in

and bust in the room and say he [Williams] has

somebody in there, and my son had called my

job, and I had told Terry to go down to Mom’s.

That’s a lady on the street that helped me raise

my son, Mrs. Easton, and I would send him

down there with her because my husband

[Ernest], that I am married to now, yes, was

very abusive to Terry, was very nasty to Terry.

He pushed Terry down a flight of steps because

Terry was on the phone that I paid for.

Kemp was not asked to elaborate on these statements on

redirect examination and no additional abuse testimony was

elicited by either party.

71

In her closing argument, the prosecutor emphasized

Williams’ prior convictions and his predilection for violence.

She underscored that Williams “has taken two lives, two

innocent lives of persons who were older and perhaps unable

certainly to defend themselves against the violence that he

inflicted upon them.” According to the Commonwealth,

Williams was a violent individual whose behavior would

have continued escalating had he not been apprehended.

Panarella’s closing focused on his client’s youth. He

stressed the fact that Williams was only four months past his

eighteenth birthday at the time he committed the offense and

he explicitly asked the jury to find that age was a

circumstance that mitigated Williams’ culpability for the

crime. Additionally, Panarella argued that Williams’ life

sentence would be one of extreme hardship; Williams would

be deprived of the privileges of fatherhood, and he would be

exposed to “all of the brutalities that are associated with

prison life.” Panarella concluded by appealing to the jury’s

sense of justice. He stated, “I ask you to spare Mr. Williams’

life. I can say to you that justice is always tempered with

mercy but let me say to you that inflicting the death sentence

in this case, I believe, is inappropriate.”

The jury rejected this plea. It determined that two

aggravating circumstances were applicable: (1) the murder

occurred during the commission of a felony (robbery), 42 Pa.

Cons. Stat. § 9711(d)(6), and (2) Williams had a significant

history of felony convictions involving the use or threat of

violence, 42 Pa. Cons. Stat. § 9711(d)(9). It also found that

Williams was not entitled to any of the statutory mitigating

72

circumstances set forth in 42 Pa. Cons. Stat. § 9711(e),

including the provision that accounts for a defendant’s age at

the time of the offense, § 9711(e)(4). The jury then weighed

the aggravating factors and returned a sentence of death.

At the PCRA hearing approximately twelve years

later, a very different picture of Williams emerged. No fewer

than eight witnesses came forward to describe a childhood

plagued by frequent physical and sexual abuse. Kemp

testified (in direct contradiction to her penalty phase

testimony) that she “would beat Terry very often because he

was smart mouthed.” When Williams was in the sixth grade,

Kemp met her son at school, publicly “beat him like

Muhammad Ali,” and then threw him down a flight of stairs.

One of Williams’ teachers, James Villareal, confirmed that

Kemp frequently beat her son, often in public when she

would retrieve him from school. Villareal said that Kemp

would hit her son “in a fierce way” and typically for no

apparent reason.

Kemp was not the only source of Williams’ physical

abuse. His brother Thomas, some ten years Williams’ senior,

testified that he physically “disciplined” his younger sibling.

He once threw Williams down a flight of stairs and, on a

separate occasion, attempted to shoot him with a rifle.

Williams’ older sister, Theresa, was also beaten on a routine

basis by her mother. Kemp enlisted Williams’ assistance in

this endeavor; on more than one occasion, Williams was told

to hold his sister while Kemp beat her with an electrical cord.

Williams was approximately ten years old when Kemp

73

married Ernest Young. Several witnesses described Young as

a “drunk” who became physically violent in the throes of

intoxication. Kemp said that her husband was “very cruel,

very nasty,” and that he often “tr[ied] to fight my children.”

Young typically directed his anger toward his wife; when she

was not around, however, he fought with Williams. In order

to escape this environment, it was not uncommon for

Williams to flee the home and stay with neighbors,

sometimes for days on end.

There was also sexual abuse. When Williams was

very young, perhaps around the age of six, he was sodomized

by a neighbor boy five years his senior. In his early teens, he

was repeatedly molested by a teacher. At thirteen, Williams

met and began a relationship with Norwood. Norwood was

cruel and physically abusive at times; he once allegedly beat

Williams with a belt. When Williams was approximately

fifteen, he was attacked by an older male while staying in a

boys’ home. The assailant held a weapon to Williams’ neck

and forced him to perform fellatio. 26

Three mental health experts testified on Williams’

behalf. First, Dr. Julie Kessel, a forensic psychiatrist,

26

The Commonwealth assails these allegations of sexual abuse by

pointing out that not one of the purported incidents was

contemporaneously reported to medical or law enforcement

officials. In fact, all of the sexual abuse testimony is based upon

statements provided in anticipation of the PCRA hearing. As such,

the Commonwealth’s point is well taken and we factor it into our

prejudice analysis accordingly.

74

explained that she conducted a mental health evaluation

during a four-hour interview with Williams in 1998. She

diagnosed Williams with an array of chronic impairments:

major depression with periods of recurrent psychosis and

paranoia; post-traumatic stress disorder; polysubstance abuse;

and borderline personality disorder. According to Dr. Kessel,

each of these conditions was present in 1984. She therefore

opined that Williams was suffering from extreme mental or

emotional disturbance when he killed Norwood, and that he

was substantially impaired in his capacity to appreciate the

criminality of his conduct and to conform his actions to the

requirements of the law.

The second mental health expert presented by the

defense was Dr. Patricia Fleming, a clinical psychologist who

interviewed Williams in 1996 for a period of seven hours and

administered a battery of psychological tests. Dr. Fleming

explained that Williams was “mentally ill”—among other

afflictions, he suffered from post-traumatic stress disorder

and was extremely passive-aggressive. Williams’ personality

was marked by its impulsivity; Dr. Fleming repeatedly

described him as “rageful” and testified that Williams “tended

to keep his anger repressed until it exploded.” In the year

before he murdered Norwood, Williams’ “behavior was out

of control” and getting worse. This rage was accompanied by

a “high level of paranoia,” depressive symptoms, suicidal

ideation, and sleep disorder. In sum, Dr. Fleming was of the

opinion that Williams killed Norwood under the influence of

extreme mental or emotional disturbance, and that at the time

of the offense, he was unable to appreciate the criminality of

his conduct or conform his conduct to the requirements of the

75

law.

The final mental health expert for the defense was Dr.

Ralph Kaufman, a clinical psychiatrist. Dr. Kaufman

interviewed Williams on three separate occasions in 1996 for

approximately ten hours in total. Dr. Kaufman echoed the

findings of Drs. Kessel and Fleming: he stated that Williams

exhibited symptoms of depression, suicidal ideation, anxiety,

hypervigilance, identity difficulties, and psychotic

decompensation. Furthermore, Williams suffered from post-

traumatic stress disorder and was prone to impulsivity. As a

result of these afflictions, Dr. Kaufman opined that Williams

was under the influence of extreme mental or emotional

disturbance when he killed Norwood. Dr. Kaufman could not

say, however, whether Williams was unable to conform his

conduct to the requirements of the law.

These three defense experts were generally consistent

in tracing the origins of Williams’ mental impairment. All

identified recurrent childhood abuse—especially sexual

abuse—as a principal cause of Williams’ later psychological

disorders. There was unanimous agreement that the assault at

the boys’ home was a “major” or “acute” trauma, one which

contributed significantly to the onset of post-traumatic stress

disorder. Dr. Fleming testified that it caused Williams to

suffer a “psychological breakdown.” He began to self-

mutilate and to fantasize about suicide. He also started to

experience nightmares in which he was sexually assaulted by

older men wielding dangerous weapons. Williams developed

an intense anger toward males who “he felt were [sexually]

interested in him, whether they made advances or not.” Dr.

76

Kessel summarized the end result of this abuse: “Every act of

sexual behavior with a man would further sort of humiliate

him personally and would increase his rage, which he

described had been increasing. He has intense rage towards

male homosexuals.” Dr. Fleming called the boys’ home

assault “a true break.” Afterwards, Williams “couldn’t

control himself” or contain his anger.

Not every mental health professional agreed with the

opinions set forth above. In fact, Williams was subjected to

several psychiatric evaluations contemporaneous with his

crime spree in the mid-1980s; these evaluators uniformly

concluded that Williams was mentally competent and, while

perhaps somewhat maladjusted, he was not cognitively

impaired. Had these evaluations been presented at the trial’s

penalty phase—in rebuttal to mitigation testimony offered by

Williams—they surely would have bolstered the

Commonwealth’s depiction of a mentally competent,

calculated murderer. This is not to say that the conclusions in

these reports were unassailable. However, the reports dilute

the strength of the mental health characterization proffered by

Williams at the PCRA hearing, and they therefore constitute

important anti-mitigation evidence. We must consider such

evidence as part and parcel of the prejudice inquiry. See

Wong, --- U.S. ---, 130 S. Ct. at 390.

On February 27, 1985, Williams was examined by Dr.

Edwin Camiel. At the time, then-nineteen-year-old Williams

had been incarcerated for eight months on charges that he

murdered Norwood. Williams was “obviously anxious and

his behavior was characterized by agitation and hand

77

[w]ringing.” Williams told Dr. Camiel, “I can’t cope with

this.” He reported a sensation of pressure throughout his

body. Dr. Camiel recorded several clinical observations. He

stated that Williams “appeared to be developing a paranoid

delusional system”; that he could “detect no gross

abnormalities in [Williams’] cognitive functioning”; and that

Williams’ “[j]udgment making capacity appeared to be

somewhat impaired and his responses to social judgment

questions indicated a tendency to respond impulsively to a

stressful situation in a self-centered manner without regard to

the consequences of his behavior for others.” In Dr. Camiel’s

opinion, Williams’ condition revealed “evidence of a

developing Psychotic Disorder of a paranoid type. . . . This is

the first evidence of psychiatric illness in this Defendant and

the clinical picture is consistent with a diagnosis of a

Schizophreniform Disorder or a briefly active psychosis

secondary to the stress of his present incarceration.”

Dr. Camiel’s evaluation is notable because it observed

the early stages of Williams’ psychological difficulties and

attributed their onset to circumstances subsequent to

Norwood’s murder. The report stated that Williams is

developing a psychotic disorder. It portrays this turn of

events as “the first evidence of psychiatric illness in this

Defendant.” Dr. Camiel explained that this developing

impairment is consistent with a diagnosis of schizophreniform

disorder, which by its very nature connotes a short-term

ailment lasting from one to six months. 27 This time frame is

27

Williams’ experts acknowledged as much. Dr. Kessel stated

that “schizophreniform psychosis [refers to] overt symptoms

78

important, for it suggests that the disorder described by Dr.

Camiel did not manifest itself until after Williams killed

Norwood. Furthermore, it indicates that eight months after

the murder, Dr. Camiel detected no permanent abnormalities

in Williams’ cognitive function. According to Dr. Camiel,

Williams’ newfound psychological complications were

secondary to “the stress of his present incarceration.” 28 Dr.

Camiel therefore recommended immediate psychiatric

treatment “in order to prevent the progression of symptoms to

the development of a full blown psychotic disorder.”

In spite of the apparent discord between the Camiel

report and the mental health narrative offered by the defense,

Drs. Kessel and Fleming testified that Dr. Camiel’s findings

were consistent with the opinion that Williams was severely

mentally impaired when he committed the crime. 29 Dr.

lasting under six months. . . . If it is longer than six months, we

tend to call it schizophrenia.” Dr. Fleming agreed, explaining that

to be diagnosed with schizophreniform disorder, “the symptoms

have to have lasted from one month to six months.”

28

Dr. Camiel examined Williams two days after he was convicted

of third degree murder for the Hamilton killing. It was also

Williams’ nineteenth birthday.

29

Drs. Kessel, Fleming, and Kaufman each criticized aspects of

Dr. Camiel’s report as well. Dr. Fleming stated that Dr. Camiel

“didn’t have the luxury . . . of having a lot of background

information.” Dr. Kessel testified that Dr. Camiel’s report was

“not particularly in depth.” None of the defense doctors agreed

that Williams’ psychological difficulties were caused by stress

79

Kessel explained, “The kind of paranoia he’s demonstrating

[in the Camiel Report] and the anxiety level and his agitation

would certainly be consistent with a post-traumatic stress

disorder [patient] who has also got an underlying tendency to

become psychotic.” In Dr. Kessel’s view the appearance of

the symptoms was simply the latest complication for a long-

suffering victim of psychological disorder.

But Dr. Camiel was not the only professional to find

Williams mentally competent around the time of the offense.

On January 14, 1983, Dr. Anthony Zanni examined Williams

in anticipation of his certification hearing for the Dorfman

robbery. Williams was sixteen years of age. Dr. Zanni stated

that Williams’ “contact with reality was good”; he “has never

had persecutory delusions”; and he “has never had visual or

auditory hallucinations.” In addition, Williams’ “[i]nsight

and judgment are not impaired.” Dr. Zanni diagnosed

Williams with conduct disorder and concluded that he was

certifiable to stand trial as an adult.

Williams was examined again on March 14, 1984 by

Dr. Melvin S. Heller. He was eighteen. According to Dr.

Heller, Williams “show[ed] no evidence of mental

impairment” and was “[w]ithout psychosis.” Williams

exhibited “no signs of psychotic thought disorder, delusions,

hallucinations, inappropriate affect, inadequate attention span

or bizarre behavior.” Moreover, there was “no indication that

related to incarceration. According to Dr. Fleming, the symptoms

were too serious to be caused by incarcerative stress.

80

[Williams was] operating under any undue mental or

emotional stress,” and Dr. Heller indicated that Williams’

“prospects for community adjustment would appear to be

most favorable.” Three months after Dr. Heller’s evaluation,

Williams murdered Norwood. He had killed Hamilton just

two months prior. Thus, the Heller report captured Williams

in the midst of his crime spree. Its contents are difficult to

reconcile with the testimony of Drs. Kessel, Fleming, and

Kaufman.

One additional category of anti-mitigation evidence

bears consideration: during Williams’ certification proceeding

in January 1984, approximately ten to fifteen witnesses—

Williams’ family and friends—provided testimony portraying

Williams’ home life as stable, loving, and supportive.

Williams was, for example, engaged in “honest” pursuits; he

was a football star with pending scholarship offers; he was a

“bright young man” with a “wonderful future.” Marlene

Rogers and Lucille Rogers (mother of Marlene and

grandmother of Williams’ child), echoed this theme in 1984.

Both returned for the PCRA hearing in 1998 and changed

their tune, characterizing Williams’ home life as a “terrible

situation” permeated by “abusive behavior.”

There was additional evidence, contemporaneously

provided, suggesting that Williams’ home life was not as

nightmarish as that which he depicted on collateral review.

Williams’ mother repeatedly told probation officers that her

relationship with her son was “satisfactory.” At trial, she

flatly denied inflicting any abuse. She certainly never

mentioned a single instance of sexual abuse. What is more,

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Williams himself echoed these sentiments, telling at least one

probation officer that “he had a happy childhood,” and was

“inspired” by his family, neighbors, and coaches. Williams

never provided contrary testimony under oath.

To acknowledge testimony portraying Williams’

upbringing in a positive light is not to reject the PCRA

narrative of lifelong physical and sexual abuse. However, the

parade of witnesses who testified at the certification

proceeding described Williams’ home life very differently

than those who appeared at the PCRA hearing. Similarly, the

testimony provided by Williams’ mother could scarcely have

been more contradictory. For purposes of our prejudice

inquiry, it is the fact of inconsistency that is important. If

nothing else, the Commonwealth could have used the

certification testimony to considerable advantage by

impeaching the PCRA narrative. The opportunities for

attacking the credibility of those who depicted Williams’ life

of near-constant abuse would have been legion, thereby

diluting the effectiveness of the proffered mitigation

evidence. Our consideration of the reconstituted record

simply cannot ignore such pointed anti-mitigation evidence.

2 Assessing the Evidence

In order to show prejudice, Williams must establish

that there is a reasonable probability that but for Panarella’s

deficient performance, “one juror would have voted for life

imprisonment rather than the death penalty.” Bond, 539 F.3d

at 289. Even if he successfully makes such a showing,

however, Williams must then demonstrate that the

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Pennsylvania Supreme Court’s contrary holding was

unreasonable. See Harrington, --- U.S. ---, 131 S. Ct. at 786

(stating that “even a strong case for relief does not mean the

state court’s contrary conclusion was unreasonable”).

Overcoming this hurdle is no simple undertaking; as the

Supreme Court has recently stressed, the “standards created

by Strickland and § 2254(d) are both ‘highly deferential,’ and

when the two apply in tandem, review is ‘doubly’ so.” Id. at

788 (quoting Knowles v. Mirzayance, --- U.S. ---, 129 S. Ct.

1411, 1420 (2009)).

In reviewing Williams’ mitigation evidence, the

Pennsylvania Supreme Court held that Panarella’s failure to

present this information at the penalty phase did not prejudice

Williams’ defense. 30 On federal habeas review, the District

30

Williams argues that the Pennsylvania Supreme Court

unreasonably applied Strickland because it “articulated an

incorrect prejudice standard.” He is wrong. The Court’s opinion

twice sets forth its prejudice standard: in the first instance, the

Court states that a petitioner cannot prevail on an ineffective

assistance claim “where there is no showing that [mitigating]

testimony . . . would have been beneficial in terms of altering the

outcome of the penalty phase hearing,” Commonwealth v. Williams

(Williams II), 863 A.2d 505, 519 (Pa. 2004) (internal quotation

omitted); in the second instance, the Court concluded that

“appellant has not met his burden of demonstrating there was [a]

reasonable probability the presentation of this evidence would have

resulted in a life sentence instead of the death penalty,” id. at 521

n.12. Both articulations are reasonable under Strickland; the latter

parrots language of the decision itself. See Strickland v.

Washington, 466 U.S. 668, 694 (1984). Nonetheless, Williams

fixates upon the Pennsylvania Supreme Court’s lone reference to a

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Court concluded that the Pennsylvania Supreme Court’s

decision was not an unreasonable application of Strickland.

We agree.

The mitigation evidence elicited by Williams on

collateral review is no doubt sympathetic. It portrays a much

more complicated and troubled individual than the one

depicted during the trial’s penalty phase. But the evidence is

not unequivocally mitigating. Some of the evidence is even

contradictory. Had Williams offered Drs. Kessel, Fleming,

petitioner’s “heavy” burden when attempting to establish

prejudice. See Williams II, 863 A.2d at 519 (“Appellant has not

met this heavy burden.”). Williams argues that by using such a

descriptor, the Court actually imposed a burden much more

stringent than the “reasonable probability” requirement set forth in

Strickland. We cannot agree. Although the Pennsylvania Supreme

Court’s choice of words was imprecise, there is no indication that

the Court in fact held Williams to an incorrect prejudice standard.

It twice articulated a standard consistent with Strickland, and it is

clear from the Court’s opinion that it did not consider the

mitigation evidence to be the least bit persuasive. We find that by

describing Williams’ burden as “heavy,” the Pennsylvania

Supreme Court was merely recognizing the difficulty of prevailing

on an ineffective assistance of counsel claim. To accept the

contrary argument is to disobey “§ 2254(d)’s highly deferential

standard for evaluating state-court rulings, which demands that

state court decisions be given the benefit of the doubt.” Woodford

v. Visciotti, 537 U.S. 19, 24 (2002) (internal citations and quotation

marks omitted). Such “readiness to attribute error is inconsistent

with the presumption that state courts know and follow the law,”

id., and we accordingly reject it.

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and Kaufman at the penalty phase, the Commonwealth could

have countered with an abundance of evidence suggesting

that Williams was not mentally ill and that he did not suffer

psychological impairment. After all, Williams was examined

by at least three professionals in and around the time of

Norwood’s murder; not one thought him seriously mentally

impaired. Dr. Zanni stated that Williams’ “[i]nsight and

judgment are not impaired”; Dr. Heller reported that Williams

“show[ed] no evidence of mental impairment” and was

“[w]ithout psychosis.” According to Dr. Camiel, Williams’

symptoms of psychosis were recent and they appeared after

Norwood was murdered and Williams was incarcerated. Not

one of these doctors thought Williams was suffering from

psychosis on or around the time of the offense; indeed, the

record is devoid of contemporaneous evidence of

psychological impairment. This final point is critical, for it

distinguishes the instant matter from decisions such Thomas

v. Horn, 570 F.3d 105 (3d Cir. 2009), where evidence that the

petitioner was mentally ill at the time of the offense was clear

and undisputed. See id. at 126 (stating that “the

Commonwealth does not dispute that even the most cursory

search would have yielded evidence of Thomas’ long history

of mental illness”).

The conflicting nature of the mental health testimony

is, in fact, reminiscent of our recent decision in Lewis v.

Horn, 581 F.3d 92 (3d Cir. 2009). There, we found that

evidence purporting to show that petitioner was mentally ill

and brain damaged was “in large part contradictory.” Id. at

112. Evaluations conducted contemporaneous to petitioner’s

crime revealed a mentally competent young man, while those

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performed in anticipation of the PCRA proceeding portrayed

an individual riddled with psychological difficulty. Id. at

112–13. The contradictory nature of the evidence undercut

the effectiveness of Lewis’ mitigation testimony, and

precluded us from overturning the state courts’ determination

that Lewis was mentally competent at the time of the offense.

Williams’ mental health evidence is similarly undercut in the

instant matter.

Furthermore, even the testimony offered by Williams’

mental health experts was not uniformly sympathetic. Drs.

Kessel and Fleming spoke of Williams’ inner “rage,”

especially with respect to “males who behaved sexually

toward him.” Dr. Fleming explained that Williams

suppressed this rage “until it exploded.” She described him

as extremely impulsive, and opined that Williams gave “less

consideration to the consequences of his actions than a

normal person would.” Dr. Kaufman echoed this sentiment,

testifying that Williams redirected his inner pain onto others

“without regard to the consequences.” Such evidence is not

necessarily mitigating, even if all three doctors rationalized

this conduct by linking it to Williams’ post-traumatic stress

disorder. Their explanation was obviously insufficient for the

Pennsylvania Supreme Court, which found that the mitigating

evidence offered by Drs. Kessel, Fleming, and Kaufman was

neutralized by Williams’ predilection to “direct[] his hurt

onto other people and . . . to respond to stressful situations in

a manner without regard to the consequences.” Williams II,

863 A.2d at 520 (quoting PCRA decision and adopting its

findings). The Court therefore rejected the collective opinion

that Williams was acting under extreme mental disturbance at

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the time of the offense and that his capacity to appreciate the

criminality of his conduct or to conform it to the requirements

of the law was substantially impaired. Given the conflicting

evidence of psychological damage, we cannot say that this

finding was an unreasonable determination of facts under §

2254(d)(2).

The testimony concerning Williams’ home life is also

in tension with itself. On the one hand, several witnesses

appeared at the PCRA hearing to describe years of physical

beatings and sexual molestation. Their narrative was one of

serious, long-term abuse. On the other hand, ten to fifteen

witnesses took the stand at Williams’ certification proceeding

and provided a much different characterization. According to

this account, provided six months prior to the Norwood

murder, Williams’ family and friends were loving,

supportive, stable, and certainly not abusive. Some of this

anti-mitigation evidence was offered by the very witnesses

who later described Williams’ home life in a negative light.

Williams himself described his upbringing in positive terms.

He told Dr. Heller (three months before he murdered

Norwood) that “his family relationships are close and

meaningful.” He never acknowledged any physical or sexual

abuse in or around the time of the murder. Williams’ only

statements to the contrary were elicited ten years after his

conviction, in preparation for PCRA review. The

contradictory nature of the abuse testimony seriously dilutes

its mitigating effect.31 See Lewis, 581 F.3d at 112–13

31

Williams suggests that we should overlook the contradictory

nature of the abuse testimony. In support of this assertion, he cites

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(remarking that petitioner never acknowledged physical abuse

and suggesting that his failure to do so was anti-mitigation

evidence).

In addition to the evidence set forth above, we cannot

lose sight of the aggravating factors present in this case,

which were significant and afforded considerable weight by

the state court. The Pennsylvania Supreme Court highlighted

the manner in which Williams “planned and carried out the

killing, as well as his subsequent attempts to cover up the

murder by burning the body.” Williams II, 863 A.2d at 520.

On top of this, Williams “had a significant history of violent

felony convictions,” id. at 521 n.12; “this was not his first

to our recent decision in Bond v. Beard, 539 F.3d 256 (3d Cir.

2008). His citation is inapposite. In Bond, the petitioner offered

evidence during the PCRA proceeding that depicted “an extremely

troubled and deprived childhood.” Id. at 280. Such evidence

differed significantly from that offered at the petitioner’s trial,

where there was general testimony of childhood difficulty but not

of anywhere near the magnitude described during postconviction

proceedings. See id. at 279–81. We found that the mitigation

evidence offered during collateral review was highly persuasive

and its omission from trial was prejudicial. In Bond, however, we

explained that the evidence of childhood abuse and neglect “would

not contradict earlier testimony, but rather provide details not

uncovered by trial counsel at the penalty phase hearing.” Id. at

291. This is not the case in the present matter; the testimony of

Williams’ childhood abuse contradicts that set forth at the

certification hearing and provided by his mother at the trial’s

penalty phase. As such, the mitigating effect of the evidence is

seriously undercut.

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murder,” id. For the Pennsylvania Supreme Court, the brutal

facts of the murder, combined with Williams’ criminal

history, strongly counseled against a finding of prejudice.

In Woodford v. Visciotti, 537 U.S. 19 (2002), the

United States Supreme Court considered a petition that was in

some respects similar to that presented in the instant matter.

Visciotti shot and murdered one victim and seriously maimed

a second before he was arrested and later convicted of first

degree murder. On collateral review in the state courts,

Visciotti argued that he received ineffective assistance of

counsel during the trial’s penalty phase because his attorney

failed to present evidence that Visciotti grew up in a

“dysfunctional family in which he suffered continual

psychological abuse.” Id. at 26 (internal quotations omitted).

This troubled past, in turn, purportedly led to myriad

psychological difficulties in Visciotti’s adult life. Id. The

state supreme court rejected Visciotti’s petition, concluding

that

the circumstances of the crime (a cold-blooded

execution-style killing of one victim and

attempted execution-style killing of another,

both during the course of a preplanned armed

robbery) coupled with the aggravating evidence

of prior offenses (the knifing of one man, and

the stabbing of a pregnant woman as she lay in

bed trying to protect her unborn baby) was

devastating.

Id. (describing state supreme court decision). These

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aggravating factors were so severe, the state supreme court

concluded, that they completely overwhelmed the evidence

proffered in mitigation. Therefore, trial counsel’s failure to

present the mitigating evidence in the first instance was not

prejudicial. Id. On federal habeas review, the Ninth Circuit

granted the writ, but the Supreme Court reversed. According

to the Supreme Court, AEDPA endows the state courts with

primary responsibility for weighing aggravating and

mitigating factors in a prejudice inquiry. Id. at 27.

Furthermore, it was not objectively unreasonable for the state

supreme court to attribute significant weight to the

aggravating circumstances in a situation such as this—the

crime was particularly heinous and, more importantly,

Visciotti had a pronounced history of violent felony

convictions. By downplaying the weight of the aggravating

factors, the Ninth Circuit had inappropriately substituted its

own judgment for that of the state supreme court. Id. at 26–

27. Woodford makes clear that such second-guessing is

unwarranted on federal habeas review.

Woodford’s reasoning is particularly apt here. The

Pennsylvania Supreme Court found that Williams’ brutal

crimes and record of violent convictions overwhelmed the

evidence proffered in mitigation. The Court took especial

note that “this was not [Williams’] first murder conviction,”

Williams II, 863 A.2d at 521 n.12, and it specifically adopted

the reasoning of the PCRA court, which found that the

aggravating evidence “outweighed” the mitigating testimony

offered by Williams’ mental health experts, see id. at 520. In

other words, the state supreme court concluded that given the

nature of the aggravating circumstances, Williams could not

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meet “his burden of demonstrating there was a reasonable

probability [that] the presentation of [mitigating] evidence

would have resulted in a life sentence instead of the death

penalty.” Id. at 521 n.12. In light of the totality of the

reconstituted record—the nature of the offense and Williams’

history as a convicted murderer, as well as the equivocal

nature of the mitigation evidence—we cannot say that this

determination was unreasonable.

The Pennsylvania Supreme Court’s decision is further

bolstered by the fact that the jury did not find Williams’ youth

to be a circumstance that mitigated the severity of the offense.

If ever a capital defendant qualified for the mitigating

circumstance set forth in 42 Pa. Cons. Stat. § 9711(e)(4),

Terrance Williams did. He was four months past his

eighteenth birthday. According to Williams’ brief, he is one

of the youngest men ever placed on Pennsylvania’s death

row. Williams’ trial counsel built his closing argument

around his client’s youth and begged the jury to find that age

was a mitigating factor. But to no avail. The jury’s rejection

of this mitigation argument is telling; it strongly suggests that

the jurors’ collective evaluation of Williams’ character would

have led them to reject other, less clear-cut mitigating

evidence. See, e.g., Wiggins, 539 U.S. at 535 (indicating that

characteristics which reflect the defendant’s “moral

culpability” are relevant at the penalty phase); see also

Jermyn, 266 F.3d at 310 (explaining that at the penalty phase,

jury appraises defendant’s “moral culpability”). This is but

another factor that points away from a finding of prejudice.

In sum, the Pennsylvania Supreme Court found that

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Williams was not prejudiced by Panarella’s failure to present

the mitigating evidence set forth in postconviction

proceedings. This determination was not an unreasonable

application of Strickland. In reaching our conclusion, we are

mindful of the Supreme Court’s recent admonition that “even

a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Harrington, --- U.S.

---, 131 S. Ct. at 786. That “‘fairminded jurists could

disagree’ on the correctness of the state court’s decision,” is,

by itself, a sufficient basis for rejecting federal habeas relief.

Id. (quoting Yarborough, 541 U.S. at 664). The reconstituted

record consists of conflicting mental health evaluations,

contradictory depictions of Williams’ home life, and

unequivocal evidence regarding the brutality of the crime and

Williams’ history of violent offense conduct. Strickland was

not unreasonably applied on this record. Habeas relief is

therefore unwarranted.

IV

In 1986, a Pennsylvania jury convicted Terrance

Williams of first degree murder and recommended a sentence

of death. Williams’ conviction was upheld by the state courts

on direct appeal, and his attempts to obtain collateral relief

were likewise unavailing. On federal habeas review, the

District Court denied Williams’ petition for relief. Today we

affirm that judgment for the reasons set forth above. In so

doing, we are mindful of the gravity of our decision. We are

bound, however, to respect the lawful decisions of the state

courts. Thus, twenty-five years after the jury returned its

verdict, we deny Williams’ request for habeas relief.

92