stating that ''Strickland instructs that if the petitioner has not shown that [the] underlying claim has merit, counsel cannot have been ineffective for failing to raise it”
How later courts described this case
- stating that ''Strickland instructs that if the petitioner has not shown that [the] underlying claim has merit, counsel cannot have been ineffective for failing to raise it”
- Pennsylvania has not opted-in
Written by the judges who cited it.
The opinion
OPINION AND ORDER
VAN ANTWERPEN, District Judge.
I. INTRODUCTION
This matter is before us pursuant to a Petition for a Writ of Habeas Corpus, filed by Arnold Holloway (“Petitioner”), a/k/a Nasir Kareem, a/k/a Arnold L. Walker, a/k/a/ Prince Lee Holloway, on April 3, 2000. Petitioner presents sixteen claims and numerous subclaims under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 , in pursuit of relief from his state murder conviction and death sentence. Petitioner was arrested on May 30, 1985 and charged with possession of the instrument of a crime, criminal conspiracy and first degree murder arising from the death of Richard Caldwell on May 16, 1980. Richard H. Knox, Esq. was appointed by the state trial court to assist Petitioner in presenting his defense, but he withdrew upon the entry of appearance by the privately retained Barry Denker, Esq. (“trial counsel”). Petitioner was prosecuted by Assistant District Attorney Drew R. Barth (“the ADA” or “the prosecutor”). Petitioner was found guilty by a jury on all charges in the Court of Common Pleas, Philadelphia County, June Term, 1985, Nos. 1305-1308, Hon. Albert F. Sabo, presiding, on May 22, 1986. The same jury fixed the penalty at death the next day in a bifurcated proceeding. Mr. Denker filed post-verdict motions, but then sought to withdraw as counsel because of Petitioner’s dissatisfaction with his performance and his own ill health, but Judge Sabo ordered that his firm continue to represent Petitioner. Thereafter Petitioner was represented at post-verdict proceedings by Mary Zell, Esq., an associate of Mr. Denker’s, who refused to argue Mr. Denker’s ineffectiveness. In an opinion dated September 21, 1987, Judge Sabo denied relief on all grounds raised in the motion. Petitioner filed a timely appeal to the Pennsylvania Supreme Court. He was represented on direct appeal by Richard R. Redmond, Esq. (“appellate counsel” or “direct appeal counsel”), who filed a brief on his behalf on November 2, 1988. The Pennsylvania Supreme Court denied relief on March 20, 1990.
Commonwealth v. Holloway (“Holloway I
”), 524 Pa. 342 , 572 A.2d 687 (1990).
On May 3, 1991 Petitioner filed a
pro se
petition for collateral post-conviction relief under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. § 9541
et seq.
On August 5, 1991, John P. Cotter, Esq. (“PCRA counsel”) was appointed to represent Petitioner in his post-conviction proceedings. PCRA counsel filed an Amended Petition and Memorandum of Law on June 21, 1993. Several more counseled and pro se supplemental petitions and memoranda of law were filed. On July 19, 1995, Judge Sabo ordered that an evidentiary hearing be held in conjunction with Petitioner’s claims for state post-conviction relief, and such hearing was held on February 10, 1997. Petitioner’s post-conviction claims were denied in the Court of Common Pleas of Philadelphia County, Criminal Appeals/Post Trial Unit, on July 16, 1997. Petitioner then filed a timely appeal to the Pennsylvania Supreme Court, and briefs were filed by new counsel. The appeal was denied on October 1, 1999, and the decision of the Court of Common Pleas, Hon. Albert F. Sabo, was affirmed.
See Commonwealth v. Holloway (“Holloway II”),
559 Pa. 258 , 739 A.2d 1039 (1999).
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This case comes before us under § 2254 of the AEDPA, which permits federal courts to grant, under certain circumstances, a writ of habeas corpus to prisoners convicted in state court. Petitioner filed his Petition for a Writ of Habeas Corpus (“Petition” or “Pet.”) in this Court on April 3, 2000. His Petition was followed by a Memorandum of Law in Support of Petition for a Writ of Habeas Corpus (“Memorandum of Law” or “Pet. Mem. L”) and a Motion for Discovery on June 22 of that year.
1
We denied the Motion for Discovery on August 9, 2000. The Commonwealth submitted its Response to Petition for Writ of Habeas Corpus (“Comm. Resp.”) on February 28, 2001. On March 23, 2001, we ordered that the Clerk of Quarter Sessions Court of Philadelphia County file with the Clerk of this Court all records of Petitioner’s state court proceedings, and we received such records on April 20, 2001. Petitioner filed a Reply Memorandum in Support of Petition for a Writ of Habeas Corpus (“Pet. Reply Mem.”) on May 10, 2001. After reviewing the entire record and the filings of the parties, we found that Petitioner had shown good cause for us to exercise our discretion and order limited discovery of evidence supporting the claim of racial discrimination in the selection of Petitioner’s jury, which we ordered on July 5, 2001. The parties provided such discovery to each other and the Court by July 24, 2001. Oral arguments thereon were held on August 2, 2001, at which time Petitioner submitted a Motion for Summary Judgment on the
Batson
Claim. On August 6, 2001 we scheduled an evidentiary hearing to be held on August 16, 2001 as to direct appeal counsel’s reasons for not raising the
Batson
claim. On August 14, 2001 the Commonwealth filed a Response to Petitioner’s Motion for Summary Judgment on the
Batson
Claim and a Motion for Reconsideration of Grant of Evidentiary Hearing. The evidentiary hearing was held on August 16, 2001, at which time we denied the Motion for Reconsideration. Both parties filed post-hearing letter-briefs on August 17, 2001. All papers, oral arguments, evidence from the hearing, and the expanded record have been considered herein, except as specifically noted. We have placed the burden of proof on Petitioner to establish by a preponderance of the evidence any or all of the sixteen claims and numerous subclaims included in his Petition, and find that he has satisfied this burden with respect to one of his sub-claims. We therefore vacate Petitioner’s death sentence and remand his case to the Pennsylvania courts with an order that there be a resentencing proceeding.
II. FACTUAL BACKGROUND
The Commonwealth’s evidence at trial consisted primarily of Petitioner’s unsigned statement, the statement and testimony of Shirley “Bones” Baker (Baker), and the testimony of a medical examiner and several police officers.
On May 16, 1980, at approximately 1:45 a.m., police were summoned to the 300 block of West Sedgley Street in Philadelphia, where, lying in the street, was a dead body later identified as Richard Caldwell (“Caldwell” or “the victim”).
Baker was arrested in January 1985 on bench warrants arising from her failure to appear for sentencing on several drug charges. While under arrest, she made a statement to the police regarding her
*468
knowledge of the murder of Caldwell, implicating Petitioner and others. She testified at Petitioner’s trial, and her testimony was consistent in most material aspects with her previous statement.
At trial, Baker described an operation in which she, Petitioner, Danny “Black” Freeman (Freeman), and Caldwell sold heroin for Leroy “Bubbles” Johnson (Johnson). Petitioner obtained heroin from Johnson and then distributed it to Baker, Freeman and Caldwell who sold it on the street. The money was split between the dealers who sold the heroin on the street and Petitioner, who then gave the money to Johnson. In May of 1980, Johnson grew impatient because Caldwell owed him money for drugs he sold. (N.T. 5/19/86 at 70-76, 85.) Petitioner revealed in his statement that Johnson was also angry at Caldwell because Caldwell owed money to a rival drug dealer with whom Johnson wanted to do business, and Caldwell’s debt was interfering with his plans. (N.T. 5/19/86 at 164-165.)
Baker testified that around midnight on May 16, 1980 she was selling heroin at a bar at 7th and Allegheny Avenues in North Philadelphia. Johnson arrived and offered Baker some cocaine, so they left the bar and went to Baker’s apartment. After snorting the cocaine, Petitioner and Freeman arrived, and Petitioner asked to borrow Johnson’s van. Johnson informed them that Caldwell was in the van, and Petitioner replied, “I can take care of that now.” Then, Petitioner and Freeman went upstairs, got a shotgun, and left the apartment. Petitioner and Freeman returned between a half hour and an hour later and whispered with Johnson about shooting and strangling Caldwell. Petitioner, Johnson, and Freeman then left the apartment and Baker returned to the bar. (N.T. 5/19/86 at 79-83; 131.)
Petitioner’s unsigned statement to police made after he was arrested in May 1985 presents a similar account with some significant differences. Petitioner stated that he, Johnson, Baker, and Freeman were all snorting cocaine in Petitioner’s apartment, while Caldwell was passed out in Johnson’s van.
2
Johnson instructed Petitioner to “Go, get on your job.” Petitioner protested, wondering if he might simply hurt Caldwell instead of killing him. Johnson replied, “It’s either you or him.” According to the statement, Johnson had earlier told Petitioner: “When I get him set up take him out and shoot him.” After getting the shotgun and leaving the apartment, Petitioner and Freeman tied Caldwell’s hands together, and drove several blocks to 3rd and Sedgley Streets. They pushed Caldwell out of the van, strangled him, taking turns pulling at a belt around his neck, and each shot him once in the head. They then drove the van back to Seventh Street, and informed Johnson that the job was done. (N.T. 5/19/86 at 161-162.)
The medical examiner, Dr. Halbert Fil-linger, testified that the cause of Caldwell’s death was two shotgun blasts to the head and strangulation by ligature. He revealed that the shotgun wounds had been inflicted at contact range on the right side of the victim’s head, and also testified that a 1.3 cm wide groove extended around the victim’s neck, indicating strangulation. (N.T. 5/19/86 at 57-58, 60.)
Petitioner was tried for the first degree murder of Richard Caldwell, criminal conspiracy and possession of the instrument of a crime. He was convicted by a jury
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and sentenced to death. He has been denied relief from his conviction and sentence both on direct appeal and in state collateral proceedings under the PCRA. He now petitions this court for federal habeas corpus relief pursuant to § 2254 of the AEDPA.
III. DISCUSSION
A. Exhaustion and Procedural Default
Before filing a petition for habeas corpus relief under 28 U.S.C. § 2254 , a petitioner must exhaust all available state court remedies. 28 U.S.C. § 2254 (b)(1)(A). The exhaustion requirement is a rule of comity, not jurisdiction,
Castille v. Peoples,
489 U.S. 346, 349 , 109 S.Ct. 1056 , 103 L.Ed.2d 380 (1989), and is designed to allow state courts the opportunity to correct a state’s alleged violation of federal constitutional law before federal courts consider the matter.
O’Sullivan v. Boerckel,
526 U.S. 838, 844-45 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999). “An applicant shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254 (c).
Exhaustion requires that petitioner fairly present his claims to every level of state court, including offering each claim for discretionary review by a State’s highest court, and afford each reviewing court a fair opportunity to act on those claims.
3
O’Sullivan,
526 U.S. at 845 , 119 S.Ct. 1728 ;
Picard v. Connor,
404 U.S. 270, 275-76 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971). To satisfy the “fair presentation” requirement, the state court pleadings must demonstrate that the legal theory and supporting facts asserted in the federal habeas petition are “substantially equivalent” to those presented to the state courts,
see Doctor v. Walters,
96 F.3d 675, 678 (3d Cir.1996), and the method of legal analysis to be applied in federal court was available to the state courts,
see McCandless v. Vaughn,
172 F.3d 255, 261 (3d Cir.1999).
4
The petitioner bears the burden of proving that he has exhausted available state remedies.
See Landano v. Rafferty,
897 F.2d 661, 668 (3d Cir.1990);
Santana v. Fenton,
685 F.2d 71, 73 (3d Cir.1982). The petitioner is not, however, required to revisit claims raised on direct appeal in state collateral proceedings,
see O’Sullivan,
526 U.S. at 844 , 119 S.Ct. 1728 (citing
Brown v. Allen,
344 U.S. 443, 447 , 73 S.Ct. 397 , 97 L.Ed. 469 (1953)), or seek alternatives to state habeas such as “a suit for injunction, a writ of prohibition, or mandamus or a declaratory judgment in the state
*470
courts.”
Id.
(citing
Wilwording v. Swenson,
404 U.S. 249, 249-50 , 92 S.Ct. 407 , 30 L.Ed.2d 418 (1971) (per curiam)). If the petitioner is unable to prove that all claims in his petition satisfy the statutory exhaustion requirements, his entire petition must be dismissed without prejudice and returned to the state courts for consideration of the unexhausted claims.
Rose v. Lundy,
455 U.S. 509, 522 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982);
Lines v. Larkins,
208 F.3d 153, 159-60 (3d Cir.2000). In the clear absence of any colorable federal claim, unexhausted claims may be dismissed on their merits.
See Lambert v. Blackwell,
134 F.3d 506, 515 (3d Cir.1997) (interpreting 28 U.S.C. § 2254 (b)(2): “An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”).
If, however, state procedural rules bar a petitioner from seeking further relief in state courts, “the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.’ ”
McCandless v. Vaughn,
172 F.3d at 260 (citing 28 U.S.C. § 2254 (b));
see also Gray v. Netherland,
518 U.S. 152, 161-62 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996) (“Because [the exhaustion] ‘requirement ... refers only to remedies still available at the time of the federal petition,’ it is satisfied ‘if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state] law.’ ” (citations omitted));
Coleman v. Thompson,
501 U.S. 722, 732 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991) (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”).
A federal court may not, however, proceed to the merits of a claim simply because that claim satisfies the exhaustion requirement of 28 U.S.C. § 2254 (b)(1)(A) and § 2254(c) because of a lack of available state process. Rather, “[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred.”
Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 ;
see also Lines v. Larkins,
208 F.3d at 160 (quoting
McCandless v. Vaughn,
172 F.3d at 260 ).
Like exhaustion, the procedural default doctrine is based on principles of comity, and is intended to “reducef ] friction between the state and federal court systems by avoiding the ‘unseemliness]’ of a federal district court’s overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.”
O’Sullivan,
526 U.S. at 844-45 , 119 S.Ct. 1728 . A claim is proeedurally defaulted if the state court of last resort refuses to consider its merits.
See Ylst v. Nunnemaker,
501 U.S. 797, 801 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991) (“If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available.”);
County Court v. Allen,
442 U.S. 140, 152-53 , 99 S.Ct. 2213 , 60 L.Ed.2d 777 (1979) (finding that, because the trial court “ruled on the merits” rather than on some state procedural ground, that the court “implicitly decided that there was no procedural default”).
The Commonwealth argues that a number of Petitioner’s claims' or subclaims were not fairly presented, because Petitioner either never raised them at all, or did not analyze them in sufficient depth to put the Pennsylvania Supreme Court on notice that a federal claim was being raised. The Commonwealth further ar
*471
gues that such claims or subclaims would not be reviewable now in state court, because 42 Pa. Cons.Stat. § 9545(b), the timing requirement of PCRA, would bar a subsequent petition by Petitioner, and therefore the exhaustion requirement as to these subclaims is satisfied by procedural default “because there is ‘an absence of available State corrective process.’ ”
McCandless v. Vaughn,
172 F.3d at 260 (citing 28 U.S.C. § 2254 (b)).
We agree with the Commonwealth that any claims not fairly presented by Petitioner could not be raised in state court now because of the operation of § 9545(b).
See Holland v. Horn,
150 F.Supp.2d 706, 721-26 (E.D.Pa.2001). Petitioner had already amended his PCRA petition several times, but he could have amended it again diming the sixty-day window of opportunity from November 17, 1995, when § 9545(b) was enacted, until it took effect on January 16, 1996, to include any omitted claims, without running afoul of the statute’s one year time limit. Not only does § 9545 bar Petitioner from raising any omitted claims in a subsequent PCRA petition; it also causes such claims before us to be procedurally defaulted. Section 9545 is an independent and adequate state ground barring our review of such claims absent a showing of cause and prejudice.
See Holland,
150 F.Supp.2d at 730-40 ;
see also
Part III. B. 2,
infra.
Nearly all of the claims and subclaims explicitly raised by Petitioner are exhausted under 28 U.S.C. § 2254 by virtue of their having been fairly presented in state court. Upon reviewing the state court pleadings and the claims before us, we find that most of the legal theories and supporting facts asserted in the federal habe-as petition are “substantially equivalent” to those presented to the Pennsylvania Supreme Court and Pennsylvania trial courts,
see Doctor v. Walters,
96 F.3d 675, 678 (3d Cir.1996), and the method of legal analysis to be applied by us was available to the state courts,
see McCandless v. Vaughn,
172 F.3d at 261 . Therefore, the vast majority of claims and subclaims explicitly raised are exhausted by virtue of having been fairly presented to the Pennsylvania Supreme Court and trial-level state courts, and the few that were not fairly presented are exhausted by application of the time bar of § 9545(b).
B. Standards of Review
1. Review under the AEDPA
Under the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 , a petitioner may not be granted federal habeas relief if his claims were adjudicated on the merits in state court,
5
unless the state court decision was
*472
(1) ... contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) ... based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d). Factual issues decided by the state court “shah be presumed to be correct. The applicant shah have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254 (e)(1).
6
The “threshold question under AEDPA is whether [petitioner] seeks to apply a rule of law that was clearly established at the time his state court conviction became final.”
Williams v. Taylor,
529 U.S. 362, 390 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). An existing federal law is “clearly established” unless it either “breaks new ground or imposes a new obligation on the States,”
id.
at 391 , 120 S.Ct. 1495 , or was not “dictated” by precedent existing when the petitioner’s conviction became final.
Id.; see also Teague v. Lane,
489 U.S. 288, 301 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). The fact that a federal standard “of necessity requires a case-by-case examination of the evidence, obviates neither the clarity of the rule nor the extent to which the rule must be seen as ‘established’ by this Court.”
Williams,
529 U.S. at 391 , 120 S.Ct. 1495 (citation omitted) (finding the
Strickland
standard for ineffective assistance of counsel to be clearly established).
A state court decision is contrary to federal law as determined by the Supreme Court “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.”
Williams,
529 U.S. at 413 , 120 S.Ct. 1495 . “[I]t is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court’s; rather, the petitioner must demonstrate that Supreme Court precedent
requires
the contrary outcome.”
Matteo v. Superintendent, SCI Albion,
171 F.3d 877, 888 (3d Cir.1999). It is likewise not necessary for a petitioner to cite factually identical Supreme Court precedent. He may instead rely on a Supreme Court rule that, by virtue of its factual similarity or intention to apply to variant factual situations, “can fairly be said to require a particular result in a particular case.”
Id.
at 888-89 .
A state court adjudication is an “unreasonable application” of clearly established federal law if the court “identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of
*473
the prisoner’s case.”
Williams,
529 U.S. at 413 , 120 S.Ct. 1495 . “[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established féderal law was
objectively unreasonable.” Id.
at 409, 120 S.Ct. 1495 (emphasis added). Although the term “unreasonable” is often difficult to define, the most important distinction is that “an
unreasonable
application of federal law is different from an
incorrect
application of federal law.”
Id.
at 410 , 120 S.Ct. 1495 (emphasis in original). A state court decision cannot be found unreasonable unless, “evaluated objectively and on the merits, [it] resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent.”
Matteo,
171 F.3d at 890 . The Third Circuit is of the view that in evaluating reasonableness, federal habeas courts are not precluded from considering the decisions of lower courts.
Matteo,
171 F.3d at 890 (citing
O’Brien v. Dubois,
145 F.3d 16, 25 (1st Cir.1998)). In fact, such lower court decisions may serve as “helpful amplifications” of Supreme Court precedent.
Id.
2. Procedurally Defaulted Claims
A federal claim is procedurally defaulted and federal habeas review of the claim is barred if the state court of last resort refuses to consider its merits,
see Ylst v. Nunnemaker,
501 U.S. 797, 801 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991), if such refusal is “pursuant to an independent and adequate state procedural rule,”
see Coleman v. Thompson,
501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991);
see also Lines v. Larkins,
208 F.3d 153, 160 (3d Cir.2000).
In its decision on Petitioner’s PCRA appeal, the Pennsylvania Supreme Court relied on two procedural grounds to refuse to adjudicate the merits of a number of Petitioner’s federal claims.
See Holloway II,
559 Pa. 258 , 739 A.2d 1039, 1044 (1999). First, it relied on its long-established rule that the failure of trial counsel to contemporaneously object to errors occurring at trial, and thus preserve these issues for appeal, results in a waiver of these issues.
See id.
(citing
Commonwealth v. Williams,
541 Pa. 85 , 660 A.2d 1316 (1995)). Such issues may only be considered on their merits if trial counsel is first shown to be constitutionally ineffective for failing to preserve the issues for appeal, and thus the Pennsylvania Supreme Court considered all such claims raised by Petitioner as claims of trial counsel’s ineffectiveness.
See id.
(citing
Commonwealth v. Albrecht,
554 Pa. 31 , 720 A.2d 693 (1998)). The court also relied on the interplay between two provisions of the PCRA, 42 Pa. Cons.Stat. § 9543(a)(3), which bars the Pennsylvania Supreme Court from hearing any claim that was previously litigated on direct appeal or was waived, and § 9544(b), under which “an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postconviction proceeding,” to find that any claim not raised at trial, on direct appeal, before the PCRA trial court, or any combination thereof, was waived.
Holloway II,
739 A.2d at 1044 . Again, however, such waiver could be overcome if counsel were shown to be constitutionally ineffective for failing to raise such claims at the proper time, and thus all such claims were considered to be, and adjudicated as, claims of ineffectiveness of counsel for failure to timely raise the claims.
Id.
If either of these grounds are independent and adequate state procedural rules, we would be barred from examining
*474
the underlying claims on the merits.
7
A state procedural rule is considered independent if it does not rely on the merits of a federal claim or “rest[ ] its decision primarily on federal law.”
8
Harris v. Reed,
489 U.S. 255, 260-61 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989); see
also Ford v. Stepanik,
1998 WL 297626 , at *3 (E.D.Pa. June 2, 1998). Such a rule is adequate under the procedural default doctrine if it is “firmly established and regularly followed” within the state.
James v. Kentucky,
466 U.S. 341, 348 , 104 S.Ct. 1830 , 80 L.Ed.2d 346 (1984);
see also Ford v. Georgia,
498 U.S. 411, 423-24 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991) (stating that a state procedural rule may not be adequate if “the defendant ... could not be ‘deemed to have been apprised of its existence’ ”);
Johnson v. Mississippi,
486 U.S. 578, 587 , 108 S.Ct. 1981 , 100 L.Ed.2d 575 (1988) (“[A] state procedural ground is not ‘adequate’ unless the procedural rule is ‘strictly or regularly followed.’ ”);
Barr v. City of Columbia,
378 U.S. 146, 149 , 84 S.Ct. 1734 , 12 L.Ed.2d 766 (1964).
But see Jamison v. Collins,
100 F.Supp.2d 521, 559 (S.D.Ohio 1998) (“A state procedural rule that was not firmly established at the time it should have been complied with by the petitioner, and therefore is applied retroactively, is not an adequate state ground that bars federal habeas review.”). The phrase “firmly established and regularly followed” requires that a petitioner have some sort of notice, at the time of his state court procedural default, of a state procedural rule’s potential impact on his case before that rule can be considered adequate.
See Ford v. Georgia,
498 U.S. at 423-24 , 111 S.Ct. 850 ;
N.A.A.C.P. v. Alabama,
357 U.S. 449, 457 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958) (“[A] local procedural rule, although it may now appear in retrospect to form part of a consistent pattern of procedures ... cannot avail the State here, because petitioner could not fairly be deemed to have been apprised of its existence. Novelty in procedural requirements cannot be permitted to thwart review in this Court....”);
Cabrera v. Barbo,
175 F.3d 307, 313 (3d Cir.1999) (“The reason for these requirements is that a petitioner should be on notice of how to present his claims in the state courts if his failure to present them is to bar him from advancing them in a federal court.”). The Third Circuit found this notice requirement satisfied when a presiding judge in a collateral proceeding specifically asked a petitioner if he had anything else to present.
Cabrera,
175 F.3d at 313 (finding that petitioner had “ample opportunity” to present his defaulted claims in state court because “the judge at the hearing repeatedly gave Cabrera, who was present at the hearing, an opportunity to say ‘anything’ ”).
Petitioner asserts that the §§ 9544(b) and 9543(a)(3) rules are not adequate, because the “relaxed waiver” doctrine makes such rules not “firmly established and regularly followed.” Under the “relaxed waiver” doctrine, the Pennsylvania Supreme Court reserved its discretion “to address all issues arising in a death penalty case, irrespective of- a find
*475
ing of waiver.”
Commonwealth v. Travaglia,
541 Pa. 108 , 661 A.2d 352 , 356 n. 6 (1995). Petitioner suggests that the doctrine’s existence led him to believe that his state collateral claims would be preserved despite his violation of §§ 9544(b) and 9543(a)(3), and that he therefore was without proper notice of the statute’s potentially preclusive effect.
We believe that these PCRA rules are adequate state grounds barring our review of the underlying claims on the merits. Petitioner is correct in citing the existence of such a doctrine, at least prior to the PCRA amendments of November 17, 1995, at which time the doctrine appears to have been eradicated by the language of those amendments, which state that “[ejxcept as specifically provided otherwise, all provisions of this subchapter shall apply to
capital
and noncapital cases.” 42 Pa. Cons. Stat. § 9542 (emphasis added). The Pennsylvania Supreme Court verified this interpretation in
Commonwealth v. Peterkin,
554 Pa. 547 , 722 A.2d 638 (1998), in which it upheld the constitutionality of the 1995 PCRA amendments against challenges that they could not, in conjunction with the relaxed waiver doctrine, provide reliable notice of the availability of state collateral review. The clear language of the 1995 amendments, in conjunction with the Pennsylvania Supreme Court’s ruling that the relaxed waiver doctrine could not trump the statute’s authority, leads us to conclude that Petitioner could not have justifiably relied on the relaxed waiver doctrine as grounds for failing to timely raise his claims.
See Holland v. Horn,
150 F.Supp.2d at 722 n. 11 (E.D.Pa. 2001) (finding that to the extent relaxed waiver existed, it ended with the enactment of the 1995 PCRA amendments).
Furthermore, the relaxed waiver doctrine was never as broad or as widespread as Petitioner asserts.
See Commonwealth v. Williams,
541 Pa. 85 , 660 A.2d 1316, 1319-1320 (1995) (‘While we have recognized that waiver rules are often relaxed in capital cases, ... we have held in other capital cases that issues not raised before the trial court were waived.... This Court does not countenance trial counsel intentionally sitting by silently at trial only later to complain of trial errors on appeal after an unfavorable verdict. That a matter is a death penalty case in no way relieves trial counsel of the duty to raise appropriate contemporaneous objections at trial to allow the trial court to cure any alleged error as well as preserve issues for appellate review.”) (citing
Commonwealth v. Goins,
508 Pa. 270 , 495 A.2d 527, 530 (1985) (plurality) (appellant’s claims of prosecutorial misconduct are waived for trial counsel’s failure to object);
Commonwealth v. Peterkin,
511 Pa. 299 , 513 A.2d 373 (1986),
cert. denied,
479 U.S. 1070 , 107 S.Ct. 962 , 93 L.Ed.2d 1010 (1987) (even though issue of whether exclusion of prospective jurors was of constitutional dimension, the issue was waived because defense counsel indicated he had no objection to the challenges for cause of the two jurors);
Commonwealth v. Szuchon,
506 Pa. 228 , 484 A.2d 1365 (1984) (whether prospective jurors were improperly excluded is waived and cannot be addressed for the first time on appeal because trial counsel failed to object to the challenge of prospective jurors or to rehabilitate them through further questioning)). Clearly, relaxed waiver was not so widespread that Petitioner could have justifiably relied on it to believe that the PCRA waiver rules regarding the requirement of raising claims at the earliest opportunity were not “firmly established and regularly followed.”
James v. Kentucky,
466 U.S. 341, 348 , 104 S.Ct. 1830 , 80 L.Ed.2d 346 (1984). The phrase “firmly established and regularly followed” requires that a petitioner have some sort of notice, at the time of his
*476
state court procedural default, of a state procedural rule’s potential impact on his case before that rule can be considered adequate.
See Ford v. Georgia,
498 U.S. 411, 423-24 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991). Nor could Petitioner be deemed not “ ‘to have been apprised of [the] existence’ ” of such rules.
Id.
(quoting
N.A.A.C.P. v. Alabama,
357 U.S. 449, 457 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958)). Because the relaxed waiver doctrine was not so broadly or frequently applied as to justify reliance on it or justify a belief that the PCRA rules at issue were not “firmly established and regularly followed,” we find such rules to be “adequate” so as to bar our direct review of the underlying claims.
Even if the relaxed waiver doctrine were sufficiently widespread such that Petitioner could have believed that any claim not raised on direct appeal could be raised on the merits in his PCRA petition without a showing that direct appeal counsel was ineffective for failing to assert the claim, Petitioner would still be faced, as to many claims, with the waiver that occurred when trial counsel failed to preserve such issues for appeal. Such waiver rests not only on the PCRA rules, but on the longstanding independent rule that any issues not preserved by trial counsel’s contemporaneous objection could only be reviewed as claims of trial counsel’s ineffectiveness for failing to raise them. The “relaxed waiver” doctrine never, or at least rarely, applied to such waivers,
see Commonwealth v. Williams,
660 A.2d at 1316 , and cases cited therein, and therefore the contemporaneous objection rule must also be considered “adequate” so as to bar our direct review of the underlying trial errors.
Federal review of defaulted claims is prohibited, unless Petitioner is able to “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.”
9
Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 . The Supreme Court has identified three circumstances in which procedural default may be excused for cause: (1) if the “factual or legal basis for a claim was not reasonably available to counsel,” (2) “if some interference by officials made compliance [with state procedural rules] impracticable,”
10
or (3) “if the procedural
*477
default is the result of ineffective assistance of counsel.”
11
Murray v. Carrier,
477 U.S. 478, 488 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986). If cause is established, a petitioner must then also demonstrate actual prejudice as a result of the procedural default. Actual prejudice requires that the petitioner “shoulder the burden of showing, not merely that the errors at his trial created a
possibility
of prejudice, but that they worked to his
actual
and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady,
456 U.S. 152, 170 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982) (emphasis in original). Petitioner does not contend that either of the first two circumstances demonstrating cause are relevant to his claims, except as we have explained in note 10, and we agree and so find. Although Petitioner argues that none of his claims are defaulted, he argues that if we were to find such a default, his trial and appellate eoun-
*478
sel were constitutionally ineffective in not raising his defaulted claims. We will therefore limit our analysis of Petitioner’s defaulted claims to the adequacy of his legal representation.
12
Ineffective assistance of counsel is a violation of the Sixth Amendment, which guarantees every defendant “[i]n all criminal prosecutions... the Assistance of Counsel for his defense.” A showing of ineffective assistance requires satisfaction of two components. First, counsel must have been so deficient that his “representation fell below an objective standard of reasonableness.”
Strickland v. Washington,
466 U.S. 668, 688 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Second, a petitioner must show that counsel’s “deficient perfor-manee prejudiced the defense.”
Id.
In determining whether counsel acted reasonably, there remains a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Id.
at 689 , 104 S.Ct. 2052 ;
Diggs v. Owens,
833 F.2d 439, 444-45 (3d Cir.1987). Counsel’s actions are evaluated “ ‘on the facts of the particular case, viewed as of the time of counsel’s conduct.’ ”
Lockhart v. Fretwell,
506 U.S. 364, 371 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993) (quoting
Strickland,
466 U.S. at 690 , 104 S.Ct. 2052 ). A lack of success is not proof of unreasonableness,
see Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 , and strategic and tactical decisions are not grounds for an ineffective assistance claim unless
*479
counsel displayed “ineptitude, inexperience, lack of preparation or unfamiliarity with basic legal principles.”
Commonwealth of the Virgin Islands v. Weatherwax (“Weatherwax I”),
20 F.3d 572, 579 (3d Cir.1994),
rev’d on other grounds, Commonwealth of the
Virgin Islands v. Weatherwax
(“Weatherwax II”),
77 F.3d 1425, 1435 (3d Cir.1996).
Prejudice exists if there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland,
466 U.S. at 694 , 104 S.Ct. 2052 ;
see also United States v. DeRewal,
10 F.3d 100, 104 (3d Cir.1993) (defining prejudice as deprivation of “a trial whose result is reliable”). A reasonable probability is “a probability sufficient to undermine confidence in the outcome.”
Strickland,
466 U.S. at 694 , 104 S.Ct. 2052 . In assessing the likelihood that the result would have been different, courts “must consider the totality of the evidence before the judge or jury.”
Id.
at 695 , 104 S.Ct. 2052 . This standard of prejudice applies when counsel’s deficiencies deprive his client of a substantive or procedural right.
See Williams v. Taylor,
529 U.S. 362, 391-93 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 .
In a limited number of cases, when counsel’s deficiencies do
not
deprive his client of another substantive or procedural right, the
Strickland
prejudice analysis is insufficient to determine whether a petitioner has been deprived of his right to assistance of counsel, and the focus is instead on fundamental fairness.
Williams,
529 U.S. at 391-93 , 120 S.Ct. 1495 (citing
Lockhart,
506 U.S. at 369 , 113 S.Ct. 838 ;
Nix v. Whiteside,
475 U.S. 157, 175 , 106 S.Ct. 988 , 89 L.Ed.2d 123 (1986) (“[T]he ‘benchmark’ of an ineffective assistance claim is the fairness of the adversary proceeding.”)). In order to establish prejudice as a result of deficient representation in such cases, a defendant must demonstrate that “counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”
Lockhart,
506 U.S. at 369 , 113 S.Ct. 838 (citing
Kimmelman v. Morrison,
477 U.S. 365, 374 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986)). When counsel’s deficiency
does
result in the deprivation of a right that his client is entitled to, however, “[c]ases such as
[Nix
and
Lockhart
] do not justify a departure from a straightforward application of
Strickland.” Williams,
529 U.S. at 393 , 120 S.Ct. 1495 .
The prejudice standard applied in the ineffective assistance context is nearly identical to the actual prejudice standard for excusing a procedural default articulated in
Coleman .
As a result, we may rely on any findings of prejudice within our ineffectiveness inquiry to satisfy any claims of actual prejudice to Petitioner. Furthermore, the standard used to determine ineffective assistance as grounds for cause is identical to that applied with respect to substantive claims for relief under the Sixth Amendment. As a result, we rely on our above explanation of the
Strickland
standard in all our ineffective assistance inquiries.
If we find sufficient cause and prejudice under
Coleman
to excuse the procedural default caused by the failure of trial counsel to contemporaneously object, or caused by direct appeal counsel for failure to raise a claim, or both, as would be necessary in some cases, we believe we would then exercise plenary review the of the merits of the underlying claim.
See, e.g., Appel v. Horn,
250 F.3d 203, 210 (3d Cir.2001) (“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
*480
habeas court, the deferential standards provided by AEDPA and explained in
Williams
do not apply ... [and] the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of AEDPA.”);
Hameen v. State of Delaware,
212 F.3d 226, 248 (3d Cir.2000) (“[U]nder the AEDPA the limitation on the granting of an application for a writ of habeas corpus is only ‘with respect to any claim that was adjudicated on the merits in state court proceedings.’ Hence we exercise pre-AEDPA independent judgment....”);
Smallwood v. Gibson,
191 F.3d 1257, 1264 (10th Cir.1999) (finding that under AED-PA “we are generally subject to two different frameworks of review, depending upon whether the state courts addressed the merits of the claim for relief. If the state courts have not heard the claim on its merits, we review the district court’s legal conclusions de novo”). Even if the Pennsylvania Supreme Court determined, in the course of adjudicating a claim of ineffectiveness, that the underlying, procedurally defaulted claim had no merit, we would not be bound by this purported determination of the merits of that claim.
See Sistrunk v. Vaughn,
96 F.3d 666, 673 (3d Cir.1996).
We also note that in
Sistrunk ,
the Third Circuit explained that the doctrine that an independent and adequate state ground bars federal relief “applies whenever the state court relies upon such an adequate and independent state ground, even when it goes on to address the federal claim in am alternative holding.”
Id.
(citing
Harris v. Reed,
489 U.S. 255 , 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989)). The Third Circuit further reasoned that “[i]f federal review of a federal claim is foreclosed when the state court addresses the merits of the federal claim in an alternative holding directed to that claim, surely federal review must also be foreclosed when the state court addresses the merits of the federal claim only in the course of resolving another, independent claim.”
Id.
at 675. Thus, if the Pennsylvania Supreme Court relied upon an independent and adequate state ground with respect to any subclaim and we find the procedural default to be excused, we may examine the underlying claim and apply de novo review to it rather than the AEDPA standard.
See Appel v. Horn,
250 F.3d at 210 ;
Hameen v. State of Delaware,
212 F.3d at 248 . We would still presume that any state court’s factual determinations are correct, rebuttable only on a showing of clear and convincing evidence.
See Appel,
250 F.3d at 210 (citing 28 U.S.C. § 2254 (e)(1));
see also Smallwood,
191 F.3d at 1264 (state court factual findings are reviewed for clear error).
3. Fairly Presented Claims That Were Neither Adjudicated on the Merits, nor Procedurally Defaulted
As with claims for which a procedural default was overcome by a showing of cause and prejudice, we would also review de novo any claim that was not adjudicated on the merits by the Pennsylvania Supreme Court due to the erroneous application of the “previously litigated” bar of 42 Pa. Cons.Stat. § 9543(a)(3) and § 9544(a), because such a bar would not be “adequate” to prevent our review. In the course of deciding Petitioner’s PCRA appeal, the Pennsylvania Supreme Court invoked the “previously litigated” bar to decline to review a number of claims, asserting that it had addressed such claims on direct appeal.
Holloway II,
739 A.2d at 1044 . We respectfully find that, in several instances, some of these claims or subclaims were not actually addressed by the Pennsylvania Supreme Court, even if its decision in
Holloway I
is read broadly. Even though the Pennsylvania Supreme
*481
Court could have properly found such claims to be waived for failure to raise them on direct appeal, it did not rely on that procedural bar, and we are therefore not bound by the existence of such a bar, even though we would be bound by it had the court asserted it. Because such claims are therefore not procedurally defaulted, and were not, in fact, adjudicated on the merits, but were fairly presented, we review them de novo.
See Appel v. Horn,
250 F.3d at 210 ;
Hameen v. State of Delaware,
212 F.3d at 248 .
C. Petitioner’s Substantive Claims
1. Claim I-Exclusion of Evidence of Alleged Accomplice’s Acquittal
Petitioner claims that the exclusion of his knowledge and the knowledge of Detective Gilbert, who interrogated him, of the acquittal of Freeman, offered for the purpose of showing Petitioner’s state of mind and the detective’s motive to fabricate Petitioner’s alleged confession, was a violation of Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment rights to due process, present a defense, and to a fair trial. He also claims that all prior counsel were ineffective to the extent that they failed to fully, timely, and properly raise this issue. Petitioner argues that because he knew that his alleged accomplice, Freeman, had been acquitted, he had a strong motive not to make any statement. According to Petitioner, the only evidence against either Freeman or him was the statement of Shirley Baker, and Freeman was acquitted on that evidence, so Petitioner allegedly reasoned that he would likewise be acquitted, and therefore he never would have made the statement. Petitioner further argues that because the detective also knew of both Freeman’s acquittal and Baker’s testimony, the detective concocted Petitioner’s alleged confession using Baker’s testimony, so that at least someone would be convicted for the Caldwell murder.
Petitioner raised these issues both in his amended PCRA Petition to the PCRA hearing court and in his initial PCRA brief before the Pennsylvania Supreme Court.
13
Because the Pennsylvania Supreme Court found that these issues were not raised on direct appeal or before the PCRA trial court, however, the Pennsylvania Supreme Court deemed them to be waived.
14
Com
*482
monwealth v. Holloway (Holloway II),
559 Pa. 258 , 739 A.2d 1039, 1044-45 (Pa.1999). Because Petitioner alleged ineffectiveness of all prior counsel, however, the court adjudicated the claims from the standpoint of a ineffectiveness claim.
See id.
We must therefore do so as well, applying the AEDPA standard.
In deciding the ineffectiveness claim, the Pennsylvania Supreme Court noted that Petitioner’s underlying federal claim was based on a due process theory, explained the claim, and then decided that the claim had no merit.
See Holloway II,
739 A.2d at 1044-45 . The court then proceeded to examine Petitioner’s state law claim as to the exclusion of this evidence. Petitioner argues that because the case relied upon by the Pennsylvania Supreme Court in this latter discussion,
Commonwealth v. Meredith,
493 Pa. 1 , 425 A.2d 334 (1981), was simply a state law case, and neither it nor any case it cited to discussed due process issues, the court never decided the federal claim. We find that the court did not adjudicate the federal claim within the meaning of the AEDPA, 28 U.S.C. § 2254 (d), but that it adjudicated the claim of ineffectiveness of counsel for failure to raise this evidentiary issue previously on the basis that neither the federal claim nor the state claim had merit.
See Strickland v. Washington,
466 U.S. 668, 691 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (counsel cannot be ineffective for failing to raise a meritless claim). The court’s brief description of Petitioner’s due process claim and the decision that the claim has no merit would suffice for us to conclude that it considered and decided the federal claim so as to be “adjudicated on the merits” for the purpose of applying AEDPA, were the claim in such a procedural posture that the court was examining the claim directly,
see Werts v. Vaughn,
228 F.3d 178, 204 (3d Cir.2000), therefore they suffice for us to conclude that it decided the issue as an underlying basis for the claim of ineffective assistance of counsel.
15
It appears that the court simply moved on to examine the state-law issue without using a transition sentence.
We have reviewed the court’s ineffectiveness adjudication under the AEDPA standard, and we find that it is neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. In the process of our review, we also find that we agree with the Pennsylvania Supreme Court that the underlying claim has no merit. Therefore, not only do we find that the Pennsylvania Supreme Court’s decision must be upheld under the AEDPA and thus deny relief; if we were to examine the underlying claim de novo, either by concluding that it had been fairly presented but not adjudicated on the merits, or after a showing of cause and prejudice, we would likewise deny re
*483
lief.
16
Petitioner argues that under
Chambers v. Mississippi
410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973), and
Crane v. Kentucky,
476 U.S. 683, 689-90 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 (1986),
17
his rights to due process, to present a defense and to a fair trial were violated. He argues that he should have been permitted to offer evidence of his and Detective Gilbert’s knowledge of Freeman’s acquittal solely for the purpose of showing that Petitioner had no motive to make the statement and thus never would have, and that Detective Gilbert had a motive to create the statement.
The Supreme Court has traditionally been reluctant to “impose constitutional constraints on ordinary evidentiary rulings by state trial courts.”
Crane,
476 U.S. at 689 , 106 S.Ct. 2142 . The Constitution gives trial judges “wide latitude” to exclude evidence that is “repetitive,” “only marginally relevant,” or that poses an undue risk of “harassment, prejudice, or confusion of the issues.”
See Delaware v. Van Arsdall,
475 U.S. 673, 679 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986). Further, the Court has “never questioned the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability-even if the defendant would prefer to see the evidence admitted.”
Crane,
476 U.S. at 690 , 106 S.Ct. 2142 (citing
Chambers,
410 U.S. at 302 , 93 S.Ct. 1038 .). Nevertheless, the Court has held in a few limited cases that state court evidentiary rulings violated the defendant’s Fifth or Sixth Amendment rights.
In
Chambers ,
the Court held that under the facts of that case, the defendant’s right to due process was violated. 410 U.S. at 286 , 93 S.Ct. 1038 . The trial court had excluded evidence that a third person on separate occasions orally confessed to three different Mends to the murder for which Chambers was convicted, under circumstances that bore substantial assurances of trustworthiness, as well as evidence that this person made, but later repudiated, a sworn written confession.
Id.
at 287-90 , 93 S.Ct. 1038 . The testimony of the three persons to whom the oral confessions were made, as well as the repudiated written statement were excluded as hearsay, because Mississippi recognized no exception for admissions against penal interest. Further, because of Mississippi’s common-law voucher rule, the trial court prevented Chambers from cross-examining this third person when he called him as a witness. The Court held that, due to this combination of evidentiary rulings, Chambers was deprived of his right to due process. The Court emphasized that it was establishing no new principles of constitutional law and
limited
its holding to the facts and circumstances of the case before it.
Id.
at 302-303 , 93 S.Ct. 1038 . There
*484
fore
Chambers
provides little support for Petitioner.
Crane ,
which dealt with the exclusion of evidence of the circumstances surrounding a confession, is somewhat more helpful to Petitioner and is the standard by which we determine whether the Pennsylvania Supreme Court’s decision that the exclusion of the evidence at issue did not violate Petitioner’s right to due process (and to a fair trial) was an unreasonable application of, or contrary to, federal law. In
Crane ,
the trial court excluded testimony concerning the circumstances of defendant’s confession because it pertained to the issue of voluntariness, which had been resolved against the defendant in a pretrial ruling.
18
476 U.S. at 684-85 , 106 S.Ct. 2142 . The defendant, however, offered the testimony to show that the statement was not credible. The Court held that the exclusion of the testimony deprived the defendant of a fair trial.
In
Crane ,
the Court held that even though a trial court may have ruled on the issue of the voluntariness of a confession, a defendant may offer proof on the circumstances of the confession that go to volun-tariness, not because voluntariness may be relitigated, but because those very same circumstances go to the credibility of the confession, i.e. whether the contents are true, and because such information is particularly relevant where there is no physical evidence linking the defendant to the crime and the entire defense is that, for a variety of reasons, the defendant’s earlier admission of guilt should not be believed. Here, Petitioner wants to offer the circumstance of his state of mind, i.e. of the knowledge that he had, to show that he never would have made the statement he is alleged to have made, and therefore did not make it.
Chambers
deals with the credibility of the confession; the instant case deals with the credibility of the defendant on the stand denying that he made the statement; both are jury issues. The narrow language of
Crane
covers the circumstances in which the confession occurred, i.e. the physical and psychological environment that yielded the confession.
Id.
at 688-89 , 106 S.Ct. 2142 . Under such a reading,
Crane
would not provide an avenue for relief for a defendant who claims that he never even made the statement.
One could also read
Crane
as standing for the proposition that a defendant must be allowed to offer evidence that goes to credibility even though that evidence would be excluded if offered for a different reason, such as a pretrial issue that may not be relitigated or an issue that is otherwise irrelevant.
Crane
instructs that a defendant must have “a meaningful opportunity to present a complete defense” including “an opportunity to be heard.”
Id.
at 690 , 106 S.Ct. 2142 (citing
In re Oliver,
333 U.S. 257, 273 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948)). Such opportunity requires that a defendant be allowed to present “competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence.”
Crane
at 690, 106 S.Ct. 2142 . “[EJxclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecution’s case encounter and ‘survive the crucible of meaningful adversarial testing.’ ”
Id.
at 690-91 , 106 S.Ct. 2142 (quoting
United
*485
States v. Cronic,
466 U.S. 648, 656 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984)). Even under this broader reading of
Crane
Petitioner is not entitled to relief.
Here, the claim that the confession was fabricated was central to Petitioner’s claim of innocence, and the evidence of Freeman’s acquittal and Petitioner’s knowledge thereof was central to Petitioner’s claim that he had no motive to make such a statement, but rather had motive not to make it. For this case to fall within the teaching of
Crane ,
there must be “competent, reliable evidence” that Petitioner knew of Freeman’s acquittal. The only evidence is Petitioner’s statement at the suppression hearing that he knew of the acquittal, as well as Petitioner and his wife’s blurting out at trial that Petitioner knew that Freeman had been acquitted. Such uncorroborated self-serving statements by Petitioner are inherently biased and therefore cannot be said to be competent and reliable. The statement by Petitioner’s wife would seem to be based upon a hearsay statement by Petitioner.
19
Petitioner’s argument also rests on the assumption that because he knew of Freeman’s acquittal, he would have had no motive to confess. This is a faulty assumption. People confess to crimes for a variety of reasons, even when it is not in their interest to do so. Here, there are several obvious reasons Petitioner could have confessed and tried to obtain leniency by implicating Johnson in the murder. First, as the Commonwealth argued at trial, he knew that Baker had implicated him in the murder and was willing to testify at his trial. Second, if he knew of Freeman’s acquittal, he could be concerned that Freeman, his alleged co-conspirator, could make a statement or testify against Petitioner, implicating him in the murder. Freeman could not be retried, even if he implicated himself while implicating Petitioner. Therefore, what may have been the strongest reason for Freeman to refrain from making a statement about Petitioner’s involvement no longer existed. Third, because Freeman had been acquitted, there was a higher likelihood that one of the other suspects in the case, of which Petitioner was one, was the murderer. Any of these motives, alone or in combination, could suffice for Petitioner to confess while attempting to deflect the blame for the murder from himself as much as possible.
Petitioner’s argument also rests on the deduction that he would be acquitted because Freeman had been acquitted on the same evidence. This reasoning is also faulty because there were separate trials and juries, and it also assumes that all of the evidence against each defendant would be the same, and it ignores credibility issues. There is no reason to believe that Petitioner and Freeman were equally credible, or even that each jury would find that the respective defendant was more credible than Baker. Further, the assumption requires that Baker’s statement or testimony implicate both Petitioner and Freeman equally, and that the juries understand that to be the case. Baker’s statement and testimony at the two trials show that it was Petitioner who did most, if not all, of the talking to Johnson, with Baker present, about the murder of Caldwell. Further, Baker testified and stated that Johnson either ordered Petitioner to commit the murder or alerted him to the opportunity to commit the murder. John
*486
son did not direct these comments at Freeman. Rather, it was Petitioner who ordered Freeman to accompany him. With such facts, it would be incorrect to deduce that because Freeman was acquitted, Petitioner would also be acquitted.
Finally, we must note that the reason for which Petitioner sought to introduce the evidence was very close to the' reason for which it may not be offered. Evidence of an alleged co-conspirator’s acquittal may not be introduced to persuade the jury that the defendant should likewise be acquitted.
See, e.g., United States v. Sanders,
95 F.3d 449, 454 (6th Cir.1996);
United States v. Fernandez-Roque,
703 F.2d 808, 813 (5th Cir.1983);
Commonwealth v. Meredith,
493 Pa. 1 , 425 A.2d 334, 337 (1981);
Commonwealth v. Quaranta,
295 Pa. 264 , 145 A. 89, 91-92 (1928);
cf. United States v. Gambino,
818 F.Supp. 536, 539 (E.D.N.Y.1993),
aff'd
59 F.3d 353, 367 (2d Cir.1995) (evidence of defendant’s own prior acquittal is not admissible for purpose of demonstrating government’s motive to fabricate prosecution, based on alleged frustration with its inability to obtain conviction). Petitioner wanted to tell the jury that he himself made that deduction, and therefore he never would have made the statement. Such an offer of proof is tantamount to offering the acquittal for the purpose of enticing the jury to make the same deduction that the Petitioner allegedly made. Athough Judge Sabo could have instructed the jury to limit the use of the evidence of the acquittal, it is doubtful that any instruction would have effectively prevented the jury from using it in just the way defendant claims he did. Therefore, under facts such as these where the impermissible use is inextricably intertwined with the use for which the defendant proffers the evidence, and where the impermissible use is highly likely to confuse the issues and prejudice the jury, the evidence may properly be excluded. Even for the limited reason for which the evidence was proffered, it posed an undue risk of causing confusion of the issues and prejudice against the Commonwealth.
Therefore, we must conclude that the exclusion of this evidence did not violate
Crane .
Thus the decision of the Pennsylvania Supreme Court that the exclusion of this evidence did not deny Petitioner due process of law was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court in
Crane ,
and therefore its decision that counsel was not ineffective was not contrary to, or and unreasonable application of,
Strickland v. Washington.
Further, because in the process of reviewing the reasonableness of this decision we were forced to consider the merits of the underlying claim ourselves, and concluded that
Crane
was not violated, we need not consider this issue further.
2. Claim II-Improper Closing Arguments by the Prosecutor
In his second claim, Petitioner argues that he is entitled to habeas corpus relief because the prosecutor’s closing' arguments were “egregiously improper and violated petitioner’s rights to due process and a fair trial.” (Pet. Mem. L. at 19.) Specifically, Petitioner makes four separate subclaims in support of his larger claim, objecting to various points in the prosecutor’s closing argument that he feels deprived him of his rights. Petitioner alleges that:
1) The prosecutor claimed that Petitioner’s alleged co-conspirator had been convicted, when in fact he had been found not guilty;
2) The prosecutor repeatedly stated his personal belief that Petitioner was guilty;
*487
3) The prosecutor repeatedly stated his personal belief that Petitioner was lying; and
4) The prosecutor stated his belief that Petitioner was a threat to witness Shirley Baker, and she was afraid for her life, although there was no evidence in the record to support either assertion.
Before considering the claims themselves, we must determine whether they are properly before us.
See
28 U.S.C. § 2254 (c). Petitioner’s first three sub-claims were presented both on the merits and as part of claims of ineffective assistance of counsel to the PCRA hearing court in the Supplemental Amended Petition under PCRA and then to the Pennsylvania Supreme Court on PCRA review. Petitioner’s fourth subclaim, that the prosecutor improperly stated his belief that Baker feared Petitioner would kill her, was presented on direct appeal. The Commonwealth argues that this claim was not fairly presented to the Pennsylvania Supreme Court because it was presented in a substantially different form. The Commonwealth offers no explanation for this argument, and the record discloses that the Pennsylvania Supreme Court both heard and ruled on an argument substantially similar to the one presented to this Court.
Holloway I,
572 A.2d at 690 . We therefore find that all four of these subclaims were fairly presented to the PCRA hearing court and the Pennsylvania Supreme Court on their merits, and the first three were also fairly presented as underlying claims of trial counsel’s ineffectiveness for failing to object to the prosecutor’s statements. Consequently, we also find that all of these subclaims, and the ineffectiveness claims as to the first three, are exhausted.
See O’Sullivan v. Boerckel,
526 U.S. 838, 844 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999);
Doctor v. Walters,
96 F.3d 675, 678 (3d Cir.1996).
The, Supreme Court of Pennsylvania treated the first three subclaims as waived on their merits both for the failure of trial counsel to contemporaneously object to the prosecutor’s alleged misconduct, and for the failure of appellate counsel to raise them on direct appeal as required by 42 Pa. Cons.Stat. §§ 9543(a)(3) and 9544(b).
Commonwealth v. Holloway (Holloway II),
559 Pa. 258 , 739 A.2d 1039, 1044-45 (Pa.1999). Because Petitioner alleged ineffectiveness of all prior counsel, however, the court adjudicated these subclaims from the standpoint of ineffectiveness claims.
See id.
We will assume that both of these bases for the waiver are independent and adequate state grounds barring our review of the underlying substantive claims, and that each were properly applied by the Pennsylvania Supreme Court as to these subelaims. Therefore, we will examine the ineffectiveness claims under the AEDPA standard, but we may only examine the underlying claims on the merits if cause and prejudice or a fundamental miscarriage of justice are shown to excuse Petitioner’s procedural default.
See
Part III. B. 2,
supra.
The fourth subclaim will be examined simply as a prosecutorial misconduct claim, reviewed under the AED-PA, because it was raised on direct appeal.
a. Legal Background
There have been numerous cases before the U.S. Supreme Court regarding prose-cutorial misconduct, and the Court has long attempted to define and discourage such actions. Given the wide range of error possible at trial, few prosecutorial misconduct cases have similar fact patterns, but the Supreme Court’s guiding principles are nevertheless controlling. The Supreme Court has maintained stringent conduct requirements for prosecutors since the landmark case
Berger v. United States,
295 U.S. 78 , 55 S.Ct. 629 , 79 L.Ed.
*488
1314 (1935), in which the Court held that the prosecutor carries with him the force and credibility of the government, and thus must act appropriately, with the ultimate goal not simply a conviction, but justice.
The Court has continued to refine these principles. Regarding claims similar to those that Petitioner raises here, the Court has observed that:
Prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.
United States v. Young,
470 U.S. 1, 18 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985).
Under current federal law as determined by the Supreme Court, a federal court reviewing a claim of prosecutorial misconduct must examine the comments of the prosecutor in the context of the trial as a whole.
Id.; Donnelly v. DeChristoforo,
416 U.S. 637, 643 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974). If the alleged misconduct was indeed error, the court must determine if the error so infected the trial as to make the resulting conviction a denial of due process.
Greer v. Miller,
483 U.S. 756, 765 , 107 S.Ct. 3102 , 97 L.Ed.2d 618 (1987). Thus, the ultimate issue under review is the effect of the error on the fairness of the trial itself, rather than the culpability of the prosecutor for committing error.
Smith v. Phillips,
455 U.S. 209, 219 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982).
b. Subclaims I — III: Ineffective Assistance of Counsel Claims
Petitioner raised these claims both on the merits and as ineffective assistance of counsel claims to the Pennsylvania Supreme Court on PCRA appeal. That court deemed the substantive claims to be waived, therefore it only considered the ineffectiveness claims, holding that counsel could not have been ineffective because the underlying claims were without merit. We must review these ineffectiveness claims under the AEDPA. Doing so, we hold that the Pennsylvania Supreme Court’s decision was not an unreasonable application of, or contrary to, U.S. Supreme Court precedent.
20
In his first subclaim, Petitioner maintains that he is entitled to habeas relief because the prosecutor improperly implied that Danny Freeman, an alleged accomplice of Petitioner’s, was convicted, when in fact a jury had found Freeman not guilty. We hold that the Pennsylvania Supreme Court’s denial of relief to Petitioner on this subclaim does not violate the strict standard of the AEDPA, and therefore we deny relief for this claim.
In his closing argument, the prosecutor stated:
You took an oath, ladies and gentlemen of the jury, to decide this case based on
*489
this evidence presented from that witness stand. You didn’t hear anything about Danny Freeman’s case other than from the defendant and the defendant’s wife. Take that testimony. Take it as you take the rest of the things that came out of both their mouths. Let the defendant’ wife, not recalling anything, that the detective said last week, but yet she can tell you in detail what the detective said on the phone this week. Take that testimony from the defendant and put it right next to everything else he told you. See if it has the ring of truth to it. You don’t know what happened to Danny Freeman, and I can’t tell you. The law won’t let me. If you base your verdict in this case, one way or the other, on what you think happened to Danny Freeman after never having the opportunity to hear the case against Danny Freeman, after not knowing what the verdict is against Danny Freeman, you’re going to violate your oaths. And if you ever do find out, you might be surprised of what the verdict was.
(N.T. 5/21/86 at 48.)
Petitioner argues that this subclaim should be considered under a different standard than that of
Greer .
Petitioner contends that the prosecutor’s statements were the equivalent of false testimony and, citing
United States v. Agurs,
427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976), argues that the conduct should be examined under a stricter standard than that of
Greer .
Indeed, Petitioner seems to advocate overturning Petitioner’s conviction for Fourteenth Amendment violations regardless of the substantive effect of the prosecutor’s statement on the trial.
Petitioner is incorrect. The prosecutor’s statements, made in closing arguments, are not evidence and clearly fall under a different standard than that applied in
Agurs
to false testimony knowingly submitted to the court.
21
The claim, along with the other three, should be examined as one of general prosecutorial misconduct, in which we must place the alleged error in the context of the trial as a whole, and determine if the error was sufficient to cause the denial of due process.
Greer,
483 U.S. at 765 , 107 S.Ct. 3102 .
The Pennsylvania Supreme Court dismissed Petitioner’s first subclaim, simply noting, “We find nothing prejudicial about these remarks.” Under the AEDPA, we must defer to this holding, unless we find it to be contrary to, or an unreasonable application of clearly established law. Petitioner has not convinced us that the ruling was contrary to federal law, as his
Agurs
argument is untenable. While unclear, it is certainly possible that the Court viewed the prosecutor’s argument, and particularly his use of the word “surprise” as a benign statement meant to reinforce to the jury its obligation to not consider the Freeman verdict. We cannot say that this interpretation is unreasonable. Thus the Pennsylvania Supreme Court’s decision did not violate the strict standard of the AEDPA, and we deny relief for this subclaim.
22
In his second subclaim, Petitioner maintains that the prosecutor improperly stated his personal belief that petitioner was guilty, thus denying Petitioner his right to due process and a fair trial. The Pennsylvania Supreme Court’s denial of relief to Petitioner on this subclaim was not con
*490
trary to, or an unreasonable application of federal law, and therefore we deny relief for this claim.
The Petitioner specifically objects to the prosecutor’s statement analyzing a possible risk to Shirley Baker’s life because she gave testimony against the Petitioner, “For coming in here and testifying against the guys that did it, what do you think they would like to do to her?” (N.T. 5/21/86 at 59.) The Petitioner objects to the prosecutor’s characterization that he was one of “the guys that did it,” and maintains it deprived him of his rights to due process and a fair trial by prejudicing the jury.
The Pennsylvania Supreme Court dismissed this claim, examining the prosecutor’s statement in the context of his larger argument about the differing motives behind the testimony of Shirley Baker and Petitioner.
23
The court held that within the context of this argument, the prosecutor’s statement was allowable because the defense had previously questioned Baker’s motives for testifying. While this Court might not have adopted this interpretation, we cannot say that it is unreasonable or contrary to clearly established federal law, and we thus deny Petitioner’s claim for relief under the AEDPA.
In this subclaim Petitioner objects to the prosecutor’s specific characterization of him as one of “the guys that did it.” The Pennsylvania Supreme Court, rather than addressing this issue directly, examined the claim in the context of the prosecutor’s entire analysis of the varying motives for testifying. We could examine this statement apart from the prosecutor’s overall argument contrasting the varying motivations of each witnesses. Using this analysis, we could find that the prosecutor’s statement was in error, but even if this were the case, this error did not so infect the trial as to deny the defendant a fair trial.
See Greer,
483 U.S. at 765 , 107 S.Ct. 3102 . Therefore, Petitioner would not be able to overcome his procedural default, because the substantive claim is without merit.
In his third subclaim, Petitioner maintains that the prosecutor improperly implied that Petitioner was lying, and thus deprived Petitioner of a fair trial and due process. We hold that the Pennsylvania Supreme Court’s denial of relief to Petitioner on this subclaim does not violate this strict standard, and therefore we also deny relief for this claim.
Petitioner objects to the prosecutor’s questioning of Petitioner’s motives for testifying in his own defense during closing arguments. The prosecutor stated:
[The] defendant comes in here with his witnesses and he has a motive. This is a capital case, and he knows it. He’s on trial ... [h]e’s on trial for his life. What in the world could be a stronger motivation to lie? What in the world would be a stronger motivation to bring in other people to lie for you?
N.T. 5/21/86 at 58-59.
Petitioner argues, citing
Caldwell v. Russell,
181 F.3d 731 (6th Cir.1999), and
United States v. Rodrigues,
159 F.3d 439 (9th Cir.1998), among others, that the prosecutorial attacks on the integrity and credibility of the defense are error sufficient to overturn conviction. Under the AEDPA and
Tyler v. Cain,
— U.S. -, 121 S.Ct. 2478 , 150 L.Ed.2d 632 (2001), we are required to apply federal law made
*491
retroactive to collateral review by the Supreme Court of the United States, not the Circuit Courts. Thus, Petitioner’s argument simply cannot be persuasive under the strict standards required by the AED-PA, and relief can be denied for this reason alone. Additionally, it is important to note that Petitioner misinterprets and misapplies the cases he does cite.
24
Rather than being an attack of any sort, it is clear that the prosecutor’s statement in this instance was a response to earlier argument by defense counsel, questioning Shirley Baker’s motive for testifying. (N.T. 5/21/86 at 25-26.) The idea of “fair response,” which allows a party to respond to statements made by opposing counsel, is well-established federal law.
United States v. Robinson,
485 U.S. 25, 32 , 108 S.Ct. 864 , 99 L.Ed.2d 23 (1988). Under this standard, it is clear that the prosecutor’s statement was not error.
The Pennsylvania Supreme Court addressed this issue during Petitioner’s PCRA appeal, holding that “the prosecutor did nothing more than invite the jury to consider Appellant’s motives for testifying untruthfully.”
Holloway II,
739 A.2d at 1045 . The Pennsylvania Supreme Court’s ruling was not contrary to federal law, as our own search has revealed no Supreme Court case controlling this issue and Petitioner has cited no Supreme Court precedent that requires a contrary holding by this Court. We also conclude that the Pennsylvania Supreme Court’s decision did not involve an unreasonable application of clearly established federal law, as the idea of “fair response” is well established. Accordingly, we deny Petitioner relief on this subclaim.
Petitioner also maintains that the prosecutor’s comment improperly injected the question of the possible penalty into the jury’s guilt-phase deliberations, citing
Zant v. Stephens,
462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983). The Petitioner’s argument is not convincing.
Zant
merely stands for the proposition that information necessary for penalty-phase sentencing might be prejudicial during guilt-phase deliberations, and thus requires a bifurcated trial. In this case, no information was disclosed in the guilt phase which should have been reserved for the penalty phase, añd
Zant
is not applicable. The jury knew that the Petitioner was charged with a capital crime, having been so instructed during the jury selection. The prosecutor’s statement was not in error, and thus could not have had a prejudicial effect on the trial, nor deprived Petitioner of his due process rights. We therefore deny Petitioner’s claim because it is without merit.
c. Subclaim IV — Review on the Merits under the AEDPA
In his fourth subclaim, Petitioner argues that the prosecutor improperly stated that the witness Shirley Baker feared for her life, and specifically was afraid of retribution from Petitioner. Petitioner contends that there was no evidence in the record to support such assertions, and that the statement improperly prejudiced the jury, depriving him of his right to due process. This subclaim was decided on direct appeal to the Pennsylvania Supreme Court and we therefore review the decision subject to § 2254(d) of the AEDPA. We find that the Pennsylvania Supreme Court’s denial
*492
of relief to Petitioner on this subclaim does not violate the strict standard of the AED-PA, and therefore we deny relief for this claim.
During his closing argument, while attempting to contrast Shirley Baker’s motive for testifying with that of Petitioner, the prosecutor stated:
[ Shirley Baker is] testifying at peril of losing her life ... She knows what goes on in the street, and she knows what happened to her. I mean look, for messing up money, Rickey gets strangled twice, and shot in the head, twice. For coming in here and testifying in a capital murder case against the guys that did it, what do you think they would like to do to her ... What do you think Nasir would like to do to her?
(N.T. 5/21/86 at 59-60.) Petitioner argues that these statements deprived him of a fair trial, by referencing matters outside of evidence. Petitioner also contends that these statements rendered his death sentence fundamentally unfair, because the jury was prejudiced by being led to believe Petitioner posed a future risk to Baker.
The Pennsylvania Supreme Court denied this claim, after hearing it on direct appeal, ruling:
Generally comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Clearly the comments here did not rise to such a level. Furthermore they were logical and proper inferences drawn from the surrounding facts. Most obvious was the fact that the victim had been eliminated for a mere shortage in receipts. That one might fear like revenge for the even worse betrayal of aiding the police, the inferences were in the ambit of fair comment.
Holloway
I, 572 A.2d at 692-93 (citations omitted).
In reviewing Petitioner’s claim, we are bound by the AEDPA. Petitioner cites no controlling cases that lead us to believe the decision of the Pennsylvania Supreme Court was contrary to federal law. Likewise, there is no indication that the decision was unreasonable, as the United States Supreme Court defines it.
25
Under the strict standards of the AEDPA we cannot say that the decision of the Pennsylvania Supreme Court is contrary to or an unreasonable application of federal law, and thus deny relief on this claim.
26
*493
3. Claim III — Racial Discrimination in Juiy Selection
Petitioner claims that he is entitled to a new trial because 'during jury-selection the Commonwealth exercised its peremptory strikes in a racially discriminatory manner in order to exclude African-Americans from his jury in violation of the Equal Protection Clause of the Fourteenth Amendment, U.S. Const, amend. XIV, § 1, as articulated by
Batson v. Kentucky,
476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Petitioner claims that the Commonwealth had no race-neutral reasons for striking these African-Americans and that any race-neutral reasons proffered for the exclusion of such .potential jurors are pretextual. Further, Petitioner claims that a “recently released” Philadelphia District Attorney’s Office (“DA’s Office”) training video, Jury Selection with Jack McMahon, produced approximately one year after Petitioner’s trial, and a recent study of the DA’s Office over a seventeen-year period including this case, David C. Baldus, et al.,
The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis,
3 U.Pa.J. Const.L. 3 (2001) (hereinafter “Baldus study” or “Baldus article”), as well as other evidence, show that the Philadelphia DA’s Office systematically discriminated against African-Americans during' jury selection in violation of
Siuain v. Alabama,
380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965).
27
Petitioner alleges that all prior counsel were ineffective in either failing to raise these claims or failing to properly raise these claims.
Our country has, unfortunately, had a long and ignoble history of both private and official racial discrimination. Racial discrimination by state actors, once condoned by our laws, is now proscribed; yet we must be ever vigilant to recognize and remedy any racial discrimination by state actors that still occurs. Only through such vigilance can we hope to prevent racially discriminatory state action in the future, and ensure that our citizens will be accorded equal justice under law.
*494
The history of racial discrimination in jury selection has mirrored the pattern evident in other areas of civil life. African-Americans were once barred by law from serving on juries. Even after the Supreme Court held that an African-American defendant was denied Equal Protection when members of his race were purposefully excluded from his jury,
Strauder v. West Virginia,
10 Otto 303 , 100 U.S. 303, 310 , 25 L.Ed. 664 (1879), and recognized that such exclusion was likewise a denial of the potential juror’s right to Equal Protection,
id.
at 308 , state actors often unofficially continued to prevent African-Americans from serving on juries because of their race. The Supreme Court has long recognized that when persons are thus denied the opportunity to participate in the administration of the law, the harm extends not only to the potential juror and the defendant, but also to the entire community, because public confidence in the fairness of our judicial system is undermined.
See Batson,
476 U.S. at 87 , 106 S.Ct. 1712 (citing
Ballard v. United States,
329 U.S. 187, 195 , 67 S.Ct. 261 , 91 L.Ed. 181 (1946)). Thus, in
Strauder,
the Court began its long effort to “eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn.”
Batson,
476 U.S. at 85 , 106 S.Ct. 1712 . Eventually, in
Swain v. Alabama,
380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), the Court recognized that racial discrimination in the exercise of peremptory challenges could also be a denial of Equal Protection, but it required a showing of pervasive racial discrimination by prosecutors in the jurisdiction over a long period of time. Finally, in
Batson v. Kentucky,
the Court held that racial discrimination in the exercise of peremptory challenges in the defendant’s own trial, without requiring proof of a history of such discrimination, was a denial of both the defendant’s and the potential jurors’ rights to Equal Protection of Law under the Fourteenth Amendment. 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).
We are concerned by the evidence of possible racial discrimination in the exercise of peremptory challenges by both the Commonwealth and defense counsel at Petitioner’s trial. Such conduct by either party cannot be condoned, but we cannot excuse discrimination by the Commonwealth on the ground that defense counsel also discriminated. All potential jurors have a right not to be excluded on the basis of their race, and a defendant also has a right to a jury from which members of his race were not purposefully excluded on account of their race. We cannot, however, grant relief to the Petitioner on this basis. We are constrained by the procedural posture of the case, the acts and omissions of Petitioner’s prior counsel, and the provisions of Section 104 of the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 , from both reaching the merits of this claim and from granting relief based on our review of the decision of the Pennsylvania Supreme Court on this issue.
a. Record of Voir Dire
During voir dire, after ADA Drew R. Barth’s peremptory challenge of a Black prospective juror, Brenda Forrest, Petitioner’s trial counsel objected that “I believe the District Attorney has now used all his challenges on black jurors. I believe he has developed a pattern of striking them.” (N.T. 5/15/1986, at 129.) A prospective juror was entering the courtroom, so the trial judge, Hon. Albert F. Sabo, deferred discussion of the issue.
Id.
After several other potential jurors had been stricken by agreement or for cause, trial counsel again asserted that the ADA had developed a pattern of striking only Black prospective jurors, and he asked for a
*495
mistrial.
Id.
at 141-42 . In response, Judge Sabo gave the ADA an opportunity to explain his actions by asking: “Does the Commonwealth have anything to say at this time?” ADA Barth responded by confirming that nine jurors had been selected thus far, two of whom were Black.
Id.
at 142 . He also asserted that he had not used his peremptory challenges
exclusively
against Blacks, but had also exercised one of his peremptory challenges to strike a white woman.
Id.
Judge Sabo also noted that the defense also struck a black woman, “juror number eight on yesterday’s list.”
Id.
Defense counsel noted that she had one son who was recently killed and another who was convicted of [either manslaughter or murder.]
Id.
at 142-43 . There was some discussion about whether this son was convicted of manslaughter or murder, because the juror said that he was in jail for life. There was little discussion about whether the ADA was striking African-American venireper-sons because of their race. Judge Sabo ended by saying “I’m talking about the one son that was in there. You also knocked off a potential black juror, but the record will speak for itself. All right, gentlemen.”
Id.
at 143-44 .
An examination of the voir dire sheet contained in the state court record indicates that at this point in the trial, after venireperson Frances Nace had been stricken for cause, the ADA had exercised eight peremptory challenges. Therefore a fair reading of the record indicates that the ADA admitted to having stricken seven African-American potential jurors. At this point of voir dire, defense counsel had exercised fourteen peremptory challenges. Of these fourteen potential jurors, eight had been accepted by the Commonwealth before being peremptorily stricken by defense counsel. The African-American potential juror stricken by defense counsel, “juror number eight,” was stricken when it was defense’s turn to first question the venireperson, therefore this person was not “acceptable to the Commonwealth but stricken by the defense.”
28
Commonwealth v. Holloway (Holloway II),
559 Pa.258, 739 A.2d 1039, 1045 (1999). The notes of voir dire and the voir dire sheet therefore show that at this point during voir dire, none of the venirepersons accepted by the Commonwealth but then stricken by the defense were African-Americans.
Defense counsel exercised four more peremptory strikes; of these potential jurors, only one had first been accepted by the Commonwealth. The notes of voir dire do not reflect the race of this person, Elizabeth A. Dooley (N.T. 5/15/1986, at 186-197). The first of these four, Peter J. Agresti, was identified for the record as a white person by the prosecutor after defense counsel exercised his peremptory challenge. (N.T. 5/15/1986, at 155.)
The Commonwealth exercised four more peremptory strikes, against Starlett J. Sandoval (N.T. 5/15/1986, at 144-50), Robert Keel, Jr. (N.T. 5/15/1986, at 169-71), John W. Hackley, Sr. (N.T. 5/16/1986, at 28-32), and Elouise M. Baldi (N.T. 5/16/1986, at 33-37). After the Commonwealth struck Ms. Sandoval, defense counsel noted for the record, without formally objecting, that she was Black. (N.T. 5/15/1986, at 50.) His assertion is uneon-
*496
troverted in the record. When the Commonwealth struck Mr. Keel, defense counsel again noted for the record, without objecting, that the venireperson was Black. (N.T. 5/15/1986, at 171.) The prosecutor then noted for the record that the venire-person was a “single, young, unemployed, on welfare, black male.”
Id.
After the Commonwealth struck Mr. Hackley, defense counsel noted without objecting that the venireperson was Black. The ADA then noted for the record that the venire-person was a Black male approximately the same age as the defendant. (N.T. 5/16/1986, at 32.) After the Commonwealth exercised its final peremptory challenge, against Ms. Baldi, defense counsel noted that she was Black. (N.T. 5/16/1986, at 37.) The prosecutor also offered reasons for his striking her: she was “a Black female, whose brother-in-law was convicted of narcotics charges. Narcotics would play a central role in the testimony of this case.”
Id.
at 37-38.
The record does not reflect the races of the last three jurors selected-Sydney Bergman, Nicholas J. McGinty, and Brenda J. Ward.
A close reading of the record reveals that the following summary information was therefore available to the Pennsylvania Supreme Court on PCRA appeal: the Commonwealth exercised peremptory challenges against twelve venirepersons, eleven of whom were Black and one of whom was White; nine potential jurors were first accepted by the Commonwealth before being stricken by the defense, but at the most only one of these persons, Elizabeth Dooley, could have been an African-American; of the first nine jurors chosen, two were Black and seven were White; the races of the final three jurors was unknown. Petitioner also asserted on PCRA appeal that in addition to examining the trial record, a comparison of juror names with voter registration records shows that except for the one white woman that the ADA admitted to having stricken, all other venirepersons peremptorily stricken by the Commonwealth were African-Americans, and that all except two jurors were White; however, he presented no actual evidence to the PCRA trial court or the Pennsylvania Supreme Court on PCRA appeal.
b. State Court Proceedings
Trial counsel moved for a mistrial based on the pattern of strikes by the prosecutor, which would have preserved the claims based thereon for appeal. Nevertheless, no such claim was raised in Petitioner’s counseled direct appeal brief.
29
Petitioner did raise both the
Batson
claim as to discrimination in the selection of his jury, and the
Sivain
claim as to systematic discrimination in the selection of juries in Philadelphia County, to the Pennsylvania Supreme Court on PCRA appeal. Petitioner also alleged ineffectiveness of all prior counsel in his PCRA appeal to the Pennsylvania Supreme Court. Because Petitioner failed to raise either the
Batson
or
Swain
claim on direct appeal, the Pennsylvania Supreme Court deemed them to be waived, 42 Pa. Cons.Stat § 9544(b), and held that it was barred from hearing them,
id.
*497
§ 9543(a)(3).
See Commonwealth v. Holloway (Holloway II),
559 Pa.258, 739 A.2d 1039, 1044 (1999). Petitioner’s allegation of ineffectiveness of all prior counsel, however, preserved the underlying
Batson
and
Sivain
claims and overcame the waiver, inasmuch as it allowed the court to consider the Equal Protection claims as an underlying bases for the ineffectiveness claim.
30
See id.;
§ 9543(a)(4). The court expressly mentioned
Batson
and relevant State interpretations of
Batson ,
but not
Sivain,
in its opinion.
Id.
at 1045. Further, in deciding the ineffectiveness claim, the court found that it was unable to determine whether the
Batson
claim had arguable merit. It found that Petitioner had failed to make a record sufficient to consider whether the trial court had improperly failed to find a prima facie case, because he failed to provide specific evidence required by the Pennsylvania Supreme Court to determine whether an intent by the prosecutor to racially discriminate could be inferred. The court did not consider whether the reasons proffered by the prosecutor for his striking two African-Americans were pretextual and entitled Petitioner to a new trial.
c. Legal Background
A defendant has a “right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.”
Batson,
476 U.S. 79, 85-86 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) (citing
Martin v. Texas,
200 U.S. 316, 321 , 26 S.Ct. 338 , 50 L.Ed. 497 (1906)). In order to establish a race-based Equal Protection violation in the selection of his jury, a defendant must show that the prosecutor challenged members of a racial group because of their race “or on the assumption that black jurors as a group will be unable partially to consider the State’s case against a black defendant.”
Batson,
476 U.S. at 89 , 106 S.Ct. 1712 . Previously, in
Swain v. Alabama,
the Court refused to “hold that the striking of Negroes in a particular case is a denial of the equal protection of the laws.” 380 U.S. 202, 221 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965). In order to “preserve the peremptory nature of the prosecutor’s challenge,” the Court declined to examine the
*498
actions of the prosecutor in the trial at issue, instead “relying on a presumption that he properly exercised the State’s challenges.”
Batson,
476 U.S. at 91 , 106 S.Ct. 1712 (citing
Swain
at 221-22, 85 S.Ct. 824 ).
Swain
instead prohibited systematic discrimination against African-Americans such that in case after case they were peremptorily stricken from venires, so as to raise an inference that the prosecutors excluded African-Americans from the defendant’s jury “for reasons wholly unrelated to the outcome of the particular case on trial” or to deny them “the same right and opportunity to participate in the administration of justice enjoyed by the white population.”
Swain,
380 U.S. at 224 , 85 S.Ct. 824 . To show an intent to discriminate such that the peremptory challenge system was “being perverted” in the proscribed manner under
Swain ,
the defendant must show a pervasive systematic discrimination against African-Americans.
31
Swain,
380 U.S. 202, 223-24 , 85 S.Ct. 824 , 13 L.Ed.2d 759 . Such a showing was required as a “predicate for attacking the peremptory strikes as they were used in [Defendant’s] case.”
Swain,
380 U.S. at 226 , 85 S.Ct. 824 .
Batson
overruled
Swain ,
removing the requirement of a showing of systematic discrimination in order to prove an Equal Protection violation.
Batson
also overruled
Swain
to the extent that it had it foreclosed objections to the discriminatory use of peremptories in the course of defendant’s trial.
Batson,
476 U.S. at 90-93 , 106 S.Ct. 1712 .
Batson
“held that a defendant can raise an equal protection challenge to the use of peremptories at his own trial by showing that the prosecutor used them for the purpose of excluding members of the defendant’s race.”
Powers v. Ohio,
499 U.S. 400, 405 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991) (citing
Batson,
476 U.S. at 96 , 106 S.Ct. 1712 ).
The first step in making a
Bat-son
claim is to establish a prima facie case of purposeful discrimination in the selection of the jury. To do so, the defendant must first show “that he is a member of a cognizable racial group” and that the prosecutor has peremptorily stricken members of the defendant’s racial group.
32
Batson,
476 U.S. at 96 , 106 S.Ct. 1712 . Second, the defendant may rely on the fact that peremptory challenges will unfortunately permit “ ‘those to discriminate who are of a mind to discriminate.’”
Id.
(quoting
*499
Avery v. Georgia,
345 U.S. 559, 562 , 73 S.Ct. 891 , 97 L.Ed. 1244 (1953)). “Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the [potential jurors] from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury ... raises the necessary inference of purposeful discrimination.”
Id.
As examples of relevant circumstances that may be examined to infer discriminatory intent, the Court pointed to a “ ‘pattern’ of strikes against black jurors included in the particular venire” and “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges.”
Id.
at 97 , 106 S.Ct. 1712 .
At the next step, after “the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.”
Id.
at 97 , 106 S.Ct. 1712 . It is insufficient and impermissible for the prosecutor to merely state that “he challenged jurors of the defendant’s race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race.”
Id.
Nor may the prosecutor simply deny that he had a discriminatory motive or affirm his good faith in making individual selections.
Id.
at 98 , 106 S.Ct. 1712 . Instead, the prosecutor “must articulate a neutral explanation related to the particular case to be tried.”
Id.
Such an explanation need not be “persuasive, or even plausible,”
Purkett v. Elem,
514 U.S. 765, 768 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995); the explanation merely must be facially valid, with no inherent discriminatory intent.
Hernandez v. New York,
500 U.S. 352, 360 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality opinion).
At step three, the trial court must “determine if the defendant has established purposeful discrimination.”
Batson,
476 U.S. at 98 , 106 S.Ct. 1712 . Such determination requires the trial court to examine the credibility of the prosecutor and decide whether the proffered explanations are pretextual.
The
Batson
Court explicitly declined “to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.”
Id.
at 99 , 106 S.Ct. 1712 .
d.
Swain
Claim
Although the Pennsylvania Supreme Court never expressly mentioned
Swain
in its decision on the claim of ineffective as- ‘ sistance of counsel for failing to raise the claim of racial discrimination in jury selection, we believe that it did consider the
Swain
claim in its adjudication of the ineffective assistance of counsel claim. If we are correct, we must review the ineffectiveness claim raised by Petitioner
33
under the AEDPA’s standard of review, which bars us from granting relief unless the Pennsylvania Supreme Court’s decision was contrary to, or 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). Further, because PCRA’s procedural rules act as an independent and adequate state ground barring us from examining the underlying
Swain
claim on the merits, we may only do so if Petitioner can show cause and prejudice to overcome the procedural default.
See Coleman v. Thompson,
501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). If
*500
we are incorrect, however, that the court considered the
Swain
claim as an underlying basis for the ineffectiveness claim, we would examine the
Swain
claim de novo, because it was fairly presented to the Pennsylvania Supreme Court, not adjudicated on the merits, and there was no ruling by the Pennsylvania Supreme Court that it was procedurally barred from considering the claim.
See, e.g., Appel v. Horn,
250 F.3d 203 (3d Cir.2001).
It was not necessary for the Pennsylvania Supreme Court to mention expressly
Swain
or the evidence of systematic discrimination against African-American jurors that was proffered, i.e., the transcript of the McMahon tape or the Baldus study data, and therefore its decision not to do so was not an unreasonable application of, or contrary to, any U.S. Supreme Court precedent. Even though
Swain
required evidence of systematic discrimination, the heart of a jury selection-based Equal Protection claim raised by a defendant was and still is that potential jurors were excluded from the defendant’s venire or jury because of their race. Evidence of systematic discrimination was only used to show an intent to discriminate in the trial of the defendant; it was not a claim in itself. Under
Swain ,
the record in the defendant’s case could not be used to conclusively show intent to discriminate, but the defendant was nevertheless required to show that members of his racial group were in fact stricken.
See Ford v. Georgia,
498 U.S. 411 , 420 n. 5, 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991) (explaining that reading
Swain
“without the requirement of proving discrimination in the selection of an objecting defendant’s own jury” is impermissible). The Court reiterated its views on the differences between
Batson
and
Swain
several years before
Holloway II
was decided. In
Ford v. Georgia,
the Court explained:
[ bjecause
Batson
did not change the nature of the violation recognized in
Sivain,
but merely the quantum of proof necessary to substantiate a particular claim, it follows that a defendant alleging a violation of equal protection of the law under
Swain
necessarily states an equal protection violation subject to proof under the
Batson
standard of circumstantial evidence as well.
498 U.S. at 420 , 111 S.Ct. 850 . Because
Swain
simply required more proof than
Batson ,
and such excess proof is no longer necessary, it was not unreasonable for the Pennsylvania Supreme Court to focus only on the evidence needed to prove a
Batson
claim, and to ignore the
Swain
claim entirely. In so doing, the court paralleled the analysis of
Ford v. Georgia;
therefore the court’s focus on
Batson
was neither contrary to, nor an unreasonable application of, clearly established federal law as articulated by the Supreme Court of the United States on the subject of Equal Protection violations through racial discrimination in jury selection.
34
*501
Were we to reach and examine the merits of the
Sivain
claim de novo, such as after a finding that the
Sivain
claim was fairly presented but not adjudicated on its merits, after a showing of cause and prejudice under
Coleman ,
or as a required component in showing ineffective assistance of counsel, we would also deny relief. As in
Sivain
itself, the record in the instant case cannot support an inference that the Philadelphia District Attorney, and the Assistant District Attorneys, were bent on striking African-Americans regardless of trial-related considerations.
Swain
at 225-26, 85 S.Ct. 824 . Although the Petitioner has proffered evidence that the Philadelphia District Attorney’s Office may have used race as a factor in jury selection over a substantial period of time, the evidence does not show overwhelming, pervasive discrimination as required by
Sivain. See
note 31,
supra.
In fact, to the extent that the transcript of the McMahon tape is indicative of the policy and practice of the Philadelphia DA’s Office,
see
n. 68
infra,
it suggested both that some classes of African-Americans should be avoided, but also that prosecutors considered certain classes of African-Americans to be highly desirable as jurors (PCRA Br.Pa.S.Ct., App. 3 at 56-59), and that African-Americans were being stricken for trial-related reasons.
(Id.
passim.) Similarly, the Baldus data tends to disprove the overwhelming lack of African-Americans serving on juries that
Swain
required.
35
Both the transcript and the study allow an inference that the Philadelphia DA’s Office intended to discriminate against African-Americans, but they also lead to an inference that the DA’s Office did not intend to discriminate against African-Americans in the way prohibited by
Swain .
Therefore, the burdensome standard of proof required by
Sivain
has not been met, and we would deny a
Swain
claim were it properly before us.
e.
Batson
Claim
Petitioner’s counsel did not raise the
Batson
claim on direct appeal despite the fact that trial counsel objected during voir dire that the prosecutor appeared to be using his peremptory challenges to remove African-Americans from the venire and moved for a mistrial. PCRA counsel alleged ineffectiveness of direct appeal counsel for failing to raise the claim previously. The PCRA bars the Pennsylvania Supreme Court from reviewing claims that could have been brought previously, unless, among other limited exceptions not relevant here, the failure to raise the claim previously was due to ineffective assistance of counsel.
See
Pa. Cons.Stat. §§ 9543(a)(3), 9544(b). The Pennsylvania Supreme Court therefore considered the
Batson
claim not as an independent claim, but only as an issue underlying a claim of ineffective assistance of counsel.
Holloway II,
739 A.2d at 1044 .
In its PCRA opinion, the Pennsylvania Supreme Court first tried to determine whether the Petitioner had shown that the underlying
Batson
claim has merit, because counsel cannot be ineffective for failing to raise a meritless claim.
Strickland,
466 U.S. at 691 , 104 S.Ct. 2052 ;
Commonwealth v. Peterkin,
538 Pa. 455 , 649 A.2d 121 (1994). The court determined that the Petitioner had provided insufficient evi-
*502
denee to allow it to decide whether his
Batson
claim had merit:
Appellant has failed to make a record “identifying the race of venirepersons stricken by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury selected.”
Commonwealth v. Bronshtein,
547 Pa. 460 , 691 A.2d 907 ,
cert. denied, 522
U.S. 936, 118 S.Ct. 346 , 139 L.Ed.2d 269 (1997). “Where an appellant fails to make a record for review of a
Batson
challenge, this Court is unable to consider a claim that the trial court failed to find a prima facie case under
Batson.” Commonwealth v. Spence,
534 Pa. 233 , 627 A.2d 1176 (1993). Therefore, it is impossible to determine if Appellant’s claim has arguable merit.
Holloway II,
739 A.2d at 1045 . The court then noted that “Appellant does not even allege that counsel’s ineffectiveness with respect to this issue ‘so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.’ 42 Pa. Cons.Stat. § 9543(a)(2)(h). Accordingly, no relief is due.”
Holloway II,
739 A.2d at 1045-46 .
The Pennsylvania Supreme Court adjudicated the claim of ineffective assistance of prior counsel for failure to raise the
Batson
claim, deciding that all prior counsel were not ineffective.
36
We must apply the AEDPA in reviewing this decision, and in doing so we conclude that the adjudication of the ineffectiveness claim
37
did not result in a decision that was contrary to, or involved an unreasonable application of, either
Batson
or
Strickland .
28 U.S.C. § 2254 (d)(1). Because we have found that PCRA’s procedural rules act as an independent and adequate state ground that bars us from examining the
Batson
claim on the merits, we may only do so if Petitioner can show cause for and prejudice from the procedural default that resulted from his failure to present the
Bat-son
claim on direct appeal.
See Coleman v. Thompson,
501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). We find that, given the state of the law and the record at the time of direct appeal, direct appeal counsel did not act unreasonably in not raising the
Batson
claim, and therefore cause has not been shown. Even if we were incorrect in finding that the PCRA rules are an independent and adequate state bar, and were required to examine the claim on the merits, we would not find a
Batson
violation on the record before us.
38
*503
(1) Ineffectiveness Claim
Petitioner argues that he is entitled to a new trial because the Pennsylvania Supreme Court’s decision on the ineffectiveness claim resulted in a decision that was contrary to, or involved an unreasonable application of, either
Batson
or
Strickland ,
or both. Petitioner argues that the
Spence
rule is contrary to, or unreasonable application of
Batson ,
and therefore the Pennsylvania Supreme Court erred (1) in not finding a prima facie
Batson
violation based on the record and Petitioner’s examination of voter registration records that purportedly show the races of the potential and chosen jurors; (2) in retroactively applying the Pennsylvania
Spence
rule to him; and (3) in not finding that any violation of the rule was due to ineffective assistance of counsel. He further argues that with respect to the potential jurors for whom the prosecutor offered explanations for his strikes, the issue of a prima facie case is moot, so the
Spence
rule is irrelevant; the Pennsylvania Supreme Court’s adjudication was contrary to, or an unreasonable application of,
Batson ,
because the court should have considered the reasons given by the prosecutor and determined whether there had been a
Batson
violation.
(a) Validity of the
Spence
Rule
Pennsylvania’s requirement that a defendant objecting to a prosecutor’s allegedly discriminatory use of peremptory strikes must identify the race of potential
*504
jurors stricken by the Commonwealth, the race of potential jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury selected was first articulated in
Commonwealth v. Spence,
534 Pa. 233 , 627 A.2d 1176, 1182-83 (1993). By its terms, the
Spence
rule only applies to the record before the appellate court, not before the trial court.
See id.
The Pennsylvania Supreme Court, however, has expanded the rule to require that the defendant make such a complete record before even the trial judge can decide whether there has been a
Batson
violation. In other words, jury selection must be complete before the objection may be ruled upon.
See, e.g., Commonwealth v. Simmons,
541 Pa. 211 , 662 A.2d 621, 631 (1995). The Petitioner argues that this requirement is fundamentally inconsistent with and therefore contrary to
Batson ,
which contemplates that claims of discrimination be contemporaneously raised and resolved. In
Hernandez v. New York,
the U.S. Supreme Court noted that
“Batson
permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process.” 500 U.S. 352, 358 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991).
The timing element of the
Spence
rule is not contrary to
Batson .
The Court declined to create specific procedures for a trial court to follow upon defendant’s timely objection to the prosecutor’s peremptory strikes.
Batson,
476 U.S. at 99 , 106 S.Ct. 1712 . The Court recognized that a variety of jury selection practices are followed by state and federal trial courts, therefore the Court expressly made “no attempt to instruct these courts how to best implement” Batson’s holding.
Id.
at 99 , 106 S.Ct. 1712 n. 24 .
Batson
also contemplated allowing the trial court to choose whether to contemporaneously rule on such objections or wait until the end of jury selection, and if the trial judge found that there had indeed been impermissible discrimination, to strike the whole jury and empanel another.
Id.; see also Hernandez,
500 U.S. at 358 , 111 S.Ct. 1859 (noting that
Batson
permits such contemporaneous rulings, but not stating that
Batson
requires them). If the Court would have left the procedural decision to the trial judge, surely it is permissible for a state supreme court to make that decision on behalf of its trial courts.
Neither is the substance of the
Spence
rule an unreasonable application of
Batson .
The evidence required by the rule would show that members of a racial group were in fact stricken by the government, would help to show the totality of the circumstances surrounding jury selection, and are the underlying facts necessary to determine whether a “pattern of strikes” exercised against members of a racial group exists. Both the Supreme Court in
Batson,
476 U.S. at 97 , 106 S.Ct. 1712 , and the Third Circuit in
United States v. Clemons,
843 F.2d 741, 748 (3d Cir.1988), cite such a “pattern of strikes” as an example of the type of evidence that may be used to raise an inference of intent to discriminate to support a prima facie case. Neither case states that either showing such a pattern or supplying the evidence needed to determine whether there is such a pattern is dispositive. These cases merely indicate that such information is relevant. The Third Circuit reiterated this view in
Simmons v. Beyer,
which concisely set forth five general factors for evaluating a prima facie
Batson
claim. 44 F.3d 1160, 1167 (3d Cir.1995) (“In
[Clemons
] we elaborated on the first step of a
Batson
analysis, listing five factors that are relevant to a prima facie case: (1) the number of racial group members in the panel, (2) the nature of the crime, (3) the race of the defendant and the victim,
*505
(4) a pattern of strikes against racial group members, and (5) the prosecution’s questions and statements during the voir dire.”). Despite the fact that these cases merely suggest examining the evidence that is required by the
Spence
rule, and expressly disavow any binding requirement on trial courts to examine specific types of evidence,
39
we cannot say that the
Spence
rule is an unreasonable application of Batson.
40
All three elements of the rule are individually helpful in determining whether members of a racial group were included in a particular venire and were in fact stricken, and in combination the elements are helpful in determining whether the prosecutor had a discriminatory intent in exercising such challenges.
(b) Application of the
Spence
Rule to Petitioner
The Pennsylvania Supreme Court’s application of the
Spence
rule to Petitioner was not impermissibly retroactive. Petitioner cites to
Ford v. Georgia,
498 U.S. 411 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991), which held that a Georgia rule first announced by state courts in 1987, under which
Batson
claims were deemed waived unless the asserted violation was contemporaneously objected to at trial, could not be retroactively applied to the petitioner, whose trial was held in 1984.
Ford
is inapposite because the
Spence
rule, as applied to Petitioner, does not require that a
trial
record have been made as to the race of potential and chosen jurors. Rather, it required only that the record before the reviewing court contain such evidence.
Spence,
627 A.2d at 1182-83 ;
see also, e.g., Commonwealth v. Simmons,
541 Pa. 211 , 662 A.2d 621, 631 (1995) (“[AJppellant failed to make an adequate record for appeal in that he has done nothing to inform the Court regarding the categories identified in
Spence.”). Spence
was decided in 1993 — after Petitioner’s direct appeal was final. The supplements to the PCRA petition that raised the
Batson
issue were filed in 1994 and 1997, but they contained mere allegations of the race of some jurors. Even
Simmons ,
which showed that it was both necessary and sufficient for the appellate record to reflect the evidence required under the
Spence
rule, was decided July 19, 1995 — ’the same day that Judge Sabo granted Petitioner’s
*506
request for a PCRA evidentiary hearing.
41
The hearing, however, was not held until February 10, 1997. Therefore PCRA counsel was clearly on notice that the races of the jurors had to be proven, not merely alleged, and that this could be done at a PCRA hearing if it had not been done previously. At the PCRA hearing, however, there was no mention of the
Batson
claim. After introducing new evidence on other claims, Petitioner’s counsel rested on the petitions and memoranda that had been filed in the case for his arguments on the various issues. (N.T. PCRA Hrg., 2/10/97 at 11). Judge Sabo asked whether there was anything else to come before him, but counsel failed to mention anything else.
The Pennsylvania Supreme Court’s actual application of the
Spence
rule was not unreasonable and comported with due process. The record provides much of the evidence required under the
Spence
rule, but not all of it.
42
To fill in the holes in the record on PCRA appeal, Petitioner asserted that an analysis of voter registration records shows that races of the jurors and potential jurors as required. Petitioner failed to submit copies of such voter registration records to the state courts at any stage of the PCRA process. Petitioner was clearly on notice of the requirement to provide actual evidence because the issue was addressed in the brief to the Pennsylvania Supreme Court on PCRA appeal, with an argument that it not be retroactively applied to Petitioner. The Petitioner did not explain to the PCRA courts or to this Court the absence of such records at the PCRA appeal level, or allege an inability to submit such records to the Pennsylvania Supreme Court; he merely alleged that such records existed and proved the races of the prospective jurors. We cannot fault the Pennsylvania Supreme Court for adhering to the strict terms of its rule that such evidence be provided.
43
PCRA appellate counsel requested a remand for a hearing to prove the race of the jurors, but the Pennsylvania Supreme Court denied the petition without remanding, and, indeed, without mentioning the request for a remand in its opinion. We cannot say that its refusal to remand was unreasonable. As just discussed, initial PCRA counsel was clearly on notice of the need to develop the record and had considerable opportunity to do so. Further, Petitioner saw fit to submit, for the first time on PCRA appeal, other evidence supporting his claim, such as the transcript
*507
of the McMahon tape and the article on racial discrimination in capital punishment. Voter registration records could have been likewise submitted. There is nothing to indicate that the court would not have considered the voter registration records to be sufficient evidence of the race of the jurors as required by the
Spence
rule.
44
(c) Pennsylvania Supreme Court’s Refusal To Look at Strikes for which Explanations Were Given
The Pennsylvania Supreme Court refused to examine the reasons given by the prosecutor for striking African-Americans despite the fact that the trial judge had never made a finding as to the existence of a prima facie case, ending its examination of the issue because the defendant failed to provide the evidence needed to determine whether a prima facie case existed. We cannot say that this interpretation of
Bat-son
’s burden-shifting provision was unreasonable.
Under some circumstances, when a prosecutor has offered reasons for his strikes without being required to do so by the trial judge, the reviewing court will overlook the Petitioner’s failure to show a prima facie case, or the trial judge’s failure to rule on the issue, as moot.
See Hernandez v. New York,
500 U.S. 352, 358-359 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality opinion). The Court has thus far only held that such is the case when “the trial court has ruled on the ultimate question of intentional discrimination.”
Id.
at 359 , 111 S.Ct. 1859 . The Third Circuit has modified and expanded this principle.
See United States v. Uwaezhoke,
995 F.2d 388, 392 (3d Cir.1993),
cert. denied,
510 U.S. 1091 , 114 S.Ct. 920 , 127 L.Ed.2d 214 (1994) (“If the government is found at any subsequent stage of the case either to have tendered an explanation that is not race neutral or to have acted with racial animus, the conviction must be overturned without regard to whether the defendant established a prima facie case.”).
See also Johnson v. Love,
40 F.3d 658, 665 (3d Cir.1994) (“Where the record as a whole as ultimately developed permits a reasonable argument that the judgment is so tainted, the issue of taint must be resolved; it
*508
cannot be avoided by a finding that the defendant failed to present a prima facie case.”);
United States v. Clemmons,
892 F.2d 1153, 1156 (3d Cir.1989). The Pennsylvania Supreme Court is not bound in any case by the holdings of the Third Circuit. Neither does the Pennsylvania Supreme Court’s decision run afoul of
Hernandez :
the trial court never ruled on the ultimate question of intentional discrimination,
Hernandez,
500 U.S. at 358-59 , 111 S.Ct. 1859 ; and
Hernandez
was decided after Petitioner’s direct appeal became final so Petitioner would not have gotten the benefit of it,
see Williams v. Taylor,
529 U.S. 362, 390, 412 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000), and it was also only a plurality opinion. The court in
Holloivay II
merely adhered to the strict terms of
Batson ,
and thus cannot be said to have applied it unreasonably.
(d) Conclusion
The Pennsylvania Supreme Court, on PCRA appeal, decided that Petitioner had not proven that his prior counsel performed deficiently in failing to raise the
Batson
claim, because the court could not even determine whether the underlying claim had merit. Because we have decided that: Pennsylvania’s
Spence
rule is a not an unreasonable application of
Batson ;
the Pennsylvania Supreme Court’s application of the
Spence
rule to Petitioner was not unreasonable; and that its refusal, in the absence of a finding of a prima facie ease, to look at the explanations for peremptory strikes given by the prosecutor was not an unreasonable decision, we conclude that the Pennsylvania Supreme Court was not unreasonable in finding that the underlying
Batson
claim had not been proven. We find that the court’s adjudication of the ineffectiveness claim, using the finding that the underlying claim had not been proven, was not an unreasonable application of
Strickland ,
because
Strickland
instructs that if the petitioner has not shown that underlying claim has merit, counsel cannot have been ineffective for failing to raise it.
Strickland,
466 U.S. at 691 , 104 S.Ct. 2052 .
(2) Procedurally Defaulted
Batson
Claim
We have found that PCRA’s procedural rules, 42 Pa. Cons.Stat. §§ 9543(a)(3) and 9544(b), act as an independent and adequate state ground that bars us examining the
Batson
claim on the merits, and we may only examine the claim on the merits if Petitioner can show cause for and prejudice from the procedural default that resulted from his failure to present the
Batson
claim on direct appeal.
See Coleman v. Thompson,
501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991); Part III. B. 2,
supra.
Petitioner alleges ineffective assistance of counsel on direct appeal to excuse the default. This allegation has been exhausted, as required,
see Edwards v. Carpenter,
529 U.S. 446, 452 , 120 S.Ct. 1587 , 146 L.Ed.2d 518 (2000);
Murray v. Carrier,
477 U.S. 478, 487-92 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986), by being fairly presented to the PCRA hearing court and to the Pennsylvania Supreme Court on PCRA appeal. We believe our determination of whether ineffective assistance of counsel exists, for the purpose of establishing cause, is de novo, even though we have just held, under the AEDPA standard of review, that the state’s adjudication of the claim of ineffective assistance of direct appeal counsel was not unreasonable.
See Edwards,
529 U.S. at 452-53 , 120 S.Ct. 1587 (applying de novo review to allegations of ineffectiveness of counsel as cause and prejudice to excuse a procedural default); Part III. B.
*509
2
&
n. 12,
supra.
45
We find that, given the state of the law and the record at the time of direct appeal, direct appeal counsel did not act unreasonably in not raising the
Batson
claim, and therefore cause has not been shown.
46
Even if we were incorrect in finding that the PCRA rules are an independent and adequate state bar, and were required to examine the claim on the merits, we would not find a
Batson
violation on the expanded record before us.
47
(a) Further Development of the Facts
The Commonwealth objects to any further development of the facts underlying the
Batson
claim, but we have allowed limited discovery. Petitioner cannot succeed in showing cause for his default unless appellate counsel was ineffective for failing to pursue the
Batson
claim. Counsel cannot have been ineffective if the
Batson
claim had no merit.
See Strickland,
466 U.S. 668, 691 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). As stated, we believe we must look into the existence of cause de novo. Based on our comprehensive review of the record, and considering the Petition and legal memoranda of both parties, we concluded that the Petitioner had shown good cause for us to exercise our discretion and order limited discovery as to this claim pursuant to Rule 6 of the Rules Governing Section 2254 Cases,
48
because such an expanded record might have shown that there had been a prima facie
Batson
violation.
49
If a prima facie
Batson
*510
violation had been shown, the burden of proof would have then shifted to the Commonwealth and required us to give the Commonwealth an opportunity to rebut the prima facie case by offering any race-neutral reasons that the prosecuting ADA might have had for striking African-Americans.
See Batson v. Kentucky,
476 U.S. 79, 97 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). On July 5, 2001, we therefore vacated the portion of our prior order of August 7, 2000 denying discovery as to evidence supporting the claim of racial discrimination in the selection of Petitioner’s jury, and ordered that both the Commonwealth and Petitioner provide to both opposing counsel and the Court such discovery materials as they had in their actual or constructive possession or control regarding the racial composition of the entire venire, the races of the potential jurors challenged by the Commonwealth both for cause and peremptorily, the races of the seated jurors, and the reasons for the Commonwealth’s exercise of peremptory challenges at Petitioner’s trial.
Petitioner provided evidence as to the contents of voter registration records that he had referred to in his Petition, his memoranda of law, and in his brief to the Pennsylvania Supreme Court on PCRA appeal. The data appears to have been derived from a search of a voter registration database in June 1998 and indicates the names, addresses, races and years of birth of some of the venirepersons. The Commonwealth provided a number of documents. First, there was a list of the twelve jurors and two alternates, presumably made by ADA Barth as the jury was selected, or shortly thereafter. The list includes the juror numbers, race and gender, as well as other facts elicited during voir dire, such as whether the person was married or had children, and if so, how many; neighborhood of residence; and type of employment. Second, there were fifteen pages of notes regarding 86 of the 87 venirepersons questioned. For each potential juror, the notes include juror number; race and gender; the disposition of questioning, e.g. peremptory challenge or challenge for cause by the Commonwealth or the defendant; answers to some of the questions propounded by counsel; and occasionally, what may be construed as mental impressions of the ADA. Third, there were six dot-matrix-printed pages listing the jury panels, containing juror numbers and names. Written on these lists were notes, presumably made by ADA Barth, as to the answers given by the
*511
jurors to the questions propounded by Judge Sabo to the panel as a whole before individual questioning began, such as whether anyone personally knew someone involved in the case.
50
If we may look at such evidence for the limited purpose of determining whether cause is present, such evidence confirms that the Commonwealth exercised peremptory challenges against twelve venireper-sons, eleven of whom were Black and one of whom was White. The evidence also confirms that of the first nine jurors chosen, two were Black and seven were White, and shows, for the first time, the races of the final three jurors — two White and one Black. The evidence also shows that none of the nine potential jurors who were first accepted by the Commonwealth before being stricken by the defense were African-Americans.
Based on the discovery evidence submitted by both parties, on July 24, 2001, our deputy clerk contacted counsel for both parties, Thomas W. Dolgenos, Esq., for the Commonwealth and David Wycoff, Esq., for Petitioner, to schedule an evidentiary hearing, pursuant to Rule 8 of the Rules Governing Section 2254 Cases, so the prosecutor in Petitioner’s case, Drew R. Barth, Esq., could authenticate the notes and aid in deciphering any illegible or ambiguous notes.
51
Further, if we would have thereafter found a prima facie
Batson
violation to exist, we could have given him the opportunity to articulate his reasons, if possible more than fifteen years after trial, for exercising peremptory challenges against African-Americans. If we had found a prima facie case, the second step of the
Batson
analysis would have required us to allow the Commonwealth to attempt to provide race-neutral reasons in this way. Unfortunately, Mr. Barth is no longer an ADA with the Philadelphia District Attorney’s Office, but Mr. Dolgenos was able to locate him in another state. Both counsel spoke with Mr. Barth, who informed them that due to a psychiatric disability, he is incapable of testifying at an evidentiary hearing, and he has no specific recollection of the case. On July 25, 2001, we held a telephone conference with both counsel, during which Mr. Dolgenos informed us of the lack of availability of Mr. Barth, and the reasons therefor.
52
Neither counsel disputed that Mr. Barth was unavailable. We requested that counsel examine the evidence and file a joint stipulation as to the contents of the evidence to the extent possible. Counsel agreed to do so, with the Commonwealth preserving its argument that an evidentiary hearing or other factual development at this stage was not proper. We received such stipulations on August 1, 2001, and promptly scheduled, then held, oral arguments on the evidence on August 2, 2001, at which time Petitioner
*512
filed a Motion for Summary Judgment on the
Batson
claim.
53
Thereafter, we realized that because the
Batson
claim had not been raised at the PCRA evidentiary hearing that was held on February 10, 1997, Petitioner’s appellate counsel had never been examined to determine his reasons for not raising the
Batson
claim on direct appeal. Because the reasonableness of his representation would be dispositive of cause to excuse Petitioner’s procedural default of his
Batson
claim, if we found that such claim had merit, we felt it prudent to give him the opportunity to explain himself, if possible, instead of merely relying on case law and our own knowledge and analysis to determine whether he acted reasonably. On August 3 our deputy clerk located Petitioner’s direct appeal counsel, Mr. Robert R. Redmond, in another district. On the same day, we conferred with both counsel on the record by telephone about the possibility of holding an evidentiary hearing or using other methods to take Mr. Redmond’s evidence. On August 6, after considering Petitioner’s letter of that date asserting the need for a hearing,
54
rather than using other means of taking evidence, and of his right and desire to be present; the Commonwealth’s letter of that date objecting to our holding an evidentiary hearing, based on the AEDPA’s restrictions on federal habeas courts’ power to conduct such hearings; and on the oral arguments of counsel via telephone conference call on the propriety of such a hearing, we scheduled a hearing for August 16 to take the evidence of Mr. Redmond.
55
On August 14 the Commonwealth filed a Response to Petitioner’s Motion for Summary Judgment on the
Batson
Claim and a Motion for Reconsideration of Grant of Evidentiary Hearing. The evidentiary hearing was held on August 16, 2001, at which time we denied the Motion for Reconsideration. Both parties filed post-hearing letter-briefs on August 17, 2001.
Based on Mr. Redmond’s testimony at the evidentiary hearing, on both direct and cross-examination, and the exhibits presented at the evidentiary hearing, insofar as they reflect on Mr. Redmond’s credibility, we make the following findings of
*513
fact:
56
1. Mr. Redmond had been practicing law for more than ten years before he was appointed as Petitioner’s direct appeal counsel, handling numerous criminal trial and appellate matters, including trials in which he made a record to establish the facts needed to show a
Batson
claim.
2. Mr. Redmond was aware of the possibility that a
Batson
claim could be asserted on direct appeal in Petitioner’s case, because a motion for a mistrial had been made during voir dire, and a motion for a new trial had been made after Petitioner’s conviction, both based on the allegation that the Commonwealth systematically excluded African-American venirepersons from Petitioner’s jury.
3. Mr. Redmond reviewed the trial record of voir dire and found that it did not clearly disclose the races of all the jurors or the majority of venirepersons peremptorily stricken by the Commonwealth or disclose justifications or attempts at justifications for the majority of the peremptory challenges exercised by the- Commonwealth.
4. Mr. Denker, Petitioner’s trial counsel, was unavailable for questioning by Mr. Redmond to help to build the record of the races of the jurors accepted and the veni-repersons stricken by the Commonwealth.
5. Mr. Redmond felt that the prevailing law did not set forth a clear standard of what actions would constitute a
Batson
claim, or of what type of record would be required in order to prove a
Batson
claim.
*514
6. Mr. Redmond did not pursue the
Bob-son
claim on direct appeal because he felt that the trial record did not contain enough evidence to raise an inference that a prima facie case existed or that there was otherwise a meritful
Batson
claim in light of the prevailing law at the time he filed the appeal.
7. Mr. Redmond felt that, on the basis of the record before him and the uncertainty in the standard to be applied, due to the limited number of cases applying
Batson
at the time he filed the appeal and the uncertainty in the standards to be applied, the claim was weaker than other claims he could raise, and he felt that it was more important to focus on stronger claims.
(b) Reasonableness of Direct Appeal Counsel’s Decision Not To Assert the
Batson
Claim
We find that appellate counsel was not unreasonable for failing to pursue the
Batson
claim. When a petitioner alleges that his attorney was ineffective in pursuing a particular strategy, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 . The Supreme Court held, in
Jones v. Barnes,
463 U.S. 745 , 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983), that “appellate counsel who files a merits brief need not (and should not) raise every nonfrivo-lous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.”
Smith v. Robbins,
528 U.S. 259, 288 , 120 S.Ct. 746 , 145 L.Ed.2d 756 (2000) (citing Jones). In explaining the reasonableness of appellate counsel’s decision not to raise every color-able claim, the
Jones
Court noted that “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 on a few key issues.”
Jones,
463 U.S. at 751 , 103 S.Ct. 3308 . In
Robbins ,
the Court noted that while “it is still possible to bring a
Strickland
claim based on counsel’s failure to raise a particular claim, ... it is difficult to demonstrate that counsel was incompetent.” 528 U.S. at 288 , 120 S.Ct. 746 . Finally, the
Robbins
Court explained that to show counsel acted unreasonably in failing to raise a claim, the petitioner would have to show “that [the] particular nonfrivolous issue was clearly stronger than issues that counsel did present.”
Id.
We have found that Mr. Redmond concluded that the trial record was incomplete, such that it did not contain enough evidence to raise an inference that a prima facie case existed or otherwise included enough evidence to prove a
Batson
violation in light of the prevailing law at the time he filed the direct appeal brief.
57
Be
*515
cause an attorney can reasonably not raise claims that are without merit,
see Strickland,
466 U.S. at 691 , 104 S.Ct. 2052 , or appear to be without merit,
see Robbins,
528 U.S. at 288 , 120 S.Ct. 746 , his decision that the claim was either weak or without merit was reasonable, given the state of the record and the law at that time.
Based on
Commonwealth v. Hardcastle,
519 Pa. 236 , 546 A.2d 1101 (1988), the only opinion of the Pennsylvania Supreme Court applying
Batson
before Petitioner’s direct appeal brief was filed, a reasonable advocate would likely believe that Petitioner’s
Batson
claim had very little chance of success.
58
In
Hardcastle ,
the court found that there had been no
Bat-son
violation upon a pattern of strikes and racial composition of the jury similar to those in Petitioner’s case.
59
Fourteen African-Americans had been questioned during voir dire, and the Commonwealth had exercised twelve of the fifteen peremptory challenges it used against African-Americans. 546 A.2d at 1103 . The resulting jury included one African-American.
Id.
Hardcastle’s trial and judgment of sentence occurred before the
Batson
decision was issued, but Hardcastle’s defense counsel preserved the issue by making a motion for a mistrial, subsequent to voir dire and prior to trial, based on the prosecutor’s impermissible use of the challenges.
Id.
at 1104. The Pennsylvania Supreme Court therefore made “a post hoc evaluation of the record, examining each of the Commonwealth’s fourteen peremptory challenges to determine whether appellant has made out a prima facie case of improper use.”
Id.
Because the prosecutor had never been required to explain the reasons for her strikes, the Pennsylvania Supreme Court canvassed the voir dire transcript in search of race-neutral reasons to justify each of the strikes against African-Americans. The court concluded:
A review of this record indicates that an identifiable reasonable basis for a challenge was available in at least ten of the Commonwealth’s twelve peremptory challenges. In the other two instances the Commonwealth had the opportunity to observe the witnesses and their response to questioning prior to exercising the peremptory challenge. In addition, although the Commonwealth had ample challenges remaining, there were no challenges offered to two black jurors, one of whom ironically was challenged by the defendant. On this record we find that appellant has not made out a prima facie case of the Commonwealth’s improper use of peremptory challenges.
Id.
at 1105.
Based on the facts of the
Hardcastle
case, and the decision and analysis by the Pennsylvania Supreme Court, a reasonable advocate could have believed that Petitioner’s
Batson
claim would have little chance of success before the Pennsylvania Supreme Court. The record of Petitioner’s voir dire showed that eleven of the twelve strikes exercised by the Commonwealth were against African-Americans, and two of the first nine jurors seated were African-Americans, and that defense counsel had also struck an African-American. These facts are substantially similar to the corresponding facts in
Hardcastle ,
and because the race of the final three jurors was
*516
unknown, the case might have seemed even weaker than that in
Hardcastle .
A reasonable advocate could have also expected the Pennsylvania Supreme Court to engage in a “post hoc evaluation of the record” as it did in
Hardcastle ,
looking for race-neutral reasons for the strikes for which no reason was given, and looking for evidence that the reasons given were not pretexts. Based on our review of the record, we believe that such race-neutral or non-pretextual reasons could be found as to each juror stricken, were a court of a mind to find them. A reasonable advocate could as easily come to the same conclusion. Even if the record'did not indicate “an identifiable reasonable basis” for each challenge, as the Pennsylvania Supreme Court had sought in
Hardcastle ,
that court could have again relied on its conclusion that “the Commonwealth had the opportunity to observe the witnesses and their response to questioning prior to exercising the peremptory challenge,” and therefore the challenges must have been reasonable.
Hardcastle,
546 A.2d at 1103 .
The analysis in
Hardcastle
conflates the prima facie case analysis with that of possible race-neutral reasons for strikes and the determination of whether such reasons are pretexts. Given this analysis, a reasonable advocate would have been justified in not proceeding even though the prosecutor in Petitioner’s ease had offered specific reasons for some of his strikes. In addition, no cases binding on the Pennsylvania Supreme Court had yet held that when such reasons had been offered, a court might or must ignore the absence of a prima facie case and examine the reasons to determine whether they were race-neutral or pretexts.
See
Part III. e. (l)(e),
supra.
We find that Petitioner has not shown that the
Batson
claim
clearly
had a better chance of success than issues that counsel did present in the direct appeal,
see Robbins,
528 U.S. at 288 , 120 S.Ct. 746 , because based on the record that he had and the law at the time, he could not have expected the Pennsylvania Supreme Court to find even a prima facie case of racial discrimination in the selection of Petitioner’s jury, and therefore direct appeal counsel was not unreasonable in deciding not to raise the
Batson
claim. Moreover, even on the expanded record before us, we find that Petitioner’s
Batson
claim does not have merit, and therefore direct appeal counsel could not have been unreasonable for failing to raise it.
Strickland,
466 U.S. at 691 , 104 S.Ct. 2052 . Each of these reasons is sufficient for us to find that direct appeal counsel’s representation of Petitioner was not ineffective when he chose not to and did not raise the
Batson
claim, and we do now make such a finding; therefore Petitioner cannot show cause to overcome the procedural default that arose because the claim was not raised on direct appeal.
(c) Lack of a Prima Facie Case
We do not find a prima facie case of a
Batson
violation on the expanded record before us. In
Batson ,
the Court directed that the trial court examine the totality of the circumstances to determine whether the court could infer discriminatory intent on the part of the prosecutor in exercising his peremptory challenges.
Batson,
476 U.S. 79, 97 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). As examples of relevant circumstances that may be examined to infer discriminatory intent, the Court pointed to a “ ‘pattern’ of strikes against black jurors included in the particular venire” and “the prosecutor’s questions and statements during voir dire examination and in exercising his challenges.”
Id.
at 97 , 106 S.Ct. 1712 . The Third Circuit, in
United States v. Clemons,
also directed that trial courts examine all relevant factors, and suggested
*517
five factors types of evidence that would be relevant: (1) the number of racial group members in the panel, (2) the nature of the crime, (3) the race of the defendant and the victim, (4) a pattern of strikes against racial group members, and (5) the prosecution’s questions and statements during the voir dire. 843 F.2d 741, 748 (3d Cir.1988). The Third Circuit made clear that its list was merely illustrative and should not be construed as preventing trial judges from addressing other facts and circumstances.
Id.
Subsequently, in
Jones v. Ryan,
the Third Circuit also directed that statistical disparities should be examined “in determining whether a prima facie case has been established.” 987 F.2d 960 , 971 (3d Cir.1993) (citing
Batson,
476 U.S. at 95 , 106 S.Ct. 1712 (citing
Castaneda v. Partida,
430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977))).
In directing that the totality of the circumstances be examined, the
Clemons
court declined to create a bright line rule as to the number or percentage of challenged Black jurors that might establishing a prima facie case, because such a rule would be “contrary to the letter and spirit of
Batson.” Id.
843 F.2d at 746 . The Third Circuit explained that “striking a single black juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks.”
Id.
at 747 (citing
United States v. Gordon,
817 F.2d 1538, 1541 (11th Cir.1987),
vacated on reh’g in part on other grounds,
836 F.2d 1312 (11th Cir.1988)). The court also “doubt[ed] the significance of including a single black on a panel if, at the same time, the government used most of its peremptory challenges (e.g., thirteen of sixteen) to strike blacks with backgrounds similar to the white jurors ultimately selected. In that case, the mere presence of a single black on the jury would not necessarily prevent a finding of a prima facie case.”
Id. &
n. 4 (citing
United States ex rel. Yates v. Hardiman,
656 F.Supp. 1006, 1016 (N.D.Ill.),
rev’d
830 F.2d 195 (7th Cir.1987), which had this factual situation, not as precedent but “to illustrate the shortcomings of per se rules”). The Third Circuit again noted that it could not “conclude that inclusion of blacks on a jury bars a prima facie case, especially where other facts and circumstances may constitute an inference of prosecutorial discrimination in the selection process.”
Id.
at 748.
Petitioner and the victim are members of the same race, (N.T. 5/19/86, at 57) (testimony of medical examiner that the victim was a “Negro male”), and the crime contains no apparent racial overtones, therefore these considerations do not support the finding of a prima facie case.
The notes of voir dire reveal nothing explicit in the statements or questions of the prosecutor that would indicate that he considered race to be a factor in any way in jury selection. Race was explicitly mentioned only three times during the entire voir dire, and each time defense counsel brought up the subject. In two cases, relatives of the potential jurors had been victims of crime, and defense counsel inquired as to the race of the attackers. In both cases African-Americans were accused of committing the crimes. Both potential jurors indicated that such facts would not influence them in the instant case, the trial of an African-American. As to the first, the Commonwealth found her acceptable, but the Defense exercised a peremptory challenge. As to the second, the Commonwealth challenged for cause because the venireperson indicated that he was unable to impose the death penalty. A third venireperson denied that she would have any difficulty sitting as a juror in a case in which the defendant was
*518
Black, but the defense peremptorily struck her anyway. Therefore, the prosecution’s questions and statements during voir dire do not support the finding of a prima facie case.
For the purposes of discussion we will assume that the notes of voir dire were taken by ADA Drew R. Barth. These notes appear to reflect the race and gender of 86 of 87 of the venirepersons questioned by the court and counsel,
60
including those questioned after the first twelve jurors and before all of the alternates were chosen.
61
Of the 86 persons for whom there was such information, 51 persons were white and 35 were African-Americans. These notes also show that the prosecutor exercised eleven out of twelve, or 91.6 %, of his peremptory challenges against African-Americans, and defense counsel exercised eighteen out of nineteen, or 94.7 %, of his peremptory challenges against whites.
62
Further, the notes, as well as the voter registration records submitted by Petitioner, show that nine jurors were white, three were African-Americans, and both alternates were white.
63
No African-American potential jurors were first accepted by the prosecution but then peremptorily stricken by the defense.
64
We find it more helpful to examine the prosecutor’s peremptory strikes and the resulting racial composition of the trial jury in light of the venirepersons who were not stricken for cause or stricken by
*519
agreement.
65
These venirepersons, rather than the entire venire, are the ones who were actually available for peremptory strikes.
66
If these persons are subjected to analysis, it appears that fifteen African-Americans and twenty-seven whites were available for selection as jurors. In other words, 35.7 % of the pool of persons available to be jurors were African-American, and 64.3 % of this pool were white. The resulting jury was 25
%
African-American and 75 % white, which does not seem to be a large statistical disparity from what was available. Indeed it is a difference of only one juror. Viewing the data in this way, it is very difficult to infer any sort of racial discrimination by the ADA during voir dire. Of course we could look at the data differently, by only examining the pool of persons available to the ADA to strike, i.e. removing from consideration all persons who were stricken by the defense before the ADA had an opportunity to do so: 42.4
%
of the pool were African-Aneriean, and 57.6
%
were White. This would make the statistical disparity greater — two jurors. Instead of focusing on the actual trial jury, we could focus only on the strikes exercised by the prosecutor. He struck 78.6 % of the African-Americans available for him to strike, but struck only 5.3
%
of the whites available for him to strike. Another way of looking at his strikes is that, of the people he could have stricken, 21.4
%
of the African-Americans and 47.4
%
of the whites ended up on the jury. This latter way of looking at the pattern of strikes does not seem nearly as troubling as the former.
The foregoing analysis illustrates the ease of manipulating data or interpreting statistics differently so as to further particular goals.
67
Any number of results are equally possible. We therefore reiterate the need expressed by the Third Circuit to eschew using bright line tests or relying on statistics alone to find a prima facie case, and instead to consider all of the relevant circumstances.
68
After weighing
*520
the foregoing factors, we conclude that a prima facie case has not been established.
69
(d) Explanations Offered by the Prosecutor for His Strikes
Even in the absence of a finding of a prima facie case, we are required to examine any reasons actually given by the prosecutor for his strikes. In
Hernandez v. New York,
a plurality of the U.S. Supreme Court found that the issue of the prima facie case was moot when the prosecutor has attempted to explain the reasons for his peremptory strikes without “prompting or inquiry from the trial court” and “the trial court has ruled on the ultimate question of intentional discrimination.” 500 U.S. 352, 358-359 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991) (plurality) (quoting
United States Postal Service Bd. of Governors v. Aikens,
460 U.S. 711, 715 , 103 S.Ct. 1478 , 75 L.Ed.2d 403 (1983) (“Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.”)) Even before
Hernandez ,
the Third Circuit examined any such reasons proffered by a prosecutor before a prima facie case had been found.
See United States v. Clemmons,
892 F.2d 1153, 1155-56 (3d Cir.1989) (“In addition, independent of the strength of the evidence tendered as a prima facie case, once a prosecutor attempts to explain a peremptory challenge, we believe the trial and reviewing courts should look to the entire record to determine if intentional discrimination is present. If the prosecutor’s explanation raises more concern than it puts to rest, courts cannot effectively close their eyes to that fact by simply deciding that the defendant has not made out a prima facie case.”);
see also United States v. Clemons,
843 F.2d 741, 748-49 (3d Cir.1988) (examining reasons offered by prosecutor after the district court ordered him to do so, “out of an abundance of caution,” even though the district court never made a finding that a prima facie case existed).
The Third Circuit has modified and expanded this principle. In
United States v. Uwaezhoke,
the prosecutor, in response to a question from the trial court before it had ruled on the prima facie case issue, explained why he had exercised his peremptory challenge. 995 F.2d 388 (3d Cir.1993), ce
rt. denied,
510 U.S. 1091 , 114 S.Ct. 920 , 127 L.Ed.2d 214 (1994). In subsequently examining the
Batson
claim, the Third Circuit held: “If the government is found at any subsequent stage of the case either to have tendered an explanation that is not race neutral or to have acted with racial animus, the conviction must be overturned without regard to whether the defendant established a prima facie case.”.
Id.
at 392. In
Johnson v. Love,
the Third Circuit explained that its precedent required it to consider explanations of prosecutors made even in the absence of a finding of a prima facie case, but it also noted that the record before it reflected a prima
*521
facie case. 40 F.3d 658, 663-64 (3d Cir.1994) (citing
Hernandez, Uwaezhoke,
and
Clemmons
approvingly). Therefore we will examine the actual statements offered by the prosecutor that appear in the record of testimony of voir dire, even though Judge Sabo never made a finding that a prima facie ease existed.
70
In doing so, we find that the reasons given by the prosecutor were race-neutral, even though the race of each juror is mentioned in the explanation, and that these reasons are not pretextual.
During voir dire, after ADA Barth’s peremptory challenge of a Black prospective juror, Brenda Forrest, Petitioner’s trial counsel objected that “I believe the District Attorney has now used all his challenges on black jurors. I believe he has developed a pattern of striking them.” (N.T. 5/15/1986, at 129.) Judge Sabo deferred discussion of the issue.
Id.
After the ADA struck another African-American, defense counsel again asserted that the ADA had developed a pattern of striking only Black prospective jurors, that only two of the nine jurors selected were Black, and then he asked for a mistrial.
Id.
at 141-42. In response, Judge Sabo gave the ADA an opportunity to explain his actions by asking: “Does the Commonwealth have anything to say at this time?” ADA Barth responded:
Sure, Judge. As Mr. Denker has indicated, number one, we have nine seated in the box, two of whom are black. One black male and one black female. Mr. Denker is incorrect when he tells the Court that I have used my pre-empts exclusively on blacks, that’s not true. I’ve struck a white woman also.
Id.
at 142. ADA Barth said nothing further on the topic at that time. Instead, Judge Sabo noted that the defense also struck a black woman, “juror number eight on yesterday’s list.”
Id.
Thereafter Judge Sabo discussed this juror and the possible reasons that Mr. Denker struck her, and then ended discussion on the topic, taking a recess.
Id.
at 142-44.
In his Motion for Summary Judgment on the
Batson
Claim, Petitioner encourages us to consider the statement by ADA Barth to be a failure to give race-neutral reasons for his strikes in response to Judge Sabo’s inquiry, and find that his statements were not race-neutral reasons, or any type of reason for the strikes. (Mot. Summ. J. at 5-8.) Petitioner asserts that the statements are at most nothing more than generalized denials of discrimination, which do not satisfy Batson’s requirement that race-neutral reasons be
*522
given.
Batson,
476 U.S. at 98 , 106 S.Ct. 1712 (“Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirming his good faith in making individual selections.’ ”) (quoting
Alexander v. Louisiana,
405 U.S. 625, 632 , 92 S.Ct. 1221 , 31 L.Ed.2d 536 (1972)). We agree that these statements were not “any type of reason” for the strikes, but we disagree that they were generalized denials of discrimination as prohibited by
Batson .
The statement is, as a whole, ambiguous as to the intention of the ADA in making it. One could infer that the ADA was denying that he had a discriminatory motive, but one could as easily infer-and indeed, need not infer, just take the literal meaning of his statement-that the ADA was merely confirming the number of African-Americans seated on the jury as that which had been asserted by defense counsel, but then pointing out that defense counsel’s assertion as to his exercise of peremptory challenges was incorrect. Because the intention of the statement is ambiguous, and because when it was made, the trial court had not found a prima facie, we cannot assume that ADA Barth’s statements were actually an attempt to give reasons of the sort required by
Batson .
Therefore, we can consider such statements to be neither an attempt to rebut a prima facie case, nor an explanation that should be regarded such, so as to require our examination of it under
Johnson v. Love,
40 F.3d 658 (3d Cir.1994), and similar cases previously discussed.
Petitioner also argues that the notes of voir dire reveal that in the cases of two of the three African-American venirepersons for whom the prosecutor gave reasons for exercising peremptory strikes, Robert Keel and John Hackley Sr., the reasons given were not race-neutral and were pre-textual. We find that the reasons given by the prosecutor were race-neutral, even though the race of each juror is mentioned in the explanation, because the record clearly shows a give-and-take between defense counsel and the ADA in which defense counsel identified the stricken jurors as Blacks, and the ADA acknowledged that they were Black, and then noted other identifying characteristics or reasons for striking them.
Wh
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