holding in a death penalty case that “the due process clause does not require counsel for state post-conviction proceedings, whether state law requires such counsel or not.”
How later courts described this case
- holding in a death penalty case that “the due process clause does not require counsel for state post-conviction proceedings, whether state law requires such counsel or not.”
- stating defendant must “prove the informant affirmatively [sought] to induce [incriminating statements]”
- stating there was “nothing in the record to establish deliberate elicitation”
- according deference to PCRA court’s factual findings where state appellate court found PCRA court lacked jurisdiction
Written by the judges who cited it.
The opinion
MEMORANDUM OPINION AND ORDER
D. BROOKS SMITH, Chief Judge.
TABLE OF CONTENTS
I. FACTS AND PROCEDURAL HISTORY.284
II. EXHAUSTION.288
III. PROCEDURAL DEFAULT.290
A. The Procedural Bars in Question.292
B. When The Alleged Default Occurred.292
C. Was the Waiver Rule Firmly Established Between 1982 and 1994? .293
D. Was the One Year Limitations Period Firmly Established in 1986? .295
E. Conclusion to Procedural Default.;.296
IV. STANDARD OF REVIEW.297
V. PURSELL’S GUILT-PHASE CLAIMS.299
A. Trial Court’s Refusal to Order Change of Venue.299
(1) Factual Background .299
(2) Legal Analysis.300
(a) Refusal to Presume Prejudice .302
*281
(b)Refusal to Find Actual Prejudice.303
(3) Ineffective Assistance Claim.305
(4) Conclusion.306
B. Trial Court’s Denial of Challenges For Cause.306
(1) Ineffective Assistance Claim.306
(a) Legal Background . 307
(b) Challenges to Shank, Noble, Fink, and Gunther.308
(c) Challenges to Ott and Yaple.■.310
(d) Was Counsel Deficient In Failing to Raise Claims Concerning Ott and Yaple?.318
(2) Sixth Amendment Right to Impartial Jury.321
(3) Due Process Claim .322
(4) Trial Court’s Grant of Commonwealth’s Challenge for Cause.322
(5) Conclusion.322
C. Prosecution’s Failure to Disclose Evidence of Other Suspect.'.323
(1) Factual Background.323
(2) Request for Evidentiary Hearing.325
(3) Brady Claim.326
(4) Ineffective Assistance Claim.329
(5) Conclusion.329
D. Prosecutorial Misconduct.329
(1) Claims Relating To Testimony of Officer Mark Krahe.330
(a) Pursell’s Invocation of Right to Counsel.331
(b) Testimony About Pursell’s Prior Criminal Record and Counsel’s Withdrawal of Motion for Mistrial.335
(c) Krahe’s Testimony About Conley’s Accusation of Rape.340
(d) Krahe’s Testimony That Pursell Was “Nervous” .342
(2) The Testimony of the Erie County District Attorney.342
(3) The Use of Prior Consistent Statements.343
(a) Factual Background.343
(b) Prosecutorial Misconduct Claim.344
*282
(c) Ineffective Assistance Claim.346
(d) Conclusion.346
(4) Prosecutor’s Remarks About Pursell’s Appearance.347
(a) Factual Background.347
(b) Admission of Evidence in Case in Chief.348
(c) Prosecutor’s Closing Remarks.348
(d) Conclusion.350
(5) Prosecutor’s Reference to Personal Knowledge.350
(6) Prosecutor’s Reference to Time of Death.351
(7) Cumulative Effect of Errors.352
(a) What Errors Should Be Considered? .352
(b) Legal Analysis of Cumulative Claim.353
(c) Conclusion.354
E. Ineffective Assistance of Counsel.354
(1) Counsel’s Failure to Request a Jury Instruction on Good Character.354
(2) Counsel’s Failure to Rehabilitate Dorothy Pursell.355
(3) Counsel’s Failure to Object to Impeachment by Omission.357
(4) Counsel’s Failure to Challenge Contention That Nearest Rock Was Two Hundred Feet From Victim .358
(5) Counsel’s Failure to Impeach Diane Walters.359
(6) Counsel’s Failure to Rebut Claim of Premeditation.362
(7) Claim Based on Counsel’s Cumulative Errors .363
F. Challenge to Jury Instructions.363
(1) Jury Instruction on Malice.364
(2) Mandatory Presumption of Malice and Intent to Kill.366
(3) Ineffective Assistance Claim.368
(4) Conclusion.368
G. Pursell Represented Himself On His PCRA Appeal.368
(1) Background. 369
(2) Claim is Barred By Teague.370
*283
(3) Merits of the Claim.372
(4) Conclusion.373
H. Challenge to Conduct of All Prior Counsel.373
I. Claim for Cumulative Trial Error.373
(1) Analyzing Claims for Cumulative Error .374
(2) The Errors.376
(3) Merits of the Claim.376
(4) Conclusion.377
J. Conclusion to Guilt-Phase Analysis.377
VI. PURSELL’S SENTENCING-PHASE CLAIMS.378
A. Counsel’s Failure to Investigate and Introduce Mitigating Evidence.378
(1) Factual Background.378
(a) Pursell’s Early Years.378
(b) Physical and Sexual Abuse.379
(e) Drug and Alcohol Abuse.379
(d) Psychological Impairments.380
(e) Kind, Loving, and Peaceful Person.381
(2) Expansion of the Record .381
(3) Legal Analysis.382
(a) Counsel Was Deficient.382
(b) Counsel’s Conduct Prejudiced Pursell.385
(4) Conclusion.387
B. The Trial Court’s Instruction on the Meaning of Torture.387
(1) Factual Background.387
(2) Clearly Established Federal Law.i.388
(3) Unconstitutionality of the Instruction . 390
(a) Especially Heinous, Atrocious, or Cruel Manifesting Exceptional Depravity.390
(b) Intention to Inflict Pain or Suffering.393
(c) Meaning of Torture Was a Moving Target. 394
*284
(4) Is Relief Required Under AEDPA?. 395
(a) The Pennsylvania Supreme Court’s Decision 395
(b) Unreasonable Application Prong. 397
(5) Harmless Error Analysis. 398
(6) Conclusion to Torture Challenge. 398
VII. CONCLUSION. 399
On January 26, 1982, a jury empaneled by the Court of Common Pleas of Erie County, Pennsylvania convicted petitioner, Alan Pursell, of first degree murder in the death of thirteen year-old Christopher Brine and, in a separate proceeding, sentenced him to death. At issue today is Pursell’s federal habeas corpus petition filed pursuant to 28 U.S.C. § 2254 (1994 & Supp.2001). Dkt. nos. 9
&
26. In this petition, Pursell claims that his trial and sentencing hearing were infected with constitutional error, and he requests either a new trial or, at a minimum, a new sentencing hearing. For the following reasons, I will grant this petition to the extent that it seeks a new sentencing hearing and deny it in all other respects.
I. FACTS AND PROCEDURAL HISTORY
On July 23, 1981 at approximately 6:30 p.m., thirteen year-old Christopher Brine left his home in Wesleyville, Pennsylvania, riding his bronze Columbia bicycle. (Tr. 1/19/82, at 101-04).
1
Less than twenty-four hours later, he was found dead along a wooded area in Lawrence Park Township.
Id.
at 57-61 . He was naked, his face was drenched with blood, and a twenty-five foot long tree-limb lay across his throat.
Id.
at 74-75 ; 125-26; 134;
Commonwealth v. Pursell,
508 Pa. 212 , 495 A.2d 183, 186 (1985) (.Pursell-1). An autopsy revealed that Brine had sustained fifteen blows to the head with a rock, and had suffered a broken nose, internal hemorrhaging in the neck, and swollen eyes. PurseU-1, 495 A.2d at 186 ;
see also
(Tr. 1/20/82, at 172-77, 179). The ultimate cause of death, however, was asphyxiation as Brine’s windpipe was crushed when he was strangled with the tree-limb. (Tr. 1/20/82, at 180).
Within days of the murder, the police began to piece together evidence that linked Alan Pursell to the crime. By the time that Pursell was tried for Brine’s murder in January of 1982, the Commonwealth’s case against him rested on four evidentiary pillars.
First, a pair of glasses was found at the murder scene.
Id.
at 133. An optometrist, Dr. Moody Perry, examined these glasses and determined that they were the same prescription and frame that he sold to Pursell a few months before the murder. (Tr. 1/20/82, at 218-20). According to Dr. Perry, the prescription was so rare that his office records revealed that he had written it only once in six years.
Id.
at 214 & 220. On the afternoon of July 24, 1981, hours after the murder took place, Pursell returned to Dr. Perry’s office and ordered a new pair of glasses, explaining
*285
that his pair had been stolen.
Id.
at 226-28, 289, 254-55.
Second, a number of witnesses confirmed that Pursell lost his glasses on the very night that Brine was killed. On the night of the murder, Pursell was living with his mother in her trailer in Wesley-ville, Pennsylvania. (Tr. 1/21/82, at 68-69). Almon Hall saw Pursell at approximately 9:00 or 9:30 p.m. on the night of the murder at Mrs. Pursell’s trailer.
Id.
at 69-70. According to Hall, Pursell was not wearing any glasses,
id.
at 70-71, and he looked nervous.
Id.
at 73. Hall overheard Mrs. Pursell ask her son about his glasses, and Pursell said that he lost them in a fight.
Id.
at 71, 73. An hour later, at approximately 10:30 p.m., Pursell had a brief conversation with two boys who lived next to his mother’s trailer, James Lynch and Thomas Jagta. Both boys noticed that Pursell was not wearing his glasses.
Id.
at 8, 26. When Lynch asked Pursell about his glasses, Pursell also told him that he lost them in a fight.
Id.
Pursell mentioned as well that he hit someone in the head with a brick during this fight.
Id.
8-9, 26.
Third, Pursell made an incriminating statement to his friend, Diane Walters. On July 27, 1981, he and Walters were watching the television news when, out of the blue, Pursell asked if a person could be traced through his glasses.
Id.
at 57-58. At the time, only the police and the murderer himself could have known that a pair of glasses was found at the scene of the crime because the local news media had made no such report. (Tr. 1/20/82, at 269-71, 275); (Tr. 1/21/82, at 85-86).
Finally, a search of Pursell’s trailer turned up a pair of brown shoes that contained several small drops of blood. Although Pursell and Brine had the same blood type, an analysis of the isoenzymes in the blood stains showed that they were inconsistent with Pursell’s blood, but consistent with the blood chemistry of 5.5% of the population, including Brine. (Tr. 1/22/82, at 162,171-72,184-85).
Based on this and other evidence, Pur-sell was tried for the murder of Christopher Brine. At trial, he contested nearly all of the facts introduced against him.
First, he attacked the Commonwealth’s theory that he lost his glasses while murdering Brine, introducing evidence to show that he lost them days before Brine’s death. Two witnesses testified that they saw Pursell at the optometrist’s office without his glasses on the afternoon of July 23, 1981, hours before the alleged murder took place. (Tr. 1/25/82, at 8-11, 163).
2
Pursell introduced testimony to show that his conversation with Lynch and Jagata took place on July 22, not July 23, (Tr. 1/22/82, at 230, 232), proving, according to Pursell, that he lost his glasses long before Brine’s death. Finally, both Pur-sell and his mother testified that Pursell had lost his glasses days before the murder. (Tr. 1/25/82, at 20-24, 85-87).
Second, Pursell tried to refute the inference that Brine’s blood was on his shoes. Kathy Sheehan, who had been living with Pursell shortly before the murder, testified that Pursell received those shoes from the Red Cross in April 1981. (Tr. 1/22/82, at 266-67). According to the trial testimony,
*286
the shoes contained blood spots on them when they came from the Red Cross.
Id.
at 268. Nevertheless, Pursell did not like the shoes, kept them at his mother’s house, and wore them on only one occasion.
Id.
at 269-70, 279;
see also
(Tr. 1/25/82, at 20-21, 81-82).
Finally, Pursell offered an alibi for his whereabouts during the time of the murder. Pursell’s mother testified that she was with her son throughout the night of July 23 and into the morning of July 24. Although Mrs. Pursell had a date on the night of July 23 with Almon Hall, she and Hall returned to the trailer around 9:30 or 10:00 p.m. where they found Pursell eating cereal. The three chatted until Hall left at approximately 11:00 p.m. (Tr. 1/25/82, at 31-35). Mrs. Pursell and her son then talked until 12:15 p.m. when she went to bed. Mrs. Pursell, who is a light sleeper, was up several times during the night and each time she saw her son asleep on the couch.
Id.
at 37-38.
The jury rejected Pursell’s account, convicted him of first degree murder, and sentenced him to death. (Tr. 1/26/82, at 100, 151-53). On appeal, Pursell challenged his conviction and death sentence on numerous grounds. Dkt. no. 18, at 1978. In a five to two decision, the Pennsylvania Supreme Court rejected Pursell’s challenge and affirmed his conviction and death sentence.
Pursell-1,
495 A.2d at 198 .
3
Pursell’s conviction became final on December 23,1985.
4
Pursell subsequently filed various pleadings with the Court of Common Pleas and the Pennsylvania Supreme Court, seeking relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons.Stat. Ann. §§ 9541
et seq.
Pursell’s court-appointed counsel filed a PCRA petition (“counseled PCRA petition”) that raised only three claims for relief.
Commonwealth v. Pursell,
555 Pa. 233 , 724 A.2d 293, 300 (1999) (Pursell-2). In response, Pursell filed a motion requesting the appointment of new counsel and seeking leave to supplement the counseled PC.RA petition. The trial court denied both motions and later, without opinion, denied the counseled PCRA petition on March 23, 1993.
Id.
Acting
pro se,
Pursell appealed the trial court’s decision to the Pennsylvania Supreme Court. In that appeal, he raised the three claims put in his counseled PCRA petition and twenty-seven other claims.
Id.
Because the trial court had never issued an opinion in the matter, the Pennsylvania Supreme Court remanded the case so that the trial court could explain its March 23, 1993 order. This remand occurred on January 15, 1997.
Id.
Once again, Pursell sought to amend his PCRA petition in front of the trial court and, once again, he was denied the opportunity.
5
On April 25, 1997, the trial court
*287
issued an opinion addressing the merits of only the three claims raised in the counseled PCRA petition.
Id.
at 301 . Concerning the additional issues raised by Pursell, the trial court stated that to review those issues “would exceed the Supreme Court’s mandate.” Dkt. no. 19, at 2505-06 n. 3. Nevertheless, it also held that “it would appear that those claims are also barred by the PCRA’s waiver provision.”
Id.
After the trial court issued its opinion, the Pennsylvania Supreme Court again took up Pursell’s
pro se
appeal. Relying on the original briefs filed in 1994,
id.
at 2257-2488, the Supreme Court issued an opinion denying both Pursell’s counseled and
pro se
petitions for relief.
Pursell-2,
724 A.2d at 315 .
6
First, the court held that most of Pursell’s claims were waived because they were not raised at trial or on direct appeal.
Id.
at 302 n. 6, 303, 306. Second, although recognizing that Pursell could overcome his waiver by asserting an ineffective assistance of counsel claim, the court rejected Pursell’s allegation that his counsel was ineffective for failing to raise certain claims in the PCRA petition.
Id.
at 304-313 . Finally, the court reviewed the three claims raised in the counseled PCRA petition and denied relief on these claims on the merits.
Id.
at 314-315 . The court issued its opinion in
Pursell-2
on January 19, 1999. On April 5, 1999, it denied Pursell’s request for reargument.
On May 12, 1999, Pennsylvania Governor Thomas Ridge signed a warrant for Pursell’s execution. Within days, Pursell’s lawyers entered their appearance on his behalf in federal court and filed a motion for stay of execution. Dkt. no. 1. On May 24,1999,1 granted the stay, dkt. no. 5, and subsequently entered an order setting a schedule for Pursell to file a petition for habeas corpus pursuant to 28 U.S.C. § 2254 . Dkt. no. 6. Pursell filed this petition, along with a memorandum of law, on September 15,1999. Dkt. no. 9.
At the same time that he was seeking habeas relief in federal court, however, Pursell was still pursuing his remedies in the state courts. In fact, on June 4, 1999, he filed yet another PCRA petition (“second PCRA petition”) with the Court of Common Pleas of Erie County.
7
Com-momvealth v. Pursell,
561 Pa. 214 , 749 A.2d 911, 912-13 (2000)
(Pursell-3
).
8
Almost immediately, the trial court denied Pursell’s request for relief.
Id.
at 913. Pursell appealed the trial court’s decision to the Pennsylvania Supreme Court which affirmed on procedural grounds. In particular, the court explained that Pursell’s petition was barred by the 1995 amendments to the PCRA.
See
42 Pa. Cons.Stat. Ann. § 9545(b). Under these amendments, “[a]ny petition ..., including a second or subsequent petition, shall be filed
*288
within one year of the date that judgment becomes final
...” Id.
§ 9545(b)(1). Because Pursell’s conviction became final in 1985, and he did not file the petition in question until 1999, the court held that his petition was time barred.
Pursell-3,
749 A.2d at 914 . It issued this opinion in
Pursell-3
in April 2000.
After the conclusion of these state court proceedings, I ordered the parties to file new memoranda addressing all of the legal and factual issues in this case. At that time, Pursell raised eighteen claims for relief, including numerous sub-claims, and sought a new trial or, at a minimum, a new sentencing hearing. Dkt. no. 26. The Commonwealth addressed the merits of these claims, but vigorously maintained that the entire petition should be dismissed because it contained claims that were unexhausted in the Pennsylvania state courts. Additionally, the Commonwealth argued that a number of Pursell’s claims were proeedurally defaulted and, thus, unreviewable in federal court. Dkt. no. 28. It is to these procedural issues that I turn first.
II. EXHAUSTION
The federal habeas corpus statute, 28 U.S.C. § 2254 , permits a federal court to entertain an application for habeas corpus relief from a state prisoner “only on the ground that he or she is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (a). Although the writ of habeas corpus has been described as the “highest safeguard of liberty,”
Smith v. Bennett,
365 U.S. 708, 712 , 81 S.Ct. 895 , 6 L.Ed.2d 39 (1961), there are strict procedural limits on when and how it can be entertained by a federal court. One such limitation is known as the exhaustion requirement. As a general rule, a federal court cannot grant a writ of habeas corpus unless “the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254 (b). This exhaustion requirement “ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of the state courts in protecting federally guaranteed rights.”
Evans v. Court of Common Pleas, Delaware County, Pa.,
959 F.2d 1227, 1230 (3d Cir.1992).
To satisfy the exhaustion requirement, a claim need not be actually decided by the state courts. Instead, a claim is exhausted if it was “fairly presented” to the state courts.
Id.
at 1231 (quoting
Picard v. Connor,
404 U.S. 270, 275 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971)). This merely requires that the federal claim is the “substantial equivalent” of the claim brought in state court.
Id.
As the Third Circuit has repeatedly explained, in deciding whether a claim was fairly presented, a district court should look to “the substance of the claim presented to the state courts, rather than its technical designation.”
Id.
Even if the state court refuses to hear the claim presented because it is time-barred or waived, the claim is still exhausted as long as the state court is given the opportunity to address it.
Bond v. Fulcomer,
864 F.2d 306, 309 (3d Cir.1989) (holding that presentation of an untimely petition to the state’s highest court satisfied the exhaustion requirement).
There is no doubt that Pursell has satisfied the exhaustion requirement in this case. Seventeen of his eighteen claims were presented, in almost verbatim fashion, to the state courts either on direct appeal,
see Pursell-1,
495 A.2d at 183 , or during one of his two petitions for post-conviction relief.
See Pursell-2,
724 A.2d at 293 ;
Pursell-3, 148)
A.2d at 911. Although the Pennsylvania courts held that most of Pursell’s claims were waived or
*289
time-barred, these claims were exhausted simply because they were presented to the courts for review.
Bond,
864 F.2d at 309 . The exhaustion doctrine requires nothing more.
Only one of Pursell’s claims merits any discussion on the exhaustion issue. He asks this court to vacate his death sentence because the Pennsylvania Supreme Court conducted what he calls an “arbitrary proportionality review” that violated his rights under the United States Constitution. Dkt. no. 26, Claim 14, at 206. At the time of his conviction, the Pennsylvania Supreme Court was statutorily required to conduct a proportionality review in all death penalty cases.
See
42 Pa. Cons.Stat.Ann. § 9711 (h)(3)(iii) (1985). Under this review, the Supreme Court had to vacate any death sentence if it was “excessive or disproportionate to the penalty imposed in similar cases ...”
Id.
In
Pursell-l,
the Pennsylvania Supreme Court performed this proportionality review and concluded that Pursell’s sentence was not excessive or disproportionate in relation to the sentences of others convicted of first-degree murder.
Pursell-l,
495 A.2d at 197-98 . Today, Pursell challenges the Pennsylvania Supreme Court’s proportionality review, calling it arbitrary and unconstitutional. Dkt. no. 26, at 206-220.
While Pursell did not explicitly raise this issue in state court, the state court nevertheless decided it in two ways. First, to affirm Pursell’s conviction on direct review, the Pennsylvania Supreme Court had to necessarily decide the question presented by Pursell in this case.
Pursell-l,
495 A.2d at 197-98 . Indeed the same statute that required the court to perform a proportionality review also stated that a death sentence could not be affirmed if it was “arbitrary.” 42 Pa. Cons.Stat.Ann. § 9711(h)(3)®. The Supreme Court clearly determined that the proportionality review in Pursell’s case was not “arbitrary,” as Pursell now claims, or it could not have affirmed his sentence. Second, in a recent decision, the Pennsylvania Supreme Court explained that it implicitly resolves all constitutional issues concerning the application of proportionality review when it performs that review on direct appeal. In
Commonwealth v. Al-brecht,
554 Pa. 31 , 720 A.2d 693, 708 (1998), the court confronted a challenge to its proportionality review that is identical to the one in the present case. It rejected the constitutional challenge with no discussion, stating only that the issue was “previously litigated” when it “fulfilled its statutory obligation to review [defendant’s] sentence for proportionality and ruled against him.”
Id.
The exhaustion doctrine simply does not require a litigant to present an issue that the state court has already decided.
Even if the exhaustion doctrine did require such an odd result, I would excuse Pursell’s failure to exhaust this claim because exhaustion would be futile. The Third Circuit has explained that “ ‘[f]utility’ exists where ... ‘a state’s highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition and there is no plausible reason to believe that a replay will persuade the court to reverse its field.’ ”
Lines v. Larkins,
208 F.3d 153, 162 (3d Cir.2000) (quoting
Allen v. Attorney General of Maine,
80 F.3d 569, 573 (1st Cir.1996));
see also Lynce v. Mathis,
519 U.S. 433 , 436 n. 4, 117 S.Ct. 891 , 137 L.Ed.2d 63 (1997) (holding that “exhaustion would have been futile” because the Florida Supreme Court previously rejected the same claim in other cases and counsel for the state had “not suggested any reason why the Florida courts would have decided petitioner’s case differently.”).
*290
Just such a situation is present in Pur-sell’s case. Repeatedly over the past few years, the Pennsylvania Supreme Court has rejected identical constitutional challenges to its proportionality review. In
Commonwealth v. Gribble,
550 Pa. 62 , 703 A.2d 426, 441 (1997), the court held that there was nothing “arbitrary or capricious” in the Pennsylvania scheme.
Id.
A year later, in
Albrecht,
it again rejected a constitutional challenge to its proportionality review.
Albrecht,
720 A.2d at 708 . Finally, in early 1999, it rejected the same constitutional challenge, holding that it found “nothing in Appellant’s argument which persuades us that our reasoning in
Gribble
was incorrect.”
Commonwealth v. Porter,
556 Pa. 301 , 728 A.2d 890, 901 (1999). To force Pursell to raise a constitutional challenge identical to one that has been repeatedly rejected by the Pennsylvania Supreme Court would require him to perform a “futile aet[ ].”
Allen,
80 F.3d at 573 . The exhaustion doctrine does not require such meaningless gestures. “After all, it is the legal issues that are to be exhausted, not the petitioner.”
Story v. Kindt,
26 F.3d 402 , 406 n. 8 (3d Cir.1994) (citations omitted).
9
III. PROCEDURAL DEFAULT
The Commonwealth’s second procedural attack is based on the doctrine of procedural default. It is well-established that a state court decision resting on an independent and adequate state procedural rule is barred from review in the federal courts.
Wainwright v. Sykes,
433 U.S. 72, 81, 86-87 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977). Known as procedural default, this doctrine is “grounded in concerns of comity and federalism,”
Coleman v. Thompson,
501 U.S. 722, 730 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991), and it bars federal habeas review whenever the petitioner has failed to comply with the state’s procedural rules, whether this failure occurred at trial, on appeal, or during post-conviction review.
Edwards v. Carpenter,
529 U.S. 446, 451 , 120 S.Ct. 1587 , 146 L.Ed.2d 518 (2000). Only in the rare instance where the petitioner can demonstrate “cause” for not following the state procedural rule and “prejudice” resulting from application of the procedural bar will a federal habeas court review the merits of the petitioner’s claim.
Sykes,
433 U.S. at 87 , 97 S.Ct. 2497 .
Before a state procedural rule can act as a bar to relief in federal court, however, it must be both “independent” of federal law and “adequate.”
Coleman,
501 U.S. at 729 , 111 S.Ct. 2546 ;
Szuchon v. Lehman,
273 F.3d 299, 325 (3d Cir.2001);
Jermyn v. Horn,
266 F.3d 257, 278 (3d Cir.2001). The Pennsylvania Supreme Court’s procedural rules were independent and, thus, I turn to whether those rules were “adequate.” A state procedural rule is “adequate” only if it is “firmly established and regularly followed” at the time
*291
that the alleged procedural default occurred.
Ford v. Georgia,
498 U.S. 411, 423-24 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991) (quoting
James v. Kentucky,
466 U.S. 341, 348-51 , 104 S.Ct. 1830 , 80 L.Ed.2d 346 (1984));
see also Edwards,
529 U.S. at 455 , 120 S.Ct. 1587 (Breyer, J., concurring). The United States Supreme Court explained this requirement in
Ford v. Georgia.
In that case, the Georgia Supreme Court applied a state procedural rule adopted in 1987 in the case of
State v. Sparks,
355 S.E.2d 658, 659 (Ga.1987) to bar defendant’s claim, even though defendant’s alleged default took place in 1984, three years before the
Sparks
rule was even in effect. The United States Supreme Court rejected the Georgia Court’s attempt to bar petitioner’s federal claim.
The Supreme Court of Georgia’s application of its decision in
Sparks
to the case before us does not even remotely satisfy the requirement of
James
that an adequate and independent state procedural bar to the entertainment of constitutional claims must have been ‘firmly established and regularly followed’ by the time as of which it is to be applied....
Sparks
was decided more than two years after petitioner in this case filed his motion on the prosecution’s use of peremptory challenges and long after petitioner’s trial was over.
Ford,
498 U.S. at 424 , 111 S.Ct. 850 . As the Court further explained, to apply the
Sparks
rule “retroactively to bar consideration of [petitioner’s] claim ... would therefore apply a rule unannounced at the time of petitioner’s trial and consequently inadequate to serve as an independent state ground within the meaning of
James.” Id.
Cases in the Third Circuit have also held that a state procedural rule is not adequate to bar federal habeas relief unless it was firmly established at the time the alleged default occurred.
Doctor v. Walters,
96 F.3d 675, 686 (3d Cir.1996);
Reynolds v. Ellingsworth,
843 F.2d 712, 722 (3d Cir.1988);
Szuchon ,
273 F.3dat 325-26. In
Doctor v.
Walters,. for instance, the Third Circuit reviewed the petition of Gary Lee Doctor. Doctor escaped from state custody in June 1986. In August of that same year, the state trial court entered a guilty verdict against Doctor without ever informing him or his attorney. In 1992, Doctor was rearrested and sentenced. Soon after his sentencing, Doctor filed an appeal to the Pennsylvania Superior Court, but the Court quashed the appeal in 1993, relying on a procedural rule that required dismissal of all claims brought by a recaptured fugitive.
Doctor,
96 F.3d at 684 . According to the Superior Court, it had no discretion to hear Doctor’s appeal.
In reviewing Doctor’s petition for habe-as corpus, the Third Circuit held that the state’s procedural rule was not adequate to bar habeas relief. First, the Court explained that a state procedural rule only bars federal review if it is “firmly established and regularly applied.”
Id.
at 684 (quoting
Ford,
498 U.S. at 423-24 , 111 S.Ct. 850 ). Second, the Court said that the relevant time period for deciding whether the procedural rule was firmly established was not “1993 when the Superior Court relied on it, but rather ... the date [that] the waiver ... allegedly occurred when Doctor escaped in 1986.”
Id.
at 686. After a detañed review of the Pennsylvania case law in existence in 1986, the Third Circuit concluded that “it was not ‘firmly established’ that Pennsylvania courts lacked the discretion to hear an appeal first filed after custody had been restored.”
Id.
at 686. Accordingly, “the state courts in this case did not rely on an ‘adequate’ procedural rule to deny petitioner review of his appeal on the merits.”
*292
Id.
10
As the Third Circuit’s analysis in
Doctor
demonstrates, a federal district court analyzing whether a state procedural rule bars federal habeas relief must undergo a multi-part inquiry. First, it must define the state procedural rule that was allegedly violated. Second, it must identify when, precisely, the alleged default occurred. Finally, it must review the state court decisions prior to the time of the alleged default to determine whether the procedural rule in question was firmly established and consistently applied at that time.
Bronshtein v. Horn,
Civil Action No. 99-2186, 2001 WL 767593 , *5 (E.D.Pa. July 5, 2001). In applying this analysis to the present case, I conclude that Pursell’s claims are not procedurally defaulted.
A. The Procedural Bars in Question
There are two alleged procedural bars at issue in the present case. First, in
Pursell-2,
the Pennsylvania Supreme Court refused to address some of the claims raised in Pursell’s
pro se
PCRA petition, holding that these claims were waived because they were not raised at trial or on direct appeal.
Pursell-2,
724 A.2d at 302 n. 6, 303, 306. Under this rule, claims that were not properly raised at trial or on direct appeal were waived.
Id.
The second procedural bar relied on by the Pennsylvania Supreme Court was a statute of limitations. In
Pursell-3,
the Court held that Pursell’s second PCRA petition was barred by the PCRA’s one-year statute of limitations.
Pursell-3,
749 A.2d at 913 . Under 42 Pa. Cons.Stat.Ann. § 9545(b), any PCRA petition must be filed “within one year of the date that judgment becomes final.”
Id.
Pursell’s conviction and death sentence became final in 1985, but his second “PCRA petition was filed in 1999, more than one year from the date that his judgment of sentence became final ...”
Pursell-3,
749 A.2d at 913 . Accordingly, the Court held that Pursell’s second PCRA petition was time-barred.
B. When The Alleged Default Occurred
While determining the procedural bars at issue is simple, deciding when the alleged procedural defaults occurred is much harder. First, in
Pursell-2,
the Supreme Court did not clearly state when the alleged waivers occurred. Nonetheless, a close reading of the Court’s opinion in
Pursell-2
provides only one possible time-
*293
period during which these alleged defaults could have taken place. At the earliest, Pursell waived certain issues when he failed to raise them at trial in 1982 or on direct appeal in 1985.
Pursell-2,
724 A.2d at 306 . At the latest, he waived other issues when he failed to raise them in his PCRA filings with the Pennsylvania Supreme Court in 1994.
Id.
Accordingly, my inquiry must focus on the state of Pennsylvania waiver law in death penalty cases between 1982 and 1994.
Pursell’s second alleged procedural lapse is easier to place in time. In fact, in
Pursell-S,
the Pennsylvania Supreme Court identified precisely when the alleged procedural default occurred in that ease.
Direct review of [Pursell’s] conviction expired in 1985 when [Pursell] failed to seek review in the United States Supreme Court of our decision affirming [his] conviction and death sentence. [Pursell’s] present PCRA petition was filed in 1999, more than one year from the date that his judgment of sentence became final and therefore not in compliance with the general one-year time limitation of 42 Pa.C.S. § 9545(b)(1).
Pursell-3,
749 A.2d at 913 . By pinpointing the expiration of Pursell’s conviction in 1985, and holding that he had only one year from that date to file his petition, the Supreme Court clearly points to 1986 as the year when Pursell’s procedural default occurred. Accordingly, my inquiry must focus on the state of the PCRA one-year limitations period in 1986.
The only remaining question is whether the procedural rules used to bar Pursell’s claims in
Pursell-2
and
Pursell-S
were “firmly established and regularly followed,”
James,
466 U.S. at 348-51 , 104 S.Ct. 1830 , at the time when the alleged defaults occurred.
C. Was the Waiver Rule Firmly Established Between 1982 and 1994?
The waiver rule applied in
Pursell-2
was not “firmly established and regularly followed,”
James,
466 U.S. at 348-51 , 104 S.Ct. 1830 , until 1998, many years after the alleged default in this case occurred. This waiver rule has its root in the language of the PCRA. 42 Pa. Cons.Stat.Ann. § 9544(b) (stating that an issue is waived “if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted”). Nonetheless, between 1978 and 1998, the Pennsylvania Supreme Court simply did not adhere to this provision in capital cases. In
Commonwealth v. McKenna,
476 Pa. 428 , 383 A.2d 174 (1978), for instance, the Court stated that it had a “duty to transcend procedural rules” in death penalty cases because procedural rules “cannot be exalted to a position so lofty as to require this Court to bind itself to the real issue — the propriety of allowing the state to conduct an illegal execution of a citizen.”
Id.
at 181. The doctrine set forth in
McKenna
became known as the “relaxed waiver rule.” Under this rule, the Pennsylvania Supreme Court reviewed the merits of all claims raised in capital cases, whether on direct appeal or in post-conviction proceedings, regardless of any alleged waiver by the defendant.
11
By 1997, the relaxed waiver
*294
rule was so well established that even the Third Circuit concluded that the Pennsylvania Supreme Court had a “practice of reaching the merits of claims in PCRA petitions in capital cases regardless of the failure of the petition to meet the appropriate procedural criteria.”
Banks v. Horn,
126 F.3d 206, 214 (3d Cir.1997).
The relaxed waiver rule was firmly in place when Pursell’s trial was conducted in 1982 and when his conviction was affirmed in 1985.
See supra
n. 11. In 1991, when he filed his first PCRA petition with the Court of Common Pleas, the relaxed waiver rule was firmly entrenched in Pennsylvania jurisprudence. Id. In 1993, when Pursell filed the appeal of the denial of his first PCRA petition, dkt. no. 19, at 2257-2488, the relaxed waiver rule remained fixed in Pennsylvania law.
See supra
n. 11. Finally, in 1997, when Pursell sought to amend his PCRA petition to add new claims, the relaxed waiver rule was “generally apphe[d] ... because of the permanent and irrevocable nature of the death penalty.”
Brown,
711 A.2d at 455;
see also supra
n. 11.
In 1998, while Pursell’s first PCRA petition was pending before the Pennsylvania Supreme Court, however, the rules changed. In
Commonwealth v. Albrecht,
the Pennsylvania Supreme Court was urged, once again, to apply its relaxed waiver rule to issues raised for the first time in petitioner’s PCRA petition.
Al-brecht,
720 A.2d at 700 . The Court refused. “While it has been our ‘practice’ to decline to apply ordinary waiver principles in capital cases, we will no longer do so in PCRA appeals.”
Id.
(internal citations omitted). Recognizing that the “negligible benefits” from applying the relaxed waiver doctrine to PCRA appeals was “outweighed by the need for finality and efficient use of [its] resources,” the Supreme Court abandoned the relaxed waiver rule on PCRA appeals.
Id.
The
Albrecht
decision was handed down on November 23, 1998,
id.
at 693, and used to bar certain of Pursell’s claims in January of 1999,
Pur-sell-2,
724 A.2d at 293 .
12
There can be no doubt that the rule set forth in
Albrecht
was not “firmly established and regularly followed” at the time
*295
that Pursell allegedly waived the claims at issue in
Pursellr-2.
Indeed, between 1978 and 1998, the Pennsylvania Supreme Court had a regular practice of forgiving waivers in capital cases, whenever they occurred, and reviewing the merits of a petition. To apply the
Albrecht
rule “retroactively to bar consideration of [Pursell’s] claim[s] ... would therefore apply a rule unannounced at the time of petitioner’s trial and consequently inadequate to serve as an independent state ground ...”
Ford,
498 U.S. at 424 , 111 S.Ct. 850 .
D. Was the One Year Limitations Period Firmly Established in 1986?
I reach the same conclusion with the limitations period used to bar Pursell’s claims in
Purselh-S.
In 1995, the Pennsylvania legislature amended the PCRA to add a one-year statute of limitations for all petitions filed under the Act. 42 Pa. Cons. Stat.Ann. § 9545(b). As one commentator has stated, these 1995 amendments to the PCRA “were not written on a blank slate.” Natali,
New Bars in Pennsylvania,
73 Temp. L.Rev. at 101. Instead, they were written against the backdrop of the well-established relaxed waiver doctrine.
Id.
Accordingly, even when the statute of limitations was added to the PCRA in 1995, many believed that the Pennsylvania Supreme Court simply would not follow it in capital eases.
Id.
The Third Circuit took this view. In
Banks v. Horn,
the Court held that the relaxed waiver rule applied to a petition by a capital defendant filed outside the statute of limitations.
Banks,
126 F.3d at 214 . While the Commonwealth argued that Banks’ claim was barred by the clear language of the 1995 PCRA amendment, the Third Circuit rejected this argument.
While it is true that the text of the 1995 PCRA amendments supports these contentions, it is not clear that these amendments are dispositive. The Commonwealth does not refer us to a Pennsylvania Supreme Court case applying the PCRA as amended in 1995 to support its view.... [T]he Pennsylvania Supreme Court seems to exercise strong control of procedures in death penalty cases.
In the circumstances, we are not confident that the Pennsylvania Supreme Court, even in the face of the 1995 amendments to the PCRA, will abandon its practice of reaching the merits of claims in PCRA petitions in capital cases regardless of the failure of the petition to meet the appropriate procedural requirements.
Id.
As of 1997, whether the Pennsylvania Supreme Court would follow the limitations period in the PCRA was simply unclear.
Id.; see also Peterkin v. Horn,
30 F.Supp.2d 513, 519-20 (E.D.Pa.1998) (“it is virtually impossible for this Court to definitively predict” if the PCRA statutory time limits will be applied to capital cases);
Crawley v. Horn,
7 F.Supp.2d 587, 588 (E.D.Pa.1998) (PCRA statutory time bar may be overcome by capital case relaxed waiver rule);
Jermyn,
266 F.3d at 278-79 .
In late 1998, however, the Pennsylvania Supreme Court ruled for the first time that it would follow the PCRA limitations period in capital cases. In
Commonwealth v. Peterkin,
554 Pa. 547 , 722 A.2d 638 (1998), the Court dismissed a capital defendant’s second PCRA petition as untimely under the PCRA’s statute of limitations.
Id.
at 642 . Because
Peterkin
failed to file his petition by 1988, a year after his conviction became final, he was barred under the PCRA.
Id.
at 641. Nonetheless, the Court’s decision in
Peterkin
did not address whether the relaxed waiver rule applied.
See Banks v. Horn,
271 F.3d 527, 532 (3d Cir.2001). Indeed, as the Third Circuit has explained, “the Pennsylvania
*296
Supreme Court did not clarify that the state PCRA statute was jurisdictional and not waivable until 1999 in
Commonwealth v. Banks,
556 Pa. 1 , 726 A.2d 374 (1999).”
Fahy v. Horn,
240 F.3d 239, 245 (3d Cir. 2001). In
Banks,
the Pennsylvania Supreme Court addressed for the first time the relationship between the relaxed waiver doctrine and the PCRA time-limitations, holding that “the issue here is one of jurisdiction and not waiver.”
Banks,
726 A.2d at 376 . Accordingly, it was not until March 2, 1999, the date that the
Banks
decision was handed down, that Pursell was put on notice that he had to comply with the PCRA’s one-year limitations period.
Banks,
726 A.2d at 374 .
Once again, the rule applied by the Supreme Court to bar Pursell’s claims was not “firmly established and regularly followed” at the time of Pursell’s alleged default. According to the Court in
Pur-sell-3,
Pursell was required to file his PCRA petition by 1986, within one year of the date his conviction became final.
Pur-sell-3,
749 A.2d at 913 . However, that limitations period did not exist at the time that Pursell was supposed to comply with it. Once again, the law changed midstream and these changes were applied retroactively to bar merits review of a number of Pursell’s claims. Such a retroactive application of a procedural rule is simply inadequate to bar relief in federal court.
Ford,
498 U.S. at 424 , 111 S.Ct. 850 .
The fact that Pursell did not file his second PCRA petition until June 1999, three months after the decision in
Banks,
does not alter my conclusion in this case. On at least two occasions before the
Banks
decision, Pursell tried to amend his first PCRA petition by adding new claims.
Pursell-2,
724 A.2d at 300-301 . Both attempts were rejected by the trial court. To make matters worse, Pursell was barred under Pennsylvania law from filing a second petition in which he could raise these new claims until his first petition was resolved.
Whitney v. Horn,
170 F.Supp.2d 492, 499 (E.D.Pa.2000);
Commonwealth v. Lark,
560 Pa. 487 , 746 A.2d 585, 588 (2000). Had the trial court permitted Pursell to amend his first petition, it might have obviated the need for a second one. Nonetheless, the trial court’s refusal left Pursell with a classic Hobson’s choice: he was free to raise any claims he wanted, at any time,
Fahy,
240 F.3d at 245 ;
Banks,
271 F.3d at 530 ;
Bronshtein,
2001 WL 767593 , at *8-10, but he could only raise them in a second petition, and only after his first petition was resolved.
Whitney,
170 F.Supp.2d at 499 . Accordingly, Alan Pursell had to wait, and while he waited, the law in Pennsylvania changed, and his window for asserting new claims quickly closed.
13
Under such unique circumstances, I conclude that Pennsylvania’s one-year statute of limitations does not act as an adequate bar to Pursell’s federal claims.
See Whitney,
170 F.Supp.2d at 498-99 .
E. Conclusion to Procedural Default
For more than a decade, one clear legal rule governed capital cases in Pennsylvania: the Pennsylvania Supreme Court addressed the merits of any post-conviction petition, regardless of its procedural failings. Then, after nearly fifteen years, this rule changed, and this change was
*297
applied retroactively to bar a number of the claims brought by Pursell in the present case. For the foregoing reasons, I conclude that the procedural rules applied by the Pennsylvania Supreme Court in
Pursell-2
and
Pwrsett-3
were not firmly established at the time of Pursell’s alleged defaults and, thus, cannot act as an adequate bar to federal review.
IV. STANDARD OF REVIEW
With the procedural issues put to rest, only one preliminary matter remains: the standard of review in cases brought under 28 U.S.C. § 2254 . Pursell filed his petition for habeas corpus relief after April 24, 1996, the effective date of the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132 § 104 , 110 Stat. 1214 , so that statute applies to his case.
See Lindh v. Murphy,
521 U.S. 320, 326-27 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997). Of particular importance in this case is § 2254(d) which creates a deferential standard of review for federal habeas corpus petitions. This section provides in relevant part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
28 U.S.C. § 2254 (d)(1). The United States Supreme Court interpreted this standard for the first time in
Williams v. Taylor,
529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). Subsequently, in
Hameen v. State of Delaware,
212 F.3d 226, 235 (3d Cir.2000), the Third Circuit set forth how a district court should proceed when reviewing a habeas petition under § 2254(d)(1).
First, the court must decide exactly what is clearly established law determined by the Supreme Court in the case at hand.
Williams,
529 U.S. at 390 , 120 S.Ct. 1495 ;
see also Hameen,
212 F.3d at 235 . The Supreme Court provided some guidance on this issue in its
Williams
decision. The phrase “clearly established Federal law” “refers to the holdings, as opposed to the dicta,” of Supreme Court opinions at the time that the state court conviction became final.
Williams,
529 U.S. at 390 , 120 S.Ct. 1495 (“[t]he threshold question under AEDPA is whether Williams seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.”). Nonetheless, even Supreme Court decisions rendered after the petitioner’s conviction became final can be considered “clearly established Federal law” if those decisions would have been considered “old rules” under
Teague v. Lane,
489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989).
See Moore v. Morton,
255 F.3d 95, 104-05 (3d Cir.2001) (quoting
Williams,
529 U.S. at 412 , 120 S.Ct. 1495 ).
14
Once the court decides what the clearly established law was at the relevant time, it must then determine whether the state court’s decision was “contrary to” or “an unreasonable application of’ that law. 28 U.S.C. § 2254 (d)(1). These two clauses have independent meaning.
Williams,
529 U.S. at 405, 407 , 120 S.Ct. 1495 . Under the “contrary to” clause, a federal habeas court may grant the writ in only two in-
*298
stances: 1) if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law; or 2) if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts.
Id.
at 412-13 , 120 S.Ct. 1495 . “[A] run-of-the mill state-court decision applying the correct legal rule from [Supreme Court] cases to the facts of a prisoner’s case [does] not fit comfortably within § 2254(d)(l)’s ‘contrary to’ clause.”
Id.
at 406, 120 S.Ct. 1495 .
Under the “unreasonable application” clause, a federal habeas court may grant the writ even if the state court identifies the correct legal principle, as long as the court unreasonably applies that principle to the facts of the case.
Williams,
529 U.S. at 413 , 120 S.Ct. 1495 . The Third Circuit explained how a district court should apply this prong of § 2254(d)(1) in
Harneen:
The “unreasonable application” inquiry requires the habeas court to “ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Thus, under the “unreasonable application” clause, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”
Hameen,
212 F.3d at 235 (quoting
Williams,
529 U.S. at 418-411 , 120 S.Ct. 1495 ).
15
While the
Williams
decision concerned only those instances when § 2254(d)(1) obviously applies, the cleat-language of that section suggests that it does not apply to all cases. The introductory sentence of § 2254(d)(1) explicitly limits deferential review to only those claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254 (d)(1). “It follows that when, although properly preserved by the defendant, the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA and explained in
Williams
do not apply.”
Appel v. Horn,
250 F.3d 203, 210 (3d Cir.2001). In such cases, the court should exercise “pre-AED-PA independent judgment” on those claims.
Hameen,
212 F.3d at 248 ; see
also Appel,
250 F.3d at 210 .
Prior to the passage of AEDPA, pure questions of law and mixed-questions law and fact were reviewed
de novo
by district courts.
Appel,
250 F.3d at 210 ;
Williams,
529 U.S. at 400-402 , 120 S.Ct. 1495 (O’Connor, J., concurring) (noting that before AEDPA, federal courts exercised independent judgment when deciding both questions of constitutional law and mixed constitutional questions, i.e., application of law to fact). Nonetheless, the state court’s factual findings are still presumed correct, and the petitioner has the burden of rebutting this presumption by clear and
*299
convincing evidence.
Appel,
250 F.3d at 210 (citing 28 U.S.C. § 2254 (e)(1)).
With these legal standards in mind, I now turn to the merits of Pursell’s petition.
V. PURSELL’S GUILT-PHASE CLAIMS
Pursell raises numerous claims for relief from his conviction for first-degree murder. As so often occurs when a third party retrospectively examines a trial record, many aspects of Pursell’s trial give me pause. Had I presided over his case, I might have ruled differently than the trial court did on certain objections; and had I represented Pursell, I might have raised certain objections that went unraised, explored certain avenues that went unexplored, and asked certain questions that went unasked. But I did not participate in this case, and cannot on a petition for habeas relief impose my personal predilections on a trial that occurred nearly twenty years ago. Errors were committed during the guilt-phase of Pursell’s trial, but proof of error, standing alone, is not sufficient to merit relief on a petition for habeas corpus. Instead, Pursell must show that these errors, either separately or cumulatively, rose to the level of a constitutional violation. In the present case, he has failed to make such a showing, and I will deny his request for habeas relief.
A. Trial Court’s Refusal to Order Change of Venue
Pursell first claims that he was denied his right to an impartial jury when the trial court denied his repeated requests for a change of venue due to highly prejudicial pretrial publicity.
16
The Pennsylvania Supreme Court denied this claim in
Pursell-1,
495 A.2d at 187-89 , giving two reasons. First, it held that any prejudice against Pursell created by the media coverage in July 1981 had “dissipate[d]” by the time Pursell was tried in January 1982.
Id.
at 188. Second, it carefully reviewed the 900 pages of jury voir dire and concluded that neither the veniremen nor the sixteen individuals actually chosen for the jury were affected by the pretrial publicity.
Id.
at 188-89. Because this decision was neither “contrary to” nor “an unreasonable application of’ “clearly established Federal law,” 28 U.S.C. § 2254 (d)(1), I will deny Pursell’s claim for relief.
(1) Factual Background
Before delving into the merits of Pur-sell’s claim, I will briefly outline the extent of the pretrial publicity at issue in this case.
17
There was regular media coverage of Brine’s murder for a number of days in late July 1981. Dkt. no. 10, Ex. 10; dkt. no. 26, at 84-89. From these early reports, four kinds of stories emerged that were potentially prejudicial to Pursell.
First, a number of newspaper articles raised speculation that Brine had been sexually assaulted by the murderer. Dkt. no. 10, Ex. 10 (Erie Times-News, 7/25/81; Erie Times-News, 7/26/81; Erie Daily Times, 7/27/81). In fact, one investigator said that “[t]his appears to be a fiendish sex crime killing.”
Id.
(Erie Times-News, 7/26/81). Nevertheless, after Pursell was arrested, the police stated that “[although there has been much speculation of a sex-based crime ...., [r]ight now we don’t know that it was a sex crime.”
Id.
(Erie Morning News, 7/29/81). Ultimately, Pur-sell was not charged with any kind of
*300
sexual assault, and the newspapers reported this fact, indicating that the only charge against him was murder.
Id.
(Erie Daily Times, 8/11/81).
Second, newspaper articles and television broadcasts showed Pursell handcuffed on a number of different occasions. For example, an August 11, 1981 front-page article in the Local section of the Erie Daily Times showed a picture of Pursell in handcuffs.
Id.
The caption of the picture noted that the statement “Born To Raise Hell” was tattooed on Pursell’s bicep.
Id.
Television broadcasts showed Pursell in handcuffs a number of times as well. Dkt. no. 26, at 87.
Third, some stories inferred that Pursell might be guilty of the Brine killing. On July 30, 1981, WJET-TV ran a report during its 6:00 p.m. newscast in which several residents of the Wesleyville/Law-rence Park area made accusations of guilt against Pursell.
Id.
During one television broadcast, Pursell’s neighbors called him “weird” and a “wild man.” Dkt. no. 18, at 1882. One person even accused him of brandishing a gun in the neighborhood.
Id.
Additionally, on August 14, 1981, the Erie Daily Times ran an article on the front page of its Local section entitled, “How does it feel to be the mother
of
murderer?” Dkt. no. 10, Ex. 10 (Erie Daily Times, 8/14/81). Despite its unfortunate title, the text of the article focused on Mrs. Pursell’s view that her son was innocent.
Id.
Finally, the local media ran a number of stories about how Pursell’s glasses were found at the murder scene,
id.
(Erie Daily Times, 7/28/81; Erie Morning News, 7/29/81), suggesting that Pursell was at the scene of the murder.
Finally, and most troubling, newspaper accounts and television broadcasts detailed Pursell’s record of prior offenses. A July 28, 1981 article in the Erie Daily Times was entitled “Pursell has record of offenses.”
Id.
(Erie Daily Times, 7/28/81). Beginning on the front page, and highlighted by a star, this article detailed Pur-sell’s past criminal record. In addition, the article excerpted a letter to a state court judge that Pursell himself had written while in prison. “I want to try to straighten my life out, I don’t want to have to be in jails the rest of my life [because] of the things I do while I’m drinking or on drugs.”
Id.
The article also explained that Pursell’s record did “not involve violent or sex crimes.”
Id.
Around the same time, a television broadcast “also pointed out that [Pursell] had spent 1
\
years in prison for a stabbing,” an incorrect statement. Dkt. no. 18, at 1882.
After this initial flurry of articles appearing around the time of Pursefl’s arrest, the coverage of the Brine killing slowed down considerably. A few articles appeared in the middle of August, at the time of the preliminary hearing, and some more, mostly factual in nature, ran when Pursell plead not guilty in October 1981, dkt. no. 10, Ex. 10 (Erie Morning News, 10/8/81; Erie Daily Times, 10/8/81), when the court denied Pursell’s pretrial motions in November, 1981,
id.
(Erie Daily Times, 11/3/81), and when the prosecution decided to seek the death penalty.
Id.
(Erie Daily Times, 11/7/81). Finally, in January 1982, when the trial commenced, media coverage resumed, but it was strictly factual in nature. Dkt. no. 27, Ex. J.
(2) Legal Analysis
The threshold question under AEDPA is whether Pursell seeks to apply a rule of law that was clearly established on December 23, 1985, the date his state court conviction became final.
Williams,
529 U.S. at 390 , 120 S.Ct. 1495 . That question is easily answered because Pursell’s change of venue claim is governed by a series of cases, all decided by 1985, in which the Supreme Court held that the
*301
due process clause of the Fourteenth Amendment guarantees a criminal defendant the right to “a trial by an impartial jury free from outside influences.”
Sheppard v. Maxwell,
384 U.S. 333, 362 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 (1966);
see also Irvin v. Dowd,
366 U.S. 717, 722 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961);
Rideau v. Louisiana,
373 U.S. 723 , 83 S.Ct. 1417 , 10 L.Ed.2d 663 (1963);
Estes v. Texas,
381 U.S. 532 , 85 S.Ct. 1628 , 14 L.Ed.2d 543 (1965);
Murphy v. Florida,
421 U.S. 794 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975);
Patton v. Yount,
467 U.S. 1025 , 104 S.Ct. 2885 , 81 L.Ed.2d 847 (1984). As these cases hold, when prejudicial pretrial publicity wholly undermines the impartiality of the jury, the trial court should take steps to assure a fair trial, usually by granting a change of venue.
Sheppard,
384 U.S. at 363 , 86 S.Ct. 1507 ;
Rideau,
373 U.S. at 723 , 83 S.Ct. 1417 .
In some cases, adverse pretrial publicity is so extreme that the court will presume prejudice to the defendant.
Irvin,
366 U.S. at 723 , 81 S.Ct. 1639 ;
Patton,
467 U.S. at 1031 , 104 S.Ct. 2885 . “Where media or other community reaction to a crime or a defendant engenders an atmosphere so hostile and pervasive as to preclude a rational trial process, a court reviewing for constitutional error will presume prejudice to the defendant without reference to an examination of the attitudes of those who served as the defendant’s jurors.”
Rock v. Zimmerman,
959 F.2d 1237, 1252 (3d Cir.1992),
overruled on other grounds Brecht v. Abrahamson,
507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993);
see also Sheppard,
384 U.S. at 333 , 86 S.Ct. 1507 ;
Rideau,
373 U.S. at 723 , 83 S.Ct. 1417 . Such cases, however, are “exceedingly rare.”
Rock,
959 F.2d at 1253 ;
Flamer v. Delaware,
68 F.3d 736, 754 (3d Cir.1995). In fact, for a court to presume prejudice, “the community and media reaction ... must have been so hostile and so pervasive as to make it apparent that even the most careful voir dire process would be unable to assure an impartial jury.”
Rock,
959 F.2d at 1252 .
In the absence of facts that demonstrate a presumption of prejudice, a defendant must prove actual prejudice, that is, that those who served on his jury could not reach an impartial verdict based solely on the evidence presented at trial.
Patton,
467 U.S. at 1035 , 104 S.Ct. 2885 (citing
Irvin,
366 U.S. at 723 , 81 S.Ct. 1639 );
Rock,
959 F.2d at 1253 .
It is not required ... that jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.
It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Irvin,
366 U.S. at 722-23 , 81 S.Ct. 1639 (emphasis added). To determine whether actual prejudice exists, the court should look to the totality of the circumstances, including the voir dire of the jury.
Murphy,
421 U.S. at 799-801 , 95 S.Ct. 2031 .
Having set forth the clearly established federal law, the next question is whether the Pennsylvania Supreme Court’s decision in
Pursell-1
was either “contrary to” or “an unreasonable application of’ that
*302
law. Pursell admits that the Court’s decision was not “contrary to” “clearly established Federal law.” Dkt. no. 26, at 94. This is a wise concession. In rejecting Pursell’s claim, the Pennsylvania Court relied on
Commonwealth v. Casper,
481 Pa. 143 , 392 A.2d 287 (1978), a case that properly recognized
Irvin, Rideau, Sheppard,
and
Murphy
as setting forth the guiding principles for claims concerning prejudicial pretrial publicity. In the present case, this is sufficient to pass muster under § 2254(d)(l)’s “contrary to” standard.
Williams,
529 U.S. at 406 , 120 S.Ct. 1495 . Therefore, the only issue before me is whether the Pennsylvania Supreme Court’s decision was an “unreasonable application of’ this clearly established law.
(a) Refusal to Presume Prejudice
In refusing to presume prejudice, the Pennsylvania Supreme Court relied on a “six month ‘cooling off period’ ” between the time when the alleged prejudicial coverage was released and Pursell’s trial.
Pursell-1,
495 A.2d at 188 . Acknowledging that some of the coverage “may establish prejudice,”
id.,
the Court nonetheless held that the “ ‘cooling off period’ was sufficient to dissipate the prejudice, if any, engendered by the July, 1981, publicity.”
Id.
Pursell claims that the Pennsylvania Court’s reliance on this “cooling-off period” was an “unreasonable application” of Supreme Court precedent. For two reasons, I disagree.
First, the United States Supreme Court has explained that, even when pretrial publicity is extensive and severe, a lapse in time between the publicity and the trial can dissipate any prejudice that may have resulted. In
Murphy,
for instance, the Court held that extensive media coverage of the defendant’s prior crimes did not amount to prejudice, particularly since the publicity had stopped seven months before jury selection.
Murphy,
421 U.S. at 802 , 95 S.Ct. 2031 . In
Patton ,
the Court found no prejudice when the extensive and prejudicial media coverage occurred four years before the trial itself. During that time, “the community sentiment had softened.”
Patton,
467 U.S. at 1034 , 104 S.Ct. 2885 . “That time soothes and erases is a perfectly natural phenomenon, familiar to all,” the
Patton
Court explained.
The relevant question is not whether the community remembered the ease, but whether the jurors at Yount’s trial had such fixed opinions that they could not judge impartially the guilt of the defendant. It is not unusual that one’s recollection of the fact that a notorious crime was committed lingers long after the feelings of revulsion that create prejudice have long passed....
[I]t is clear that the passage of time ... can be a highly relevant fact. In the circumstances of this case, we hold that it clearly rebuts any presumption of partiality or prejudice that existed at the time of the initial trial.
Id.
at 1035 , 104 S.Ct. 2885 (emphasis added) (internal citations omitted);
see also Flamer,
68 F.3d at 755 (refusing to presume prejudice when there was a lapse of eight months between the publication of the last newspaper story on which the defendant relied and the start of jury selection);
see also Jacobs v. Horn,
129 F.Supp.2d 390, 411 (M.D.Pa.2001) (refusing to presume prejudice when, among other things, the articles in question ran seven months before the trial). Thus, the Pennsylvania Supreme Court’s rebanee on a “cooling off period” was perfectly appropriate under federal law.
Second, there is ample support for the Pennsylvania Supreme Court’s conclusion that the “cooling off period” had an effect in the present case. For one, as the Pennsylvania Court correctly noted, the media coverage in Pursell’s case was “not exten
*303
sive, sustained, or pervasive.”
Pursell-1,
495 A.2d at 189 . Instead, it involved but a few stories, most of which ran nearly six months before trial.
Id.
at 188. Second, when questioned during voir dire, most jurors only vaguely recalled these media reports, and none of them had a fixed opinion of Pursell’s guilt.
Pursell-1,
495 A.2d at 188-89 . In Pursell’s case, “the passage of time” was a “highly relevant fact,”
Patton,
467 U.S. at 1035 , 104 S.Ct. 2885 , and the Pennsylvania Supreme Court was absolutely correct to rely on it.
Even without the passage of time, however, the publicity in Pursell’s case was still far from the kind of “trial atmosphere ... utterly corrupted by press coverage,”
Murphy,
421 U.S. at 799 , 95 S.Ct. 2031 , that the United States Supreme Court has required before attaching a presumption of prejudice. In
Sheppard ,
for instance, prejudicial publicity about the murder of Marilyn Sheppard ran all the way through trial and spanned five volumes in the Supreme Court’s record.
Sheppard,
384 U.S. at 333 , 86 S.Ct. 1507 .
Much of the material printed or broadcast during the trial was never heard from the witness stand, such as the charges that Sheppard had purposely impeded the murder investigation and must be guilty since he had hired a prominent criminal lawyer; that Sheppard was a perjurer; that he had sexual relations with numerous women; that his slain wife had characterized him as a ‘Jekyll Hyde’; that he was ‘a bare-faced liar’ because of his testimony as to police treatment; and finally, that a woman convict claimed Sheppard to be the father of her illegitimate child.
Id.
at 356-57 , 86 S.Ct. 1507 . Even though some of the jurors admitted that they heard or read these prejudicial news reports,
id.
at 348, 357 , 86 S.Ct. 1507 , the trial court did not sequester the jurors, and it never directly instructed them to avoid media coverage.
Id.
at 352-53 , 86 S.Ct. 1507 . Under such circumstances, the Court held that due process was violated by the trial court’s failure to “protect Sheppard from the inherently prejudicial publicity which saturated the community and to control the disruptive influences in the courtroom.”
Id.
at 363 , 86 S.Ct. 1507 .
Sheppard
was a case where prejudice was presumed.
In contrast, the pretrial coverage in Pur-sell’s case was tame, to say the least. It was of limited scope and duration, and it left only a slight impression on the veniremen, and almost no lasting impression on the jurors actually seated.
18
Pursell has failed to show that his is one of those “exceedingly rare” cases,
Rock,
959 F.2d at 1252 , where “the community and media reaction ... [was] so hostile and so pervasive as to make it apparent that even the most careful voir dire process would be unable to assure an impartial jury.”
Id.
at 1252 . Accordingly, the Pennsylvania Supreme Court’s refusal to presume prejudice was not an unreasonable application of clearly established federal law.
(b) Refusal to Find Actual Prejudice
In addition to refusing to presume prejudice, the Pennsylvania Supreme Court
*304
also did not find any actual prejudice at work in Pursell’s case. In making this judgment, the Pennsylvania Court canvassed the 900 pages of jury voir dire. The Court explained that 66 of the 101 potential jurors were actually questioned about their knowledge of the case, the other 35 having been excused due to their views on the death penalty.
PurseU-1,
495 A.2d at 188 . Of these 66 prospective jurors, 58 of them had heard about the case in some way. Nonetheless, of those 58, 57 said that they had no fixed opinion about Pursell’s guilt, stated that they would be able to reach a verdict based solely on the evidence presented at trial, and claimed that the information they learned outside the courtroom would not affect their decision.
Id.
In addition, the Pennsylvania Supreme Court noted that of these 66 prospective jurors, only 2 actually knew that the defendant had a prior criminal record.
Id.
“Considering the almost unanimous lack of knowledge of [Pursell’s] prior criminal conduct by the veniremen,” the Court concluded, “it is obvious that the community was not saturated with the knowledge of [Pursell’s] prior offenses.”
Id.
at 189.
A review of the jury voir dire confirms the Pennsylvania Supreme Court’s conclusion that the jury was capable of impartially determining Pursell’s fate.
19
None of the jurors had a fixed opinion concerning Pursell’s guilt; none of them had any specific knowledge about Pursell’s prior crimes; and each of them said that he or she could render a verdict based solely on the evidence presented at trial. Indeed, in the entire voir dire transcript there are only two colloquies on which Pursell could create a colorable claim of partiality. First, Douglas Czerwinski stated that he heard someone on the news say that Pur-sell was a “neighborhood troublemaker.” (Tr. 1/15/82, at 134, 138). Nonetheless, he expressed no opinion on Pursell’s guilt, and said that he could decide the case based solely on the evidence presented at trial.
Id.
at 135-36. He was accepted by the defendant without challenge.
Id.
at 138. Second, Donald Schruers stated that he had seen all that had been reported about the case and would have a hard time disregarding that information. (Tr. 1/14/82, at 89-91). Yet, he too said that he had no fixed opinion about Pursell’s guilt, and that he could judge the case on the evidence brought at trial.
Id.
at 90-91, 94. Again, the defense accepted him without objection.
Id.
at 94.
Pursell’s jury had even fewer indicia of partiality than did the juries in many cases where the Supreme Court has held that actual prejudice did not exist. In
Murphy,
“20 of the 78 persons questioned were excused because they indicated an opinion as to petitioner’s guilt,”
Murphy,
421 U.S. at 794 , 95 S.Ct. 2031 , yet that jury was deemed to be without actual prejudice. Likewise in
Patton ,
where 77% of prospective jurors admitted that they would carry an opinion about defendant’s guilt into the jury box, and where 8 of 14 jurors seated, admitted that they, at some time, had formed an opinion as to defendant’s guilt, the Court held that such evidence was insufficient to amount to actual prejudice.
Patton,
467 U.S. at 1029-30, 1035 , 104 S.Ct. 2885 . Needless to say, if the
Mur
*305
phy
and
Patton
voir dires were insufficient to show actual prejudice then the Pursell jury easily passes constitutional muster. The Pennsylvania Supreme Court’s decision to deny Pursell’s due process claim was correct, and hardly an unreasonable application of clearly established federal law.
(3) Ineffective Assistance Claim
Pursell’s final argument concerning pretrial publicity is that his counsel was ineffective for failing to ensure that the record before the Pennsylvania Supreme Court contained all of the relevant newspaper articles and television broadcasts. In one respect, Pursell is correct: the record before the Pennsylvania Supreme Court on his claim for pretrial publicity was incomplete. As that Court noted, “[t]he characterization of continued and pervasive prejudicial pretrial publicity ... appears nowhere in the record presented to us for review.... Such factual allegations,
de hors
the record, cannot be considered by a reviewing court and the practice of asserting facts in an appellate brief, which allegations do not appear in the record has recently been condemned by us ...”
Pursell-1,
495 A.2d at 188 n. 3. In his petition, Pursell has remedied this problem by including all of the articles that were not given to the Pennsylvania Supreme Court. I have independently reviewed these articles and have measured the Pennsylvania Supreme Court’s decision against this complete record. Because I conclude that Pursell was not entitled to relief on his due process claim, even under a review of the complete record, I will deny his claim for ineffective assistance of counsel.
In
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), the Supreme Court explained that there are two components to demonstrating a violation of the right to effective assistance of counsel. First, the defendant must show that counsel’s performance was deficient. This requires showing that “counsel’s representation fell below an objective standard of reasonableness.”
Id.
at 688 , 104 S.Ct. 2052 ;
see also Williams,
529 U.S. at 390-91 , 120 S.Ct. 1495 .
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel’s was unreasonable.... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 . As the Third Circuit has explained, “[i]t is only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel’s performance.”
United States v. Kauffman,
109 F.3d 186, 190 (3d Cir.1997).
Second, the defendant must show that he was prejudiced by the deficient performance. “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland,
466 U.S. at 687 , 104 S.Ct. 2052 . To establish prejudice, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id.
at 694 , 104
*306
S.Ct. 2052;
see also Williams,
529 U.S. at 391 , 120 S.Ct. 1495 .
In the present case, Pursell cannot prove that he suffered any prejudice from his counsel’s failure to ensure that the record before the Pennsylvania Supreme Court was complete. As my analysis above demonstrates, even if the Pennsylvania Supreme Court had been provided with all of the pretrial publicity in this case, its conclusion would have been the same. Accordingly, Pursell has failed to prove a “reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different.”
Id.
at 694, 104 S.Ct. 2052 . His ineffectiveness claim is denied.
(4) Conclusion
I will deny Pursell’s claims for relief concerning the trial court’s failure to grant a change of venue. Because I do not believe that Pursell has made a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253 (c)(2), on his due process and ineffective assistance of counsel claims, I will also deny him a certificate of appealability on those claims.
20
B. Trial Court’s Denial of Challenges For Cause
Pursell’s second guilt-phase claim is also directed at the composition of his jury and the conduct of his lawyers. During the jury voir dire, Pursell’s lawyer moved to strike some potential jurors for cause and, in a number of instances, the trial court denied these challenges. Pursell claims that these rulings, and his lawyer’s failure to challenge them on appeal, violated his Sixth Amendment rights to effective assistance of counsel and an impartial jury, and his Fourteenth Amendment right to due process.
21
Because the Pennsylvania Supreme Court did not address the merits of these claims, I review them
de novo.
For the following reasons, I will deny Pursell’s claims for relief.
(1) Ineffective Assistance Claim
Pursell first claims that his appellate counsel was ineffective when he failed to raise on appeal the trial court’s refusal to strike six potential jurors: Harold Shank; William Noble; Patricia Gunther; Jerome Ott; Wellie Yaple; and Ruth Fink. The Sixth Amendment’s right to effective assistance of counsel, as set forth in
Strickland ,
also extends to appellate counsel.
Evitts v. Lucey,
469 U.S. 387, 396-97 , 105 S.Ct. 830 , 83 L.Ed.2d 821 (1985). Accordingly, to succeed on his claim that his appellate counsel was ineffective, Pursell must prove both prongs of the
Strickland
test.
United States v. Mannino,
212 F.3d 835, 840 (3d Cir.2000). First, he must show that his appellate counsel’s “representation fell below an objective standard of reasonableness.”
Strickland,
466 U.S. at 688 , 104 S.Ct. 2052 . That is, he must show that counsel unreasonably failed to raise on appeal the trial court’s denial of his challenges for cause. Second, he must prove that he was prejudiced by his counsel’s failure. This requires a showing that “there is a reasonable probability that, but for counsel’s unprofessional errors,”
id.
at 694 , 104 S.Ct. 2052 , he “would have prevailed on appeal.”
Smith v. Robbins,
528 U.S. 259, 285-86 , 120 S.Ct. 746 , 145
*307
L.Ed.2d 756 (2000);
see also Mannino,
212 F.3d at 844 .
Obviously, I cannot resolve Pursell’s
Strickland
claim until I first examine the merits of the claim that his lawyer failed to raise on appeal.
Mannino,
212 F.3d at 840 . If the trial court was wrong when it denied any of Pursell’s six challenges for cause, and if this error was reversible under Pennsylvania law, then Pursell’s counsel should have raised this claim on appeal. But if Pursell’s underlying claim lacks merit, then he “cannot successfully argue that counsel’s failure to raise the claim on direct appeal denied [him] [his] constitutional right of representation.”
Id.
Success or failure on the
Strickland
claim, in other words, is linked with success or failure on Pursell’s underlying challenge for cause claim.
(a) Legal Background
At the time of Pursell’s direct appeal, Pennsylvania law was relatively straightforward on when a trial court should strike a juror for cause.
The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor,
Commonwealth v. Bighum,
452 Pa. 554 , 307 A.2d 255 (1973). It must be determined whether any biases or prejudices can be put aside on proper instruction of the court,
Commonwealth v. Drew,
500 Pa. 585 , 459 A.2d 318 (1983). A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice by his or her conduct and answers to questions,
Commonwealth v. Colon,
223 Pa.Super. 202 , 299 A.2d 326 (1972). The decision on whether to disqualify is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion,
Commomvealth v. Black,
474 Pa. 47 , 376 A.2d 627 (1977).
Commomvealth v. Colson,
507 Pa. 440 , 490 A.2d 811, 818 (1985),
abrogated on other grounds, Commonwealth v. Burke,
566 Pa. 402 , 781 A.2d 1136 (2001).
As this standard indicates, jurors need not be free from bias. Indeed, “it would be unrealistic to expect jurors to be free from all prejudices, a failing common to all human beings.”
Commonwealth v. Johnson,
452 Pa. 130 , 305 A.2d 5, 8 (1973). Rather, Pennsylvania law only requires that jurors seek “to put aside those prejudices in the performance of their duty, the determination of guilt or innocence.”
Id.
As the Pennsylvania Supreme Court has explained repeatedly: “We therefore do not expect a tabula rasa but merely a mind sufficiently conscious of its sworn responsibility and willing to attempt to reach a decision solely on the facts presented, assiduously avoiding the influence of irrelevant factors.”
Id.; see also Commonwealth v. England,
474 Pa. 1 , 375 A.2d 1292, 1296 (1977);
see also Colson,
490 A.2d at 818 ;
Commomvealth v. Drew,
500 Pa. 585 , 459 A.2d 318, 320 (1983).
In the first instance, it is the trial judge who must decide whether a potential juror has satisfied this standard. His ruling is a finding of fact, entitled to great deference, and it will not be disturbed on appeal unless it amounts to a “palpable abuse of discretion.”
Colson,
490 A.2d at 818 .
The method of filling a jury box is addressed to the trial judge, and much weight must be given his judgment in passing on its legality. The reason is
*308
manifest; the juror appears before him, he sees him and hears what is said; and is able to form his opinion as much from the proposed juror’s conduct as from the words which he utters, printed in the record. Hesitation, doubt, and nervousness indicating an unsettled frame of mind, with other matters, within the judge’s view and hearing, but which it is impossible to place in the record must be considered. As it is not possible to bring these matters to our attention, the trial judge’s view should be given great weight in determining the matters before him. Nothing short of a palpable abuse of discretion justifies reversal in passing on a challenge for cause.
Commonwealth v. Gelfi,
282 Pa. 434 , 128 A. 77, 79 (1925);
Commonwealth ex rel. Fletcher v. Cornett,
395 Pa. 134 , 149 A.2d 434 (1959);
Commonwealth v. Bighum,
452 Pa. 554 , 307 A.2d 255, 259 (1973). To show that his underlying claim is meritorious, therefore, Pursell must do more than just prove that the trial court was wrong in denying a challenge for cause. He must also show that the trial court’s ruling was a “palpable abuse of discretion.”
What complicates matters for Pursell is that AEDPA adds an additional layer of protection for the trial court’s rulings in the present case. The United States Supreme Court has held that a trial judge’s determination that a potential juror is qualified to sit on a jury is a finding of fact.
Patton,
467 U.S. at 1038 , 104 S.Ct. 2885 ;
Wainwright v. Witt,
469 U.S. 412, 428 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985). Under AEDPA, such factual determinations are “presumed to be correct,” 28 U.S.C. § 2254 (e)(1), and a petitioner, like Pursell, bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.”
Id.
While the parties do not raise § 2254(e)(1), the clear language of the statute seems to apply to this case. In fact, the statute itself applies to any “determination of a factual issue made by a State court ...”
Id.
And at least one federal circuit court has applied § 2254(e)(l)’s presumption to a factual situation similar to the one presented by Pursell’s challenge.
Collins v. Dormire,
240 F.3d 724, 727 (8th Cir.2001) (applying presumption of correctness to trial court factual findings concerning underlying claim that counsel failed to raise on appeal).
With this legal background in mind, I now turn to the merits of Pursell’s challenge for cause claim.
(b) Challenges to Shank, Noble, Fink, and Gunther
Of the six potential jurors challenged by Pursell, four of them — Harold Shank, William Noble, Ruth Fink, and Patricia Gunther — were clearly qualified to serve as jurors under Pennsylvania law. Shank, Noble, Fink, and Gunther each came into the courtroom with a built-in bias, but each acknowledged that he or she could put this bias aside and judge the case against Pur-sell solely on the evidence introduced at trial. Pennsylvania law requires no more.
Colson,
490 A.2d at 818 ;
Drew,
459 A.2d at 320 ;
Johnson,
305 A.2d at 8 . A brief review of the testimony of each juror confirms the soundness of the trial court’s rulings.
Harold Shank had read newspaper articles about the crime, and suggested that these articles tended to hint at the guilt of the defendant. (Tr. 1/13/82 at 80, 84-85). Nevertheless, his comments were more directed at what the newspapers thought than at what he thought.
Id.
at 80, 85. And, when asked directly, he said that he did not have a fixed opinion about the guilt or innocence of Pursell.
Id.
at 80-81. Shank also said that he lost his daughter in a tragic accident “so naturally I would display favor to the parents.”
Id.
at 81;
*309
see also id.
at 84. Nonetheless, he said that he would be able to put that fact aside and decide the case based solely on the evidence presented at trial, without any bias based on the death of his child.
Id.
at 81-82, 84. Pursell challenged Shank for cause and the trial court correctly denied the challenge.
Id.
at 85.
William Noble had heard about the case from the news media and, when he entered the courtroom, he was “leaning one way”: “[gluilty.”
Id.
at 112, 115. Nonetheless, he believed that he could set aside all he had seen and judge the case solely on the evidence presented in the courtroom.
Id.
at 112-18. In fact, on questioning from defense counsel, Noble said that his opinion was not “fixed” and that he could put it out of his mind if selected for the jury,
id.
at 115-16, even though he was not “positive” that he could forget it.
Id.
at 116. After Pursell’s lawyer moved to strike for cause, the court conducted its own questioning:
THE COURT: It’s like an opinion, once it’s there — would you explain that once again? You have an opinion and now you can’t get it out of your mind?
MR. NOBLE: Well, I can’t get it out of my mind, but I would be willing to listen to all evidence and base an opinion on that but I have already — I am not going to say that I haven’t read nothing.
THE COURT: But are you willing to dismiss from your mind any prejudice that you might have or any leaning one way if you were chosen while you were listening to the evidence and testimony from both sides?
MR. NOBLE: I could do that.
Id.
at 116. The court then correctly denied the challenge for cause.
Id.
at 117.
Ruth Fink said that she had a “tendency” to believe police officers more than other witnesses. (Tr. 1/19/82, at 66-67, 69). Based on this testimony, defense counsel moved for cause, and this motion was denied.
Id.
at 70. Nonetheless, the trial court allowed further questioning. During this questioning, Fink said that she would follow the court’s instructions on the credibility of witnesses,
id.
at 70, and that she would apply these instructions to both police and other witnesses.
Id.
at 70-71. Finally, in response to questioning by defense counsel, she said “[t]he more you question me the least I would be inclined to say that [it] is my tendency to believe someone just because of their occupation.”
Id.
at 72-73. At that point, defense counsel struck Fink with a peremptory challenge.
Id.
at 73. While the soundness of the trial judge’s initial ruling is debatable, his judgment about Fink’s impartiality was borne out by further questioning. Even defense counsel seemed to acknowledge as much because he did not renew his challenge for cause.
Finally, Patricia Gunther had no fixed opinion about Pursell’s guilt, (Tr. 1/14/82, at 17-18), and acknowledged that she could put aside what little she remembered and judge the case solely on the evidence presented in court.
Id.
at 18-19. Nevertheless, when informed that the victim was a thirteen year-old boy, Gunther said that she would hope to be impartial because she had a daughter that age.
Id.
at 18. At the end of her voir dire, defense counsel pursued this line of inquiry.
Q. Would you still be able to act impartially in light of the fact that the victim is thirteen years old?
A. Now honestly, the only thing I can say is that I would hope I would.
Q. Is the answer “I don’t know”?
A. Okay, I don’t know.
Q. You are not sure.
[DISTRICT ATTORNEY]: I think the answer was she would attempt and she would hope she would.
*310
MRS. GUNTHER: Yeah, I would hope that I would be impartial. I can’t—
Q. (By [Defense Attorney]) At this time you can’t say; is that correct?
A. Yeah, I can’t say a definite yes I will act impartial, you know.
Id.
at 22-23.
The trial judge was not troubled by this colloquy and neither am I. For one, it is unclear whether Gunther had an actual bias at all. She acknowledged, quite honestly, that she hoped her child’s age would not influence her thinking, but she never said that it would. Second, it was only after repeated questioning that she finally said “I can’t say a definite yes I will act impartial.”
Id.
at 23. In
Murphy,
421 U.S. at 801-02 , 95 S.Ct. 2031 , the United States Supreme Court confronted a juror who indicated that he could be impartial, but after numerous leading questions made a statement that undermined his impartiality. In upholding the trial court’s refusal to strike for cause, the Supreme Court, in an opinion by Justice Marshall, stated that “we cannot attach great significance to this statement ... in light of the leading nature of. counsel’s questions and the juror’s other testimony
...” Id.
I concur with the
Murphy
Court’s assessment and find no problem with the trial court’s refusal to exclude Gunther for cause.
Obviously, the trial court’s rulings on Shank, Noble, Fink, and Gunther were correct if AEDPA’s presumption of correctness applies to the present case. 28 U.S.C. § 2254 (e)(1). None of the voir dire testimony shows the kind of clear and convincing evidence needed to overcome AEDPA’s hurdle. Yet, even if the presumption does not apply, the trial judge’s rulings were still correct. All four witnesses testified that they could set aside any pre-existing biases, and judge the case on the evidence presented at trial. Pennsylvania law expects no more.
Colson,
490 A.2d at 818 . Pursell’s claim concerning Shank, Noble, Gunther, and Fink is without merit, and his counsel was not ineffective for failing to raise it on appeal.
Man-nino,
212 F.3d at 840.
(c) Challenges to Ott and Yaple
That leaves two potential jurors, Jerome Ott and Wellie Yaple. The most troubling part about Ott’s voir dire is his testimony about police witnesses.
Q. Now, would you naturally tend to believe a police witness more than another witness just because he is a police officer?
A. That’s a tough question. I always believe police officers.
Q. Pardon me.
A. I’ve always believed police officers. Q. Well, because he is a police officer? A. He is still human.
Q. Okay, in other words, would you believe him just because he is a police officer more than you would believe anybody else who is a witness because he isn’t a police officer?
A. I don’t think so.
(Tr. 1/14/82, at 126). After the court completed its questioning of Ott, defense counsel asked a few questions on the issue of police testimony.
Q.I think you said it was a tough question in your mind whether you would tend to believe a police officer more than other witnesses; is that correct?
A. Well, like I say, I was always brought up to law and order and that the police officer was always — he was authority — and so I at least have a tendency to believe him more than I would an ordinary person.
Q. Is that still the case?
*311
A. Depends on the police officer now, I believe.
Q. Okay, I am talking about just because he is a police officer. You might not know these police officers at all. In fact, I think that probably will be the case because you have been read a list of witnesses. So, let me just ask that again. If you would see a police officer that appeared who you don’t know at all, all you know is that he is a police officer—
A. I think I could disregard the fact that he is a police officer pretty easily. Q. Could you disregard the fact and view him as just another person?
A. That’s another touchy question.
Id.
at 130. At this time, there was a brief interruption, during which an exchange between counsel and the court took place. Defense counsel was then asked to pose his question again.
[DEFENSE COUNSEL]: I thought I just asked specifically would it still be a tough question for him whether he could disregard or whether he could view a police officer just because he is a police officer and doesn’t know him at ah.
A. I think I could disregard it, yes.
Q. (By [Defense Counsel]) Would you disregard the fact that—
A. To me that’s a tough question.
Q. Why is that so?
A. Well, like I said, I was always brought up to law and order. We always respected law and order more than they do nowadays.
Q. I am not talking with respect now. Do you tend to—
A. Respect is law, and once you get into that, you believe it a little more than if you run into an ordinary person, right?
Q. So, are you saying that you would tend to believe a police officer because of his authority?
A. I try not to.
Q. Well, will you disregard — will you tend to believe a police officer just because he is a police officer because of his authority more than another witness? A. Like I say, I try not to, but I wouldn’t guarantee that I could or couldn’t.
Q. You might give more credence than you would another person; is that correct?
A. I might, yes.
Q. Just because he is a police officer? A. I am afraid so.
Q. You are afraid so?
A. I am afraid so, yes.
THE COURT: The question was — I will ask you again: Would — in this particular case if you are chosen as a juror, would you just believe a police witness more than another witness just because of the fact that he was a police officer? A. I have a tendency to do that? I would say I believe I would.
Id.
at 130-32. At that point, the defense moved to exclude Ott for cause, and the trial court denied that motion. “I refuse the cause,” the trial judge explained. “I think he’s answered it many different ways, and I think he is being honest about it, so I am refusing the request.”
Id.
at 132. Defense counsel then exercised a peremptory challenge.
Id.
Was the trial court’s decision correct? And would Pursell’s claim have been meritorious on appeal? Again, AED-PA itself answers these questions by bestowing a presumption of correctness on all factual determinations made by a state court. 28 U.S.C. § 2254 (e)(1). In the present case, there is simply not the kind of clear and convincing evidence of bias that
*312
is needed to rebut § 2254(e)(l)’s presumption. Four times Ott was asked about his view of police witnesses and four times he said that he could disregard any tendency he had to believe police officers more than others. (Tr. 1/14/82, at 126) (stating that he didn’t think he would believe a police officer more than another witness);
id.
at 130 (“I think I could disregard the fact that he is a police officer pretty easily.”);
id.
at 131 (“I think I could disregard it, yes.”);
id.
(stating that “I try not to” tend to believe a police officer more than others). Then, after repeated questioning from defense counsel, Ott began to hedge.
Id.
(“Like I say, I try not [to believe police officers more], but I wouldn’t guarantee that I would or couldn’t.”);
id.
(acknowledging that he “might” give more credence to a police officer than to another witness). Finally, when questioned by the court, he stated that “I would say I believe I would” believe a police officer more than another witness.
Id.
at 132. At best for Pursell, the testimony is mixed. Clear statements about Ott’s impartiality became muddier and muddier as he was questioned more and more, but they never ripened into clear statements of bias. Indeed, even Ott’s final statement was really no more than another unclear statement about his ability to set aside his bias.
Id.
While this conflicting testimony may somewhat shake the trial court’s conclusion that Ott could be impartial, it is not clear and convincing evidence of bias. Accordingly, under § 2254(e)(l)’s presumption of correctness, the trial court’s decision to empanel Ott was correct and Pursell’s lawyer would have had no basis to appeal this claim.
Even if § 2254(e)(1) does not apply, I would reach the same conclusion. To succeed on appeal, Pursell had to show more than just a “wrong call” by the trial judge. He had to prove that the judge’s ruling was a “palpable abuse of discretion.”
Colson,
490 A.2d at 818 . Unfortunately for Pursell, this was one of those cases where the deferential standard of review was bound to have some bite. Ott’s testimony was mixed, and, if placed on a scale, his statements of impartiality outnumbered his statements of potential bias. In just such a case, the Pennsylvania Supreme Court would likely defer to the trial judge because only he saw the witness, heard his words, and scrutinized his demeanor.
See, e.g., Gelfi,
128 A. at 79 . In light of the great deference given to trial judges in empaneling a jury,
id.
at 79 (requiring a “palpable” abuse of discretion);
Webster’s Ninth New Collegiate Dictionary
849 (1988) (defining “palpable” as “easily perceptible”), I do not believe that Pursell would have prevailed on appeal.
Granted, a number of cases at the time might have bolstered Pursell’s claim on appeal. First, in
Commonwealth v. McBee,
267 Pa.Super. 49 , 405 A.2d 1297, 1300 (1979) the defendant was on trial for robbery and murder, and the juror, Joseph Steinmetz, had a niece who had been shot and killed a few years earlier.
Id.
at 1298-99. When told about the case, Steinmetz said “my niece was killed approximately two years ago, Your Honor. She was shot. I don’t think I could give a fair verdict.”
Id.
at 1298. During voir dire, Steinmetz said four times that he didn’t think he could set aside the death of his niece and judge the case impartially.
Id.
at 1298-99. Nevertheless, he did say that he would try to the best of his ability to not let his niece’s death interfere with his decision in the case.
Id.
at 1299. And he indicated that he would follow the court’s instructions to the best of his ability.
Id.
at 1300. The trial court denied the defendant’s challenge for cause and the Superior Court reversed.
Id.
A
fair reading of Mr. Steinmetz’s voir dire reveals that he had a sincere, sub
*313
stantial and persistent doubt concerning his ability to give a fair verdict, despite his equally sincere assertion that he would try to the best of his ability to follow the court’s instructions and, implicitly, not to allow his niece’s death by shooting to influence his judgment. We conclude, therefore, that the lower court abused its discretion in refusing to excuse Mr. Steinmetz for cause.
Id.
at 1300.
Second, there was
Commonwealth v. Johnson,
299 Pa.Super. 172 , 445 A.2d 509 (1982), a case where the defendant was on trial for robbery, simple assault, and possession of an instrument of crime, and a juror, Herbert Rubin, had a daughter who had been the victim of a robbery during which the robbers had raped her.
Id.
at 512. Upon learning about the allegations against the defendant, Rubin showed considerable distress. “I didn’t expect myself to break down, practically,” he indicated during voir dire.
Id.
Rubin repeatedly acknowledged how strongly the attack on his daughter affected him, and how difficult it might be for him to be fair.
Id.
at 512-13. Nonetheless, after a number of questions from the court, Rubin said that he could try to be fair.
Id.
at 513. The trial court denied a challenge for cause and the Superior Court reversed.
Id.
at 513-14.
Mr. Rubin vividly demonstrated during voir dire that he would be likely not to be an impartial juror. He not only visibly manifested emotional distress but specifically expressed substantial doubts about his ability to be impartial at least five times....
Mr. Rubin’s eventual assurance to the court that he would “[b]e fair” did not dispel the force of these admissions. This is particularly so in view of the court’s questions, which Mr. Rubin may well have understood as suggesting that his proper response, and the response desired by the court, was to say, despite his doubts, that he would be an impartial juror.
Id.
at 514 (internal citations omitted).
Yet even these cases do not show that Pursell would have succeeded on appeal. For one, unlike Ott, the jurors in
McBee
and
Johnson,
more clearly and persistently expressed doubts about their ability to be impartial. While Ott consistently said that he could set aside his bias up until the last few questions, the jurors in
McBee
and
Johnson
said just the opposite: they repeatedly told the court that they could not set aside their biases, until the very end when they acknowledged that they could. Second, the jurors in
McBee
and
Johnson
had real emotional attachments to their biases, stemming
from
their close family ties to individuals who had been victimized by similar crimes, and making it unlikely that such biases could be readily cast aside. Such an emotional attachment was not present in Ott’s case. Finally, both cases were handed down by the Pennsylvania Superior Court, and Pursell’s appeal was directly to the Pennsylvania Supreme Court.
Pursell-1,
495 A.2d at 186 . While the Supreme Court might consider the Superior Court’s decisions, it was not bound by them.
Pursell cites the Pennsylvania Supreme Court’s opinion in
Commonwealth v. Ingber,
516 Pa. 2 , 531 A.2d 1101, 1104 (1987) to show that his challenge against Ott was meritorious. In that case, the Court held that the trial court improperly failed to excuse a juror for cause when the juror said that she would give greater weight to the testimony of a police officer merely because the witness was in fact a police officer.
Id.
But
Ingber
was not decided until more than three and a half years after Pursell filed his appeal and more than two years after the Supreme
*314
Court rendered its decision in
Pwrsell-1. Compare id.
at 1101 (case decided on October 6, 1987)
with
dkt. no. 18, at 1985 (Pursell’s appeal filed on February 8, 1984)
and PurseIC-1,
495 A.2d at 183 (Pursell’s appeal decided on June 26, 1985). “A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Strickland,
466 U.S. at 690 , 104 S.Ct. 2052 . Pursell’s counsel did not have the benefit of the Pennsylvania Supreme Court’s case in
Ing-ber
at the time he filed his appeal.
If anything, Pursell’s citation to
Ingber
cuts the other way, suggesting that there was not much merit to his claim concerning Ott’s bias. In reaching its holding in
Ingber ,
the Pennsylvania Supreme Court reversed the prior holdings of the Court of Common Pleas and the Pennsylvania Superior Court. A few weeks before Pursell filed his appeal, an
en banc
panel of the Bucks County Court of Common Pleas upheld the trial court’s denial of the challenge for cause at issue in
Ingber. Ingber,
531 A.2d at 1103 n. 3. Further, while Pur-sell’s case was pending on appeal, a panel of the Pennsylvania Superior Court affirmed the decision of the Court of Common Pleas.
Commonwealth v. Ingber,
343 Pa.Super. 610 , 494 A.2d 480 (1985). In other words, the lower court decisions in
Ingber
on the same issue posed by Ott’s testimony were not favorable to Pursell, until long after his appeal was decided.
In short, whether Pursell would have succeeded on appeal in his challenge to Ott’s qualifications is a close question. Clearly, the claim had arguable merit, as the voir dire and the
McBee
and
Johnson
cases seem to indicate. Nonetheless, even if the presumption of correctness does not apply, I ultimately conclude that the trial court’s decision to deny the challenge for cause was not a palpable abuse of discretion. Pursell’s counsel, therefore, was not ineffective for failing to raise a claim that would have lost on appeal.
The same can be said for Pursell’s challenge to juror Wellie Yaple. Like Ott, Yaple said that he had a tendency to believe police witnesses more than others.
Q. Would you naturally tend to believe a witness who is a police officer more than other witnesses just because someone is a police officer?
A. Yes.
BY THE COURT: Rephrase that, please.
Q. Mr. Yaple, during the trial police officers are expected to be called. I suppose — do you understand that a police officer as a witness should be given no more credibility than anyone else? A. I feel in most cases a police officer is neutral and if he says something, it’s more or less not giving one or other an advantage.
Q. So, you came into court today with an opinion in your mind that a police officer would be a more believable witness than a person who wasn’t?
A. No, not really, no.
Q. Perhaps I’m asking the wrong question then. Would you please state again how you would approach a police officer as a witness?
A. I would more or less believe what he had to say. It’s kind of a hard question to answer.
Q. I suppose — let me ask you bluntly, would you tend to believe a police officer more than another witness?
A. Not really. I guess not.
Q. You guess not. Are you sure?
A. I’ve always believed a policeman would be right in a lot of — it’s just my understanding. That is just the way I feel. I don’t think a police officer would
*315
lie under oath as much maybe as another person could.
(Tr. 1/18/82, at 16-17). After defense counsel finished questioning Yaple, the prosecution asked a few questions as well.
Q. Mr. Yaple, if you were selected as a juror in this case, at the end of the ease his Honor will give you certain instructions to guide you in jury deliberations. One of those instructions would be that as a juror, you are to determine the credibility of the witnesses and that for each witness who takes the stand, you are to observe their demeanor, look at the way they testify under oath, listen to their words, and make your judgments as you would in your own business or your everyday life. Do you feel you would be able to do that for all of the witnesses who would take the stand in this case?
A. Yes.
Q. Would you be able to apply that standard for police officers and lay witnesses if you were so instructed?
A. Yes.
Id.
at 18-19. Defense counsel then moved to strike Yaple for cause, and the trial judge denied the request, stating “I don’t think there is enough for cause here at this time because of the way the questions were answered ...”
Id.
at 19.
Was the trial court wrong in denying the challenge for cause? And would Pursell’s claim have prevailed on appeal? Again, AEDPA’s presumption of correctness seems to answer these questions. 28 U.S.C. § § 2254(e)(1). Like Ott, Yaple’s testimony was inconsistent. Twice he said that he would not believe the testimony of a police officer more than another witness. (Tr. 1/18/82, at 16) (answering “[n]o, not really. No” to whether he came into court with an opinion that a police officer was more believable than another witness);
id.
at 17 (answering “not really. I guess not” to question whether he would believe police officer more than another witness). Further, he said that he could apply the court’s instructions on witness credibility to police witnesses as well as other witnesses.
Id.
at 19. Nonetheless, four times he gave answers that indicated his bias in favor of police witnesses and suggested an inability to put that bias aside at trial.
Id.
at 16 (answering “yes” to whether he would tend to believe police witnesses more than others);
id.
at 16 (“I feel in most cases that a police officer is neutral”);
id.
at 17 (“I would more or less believe what he had to say”);
id.
at 17 (“I always believed a policeman would be right.... I don’t think that a police officer would lie under oath as much as maybe another person could.”). While the trial court was arguably wrong, he was also arguably right. In other words, Yaple’s testimony is so inconsistent that it reasonably supports either conclusion. In the present case, such evidence is not clear and convincing evidence of bias. Accordingly, I presume that the trial judge’s ruling was correct. Pursell’s challenge to Yaple lacked merit, and his lawyer would have had no grounds to appeal this claim.
Nevertheless, even if the presumption does not apply, I still find that Pursell could not succeed on appeal for one simple reason: the trial court grounded its ruling on “the way the questions were answered,”
id.
at 19, not the answers themselves. Ya-ple’s tone of voice, his mannerism, and his demeanor all went into the trial court’s decision to deny the challenge. As the Pennsylvania Supreme Court has explained, these are the kinds of judgments that are best made by trial judges and not appellate courts reading a stale and inert trial transcript.
Gelfi,
128 A. at 79 ;
Big-hum,
307 A.2d at 259 . In light of Yaple’s inconsistent testimony, the trial court was certainly entitled to rely on “the way the
*316
questions were answered,” (Tr. 1/18/82, at 19), in deciding which answers were credible and which were not. In the present circumstances, I conclude that Pursell’s claim would not have succeeded on appeal.
What makes the trial court’s decision to qualify Yaple more troubling, however, is the fact that Yaple had more than just a questionable bias for police witnesses. He also had a tendency to believe Erie County District Attorney Michael Veshecco, one of the Commonwealth’s witnesses in the case:
Q.I will run down a list of names.
Please interrupt me if you are acquainted with any of these people, Michael Veshecco?
A. Yes.
Q. You know Michael Veshecco?
A. He handled my divorce.
Q. And when was that?
A. Three years ago. Well, it was the last year before he was the D.A.
Q. Did you know Mr. Veshecco only on a professional basis?
A. He was my attorney up until then. Q. Did he represent the business?
A. Yes.
Q. Do you feel that because of your relationship on a professional basis with Mr. Veshecco that that would interfere with your ability to sit on this jury in a fair manner?
A. I like Mike and we went through a lot I think together for that time I knew him. He helped me a lot of ways I thought.
Q. There is a possibility that Mr. Vesh-ecco might be called as a witness in this case. Would you tend to believe Mr. Veshecco more than another witness based on your past experience with him? A. Knowing Mike, I believe in what he says, you know, because of the dealings I had with him. He was fair.
Q. Would you tend to believe him more than another witness who you didn’t know?
A. I really don’t know. I would have to hear both sides.
Id.
at 9-10. After defense counsel finished questioning Yaple, the court posed a question concerning whether Yaple would tend to believe Mr. Veshecco.
Q.The fact that you know Mr. Veshecco and a few of the other members of the district attorney’s staff and that you may know one or two of the witnesses that may be called by the Commonwealth’s presentation of the ease, do you feel that that in fact would impair your ability to judge this case solely on the evidence produced in the trial?
A. I believe I would probably tend to believe Mr. Veshecco, yes.
Id.
at 18. Finally, clearly in an effort to rehabilitate Yaple, the prosecution told him about the court’s instruction concerning the credibility of witnesses, and asked him whether he “would be able to apply that standard to Mr. Veshecco if you were so instructed.”
Id.
at 19. Without hesitation, Yaple answered “Yes.”
Id.
The mere fact that Yaple had a past relationship with Veshecco was not enough under Pennsylvania law to obtain a reversal of the trial court’s ruling. In many cases prior to the time of Pursell’s appeal, the Pennsylvania courts had addressed when a juror’s relationship to a case was enough to justify removal for cause. In
Commonwealth v. Colon,
223 Pa.Super. 202 , 299 A.2d 326, 328 (1972), the Supreme Court held that the mere fact that a juror was a law enforcement officer was not enough to disqualify that juror for cause. In
Cavell,
149 A.2d at 436-38 , the Supreme Court held that the son-in-law of a detective who investigated the crime, and the second cousin once removed from the victim were not excludable for cause sim
*317
ply because of their status. In
Commonwealth v. Stamm,
286 Pa.Super. 409 , 429 A.2d 4, 7 (1981), the Superior Court held that a juror was not excludable when she was related to the police prosecutor in the case and was the aunt of a district attorney who was not trying the case. Finally, in
Commonwealth v. Bright,
279 Pa.Super. 1 , 420 A.2d 714, 716-17 (1980), the Superi- or Court held that there was no ground to exclude a juror merely because he lived in the same neighborhood as the prosecutor and had known him since he was a child. As these cases demonstrate, exclusion based on status alone is a rare event in Pennsylvania. Yaple’s past relationship with Veshecco was not enough, as a matter of law, to exclude him from jury service.
The only significant question presented by Yaple’s voir dire, then, is whether he should have been excused due to his tendency to believe Veshecco more than other witnesses. Again, AEDPA’s presumption of correctness provides the answer. And, once again, the record shows a trial judge who was both wrong and right, depending on which testimony is emphasized and which is downplayed. In support of the trial judge’s ruling was the timing of the answers given by Yaple. Yaple first stated that he would not consider Veshecco differently than other witnesses. (Tr. 1/18/82, at 9-10) (“Q. Would you tend to believe him more than another witness who you didn’t know? A. I really don’t know. I would have to hear both sides.”). Then, under questioning from the court, Yaple seemed to go back on this initial statement.
Id.
at 18 . (stating that he “would probably tend to believe Mr. Vesh-ecco.”). Finally, Yaple stated unequivocally that he could apply the same credibility standard to Veshecco as to other witnesses.
Id.
at 19 . When the trial judge stated that his ruling was based on “the way the questions were answered,”
id.
at 19 , he might have been balancing Yaple’s equivocal statement that he could not be fair,
id.
at 18 (“I
believe
I would
probably tend
to believe”) (emphasis added) with his clear statement that he could apply the same credibility instruction to Veshecco that he applied to others.
Id.
at 19 . While I find the question a close one, I conclude that the presumption of correctness should apply. There is ample support in the record for the trial court’s decision to qualify Yaple, and the evidence to the contrary is not clear and convincing evidence of bias.
For the same reasons, I conclude that the trial court’s decision was not a palpable abuse of discretion. Pennsylvania law provides a trial judge with broad discretion in determining juror qualifications and, with regard to Yaple, the trial judge probed the full range of his discretion. But such an exercise of discretion does not necessarily constitute an abuse of discretion. In the present case, the record supports the trial judge’s decision. Although statements made by the witness point strongly in the other direction, the trial judge was entitled to credit some statements more than others, particularly when he said that was exactly what he was doing.
Id.
at 19 . Even if the presumption of correctness does not apply, I still find that the trial court’s ruling on Yaple would not have been reversed on appeal. Once again, Pursell’s counsel was not ineffective for failing to raise a losing claim.
22
This lengthy analysis yields three basic conclusions. First, the trial judge’s rulings on Shank, Noble, Fink, and Gunther
*318
were correct and presented no grounds for appeal. Second, the court’s rulings concerning Ott and Yaple were correct if § 2254(e)(l)’s presumption of correctness applies and, again, presented no grounds for appeal. Finally, if § 2254(e)(l)’s presumption of correctness does not apply, the trial court’s rulings on Ott and Yaple were arguably wrong, but not a palpable abuse of discretion. Because there is arguable merit to Pursell’s claims concerning Ott and Yaple when analyzed without the presumption of correctness, I will discuss whether Pursell’s counsel was deficient in failing to raise those claims on appeal,
(d) Was Counsel Deficient In Failing to Raise Claims Concerning Ott and Yaple?
As with decisions made by trial counsel, appellate counsel’s decisions are protected by a “strong presumption” that they “fall[ ] within the wide range of reasonable professional assistance.”
Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 . In the present case, Pursell has come forward with no evidence to undermine the reasonableness of his appellate counsel’s decision to forego the challenges to Ott and Yaple on appeal. Accordingly, I conclude that his appellate counsel was not deficient and will deny his claim for ineffective assistance of counsel.
For one, Pursell’s lawyer was aware of the trial court’s rulings on Ott and Yaple and made a strategic choice not to pursue them.
23
First, he had seen the motion for new trial in which the challenge for cause issue was first raised. In fact, he cited that very document in a supplemental new
*319
trial motion that he filed shortly after entering his appearance on Pursell’s behalf. Dkt. no. 18, at 1876. Second, he had a copy of the voir dire transcript before filing his appeal.
Id.
at 1879. Third, he had read the voir dire transcript because he raised a claim for change of venue, a claim that obviously turned on the jury voir dire.
Id.
at 1876. Finally, he was told by the Commonwealth that it deemed the challenge for cause claims waived or abandoned, and he neither responded to that statement nor tried to raise those claims again.
Id.
at 1914. Viewing these facts under the presumption that counsel’s conduct is strategically sound,
Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 , I conclude that Pursell’s counsel had a firm strategy in place and that strategy did not include the challenge for cause claims.
Second, counsel’s strategy was objectively reasonable. The first thing that Pur-sell’s appellate counsel did when he took over the case was narrow the issues for appeal. Dkt. no. 18, at 1876, 1978-79. “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues.”
Jones v. Barnes,
463 U.S. 745, 751-52 , 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983);
Sis-trunk v. Vaughn,
96 F.3d 666, 670 (3d Cir.1996) (“the process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.”) (internal quotations and citations omitted);
Mason v. Hanks,
97 F.3d 887, 893 (7th Cir.1996). What Justice Jackson noted more than fifty years ago is still true today.
Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one ... [Experience on the bench convinces me that multiplying assignments of error will dilute and weaken a good cause and will not save a bad one.
Jackson,
Advocacy Before the Supreme Court,
25 Temple L.Q. 115, 119 (1951) (quoted in
Jones,
463 U.S. at 752 , 103 S.Ct. 3308 ). In the present case, the original motion for new trial contained more than fifty claims of error. Dkt. no. 18, at 1867. When Pursell’s appellate counsel took over, he chiseled these claims down to twelve, abandoning many, keeping some, and adding others.
Compare id.
at 1880
with id.
at 1867,
and id.
at 1978-79. In focusing the issues for appeal, counsel acted in an objectively reasonable fashion.
Finally, when the claims actually raised by appellate counsel are compared to the challenge for cause claims, it is clear that counsel’s conduct was objectively reasonable.
When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial court record to determine whether appellate counsel failed to pres
*320
ent
significant and obvious issues
on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally,
only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.
Gray v. Greer,
800 F.2d 644, 646 (7th Cir.1986) (emphasis added);
Mayo v. Henderson,
13 F.3d 528, 533 (2d Cir.1994) (“a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.”)
Of the seven guilt-phase claims raised on appeal, four of them were stronger than the claims that Pursell’s lawyer left behind. First, the change of venue claim was very strong, particularly in light of the pretrial publicity in this case, the nature of that publicity, and the state of Pennsylvania law at the time in question.
See, e.g., Commonwealth v. Pierce,
451 Pa. 190 , 303 A.2d 209 (1973). Second, the claim that a mistrial should have been granted due to Officer Mark Krahe’s statements about rape, dkt. no. 18, at 2021, was also a solid one. Krahe’s statement (“That boy looked good to you. You took that boy. You raped that boy.’ ”) (Tr. 1/21/82, at 117-18), injected sexual assault into a case in which no evidence supported such an inference. Due to the fact that the victim was a thirteen year-old boy who was found naked, Krahe’s statement had the potential of polluting the minds of the jurors and unduly prejudicing the defendant. Third, the claim that Pursell’s lawyer was ineffective for failing to take a mistrial offered him presented arguable grounds for reversal, dkt. no. 18, at 2016, particularly because the trial counsel appeared uninformed about the legal ramifications of the bargain he made. Finally, the claim that Pursell’s lawyer was ineffective for failing to adequately cross examine the Commonwealth’s main blood witness was also a good one.
Id.
at 2022. Of the evidence against Pursell, there was only blood, glasses, and a number of admissions. To the extent that Pursell could knock out one of these pillars, he could have gone a long way toward casting doubt on his guilt.
These four claims were also more suited to appellate review. All four presented strictly legal questions that would be reviewed by the Supreme Court
de novo.
In contrast, the challenge for cause claims were intensely factual in nature and rested on a “palpable abuse of discretion” standard of review. It was eminently reasonable for Pursell’s appellate counsel to decide to move forward with the four claims described, and leave the challenge for cause claims in his proverbial bag.
Even the remaining three guilt-phase claims raised on appeal had certain attributes that made it reasonable for Pursell’s lawyer to raise them while leaving the challenge for cause issue behind. Two of them, dkt. no. 18 at 2013 (ineffectiveness claim based on trial counsel’s failure to seek mistrial after the tipstaff died);
id.
at 2020 (claim that trial court erred in denying request for jury instructions), presented clear legal issues that required very little in the way of factual inquiry. Any appellate lawyer knows that appellate courts are aware of their institutional inability to resolve factual issues and, thus, are more amenable to claims of clear legal error. Even the third claim, a claim for insufficient evidence,
id.,
at 2024, had certain attributes that made it better for appeal. For one, it was the kind of claim raised in nearly every case in which a defendant is convicted on circumstantial evidence. Second, such a claim helped appellate counsel undermine the evidence
*321
against his client, thereby making the appellate court more willing to grant relief for legal errors that might have occurred at trial. Although these three claims were slightly weaker than the challenge for cause claims, Pursell’s counsel had reasonable grounds for raising them on appeal while leaving the others at home.
Under these circumstances, I conclude that Pursell’s lawyer was not unreasonable in failing to raise the challenges to Ott and Yaple, even though those claims had arguable merit. Accordingly, I will deny Pur-sell’s claim for ineffective assistance of counsel, without reaching the issue of prejudice.
(2) Sixth Amendment Right to Impartial Jury
Pursell next raises another Sixth Amendment claim, but this one focuses not on the conduct of his lawyer, but on the make-up of his jury. In particular, Pursell contends that the trial court’s denial of his challenges for cause forced him to exhaust his peremptory challenges before the empaneling of the jury and resulted in a violation of his Sixth Amendment right to an impartial jury.
In
Ross v. Oklahoma, 487
U.S. 81, 86, 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988), the United States Supreme Court held that a Sixth Amendment impartial jury claim must focus on the jurors who ultimately sat on the jury in question. In that case, the defendant challenged a potential juror, Darrell Huling, for cause.
Id.
at 83-84 , 108 S.Ct. 2273 . When the trial court denied this challenge, the defendant exercised a peremptory challenge to remove Huling from the jury.
Id.
at 84 , 108 S.Ct. 2273 . Even though the trial court erred when it refused to excuse Huling for cause,
id.
at 85 , 108 S.Ct. 2273 , the Supreme Court rejected defendant’s impartial jury claim.
Had Huling sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court’s failure to remove Huling for cause, the sentence would have to be overturned. But Huling did not sit. Petitioner exercised a peremptory challenge to remove him, and Huling was thereby removed from the jury as effectively as if the trial court had excused him for cause.
Id.
at 85-86 , 108 S.Ct. 2273 . The defendant nonetheless claimed that the composition of the jury would have been different had he not been forced to waste a peremptory challenge to remove Huling. Again, the Court rejected this claim:
[W]e reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. We have long recognized that peremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.
Id.
at 88 , 108 S.Ct. 2273 .
The Supreme Court’s decision in
Ross
easily disposes of Pursell’s claim that his Sixth Amendment right to an impartial jury was violated in the present case. None of the six potential jurors at issue actually sat on the jury that decided Pursell’s fate. In his Memorandum of Law, Pursell claims that Ruth Fink, one of the jurors that he challenged for cause, sat on the jury, dkt. no. 26, at 107, but this statement is flatly contradicted by the record.
See supra
note 19. After the trial court rejected Pursell’s challenge to exclude Pink for cause, Pursell used a peremptory challenge to remove her from the jury. (Tr. 1/18/82, at 73). Therefore, whether
*322
Pursell’s Sixth Amendment claim survives depends on whether the jury ultimately chosen was impartial. I have already concluded that it was,
supra
at 304^05, and will not revisit that issue here.
(3)Due Process Claim
Pursell also claims that the trial court’s denial of his challenges for cause violated his due process rights under the Fourteenth Amendment by arbitrarily depriving him of the full compliment of the twenty peremptory challenges he was allowed under Pennsylvania law. In
Ross ,
the Court explained that “peremptory challenges are a creature of statute and are not required by the Constitution.”
Ross,
487 U.S. at 89 , 108 S.Ct. 2273 . Accordingly, the
Ross
Court held that, at a minimum, a defendant’s due process rights cannot be violated when he receives precisely what state law provides.
Id.
In particular, the Oklahoma state law at issue in
Ross
required that defendants use peremptory challenges to cure a trial court’s erroneous refusals to excuse a juror for cause. The
Ross
Court held that the petitioner had received all that he was entitled to under state law and, thus, all the process that he was due.
Id.
at 90-91 , 108 S.Ct. 2273 .
Once again,
Ross
disposes of Pursell’s claim. I have already held that the trial court’s denial of the challenges for cause did not violate Pennsylvania law. Because Pursell was given all that Pennsylvania law entitled him to (a ruling on his challenges for cause that was not a palpable abuse of discretion), his due process claim must fail as well.
Id.
at 90-91 , 108 S.Ct. 2273 .
24
(4)Trial Court’s Grant of Commonwealth’s Challenge for Cause
Finally, Pursell claims that the trial court erred when it granted a Commonwealth challenge for cause to excuse juror Ann Gazda. (Tr. 1/13/82, at 159-81). While Pursell’s state law claim is clear enough, it is equally clear that a federal habeas court lacks the power to grant relief simply for violations of state law.
Pulley v. Harris,
465 U.S. 37, 41 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984). Additionally, to the extent that Pursell raises an impartial jury or due process claim, such claims are clearly foreclosed by
Ross .
Pursell cites
Gray v. Mississippi
481 U.S. 648 , 107 S.Ct. 2045 , 95 L.Ed.2d 622 (1987) and claims that a defendant is entitled to a new trial whenever a trial court erroneously grants a government challenge for cause. But the
Ross
Court specifically limited
Gray
to cases where the trial court erroneously excludes a qualified juror in a capital case under
Witherspoon v. Illinois,
391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968).
Ross,
487 U.S. at 87 , 108 S.Ct. 2273 . No such
Witherspoon
error is at issue in the present case. Thus, I will deny Pursell’s claim for relief.
(5)Conclusion
I will deny relief on all of Pursell’s claims concerning the trial court’s denial of his challenges for cause. Nevertheless, because I believe that Pursell has made a “substantial showing of the denial of a constitutional right,” 28 U.S.C.
*323
§ 2253(c)(2), on his claim of ineffective assistance of counsel, I will grant him a certificate of appealability on that claim alone.
C. Prosecution’s Failure to Disclose Evidence of Other Suspect
Pursell next claims that the prosecution violated due process when it failed to disclose evidence that someone else committed the crime in question.
25
In
Brady v. Maryland,
373 U.S. 83, 87 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Because the Pennsylvania Supreme Court did not address the merits of this
Brady
claim, I will review it
de novo.
For the following reasons, I will deny Pursell’s claim for relief.
(1) Factual Background
Shortly after Christopher Brine was found dead on July 24, 1981, a number of suspects were identified. Pursell was one of them. Another was a man who had been soliciting sex from young boys in the area of the murder shortly before the time of the killing. On Saturday, July 25, 1981, the Erie Times-News Weekender ran a front page story that discussed this suspect. Dkt. no. 10, Ex. 10 (Erie Times-News, 7/25/81). The article cited Officer Mark Rrahe, the lead investigator on the case, stating that “Krahe and other authorities confirmed that they are investigating reports that a tall, dark-haired man solicited three young Lawrence Park and Wesleyville boys for sex over the past six weeks.”
Id.
The article described the suspect as “tall, with a medium build, dark hair and wearing thick black glasses.”
Id.
at 3A. It also explained that one young boy “said the man traveled on a gold 10 speed bicycle.”
Id.
Stories about this unidentified man appeared daily in the aftermath of Brine’s murder. On July 26, the Erie Times-News noted that the police had completed a “composite drawing” of the unidentified suspect. “The man was described as white, tall and slender with dark hair. He has been seen riding a 10-speed bicycle, investigators said.”
Id.
(Erie Times-News, 7/26/81). On July 27, 1981, the Erie Morning News stated that the police are “investigating reports that an unidentified man had been approaching Lawrence Park and Wesleyville boys for sex over the past six weeks.”
Id.
(Erie Morning News, 7/27/81). The article described the suspect “as tall, with dark hair and thick, black-rimmed glasses. In some instances he was reportedly seen riding a 10-speed bicycle along the paths and trails that crisscrossed the Alamo.”
Id.
And in an article entitled, “Police checking suspects in Brine slaying,” the Erie Daily Times noted that “[sjeveral reports have been filled with police regarding a man who has allegedly solicited sex from young boys in the Lawrence Park and Wesleyville areas....”
Id.
(Erie Daily Times, 7/27/81).
What made this unidentified suspect so newsworthy was that, initially at least, the police did not know whether Brine’s slaying was coupled with or motivated by sexual assault. Brine’s body was found naked, his pants were folded neatly over a branch of a nearby tree, and his shoes were placed next to his right knee in an orderly manner, (Tr. 1/19/82, at 130-31), all of which created the impression that sexual assault may have been involved. Immediately after Brine’s body was found, the police began conducting tests to determine
*324
whether Brine had been sexually assaulted. Dkt. no. 10, Ex. 10 (Erie Times-News, 7/25/81). One investigator went so far as to say “ ‘[t]his appears to be a fiendish sex crime killing!.]’ ”
Id.
(Erie Times-News, 7/26/81). Initially at least, evidence that a man had solicited sex from young boys in the area seemed extremely important to the public and the police.
The police also relied on this information to obtain search warrants in the case. In an affidavit of probable cause accompanying a July 27, 1981 request for a warrant to search Pursell’s mother’s trailer, Trooper Conley tied the reports of a man soliciting sex to Pursell:
[James] Lynch also reported that Pur-sell normally rides a brown 10 speed bicycle in the area in question....
This information corroborates that a man on a bicycle has been seen in the area of the murder recently attempting to solicit young men for sex.
I know that the deceased was found nude at the scene and that his anus was somewhat distended, leading me to believe that
deviate sex may be the possible motive for this brutal murder.
Dkt. no. 26, at 112 (emphasis added). Further, in a later affidavit, Trooper Conley again tied the reports of a man attempting to solicit sex from area boys to Pursell.
Id.
Despite Conley’s attempt to link Pursell with the unidentified suspect, the police clearly stated that Pursell was
not
the unidentified man.
Police said the arrest [of Pursell] is
“not connected
” with reports of a man who allegedly solicited sex from young boys in the Lawrence Park and Wesley-ville area since late May.
“That is something entirely different,”
a source said. “If parents think the wooded area is now safe for everybody, then they’re wrong.”
Police had received reports from several teenagers that they were propositioned by a tall man with dark hair, who had been seen riding a gold bicycle in the area. “As far as we know,
that man either didn’t exist or is still around and could return,”
he said.
Dkt. no. 10, Ex. 10 (Erie Daily Times, 7/28/81) (emphasis added). On July 29, 1981, the Erie Morning News quoted Officer Mark Krahe on the same issue. “ ‘As of this moment we have not linked the defendant to statements received about solicitation,’ Krahe said. He added that
a composite sketch from several juveniles doesn’t match Pursell.” Id.
(Erie Morning News, 7/29/81) (emphasis added).
Pursell’s trial counsel knew of accounts concerning this unidentified man who had allegedly solicited sex from area boys. He knew that the police had interviewed young boys about the suspect. He knew that the police had drawn a composite sketch of the man. And he knew that the man in question was not Alan Pursell. Indeed, the very newspaper articles in which the information of the unidentified suspect appeared were extensively cited and quoted by Pursell’s lawyer when he filed a motion for a change of venue based on prejudicial pretrial publicity. Dkt. no. 15, at 30-35. Additionally, Pursell’s lawyer had an opportunity to review these articles and present testimony on them at a pretrial hearing more than two months before trial.
Id.
at 36-37.
While Pursell’s lawyer knew much about the unidentified suspect, there were two specific pieces of information that he never saw. First, he never saw the notes that the police had taken from the interviews that they conducted concerning the unidentified suspect. Dkt. no. 51. These notes contained a description of the unidentified suspect.
Id.
Second, Pursell’s
*325
lawyer never saw the composite sketch of the unidentified suspect.
Id.
Although Pursell filed a discovery motion in September 1981, asking for “[a]ny evidence favorable to the accused which is material either to guilt or to punishment,” dkt. no. 55, Discovery Motion, ¶ 4a, he was never provided with the interview notes or the composite sketch. Pursell alleges that the government’s failure to provide these documents violates
Brady ,
and he seeks an evidentiary hearing in order to substantiate the allegations in his petition.
(2) Request for Evidentiary Hearing
The first question in any ease involving a request for an evidentiary hearing is whether AEPDA’s new limitations on such hearings applies. 28 U.S.C. § 2254 (e)(2) provides as follows:
If the applicant has
failed to develop the factual basis of a claim in State court proceedings,
the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Id.
(emphasis added). As the language of the first clause shows, the statute itself only applies to those petitioners who have “failed to develop the factual basis of a claim in State court proceedings.”
Id.
The Supreme Court addressed the meaning of this “failed to develop” language in
Williams v. Taylor,
529 U.S. 420, 430 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (2000). In that case, the Court explained that “a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”
Id.
at 432 , 120 S.Ct. 1479 . “Diligence,” the Court continued, “will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.”
Id.
at 437 , 120 S.Ct. 1479 . Nevertheless, diligence need not always require a request for a hearing in state court. In fact, in
Williams
itself, the Supreme Court allowed two of petitioner’s three claims to proceed to a hearing, even though the petitioner had never requested a hearing during his state post-conviction review process.
Id.
at 440-44, 120 S.Ct. 1479 .
In the present case, Pursell showed the kind of diligence needed to avoid the limitations of § 2254(e)(2). First, he requested an evidentiary hearing on his
Brady
claim back in his
pro se
PCRA appeal papers filed in November of 1993. Dkt. no. 19, at 2322-26. Second, he specifically requested an evidentiary hearing on his
Brady
claim in the second PCRA petition that he filed in 1999.
Id.
at 2717-19, 2720. Under
Williams,
Pursell has shown diligence in pursuing an evidentiary hearing on this claim. Thus, § 2254(e)(2)’s limitation simply does not apply.
This does not mean, however, that Pursell automatically obtains an evidentiary hearing on his claim. Since § 2254(e)(2)’s initial hurdle does not apply, I must analyze Pursell’s request for an evidentiary hearing under the standard in place before its passage.
Townsend v.
*326
Sain,
372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963) sets forth this standard. In
Townsend ,
the Court held that a federal court should hold an evidentiary hearing if a petitioner “alleges facts which, if proved, would entitle him to relief,” and “[w]here the facts are in dispute ... if the habeas applicant did not receive a full and fair evidentiary hearing in a state court....”
Id.
at 312-13 , 83 S.Ct. 745 . Accordingly, a district court must undertake a two-step process in deciding whether to hold a hearing. First, it must decide whether the petitioner has alleged facts which, if proven, would entitle him to relief.
Id.; Smith v. Freeman,
892 F.2d 331, 338 (3d Cir. 1989). And, if so, it must decide whether those facts are in dispute such that an evidentiary hearing is necessary to establish their truth.
Smith,
892 F.2d at 338 . For purposes of this claim, I have assumed that Pursell’s factual allegations are true, and have read any inferences derived from those facts in the light most favorable to him. Nonetheless, because the facts alleged do not set forth a
Brady
claim, I will deny the claim outright without conducting an evidentiary hearing.
(3) Brady Claim
Brady
establishes the framework for analyzing due process claims when the government has withheld evidence favorable to the defendant and that evidence is material to his guilt or the punishment.
Brady,
373 U.S. at 87 , 83 S.Ct. 1194 ;
United States v. Agurs,
427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976). There are three components to a
Brady
claim: 1) the evidence must be favorable to the defendant, either because it is exculpatory or because it is impeaching; 2) the evidence must have been suppressed by the government, either intentionally or inadvertently; and 3) the evidence must have been material to the defense.
See United States v. Perdomo,
929 F.2d 967, 970 (3d Cir. 1991);
Strickler v. Greene,
527 U.S. 263, 283 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999). I doubt whether the evidence at issue in this case is exculpatory, particularly because there was no evidence — and the Commonwealth did not allege — that Brine’s murder was coupled with or motivated by sexual assault.
See, e.g., Moore v. Illinois,
408 U.S. 786, 795 , 92 S.Ct. 2562 , 33 L.Ed.2d 706 (1972) (no due process violation where prosecution failed to hand over evidence of other suspect). I also doubt whether the government suppressed anything, particularly because the substance of the evidence at issue was openly reported in the newspapers on a number of different occasions.
See, e.g., Wright v. Hopper,
169 F.3d 695, 702 (11th Cir.1999) (holding that government did not suppress evidence when defendant knew about the existence of the evidence and could obtain it through the exercise of reasonable diligence). Nonetheless, I ultimately deny Pursell’s claim for relief because he has failed to prove the third prong of a
Brady
violation — that the withheld documents were material to his defense.
Evidence is material if there is a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed to the defense.
United States v. Bagley,
473 U.S. 667, 678 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985). This standard is not satisfied by “[t]he mere possibility that ... undisclosed information might have helped the defense, or might have affected the outcome of the trial.”
Agurs, 427
U.S. at 109-10, 96 S.Ct. 2392 . Instead, to demonstrate a reasonable probability of a different outcome, the defendant must show that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”
*327
Kyles v. Whitley,
514 U.S. 419, 435 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995);
see also Strickler,
527 U.S. at 289-90, 96 , 119 S.Ct. 1936 . In the present case, the withheld evidence fails to meet this standard.
The case against Pursell rested on four evidentiary pillars. The first pillar was Pursell’s glasses, found at the scene of the crime. (Tr. 1/20/82, at 214-20). The prescription was so rare that Pursell’s optometrist testified that he had written it only once in six years.
Id.
at 214-20. The second pillar was a spot of blood, consistent with Brine’s, that was found on Pur-sell’s shoe. (Tr. 1/22/82, at 162, 171-72, 184-85). The third and fourth pillars were statements made by Pursell before he was arrested for Brine’s murder. On the night of the murder, Pursell told James Lynch and Thomas Jagta that he had been in a fight, during which he had lost his glasses and hit someone in the head with a brick. (Tr. 1/21/82, at 8-9, 26). The statement was consistent with evidence indicating that Pursell’s glasses were found at the murder scene and that Brine had been beaten in the head with the rock. Finally, on July 27, 1981, Pursell asked Diane Walters if she thought a person could be traced through his glasses.
Id.
at 57-58. The statement was made before the public learned that Pursell’s glasses had been found at the murder scene, suggested that Pursell knew things that only the murderer and the police could have known, and implied Pursell’s own feelings about his guilt. (Tr. 1/20/82, at 269-71; 275); (Tr. 1/21/82, at 85-86). To make matters worse, Pursell did not even deny making this statement when asked about it during his direct examination. (Tr. 1/25/82, at 129-30) (stating “I don’t recall if I said it or not,” and then later suggesting “that I would have said it” only because “I had something in the back of my mind from what I — from what mother said ... ”).
The evidence against Pursell was strong. Like a modern-day Nathan Leopold, Pur-sell accidentally left his calling card at the crime scene for all the world to read.
26
His glasses provided the jury with ample evidence from which it could infer his presence at the murder scene and his complicity in Brine’s death. The blood found on his shoe further reinforced his connection to the crime. And his statements to Lynch, Jagta, and Walters seemed to seal his fate, particularly since the testimony regarding these statements came from those who were most likely to support Pursell, his next door neighbors and the wife of his friend. These four pillars established a solid foundation for Pursell’s guilt.
In contrast, the withheld evidence was remarkably weak, even in the hands of expert counsel. For one, there were temporal problems with that evidence. The witness notes clearly show that the unidentified suspect was soliciting young boys weeks before the murder of Brine took place, and not on the night of the murder itself. Dkt. no. 51, Witness Notes. Second, there were relevance problems with the evidence, as there was no evidence that Brine was sexually assaulted or molested. Third, if admitted at trial, there was a good chance that the evidence would backfire. Surely, Pursell would have been sailing a course as treacherous as that between Scylla and Charybdis had he injected the idea of sexual assault into the murder trial of a thirteen year-old boy. With weak evidence that someone else had eom-
*328
mitted the crime, the jury might have credited the sexual motivation put forward by Pursell and attached it to Pursell himself.
27
Perhaps this explains why Pursell’s counsel, armed in substance with the same evidence at issue today, chose not to chart this risky course at trial.
The problem with Pursell’s
Brady
claim, then, is that the withheld evidence does little to undermine the evidence actually introduced against him. The hard evidence against Pursell — the glasses and the blood — remains unscarred even after the introduction of this withheld evidence. Further, the testimony of Lynch, Jagta, and Walters is unaffected by the evidence of this unidentified suspect. Granted, the withheld evidence might have given more credence to Pursell’s statement that he was not the murderer, and given Pursell someone to point to in order to buttress his theory. Yet, without undermining confidence in the four evidentiary pillars against Pursell, the withheld evidence can hardly be said to place the “whole case in such a different light as to undermine confidence in the verdict.”
Kyles,
514 U.S. at 435 , 115 S.Ct. 1555 . Even if the withheld evidence had been used at trial, the outcome of this case would have been the same: a guilty verdict.
Pursell disagrees with this conclusion and cites a number of cases in support of his contention that a new trial is warranted.
See, e.g., Bowen v. Maynard,
799 F.2d 593, 612 (10th Cir.1986). He argues that these cases stand for a general principle: the government’s failure to disclose evidence of another suspect is a classic violation of
Brady .
To the extent that Pursell suggests that
Brady
establishes a
per se
rule concerning other suspect evidence, I disagree. There is “no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case,”
Moore,
408 U.S. at 795 , 92 S.Ct. 2562 , even when that investigation uncovers evidence of other suspects.
Id.
The existence of a
Brady
violation turns on a thorough review of the facts of the given case and a determination of whether in the absence of the withheld evidence the defendant received a verdict “worthy of confidence.”
Kyles,
514 U.S. at 434 , 115 S.Ct. 1555 . I have already engaged in a fact-intensive review of the evidence withheld and the evidence introduced at trial and found Pursell’s claim to be wanting.
Further, the facts of those cases are so strikingly different from the facts of Pur-sell’s case that they actually support my decision to deny relief. For instance, in
Bowen ,
the only evidence against the defendant was the testimony of two witnesses, who claimed that they saw Bowen near the murder scene slightly before the murder.
Bowen,
799 F.2d at 598 . No physical evidence tied Bowen to the crime.
Id.
In fact, at trial Bowen presented the testimony of twelve witnesses who said that Bowen had been 300 miles away at a rodeo around the time of the murder. Despite the weak case against Bowen, the jury convicted him. After trial,
Bowen
discovered that the government had withheld evidence of another suspect in the case. The man was named Leonard Lee Crowe.
Id.
at 599 . Crowe matched the description of the shooter,
id.
at 600 ; he had a motive to kill the victim,
id.
at 601 ; he had made statements about wanting to kill the victim,
id.;
he usually carried with him the kind of gun and the “unusual” kind of ammunition used in the killing,
id.
at 596-97, 600 ; he was within? driving distance of the murder scene around the time
*329
of the murder, even though he lived much further away,
id.
at 612 ; and after the murder, Crowe’s girlfriend tried to find out if anyone had been asking questions about Crowe or looking for him.
Id.
at 601 . Despite this evidence about Crowe’s potential role in the crime, the police did not hand over any information about Crowe to Bowen. On a petition for habeas corpus, the Tenth Circuit held that the government had violated
Brady
and ordered a new trial.
Id.
at 614.
The reason that a new trial was ordered in
Bowen
is obvious: the withheld evidence directly undercut the case against Bowen and undermined confidence in the verdict. The same cannot be said in Pursell’s case. Hard evidence tied Pursell to the scene of the murder, and none of that evidence was undercut by the withheld evidence. Indeed, the withheld evidence in Pursell’s case was anemic and hardly sufficient to cast doubt on the verdict. It pertained to a man who, at best, sought to commit a different crime at a different time. For the reasons outlined above, I will deny Pursell’s claim for relief under
Brady .
(4) Ineffective Assistance Claim
Pursell’s final argument is that his trial counsel was ineffective for failing to investigate evidence of another suspect and to present this evidence at trial. Dkt. no. 26, at 117. The Pennsylvania Supreme Court addressed this claim on the merits in
Pursell-2, Pursell-2,
724 A.2d at 306-07 , and, therefore, my review is limited to whether the Supreme Court’s opinion was “contrary to” or “an unreasonable application of’ “clearly established Federal law.” 28 U.S.C. § 2254 (d)(1). In the present case, this review is simple. To make out an ineffectiveness claim under
Strickland ,
Pursell must show that his counsel’s conduct prejudiced him.
Strickland,
466 U.S. at 687, 694 , 104 S.Ct. 2052 . Because I have already concluded that the evidence withheld was not material, the failure to investigate this evidence and introduce it at trial did not prejudice Pursell in any way. Accordingly, the Pennsylvania Supreme Court’s decision was correct, and I will deny Pursell’s claim for ineffective assistance of counsel.
(5) Conclusion
I will deny Pursell’s claim for relief under
Brady ,
deny his request for an evi-dentiary hearing, and deny his claim for ineffective assistance of counsel. Further, because I believe that Pursell has failed to make a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253 (c)(2), I will deny him a certificate of appealability on those claims.
D. Prosecutorial Misconduct
Pursell next raises several claims of prosecutorial misconduct and argues that these claims, either independently or cumulatively, mandate a new trial.
28
Spanning nearly thirty pages in his lengthy Memorandum of Law, these allegations are more scattershot than laser-like. Claims for prosecutorial misconduct often focus on a few specific acts and are usually judged under the due process clause of the Fourteenth Amendment.
Donnelly v. DeChristoforo,
416 U.S. 637, 643 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974). Pursell’s claims are different. They implicate nearly every stage of the trial, and cite nearly every provision of the Constitution available to a habeas petitioner. At the end of the day, however, this sweeping misconduct claim fails. Whether styled as prose-cutorial misconduct or not, I will deny Pursell’s claim for relief.
*330
(1) Claims Relating To Testimony of Officer Mark Krahe
Pursell first argues that his rights were violated when the prosecution elicited certain testimony from Officer Mark R. Krahe. To understand these claims, it is important to review the relevant portions of Krahe’s trial testimony.
Krahe was a police officer with the Lawrence Park Police Department and lead investigator on the Pursell ease. He was one of the officers who interrogated Pur-sell after his arrest, and he testified at trial about the interrogation. Krahe explained that Pursell was given his
Miranda
warnings and that he waived his right to remain silent. (Tr. 1/21/82, at 103-05). At one point during the interrogation, the police placed a pair of glasses in front of Pursell.
Id.
at 117. Officer Krahe described what followed:
Q. How far from where Alan Pursell was seated were those glasses placed?
A. Well, if I recall right, he was sitting with his hands crossed because I was watching for physical reactions at this point. His hands were crossed in this fashion, more toward across the area of his stomach, and I noted at that time that his breathing increased, that his hands were moving at a faster rate than they had prior, after which Trooper Conley said to him, “I can see how it happened. That boy looked good to you. You took that boy. You raped that boy.”
BY [DEFENSE COUNSEL]: Objection, Your Honor.
Id.
at 117-18. The court overruled the objection, and asked the witness to “[a]n-swer the question or state what you were stating.”
Id.
at 120. Krahe then continued with his testimony.
A. Trooper Conley said, T can see how it happened. That boy looked good to you. You took that boy. You raped
that boy,’ at which Mr. Pursell said, ‘I’m not a fag. I don’t like these questions. I want my attorney.’ This was approximately zero-zero thirty-five.
BY THE COURT: At this point I will now stop and I will now tell the jury and caution them that any remarks like this by Trooper Erby Conley must be considered in the light of the circumstances in which it was made because it was questioning and that you must understand that at this time there is no evidence whatsoever of sexual molestation that has been brought out, sexual molesting that has been brought out or anything of that sort, and brought out and put forth by the Commonwealth, and therefore, you are to disregard that particular inference it
m&y
give you.
Id.
at 120-21. After the court provided this instruction, the testimony continued:
Q. Now the questioning ceased at that point; is that correct, sir?
A. Yes. The only question that was asked of him is the name of his attorney.
Q. All right.
BY THE COURT: Well, was it given? BY THE WITNESS: Yes. He said Gary Skiba. ‘He got me out of jail before.’
BY [DEFENSE COUNSEL]: Objection.
Id.
at 121.
At that point, the court held a lengthy off-the-record conference in chambers.
Id.
at 122. The parties then x-eturned to the courtroom for a brief discussion on the record out of the presence of the jury.
Id.
Pursell’s lawyer moved for a mistrial, but then withdrew the motion, indicating that he had struck a deal with the prosecution that would allow the case to proceed.
Id.
at 122-23. The deal was this: Pursell would withdraw his motion for mistrial and
*331
the government would not introduce the testimony of DeFoy, an inmate who was prepared to say that Pursell had admitted to killing Christopher Brine.
Id.
at 123-24. After a lengthy discussion, in which Pursell acknowledged that he would probably take the stand, thereby permitting the introduction of his past crimes anyway,
id.
at 125, the court addressed Pursell directly:
BY THE COURT: Mr. Pursell, I want you to understand that if a motion for a mistrial had not been withdrawn, I would have had to grant the mistrial. Do you understand that?
BY MR. PURSELL: Yes, I do.
BY THE COURT: Pm saying that in other words, you had the right to a mistrial.
BY MR. PURSELL: Right.
BY THE COURT: Do you fully concur with your counsel, your attorney, for his withdrawal for a motion for a mistrial? BY MR. PURSELL: Yes, I do.
BY THE COURT: Now, do you agree with your attorney’s reasons for withdrawing his motion for mistrial?
BY MR. PURSELL: Can you repeat that?
BY THE COURT: Do you agree with the attorney’s reasons that he gave for withdrawing his motion for mistrial?
BY MR. PURSELL: Yes.
BY THE COURT: Now, were you coerced in any way, were you, into withdrawing your motion for a mistrial stating that you are going to take the stand? You were not coerced into saying that you had to take the stand or anything like that in your own defense?
BY MR. PURSELL: No.
Id.
at 127-28. After the jury returned to the courtroom, the court instructed that “the last statement made by Officer Krahe, the attorney part, which he answered, you are to completely disregard.”
Id.
at 131.
Pursell now raises four objections to Officer Krahe’s testimony.
(a) Pursell’s Invocation of Right to Counsel
First, he argues that reference to his invocation of counsel,
id.
at 121 (“I don’t like these questions. I want my attorney.”), violated his rights under the Fifth and Fourteenth Amendments, and that his counsel was ineffective for failing to object. The Pennsylvania Suprem
This text is long and has been trimmed here. Open the source document for the complete record.