# Porter v. Horn

> District Court, E.D. Pennsylvania · June 26, 2003 · 276 F. Supp. 2d 278

URL: https://www.frixlaw.com/law-library/cases/2465303

## Case

- **Full name:** Ernest PORTER, Plaintiff, v. Martin HORN, Et Al., Defendants
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** June 26, 2003
- **Citations:** 276 F. Supp. 2d 278; 2003 U.S. Dist. LEXIS 11352; 2003 WL 21947144
- **Precedential status:** Published
- **Opinion:** Opinion by Kelly
- **Judges:** Robert F. Kelly
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2465303

## Opinion text

MEMORANDUM
ROBERT F. KELLY, Senior District Judge.
Before this Court is the Petition for a Writ of Habeas Corpus filed by Petitioner Ernest Porter (“Petitioner”).
1
Under 28 U.S.C. § 2254 , Petitioner presents fourteen claims in support of his Petition for habeas corpus relief from his state murder conviction and subsequent death sentence.
2
Petitioner’s fourteen claims assert constitutional error in both the guilt phase and sentencing phase of his trial. For the reasons set forth below, the Petition for a Writ of Habeas Corpus is granted in part and denied in part. I will grant the Petition with regard to Claim Y, asserting error in the penalty phase of Petitioner’s trial. As a result, Petitioner’s death sentence is vacated. Petitioner’s case is remanded to the Commonwealth of Pennsylvania to either sentence Petitioner to life imprisonment or to conduct such further proceedings as may be appropriate under state law. Even though I shall grant the Petition for a Writ of Habeas Corpus with respect to the penalty phase of trial, I will deny the Petition with respect to each claim challenging Petitioner’s conviction of first-degree murder.
1.
FACTUAL BACKGROUND
3
Raymond Fiss, owner of Mr. Fiss’s Beauty Shop, was shot to death in his shop
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on the morning of April 27, 1985. At approximately 7:30 a.m., Angelina Spera, a neighbor who lives directly across the street from the beauty shop, was looking out her window. Mrs. Spera saw a black man push Mr. Fiss into the shop as he was opening the shop door and heard Mr. Fiss cry out, “Get the hell out of here.” Mrs. Spera called the police and returned to the window in time to see Catherine Valente approaching the shop. Mrs. Valente was a customer of Mr. Fiss who had a hair appointment scheduled for that morning. As Mrs. Valente opened the shop door, she saw a man standing inside with a yellow bag in his hand. The man rushed past Mrs. Valente to exit the shop, saying “I’ll be back.” The man then got into Mr. Fiss’s car, which was parked at the curb outside of the shop, and drove off. Mrs. Valente found Mr. Fiss’s lifeless body laying in the bathroom of the shop. Mr. Fiss was killed by a single gunshot wound from a .38 caliber handgun. He had left that morning with approximately thirty to fifty dollars in cash, but was found without any money and with his left pants pocket turned inside-out. The killer did manage to escape, however, both Mrs. Spera and Mrs. Valente gave descriptions of the killer to the police.
4
On April 30, 1985, three days after the shooting of Mr. Fiss, Petitioner and two other men robbed a Philadelphia jewelry store at gun point. Police arrived at the store while the crime was in progress because the store’s proprietor, Vincent Gentile, activated a silent alarm. A foot chase ensued between the police and Petitioner. As he was being chased, Petitioner discarded a .38 caliber Colt revolver under a parked car. According to ballistics tests later performed by the police, the discarded revolver had fired the fatal bullet that killed Mr. Fiss. Petitioner was apprehended and was subsequently charged and found guilty for the murder of Mr. Fiss.
II.
PROCEDURAL HISTORY
Before the Honorable Albert F. Sabo, Petitioner was tried by a jury in the Philadelphia County Court of Common Pleas. Petitioner was represented by Michael G. Floyd, Esq. (“trial counsel”). On February 26,1986, Petitioner was found guilty of murder in the first degree, robbery and possessing an instrument of crime.
5
On February 27,1986, after the penalty phase, the jury found that there was one aggravating circumstance, the killing was committed during the perpetration of a felony, and no mitigating circumstances.
See
42 Pa.C.S. § 9711(d)(6). As a result, the jury returned a sentence of death. Following the penalty phase and prior to the formal imposition of sentence, the trial court deferred sentencing pending the outcome of a court ordered psychiatric examination of Petitioner and the disposal of Petitioner’s post-trial motions. After the result of Petitioner’s psychiatric examination and the court’s denial of Petitioner’s post-trial motions, the judgment of sentence was entered on June 26, 1986. In addition to the death sentence, the sentencing judge also sentenced Petitioner to a consecutive sentence of ten to twenty years on the rob
*290
bery conviction and two and one-half to five years on the conviction for possession of an instrument of crime.
*289
18 Pa.C.S. § 3701 — Robbery.
18 Pa.C.S. § 907 — Possessing an instrument of crime.
*290
Represented by new counsel, George H. Newman, Esq. (“appellate counsel”), Petitioner directly appealed the judgments of sentence to the Supreme Court of Pennsylvania. On February 8, 1990, the Pennsylvania Supreme Court affirmed the judgment of sentence.
Porter I,
524 Pa. 162 , 569 A.2d 942 . The United States Supreme Court denied
certiorari
on October 15, 1990.
Porter v. Pennsylvania,
498 U.S. 925 , 111 S.Ct. 307 , 112 L.Ed.2d 260 (1990). On September 7, 1994, Petitioner filed a
pro se
petition under the Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S. § 9541
et seq.
A substituted petition was filed under the PCRA on March 23, 1995. Ronald J. Sharper, Esq. was appointed to represent and assist Petitioner. Pursuant to
Commonwealth v. Turner,
518 Pa. 491 , 544 A.2d 927 (1988), Mr. Sharper filed a “no merit” letter with the court, stating the issues raised in Petitioner’s PCRA petition were without merit and that his review of the case revealed no additional issues which could be raised in an amended petition.
6
The PCRA court conducted a hearing and, subsequently, on May 25, 1995, the PCRA court permitted Mr. Sharper to withdraw as counsel and dismissed Petitioner’s petition.
Represented by current counsel, Billy Ñolas, Esq., Petitioner filed an appeal to the Pennsylvania Supreme Court on June 22, 1995.
7
On March 16, 1999, the Pennsylvania Supreme Court affirmed the PCRA court’s denial of PCRA relief.
Commonwealth v. Porter,
556 Pa. 301 , 728 A.2d 890
(1999)(“Porter II”).
Subsequently, Petitioner filed a petition for reconsideration, which was denied on April 19,1999.
On January 18, 2000, Petitioner filed the instant Petition for a Writ of Habeas Corpus with this Court. On May 22, 2000, Petitioner filed his memorandum of law regarding the Antiterrorism and Effective Death Penalty Act of 1996 (the “AED-PA”). In response, the Commonwealth filed its Memorandum of Law on October 30, 2000. On January 10, 2001, Petitioner filed his Reply Memorandum. The Court conducted a multi-part evidentiary hearing requiring numerous hearings which were intermittently conducted in July 2002, September 2002 and November 2002. The Court’s evidentiary hearing was limited solely to a few specific guilt phase claims. Petitioner filed a Post-Hearing Memorandum on January 22, 2003. On January 24, 2003, Respondents filed their Post-Hearing Brief.
III.
APPLICATION OF 28 U.S.C. § 2254
A.
28 U.S.C § 2254
1. Introduction to 28 U.S.C. § 2254
Petitioner brought his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Section 2254”). Section 2254 provides, in relevant part, that the court “shall entertain an application for a
*291
writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (a)(2000). Accordingly, “the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.”
Preiser v. Rodriguez,
411 U.S. 475, 484 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973). In 1996, Section 2254 was amended by the Antiterrorism and Effective Death Penalty Act of 1996.
8
The “AEDPA amended the federal habeas statutes, codifying limitations on the conditions under which the federal courts may grant either a writ of habeas corpus or an evi-dentiary hearing on a petition for such a writ.”
Henry v. Horn,
218 F.Supp.2d 671, 681 (E.D.Pa.2002) (citations omitted). Specifically, “[t]he AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts.”
Werts v. Vaughn,
228 F.3d 178, 196 (3d Cir.2000)(citing
Dickerson v. Vaughn,
90 F.3d 87, 90 (3d Cir.1996)).
2. Threshold Requirements Under 28 U.S.C. § 2254
a. Exhaustion and Procedural Default
Certain threshold requirements must be satisfied in order for a federal court to reach the merits of a Section 2254 petition.
Henry,
218 F.Supp.2d at 681 . “Two of these requirements, with respect to each claim in the petition, are that (1) petitioner has exhausted available state court remedies and (2) the claim has not been procedurally defaulted.”
Id.
(citing 28 U.S.C. § 2254 (b)(1)(A);
Coleman v. Thompson,
501 U.S. 722, 729-32 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991)).
1.) Exhaustion of State Court Remedies
“In the case of a person incarcerated from a judgment of a state court, a prerequisite to federal habeas review is that the petitioner have exhausted the remedies available to him in the state courts to the extent such remedies exist and are effective.”
Werts,
228 F.3d at 192 (citing 28 U.S.C. § 2254 (b)(1)). The exhaustion requirement is established on the principle of comity which ensures that state courts are allowed the first opportunity to review challenges to state convictions based upon federal constitutional grounds and upholds the role of state courts in the protection of federally guaranteed rights.
Id.
(citations omitted). Specifically, 28 U.S.C. § 2254 (b) provides the following:
(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(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.
(3) A State shall not be deemed to have waived the exhaustion requirement or be
*292
estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
28 U.S.C. § 2254 (b)(2000). In furtherance of the exhaustion requirement, 28 U.S.C. § 2254 (c) provides that “[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, 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)(2000).
In the habeas context, exhaustion “requires only that the same issues, or issues ‘substantially equivalent’ thereto, have been ‘fairly presented’ to the state courts.”
Bronshtein v. Horn,
No. 99-2186, 2001 WL 767593 , at *3 (E.D.Pa. July 5, 2001)(citing
Lambert v. Blackwell,
134 F.3d 506, 513 (3d Cir.1997)). In order to satisfy the exhaustion requirement, “the petitioner must ‘afford each level of the state courts a fair opportunity to address the claim.’ ”
Laird v. Horn,
159 F.Supp.2d 58, 69 (E.D.Pa.2001)(quoting
Doctor v. Walters,
96 F.3d 675, 678 (3d Cir.1996);
McCandless v. Vaughn,
172 F.3d 255, 260 (3d Cir.1999)). “More specifically, a habeas petitioner ‘must present a federal claim’s factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.’”
Id.
(quoting
McCandless,
172 F.3d at 261 ). It is insufficient to make a “somewhat similar state-law claim.”
Id.
(citing
McCandless,
172 F.3d at 261 ). The burden of establishing that a habeas claim was fairly presented to the state courts falls upon the petitioner.
See Lines v. Larkins,
208 F.3d 153, 159 (3d Cir.2000).
Generally, in the case where a petitioner has failed to exhaust all of the claims contained in his federal habeas petition, the federal court must dismiss the petition, allowing the petitioner to return to the state courts and exhaust any unex-hausted claims.
Henry,
218 F.Supp.2d at 682 (citations omitted). “Under the ‘futility exception’ to the exhaustion requirement, if state procedural rules bar the applicant from seeking further relief on the unexhausted claims in the state courts, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.’ ”
Id.
(citing 28 U.S.C. § 2254 (b);
Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 ;
Lines,
208 F.3d at 165-66 ). However, in the case where “the futility exception applies, the claim is considered to be procedurally defaulted and may only be reached by federal courts if petitioner makes the standard showing of ‘cause and prejudice’ or establishes a fundamental miscarriage of justice.”
Id.
(citing
Lines,
208 F.3d at 166 ).
2.) Procedural Default
As explained above, claims deemed exhausted because
of
a state procedural rule are considered “procedurally defaulted.”
Peterkin v. Horn,
176 F.Supp.2d 342, 353 (E.D.Pa.2001) (citations omitted). Federal courts may not consider the merits of a procedurally defaulted claim “unless the petitioner demonstrates that (1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered.” Id. (citations omitted).
a.) Independent and Adequate State Procedural Grounds
“The doctrine of procedural default ... prevents a federal habeas court from addressing a question of federal law decided by a state court ‘if the decision of that court rests on a state law ground that is
*293
independent of the federal question and adequate to support the judgment.’ ”
Jermyn v. Horn,
266 F.3d 257, 278 (3d Cir.2001)(quoting
Coleman,
501 U.S. at 729 , 111 S.Ct. 2546 ). A state procedural rule is “independent” “when resolution of the state procedural law question [does not] depend [ ] on a federal constitutional ruling.”
Laird,
159 F.Supp.2d at 73 (quotation and internal quotation marks omitted). “[A] state procedural rule is ‘adequate’ only if the rule is ‘consistently or regularly applied.’ ”
Jermyn,
266 F.3d at 278 (quoting
Banks v. Horn,
126 F.3d 206, 211 (3d Cir.1997)) (citations omitted). In order for a state procedural rule to provide an adequate basis to bar federal habeas review, “[t]hese conditions must have existed at the time of the state court procedural default.”
Id.
(quotation and internal quotation marks omitted).
b.) Cause and Prejudice
Federal courts are precluded from considering the merits of a procedurally defaulted claim, “unless the petitioner ‘establishes ‘cause and prejudice’ or a ‘fundamental miscarriage of justice’ to excuse the default.’”
Lines,
208 F.3d at 160 (quoting
McCandless,
172 F.3d at 260 ) (citation omitted). In order to demonstrate “cause” sufficient to excuse a procedural fault and reach the merits of a petitioner’s claim, “the petitioner must ‘show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.’ ”
Werts,
228 F.3d at 192 -93 (quoting
Murray v. Carrier,
477 U.S. 478, 488 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986))(stating some acceptable examples of “cause” for federal habeas review of a defaulted claim to be: a showing of a factual or legal basis for a claim that was not reasonably available to petitioner’s counsel; a showing that procedural compliance was impracticable because of interference by governmental officials; and a claim of ineffective assistance of counsel that has been presented to the state courts as an independent claim before being used to establish cause for a procedural default). Once “cause” has been successfully demonstrated, petitioner must then prove “prejudice.” In order to sufficiently demonstrate “prejudice” as a means of excusing a procedural default, “the habeas petitioner must prove ‘not merely that the errors at ... 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.’ ”
Id.
at 193 (quoting
Murray, 477
U.S. at 494, 106 S.Ct. 2639 ) (citation omitted). Basically, this standard mandates that a habeas petitioner establish that he was denied “fundamental fairness” at his trial.
Id.
(citing
Murray, 477
U.S. at 494, 106 S.Ct. 2639 ).
c.) Fundamental Miscarriage of Justice
“If the petitioner fails to demonstrate cause and prejudice for the default, the federal habeas court may still review an otherwise procedurally defaulted claim upon a showing that failure to review the federal habeas claim will result in a ‘miscarriage of justice.’ ”
Id.
at 193. To demonstrate a “miscarriage of justice” sufficient to excuse a procedural default and reach the merits of a petitioner’s claim, “the petitioner must prove that it is more likely than not that no reasonable juror would have convicted him.”
Id.
(citing
Schlup v. Delo,
513 U.S. 298, 326 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995)). This showing is made when “the petitioner presents a colorable claim of actual innocence of the crime for which he was convicted or the sentence imposed.”
Terry v. Gillis,
93 F. Supp.2d 603, 611 (E.D.Pa.2000)(citing
Schlup,
513 U.S. at 314-15 , 115 S.Ct. 851 ). Consequently, this exception is generally narrow and applicable in extraordinary
*294
cases.
Werts,
228 F.3d at 193 (citing
Murray,
477 U.S. at 496 , 106 S.Ct. 2639 ).
3. Review of Claims Under 28 U.S.C. § 2254
Once the threshold requirements of exhaustion and procedural default have been satisfied, a federal court may reach the merits of a Section 2254 petition. As mentioned earlier, Petitioner’s federal habeas petition seeks relief pursuant to 28 U.S.C. § 2254 . With regard to the proper standard of review of Petitioner’s claims, Section 2254(d), as amended by the AEDPA, provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was 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)(2000).
Thus, “Section 2254(d) states that applications for habeas corpus relief ‘shall not be granted’ unless one of the conditions set forth in subsections (d)(1) and (d)(2) is met.”
Matteo v. Superintendent, SCI Albion,
171 F.3d 877, 887 (3d Cir.1999)(erc banc)(citing 28 U.S.C. § 2254 (d)). As a result, the conditions for granting habeas corpus relief under the AEDPA are twofold.
Id.
“[Fjirst, habeas corpus relief is warranted when the state adjudication resulted in a decision that was ‘contrary to’ or an ‘unreasonable application of clearly established federal law, as determined by the Supreme Court.”
Id.
(citing 28 U.S.C. § 2254 (d)(1)). “[S]eeond, relief is warranted when the state adjudication resulted in a decision that was ‘based on an unreasonable determination of the facts in light of the evidence.’”
Id.
at 887-88 (citing 28 U.S.C. § 2254 (d)(2)).
a. Analysis of State Court Legal Determinations Under 28 U.S.C. § 2254 (d)(1)
According to 28 U.S.C. § 2254 (d)(1), a habeas corpus writ may be issued only upon the clear satisfaction of one of the following two conditions, “the state-court adjudication resulted in a decision that (1) ‘was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,’ or (2) ‘involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States’ ”
Williams v. Taylor,
529 U.S. 362, 412 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). “As an initial point, ‘[t]he 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.’”
9
Brand v. Gillis,
210 F.Supp.2d
*295
677, 682 (E.D.Pa.2002)(quoting
Williams,
529 U.S. at 390 , 120 S.Ct. 1495 ). Although the “contrary to” and the “unreasonable application of’ clauses are both part of 28 U.S.C. § 2254 (d)(1), the clauses “should be accorded independent meaning.”
Werts,
228 F.3d at 197 (citing
Williams,
529 U.S. at 405 , 120 S.Ct. 1495 ). Thus, the application of 28 U.S.C. § 2254 (d)(1) calls for a two-step analysis.
Matteo,
171 F.3d at 891 . “First, the federal habeas court must determine whether the state court decision was ‘contrary to’ Supreme Court precedent that governs the petitioner’s claim.”
Id.
“Relief is appropriate only if the petitioner shows that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.”
Id.
(quotation and internal quotation marks omitted). If petitioner fails to make such a showing, “the federal habeas court must ask whether the state court decision represents an ‘unreasonable application of Supreme Court precedent: that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified.”
Id.
If petitioner is able to successfully make this showing, then the petition should be granted.
Id.
In relation to the “contrary to” clause, “a federal habeas court may grant the Writ if the state court arrives at a conclusion opposite to that reached by this [the Supreme] 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.”
Brand,
210 F.Supp.2d at 682-83 (quoting
Williams,
529 U.S. at 412-13 , 120 S.Ct. 1495 ). Therefore, in order to receive ha-beas relief under the “contrary to” provision, “it 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,
171 F.3d at 888 . “This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent.”
Id.
If, after examination of the habeas claim under the “contrary to” clause, it appears that petitioner is not entitled to relief, the federal habeas court should proceed to the second step of the analysis, the “unreasonable application of’ clause.
Id.
at 889 .
“Under the ‘unreasonable application of clause, a federal writ may issue when the state court identifies the correct legal principle from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of a particular case.”
Laird,
159 F.Supp.2d at 77 (citing
Williams,
529 U.S. at 413 , 120 S.Ct. 1495 ). Under this standard, the appropriate inquiry is “whether the state court’s application of clearly established federal law was objectively unreasonable.”
Werts,
228 F.3d at 196 (quotation and internal quotation marks omitted). Habeas courts may consider the decisions of inferior federal courts when determining whether the state court’s application of the Supreme Court precedent is objectively reasonable.
Matteo,
171 F.3d at 890 . It is important to note that an unreasonable application of federal law differs from an incorrect application of that law.
Werts,
228 F.3d at 196 (citation omitted). “[A] federal habeas
*296
court may not grant relief unless that court determines that a state court’s incorrect or erroneous application of clearly established federal law was also unreasonable.”
Id.
(citation omitted).
b. Analysis of State Court Factual Determinations Under 28 U.S.C. § 2254 (d)(2)
According to 28 U.S.C. § 2254 (d)(2), a federal habeas court may issue a writ based on a claim involving the factual findings of a state court when the decision of the state court “was 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)(2). However, state court determinations of fact have a presumption of correctness which can only be refuted thorough a showing of clear and convincing evidence.
10
28 U.S.C. § 2254 (e)(l)(2000). In order to grant relief under 28 U.S.C. § 2254 (d)(2), “[t]he district court must conclude that the state court’s determination of the facts was objectively unreasonable in light of the evidence available to the state court.”
Attica,
2001 WL 827455 , at *3 (citations omitted). Similar to the “unreasonable application of’ clause found in 28 U.S.C. § 2254 (d)(1), Section 2254(d)(2) requires federal habeas courts to objectively examine the decisions of the state courts for their reasonableness. “Mere disagreement with the state court’s determination, or even erroneous factfinding, is insufficient to grant relief if the court acted reasonably.”
Id.
(citation omitted).
c.
De Novo Review of State Court Determinations
In some cases, courts may exercise plenary review of the merits of underlying claims. “[B]y its own terms § 2254(d) applies only to claims already ‘adjudicated on the merits in State court proceedings.’ ”
Appel v. Horn,
250 F.3d 203, 210 (3d Cir.2001). According to the United States Court of Appeals for the Third Circuit (“Third Circuit”), in instances “when, although properly preserved by the defendant, the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA and explained in
Williams
do not apply.”
Appel,
250 F.3d at 210 (citations omitted);
see also, Hameen v. State of Delaware,
212 F.3d 226, 248 (3d Cir.2000)(exercising pre-AEDPA independent judgment on a constitutional claim that the Delaware court did not address, even though it had the opportunity, reasoning that “under 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.”). In such a case, “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.”
Id.
(citing
McCandless,
172 F.3d at 260 ). However, in these instances, “the state court’s factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence.”
Id.
(citing 28 U.S.C. § 2254 (e)(1)).
B.
Granting an Evidentiary Hearing Under 28 U.S.C. § 2254
A federal evidentiary hearing is intended to ensure that a petitioner has a full
*297
and fair opportunity to have the factual basis of his claim considered.
See Townsend v. Sain,
372 U.S. 293, 312 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963). “The AEDPA has limited the availability of evidentiary hearings on federal habeas review.”
Henry,
218 F.Supp.2d at 684 (citing
Campbell v. Vaughn,
209 F.3d 280, 286 (3d Cir.2000)). As amended, Section 2254(e) provides as follows:
(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254 (e)(2000).
Under § 2254(e), the federal habeas court must initially ask “whether the factual basis was developed in the state court, which is ‘a question susceptible, in the normal course, of a simple yes or no answer.’ ”
Henry,
218 F.Supp.2d at 684 (quoting
Michael Williams,
529 U.S. 420, 431 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (2000)). In the case where the factual basis was developed, “the federal habeas court must apply the presumption of correctness codified in § 2254(e)(1), which petitioner can only rebut with clear and convincing evidence.”
Id.
(citations omitted). “If the factual basis was not developed, then the federal habeas court must determine whether the petitioner failed to develop the factual basis of his claim.”
Id.
(citing 28 U.S.C § 2254(e)(2)). In order to determine whether petitioner failed to develop the state court record, “[t]he question is not whether the facts could have been discovered but instead whether the petitioner was diligent in his efforts ... Diligence for purposes of the opening clause [of § 2254(e)(2)] depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.”
Id.
at 684-85 (quotation and internal quotation marks omitted). “Diligence ... will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.”
Pursell,
187 F.Supp.2d at 325 (quotation and internal quotation marks omitted).
If the federal habeas court determines that petitioner failed to develop the state court record, an evidentiary hearing is barred unless petitioner is able to overcome the stringent standard set forth in Section 2254(e)(2)(A) and (B).
Henry,
218 F.Supp.2d at 685 . In the case where “the federal habeas court determines that petitioner did not ‘fail’ to develop the state court record, then the decision about whether to hold an evidentiary hearing is left to the discretion of the habeas court.”
Id.
(citing
Campbell,
209 F.3d at 286-87 ). “In exercising its discretion, the court should ‘focus on whether a new evidentiary hearing would be meaningful, in that a new
*298
hearing would have the potential to advance the petitioner’s claim.’”
Id.
(quoting
Campbell,
209 F.3d at 287 ).
IV.DISCUSSION
In his Petition, Petitioner bases his ha-beas relief on fourteen claims. Petitioner’s claims are as follows:
I. Petitioner’s death sentence violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the jury was not permitted to consider and give effect to mitigating evidence that was presented. In addition, trial and appellate counsel provided ineffective assistance with respect to this issue, and relief is warranted under the Sixth and Fourteenth Amendments.
II. Petitioner was denied effective assistance of counsel at capital sentencing, in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
III. Petitioner is entitled to relief from his conviction and sentence because trial counsel was ineffective at the guilt phase for failing to investigate, develop and present diminished capacity and guilty but mentally ill defenses based on Petitioner’s brain damage and long history of mental illness.
IV. Petitioner was mentally ill and incompetent at the time of his trial proceedings and his conviction and death sentence therefore violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
V. Petitioner is entitled to relief from his sentence of death because the jury instructions and the sentencing-phase verdict slip indicated that the jury had to unanimously find any mitigating circumstances before it could give effect to that circumstance in its sentencing decision.
VI. Petitioner is entitled to relief from his conviction and sentence because the Commonwealth used its peremptory strikes in a racially discriminatory manner, thus depriving Petitioner of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
VII. The trial court’s reasonable doubt instructions deprived Petitioner of due process of law. This erroneous instruction also resulted in the arbitrary imposition of the death penalty in violation of the Eighth and Fourteenth Amendments.
VIII. Unreliable hearsay testimony was admitted against Petitioner in violation of Petitioner’s Sixth Amendment right to confrontation. The admission of this evidence resulted in an unreliable determination of guilt in violation of the Eighth and Fourteenth Amendments. Moreover, the admission of this evidence violated Petitioner’s right to due process and effective assistance of counsel.
IX. The trial court’s failure to instruct the jury that a sentence of life imprisonment would result in Petitioner’s lifelong incarceration without possibility of parole violated Petitioner’s rights under the Sixth, Eighth and Fourteenth Amendments.
X. Petitioner’s death sentence must be vacated because the Pennsylvania Supreme Court failed to provide him meaningful proportionality review in violation of 42 Pa.C.S. § 9711(h)(3)(iii) and federal constitutional law.
XI. The trial court violated Petitioner’s rights to full and meaningful jury consideration of expert mental health mitigating evidence, in contravention of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
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XII. Trial counsel rendered ineffective assistance by failing to properly investigate and present evidence that would have established a reasonable doubt about guilt.
XIII. Relief is appropriate because Petitioner was not provided with effective assistance of counsel at trial and on direct appeal.
XIV. Petitioner is entitled to relief from his conviction and death sentence because of the trial court’s improper statements about appellate review.
{See
Pet. Writ Habeas Corpus).
The Court concludes that Petitioner’s fifth claim is meritorious. In his fifth claim, Petitioner contends that he is entitled to relief from his death sentence because the penalty phase jury instructions and verdict sheet, when taken together, created a barrier to the sentencer’s consideration of all mitigating evidence in violation of the Eighth and Fourteenth Amendments. In light of the Supreme Court’s holdings in
Mills v. Maryland,
486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988), and
Boyde v. California,
494 U.S. 370 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990), and the decision of the Third Circuit in
Banks v. Horn,
271 F.3d 527 ,1 find that the penalty phase jury instructions and verdict sheet created a “reasonable likelihood that the jury has applied the ... instructions in a way that prevents the consideration of constitutionally relevant evidence.”
Boyde,
494 U.S. at 380 , 110 S.Ct. 1190 . As a result, the Petition is granted with regard to Claim V and Petitioner’s death sentence shall be vacated. Claims I, II, IX, X and XI are based solely upon alleged constitutional error regarding the sentencing phase of Petitioner’s trial. Since I have vacated Petitioner’s death sentence premised upon Claim V, the aforementioned Claims I, II, IX, X and XI are rendered moot and will not be discussed.
Petitioner’s remaining claims, Claims III, IV, VI, VII, VIII, XII, XIII and XIV, include a mixture of constitutional claims which are either based solely upon the guilt phase of trial or include a combination of allegations pertaining to both the guilt and penalty phases of Petitioner’s trial. I shall address each of Petitioner’s claims which allege error solely regarding the guilt phase of trial. As for Petitioner’s claims that include a combination of allegations pertaining to both the guilt and penalty phases of trial, I shall exclusively address these claims to the extent that they allege error at the guilt phase.
A.
Application of Exhaustion and Procedural Default
Petitioner asserts that all of the claims in his Habeas Petition were exhausted in state post-conviction proceedings. Petitioner argues that some of his claims were raised, and thus exhausted, during the state court direct appeal, while all of his claims were presented in the state court post-conviction proceedings. Regarding Petitioner’s Claim XII, concerning trial counsel’s alleged ineffectiveness for failing to properly investigate and present alibi evidence, the Commonwealth concedes that it is exhausted because Petitioner raised this claim on direct appeal to the state supreme court. (Commw.’s Mem. Law at 65). Thus, there is no exhaustion issue pertaining to Petitioner’s Claim XII. However, the Commonwealth argues that Petitioner failed to exhaust most of his federal constitutional claims. The Commonwealth alleges that the claims raised in Petitioner’s PCRA appeal to the state supreme court were all claims of ineffective assistance of
PCRA
counsel,
i.e.,
PCRA counsel should have claimed that direct appeal counsel was ineffective for failing to
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raise the numerous claims of trial counsel’s ineffectiveness or trial court error raised in the Habeas Petition.
11
Consequently, the Commonwealth argues that Petitioner’s habeas claims are not exhausted. The Commonwealth alleges that Petitioner’s unexhausted habeas claims are procedurally defaulted because any attempt to raise them in a subsequent PCRA petition at this juncture would be time-barred. 42 Pa.C.S. § 9545. Thus, regarding Petitioner’s remaining claims, Claims III, IV, V, VI, VII, VIII, and XIII, the Commonwealth argues that they are not exhausted and, therefore, are procedurally defaulted.
12
Petitioner has satisfied the exhaustion requirement in this case. The relevant claims in which exhaustion is at issue in this case, Claims III, IV, V, VI, VII and VIII, were presented, in almost verbatim fashion, to the state courts either on direct appeal,
see Porter I,
524 Pa. 162 , 569 A.2d 942 , or during PCRA appeal.
See Porter 11,
556 Pa. 801 , 728 A.2d 890 ; Commw.’s Exs., Ex. C (Pet.’s PCRA Appeal Brief). Petitioner’s PCRA appeal presented his claims as involving federal constitutional error and, with respect to each individual claim, he discussed the factual and legal basis for those claims. (Commw.’s Exs., Ex. C (Pet.’s PCRA Appeal Brief)). Furthermore, the Commonwealth’s response to Petitioner’s PCRA appeal reveals that it recognized and responded to Petitioner’s claims as federal constitutional claims. (Pet.’s Reply Mem. Exs., Ex. A (Commw.’s PCRA Appeal Br.)). The Commonwealth did not treat Petitioner’s PCRA appeal as only involving claims of ineffective assistance of PCRA counsel, but responded by arguing that Petitioner’s claims were either meritless under federal constitutional law or waived because they had not been previously presented.
(Id.).
In further support that Petitioner’s claims are indeed exhausted, most of Petitioner’s federal constitutional claims were adjudicated on
*301
the merits by the
Porter II
court.
See Porter II,
556 Pa. 301 , 728 A.2d 890 .
As a result of the aforementioned, Petitioner has fairly presented his habeas claims to the state courts. Not only has Petitioner fairly presented his claims to the state courts, but the
Porter II
court addressed the claims, for the most part, on their merits. Since Petitioner has fairly presented Claims III, IV, V, VI, VII and VIII to the state courts, thereby allowing those courts the opportunity to decide and correct the alleged violations of constitutional rights, they are exhausted.
13
Henderson v. Frank,
155 F.3d 159, 164 (3d Cir.1998);
see also Pursell,
187 F.Supp.2d at 288-89 (stating “[ajlthough the Pennsylvania courts held that most of Pursell’s claims were waived or time-barred, these claims were exhausted simply because they were presented to the courts for review. ... [t]he exhaustion doctrine requires nothing more”).
B.
Evidentiary Hearing
The Court granted Petitioner’s requests for an evidentiary hearing regarding Claims III, IV, XII and XIII.
14
Upon review of these claims, I concluded that the factual basis of the claims had not been developed in the state court. Examination of the state court record revealed that Petitioner specifically requested an evidentiary hearing regarding Claims III, IV and XII.
(See
Commw.’s Exs., Ex. C (Pet.’s PCRA Appeal Brief)). As a result, Petitioner was diligent in his efforts to develop the factual bases of the pertinent claims in the state court.
See Pursell,
187 F.Supp.2d at 325. That is, in light of the information available at the time, Petitioner made a reasonable attempt to investigate and pursue the claims in state court. Since Petitioner did not fail to develop the state court record, the decision about whether to hold an evidentiary hearing is left to the discretion of this Court. I concluded that an evidentiary hearing on Claims III, IV, XII and XIII would be meaningful because it would have the potential to advance Petitioner’s claims. As a result, the Court held a multi-part evi-dentiary hearing that intermittently took place in July 2002, September 2002 and November 2002.
C.
Analysis of Petitioner’s Claims
1. Petitioner’s Sentencing Phase Claim
a. Claim V Petitioner is entitled to relief from his sentence of death because the jury instructions and the sentencing phase verdict slip indicated that the jury had to unanimously ftnd any mitigating circumstances before it could give effect to that circumstance in its sentencing decision.
Petitioner asserts that “[i]t is indisputable that in a capital case the sentencer may not be precluded from considering and giving full effect to any mitigating aspect of the defendant’s character, background or record, or the circumstances of the offense.” (Pet.
*302
Writ Habeas Corpus, ¶ 100)(citing
Mills v. Maryland,
486 U.S. at 374-75 , 108 S.Ct. 1860 ). Relying on this basis, Petitioner argues that this fundamental principle of Eighth Amendment jurisprudence was violated in his case because “[t]he trial court failed to advise the jury that any juror who individually found a mitigating circumstance could weigh that circumstance against the aggravating circumstances unanimously found,
even if there was not unanimity as to the existence of that mitigating circumstance.” (Id.,
¶ 101). Petitioner further argues that the penalty phase jury instructions and verdict sheet instructions actually led the jury to wrongfully believe that it had to be unanimous in finding any mitigating circumstance before it could give effect to that circumstance in its sentencing determination.
(Id.).
Relying on
Mills v. Maryland,
486 U.S. at 375 , 108 S.Ct. 1860 , Petitioner argues that “the penalty phase jury instructions and verdict sheet indicated that the jury had to unanimously find a mitigating circumstance before it could be given effect in the sentencing decision, and thus created a ‘barrier to the sentencer’s consideration of all mitigating evidence’, in violation of the Eighth and Fourteenth Amendments.” (Pet.’s AEDPA Mem. Law at 51)(citing
Mills,
486 U.S. at 375 , 108 S.Ct. 1860 ). Petitioner’s argument for habeas relief centers upon the contention that the Pennsylvania Supreme Court’s denial of relief on this claim “was contrary to, and an unreasonable application of,
Mills.” (Id.).
1.) Mills v. Maryland
The constitutional prohibition against cruel and unusual punishment mandated by the Eighth Amendment requires that “the sentencer in a death penalty case must be permitted to consider all relevant mitigating evidence that the defendant proffers as counseling less than a sentence of death.”
Frey v. Fulcomer,
132 F.3d 916, 920 (3d Cir.1997)(citing
Eddings v. Oklahoma,
455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982);
Lockett v. Ohio,
438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978)). Consequently, a sentencer cannot be prevented from considering any such mitigating evidence.
Id.
(citing
Skipper v. South Carolina,
476 U.S. 1 , 106 S.Ct. 1669 , 90 L.Ed.2d 1 (1986);
Eddings,
455 U.S. at 114 , 102 S.Ct. 869 ). Thus, “Eighth Amendment jurisprudence requires that
each sentencer
be permitted to consider
all mitigating circumstances.” Id.
at 921 (emphasis added).
Relying on the Eighth Amendment, the United States Supreme Court in
Mills v. Maryland
held that sentencing instructions that create a substantial likelihood that reasonable jurors may believe that they are precluded from considering any mitigating evidence in the absence of unanimity are constitutionally invalid.
15
Mills,
486 U. S. at 384, 108 S.Ct. 1860 . Based upon this premise, the
Mills
Court vacated a death sentence because there was “a substantial probability that reasonable jurors, upon receiving the judge’s instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought that they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.”
Id.
Although
Mills
originally outlined the legal standard for reviewing a challenge to jury instructions in which it is
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claimed that the instruction is ambiguous and open to an incorrect interpretation, the Supreme Court defined the present legal standard in
Boyde v. California,
494 U.S. 370 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 .
16
Frey,
132 F.3d at 921 ;
see also, Abu-Jamal v. Horn,
— F.Supp.2d—, —n. 80, 2001 WL 1609690 , at *116 n. 80 (E.D.Pa.2001)(stating “[t]here is no dispute ... that the standard to be applied to
Mills
claims is that articulated in
Boyde
”). In
Boyde ,
the United States Supreme Court clarified the legal standard to be “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.”
Boyde,
494 U.S. at 380 , 110 S.Ct. 1190 . When assessing the possible effect of a challenged jury instruction, it must be viewed in the context of the overall charge because a single instruction to a jury may not be judged in artificial isolation.
Id.
at 378 , 110 S.Ct. 1190 (citations omitted).
2.) State Court
Decision
17
In
Porter II ,
the Pennsylvania Supreme Court found Petitioner’s
Mills
claim to be meritless based upon the premise that the
Porter
penalty phase jury instructions and verdict form mirrored the Pennsylvania death penalty statute, 42 Pa.C.S. § 9711(c)(1)(iv).
Porter II,
728 A.2d at 900 . In support of its ruling, the
Porter II
court solely relied upon two state court opinions,
Commonwealth v. Travaglia,
541 Pa. 108 , 661 A.2d 352, 366 (1995), and
Commonwealth v. Hackett,
534 Pa. 210 , 627 A.2d 719 (1993).
18
Id.
Although the
Porter II
court acknowledged that Petitioner’s claim was based upon
Mills ,
the opinion is completely devoid of any analysis under
Mills
or
Boyde. Id.
As a consequence of the state supreme court’s failure to properly analyze Petitioner’s claim in accordance with
Mills
and
Boyde ,
the Court finds that the
Porter II
court’s decision regarding Petitioner’s claim was an objectively unreasonable application of
Mills. See Banks,
271 F.3d at 545 n. 21.
19
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3.) Analysis of State Court Decision
a.) Jury Instructions Mirror Death Penalty Statute
Relying upon 42 Pa.C.S. § 9711(c)(l)(iv), the state court’s first explanation for its denial of Petitioner’s
Mills
claim is based upon the holding that “the trial judge’s charge to the jury virtually mirrored 42 Pa.C.S. § 9711(c)(l)(iv).”
Porter II,
728 A.2d at 900 (citation omitted). Specifically, the Pennsylvania Supreme Court reasoned that “an instruction that tracks the language of the statute, such as the one given here, cannot be in violation of the
Mills
standard.”
Id.
at 900. Thus, the
Porter II
court did not examine Petitioner’s jury instructions in the context of a lay jury’s interpretation, but examined the instructions in relation to their similarity with 42 Pa.C.S. § 9711(c)(l)(iv).
Similar to the instant case, the Pennsylvania Supreme Court in
Commonwealth v. Banks,
540 Pa. 143 , 656 A.2d 467 (1995), held that the
Mills
claim asserted by Banks was without merit because the “[jury] instruction, which mirrors the language found in the death penalty statute of our Sentencing Code, has previously been reviewed by this court and determined not to violate
Mills.” Commonwealth v. Banks,
656 A.2d at 470 . Upon review of the state supreme court’s decision regarding the jury instruction, the Third Circuit in
Banks v. Horn
pointed out that the Pennsylvania Supreme Court “looked at one part of the instruction and found that it was acceptable because it tracked the permissible statutory provisions and did not ‘infer’ a requirement of unanimity.”
Banks,
271 F.3d at 546 . The Third Circuit also pointed out that the Pennsylvania Supreme Court’s “conclusion was based not on how a juror might interpret its content, but on its own previous statutory construction of the language at issue.”
Id.
The
Banks
Court concluded that the Pennsylvania Supreme Court ruling involved an unreasonable application of
Mills
because the court “ruled that there was no
Mills
violation without ever really applying the teachings of
Mills ,
and by examining the statute, not the potential for confusion by jurors in what they were told to do.”
Id.
at 545;
see also Hackett,
212 F.Supp.2d at 404 (stating that a court that focuses on whether the contested jury instructions mirror a statute “misconstrues the court’s task in examining for
Mills
error by focusing on the meaning of the statute rather than on the issue of jury confusion”).
Like the Pennsylvania Supreme Court in
Commonwealth v. Banks,
the
Porter II
court incorrectly analyzed Petitioner’s
Mills
claim by examining how the jury instructions mimiced the Pennsylvania death penalty statute, not the potential for jury confusion. The
Porter II
court upheld the jury instructions because the language mirrored the statute, however, the
*305
court failed to examine the effect of the instructions on the minds of the jurors. In so doing, the
Porter II
court performed an incorrect analysis of Petitioner’s claim. In light of the flawed analysis performed by the Pennsylvania Supreme Court in
Porter II ,
this Court concludes that the
Porter II
court did not analyze Petitioner’s
Mills
claim in accordance with the principles set forth by
Mills
and its progeny; thereby, the Pennsylvania Supreme Court ruling involved an unreasonable application of
Mills .
b.) State Court Precedent
In
Porter II ,
the Pennsylvania Supreme Court supported its denial of Petitioner’s
Mills
claim based upon its own precedent. In
Banks,
the Third Circuit noted that a habeas court’s task in conducting a habeas review “is to review state court proceedings not to ensure the consistency of the Pennsylvania Supreme Court’s application of its law.”
Banks,
271 F.3d at 544 . Therefore, while a habeas court is expected to respect and, at times, defer to state court precedent, the court’s true task is “to assure proper application of United States Supreme Court teachings.”
Id.
As a result, “[t]he Pennsylvania Supreme Court’s reliance on its own precedents ... is not sufficient to render its application of
Mills
objectively reasonable.”
Henry,
218 F.Supp.2d at 687 . By simply relying upon its own precedents, and failing to examine the effect of the jury instructions and verdict form upon the jury in Petitioner’s sentencing trial, the Pennsylvania Supreme Court failed to apply the teachings of
Mills. Id.
at 688.
4.) Examination of Penalty Phase Jury Instructions, Burden of Proof Instructions and Verdict Form
A review of the
Porter II
court’s analysis of Petitioner’s sentencing phase jury instructions and verdict form demonstrates that the Pennsylvania Supreme Court unreasonably applied
Mills
to Petitioner’s case. The Court will examine Petitioner’s
Mills
claim in the following fashion: (1) the jury instructions; (2) the burden of proof instructions; and (3) the verdict form.
a.) Penalty Phase Jury Instructions
An examination of the
Porter
jury instructions in conjunction with the jury instructions found in
Banks
is instructive in this Court’s analysis of Petitioner’s
Mills
claim. In
Banks,
the Third Circuit analyzed virtually identical instructions and found them to be in violation of
Mills. Banks,
271 F.3d at 549 . Upon examination of the
Banks
instructions, the Third Circuit stated that “[t]he instructions are in themselves ambiguous, allowing for a jury to infer that the requirement of unanimity applies both to aggravating and mitigating circumstances.”
Id.
at 548. The Court then concluded its analysis of the jury instructions with the resounding statement that “[t]here is no way a juror would understand that a mitigating circumstance could be considered by less than all jurors.”
Id.
A side-by-side comparison of the
Banks
jury instructions with the
Porter
instructions reveals material similarities:
Banks
instruction:
Members of the jury, you must now decide whether the defendant in this case is to be sentenced to death or to life imprisonment on each of the Informations upon which you have returned a verdict of guilty of murder
*306
in the first degree. The sentence you will impose will depend on your findings concerning aggravating and mitigating circumstances. The Crime Code in this Commonwealth provides that the verdict must be a sentence of death
if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances,
or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstance or circumstances.
* * *
Remember, under the law of this Commonwealth, your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstance, or if you unanimously find one or more aggravating circumstances which then outweigh any mitigating circumstances,
Banks,
271 F.3d at 546 (emphasis added).
*305
Porter
instruction:
Ladies and gentlemen of the jury, you must now decide whether the defendant is to be sentenced to death or life imprisonment. The sentence will depend upon your findings concerning aggravating and mitigating
*306
circumstances. The sentencing statute provides that the verdict must be a sentence of death
if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances,
or, if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances, the verdict must be a sentence of life imprisonment in all other cases.
Remember that your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstance. Or, if you unanimously find one or more aggravating cir-cumstanees which outweigh any mitigating circumstances. In all other indications your verdict must be a sentence of life imprisonment.
Porter,
N.T. 2/27/86, p. 68-70 (emphasis added).
By comparing the pertinent parts of the jury charges side-by-side, the instructions are virtually identical. Specifically, the relevant portions of the instructions, the clauses stating
“if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances ”,
are identical. Regarding the relevant portion in the
Banks
instruction, the Third Circuit concluded that “read in its entirety, the relevant portion of the jury charge emphasizes the importance of a unanimous finding, using the phrase frequently and in close proximity to — within seven words of — the mitigating circumstances clause.”
Banks,
271 F.3d at 547-48 . Based upon this close proximity, the
Banks
court found that “the clause is, to the ear and to the mind, one sound bite — it is quite possible that a juror would, regardless of other qualifying language, believe that mitigating circumstances had to be found unanimously.”
Id.
at 548.
Mirroring the
Banks
jury charge, the
Porter
jury instructions similarly contained the “sound bite” that the jury could have reasonably believed required that mitigating circumstances be found unanimously. The above comparison with the
Banks
jury instructions demonstrates how the “sound bite”, created by the close proximity of the phrase emphasizing the importance of unanimity with the mitigating circumstances clause, allowed for the
Porter
jury to infer that the requirement of unanimity applied both to aggravating and mitigating circumstances. Such an inference is not only incorrect, but constitutionally impermissible according to
Mills .
Bound by the precedent set forth by the Third Circuit in
Banks,
this Court adopts the Third Circuit’s finding that “[t]he instructions are in themselves ambiguous, allowing for a jury to infer that the requirement of unanimity applies both to aggravating and mitigating circumstances.”
Banks,
271 F.3d at 548 . As a result, “there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the con
*307
sideration of constitutionally relevant evidence.”
Boyde,
494 U.S. at 380 , 110 S.Ct. 1190 .
b.) Penalty Phase Burden of Proof Instructions
Following the auspices of
Boyde ,
this Court will not judge the instructions at issue in artificial isolation, but will view them in the context of the overall charge.
Boyde,
494 U.S. at 378 , 110 S.Ct. 1190 . Thus, I will now examine the burden of proof instructions employed in Petitioner’s ease. In its analysis, the
Banks
Court also examined the burden of proof instructions applied in that case.
Banks,
271 F.3d at 548-49 , In
Banks,
the Third Circuit concluded that the charge pertaining to the relevant burdens of proof relating to aggravating and mitigating circumstances increased jury confusion regarding unanimity.
Id.
Like the jury instructions regarding aggravating and mitigating circumstances, the
Porter
burden of proof instructions are also materially identical to the
Banks
instructions. By comparing the pertinent parts of the instructions side by side, the instructions are virtually identical.
20
Banks
burden of proof instruction:
The defendant has the burden of proving mitigating circumstances by a preponderance of the evidence. The preponderance of the evidence is a lesser burden of proof than beyond a reasonable doubt. A preponderance of the evidence exists where one side is more believable than the other or, as has been explained to you, a preponderance exists whenever the scales tip ever so slightly.
Banks,
271 F.3d at 548 .
Porter
burden of proof instruction:
The defendant has the burden of proving mitigating circumstances, but only by a preponderance of the evidence. This is a lesser burden of proof than beyond a reasonable doubt. A preponderance of the evidence exists where one side is more believable than the other side.
Porter,
N.T. 2/27/86, p. 69.
In reference to the burden of proof instructions, the
Banks
Court stated that “[a] reasonable juror could readily infer from the fact that the distinctions between the burden of proof were explained, but no mention was made of a distinction between a requirement of unanimity for a finding of aggravating circumstances and the requirement for mitigating circumstances, the same requirement of unanimity applied.”
Banks,
271 F.3d at 548 . Upon a reading of all of the jury instructions, including the burden of proof instructions, the Third Circuit held that “[cjonsidered as a whole, the jury instructions leave no doubt that ‘there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’ ”
Id.
at 549 (quoting
Boyde,
494 U.S. at 380 , 110 S.Ct. 1190 ).
Since the
Porter
burden of proof instructions are materially identical to the
Banks
instructions, both the analysis and holding found in
Banks
is applicable to the
Porter
instructions. Also, due to the analogous nature of both sets of burden of proof instructions, the
Porter
instructions
*308
suffer from the same infirmity found in the
Banks
instructions. Equivalent to
Banks,
the
Porter
trial court explained the distinctions between the burden of proof, but made no mention of a distinction between a requirement of unanimity for a finding of aggravating circumstances and the requirement for mitigating circumstances. As a result, I adopt the
Banks
decision and find that
Porter
burden of proof instructions plausibly added to jury confusion regarding the requirement of unanimity in the consideration of mitigating circumstances. Evaluated as a whole, the
Porter
burden of proof instructions in conjunction with the jury instructions show that “there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.”
Boyde,
494 U.S. at 380 , 110 S.Ct. 1190 .
c.) Penalty Phase Verdict Form
Petitioner relies upon the
Porter
penalty phase verdict form to further support his argument regarding habeas relief. The verdict form is an important tool “in determining possible jury error in interpreting instructions because there is no extrinsic evidence of what the jury actually thought, and so the court is left with only the verdict form and the judge’s instructions.”
Hackett,
212 F.Supp.2d at 409 (citing
Mills,
486 U.S. at 381 , 108 S.Ct. 1860 ). Although this Court has already considered the language of the particular jury instructions at issue and the additional burden of proof instruction, I will also examine the
Porter
penalty phase verdict form.
In
Porter II ,
in conjunction with its
Mills
analysis, the Pennsylvania Supreme Court examined, and subsequently upheld, Petitioner’s penalty phase verdict form.
Porter II,
728 A.2d at 900 . The Pennsylvania Supreme Court noted that, similar to the jury instructions, the verdict form “closely tracked the language of the [Pennsylvania death penalty] statute.”
Id.
In upholding the constitutionality of Petitioner’s penalty phase verdict form, the
Porter II
court relied upon its own precedent in
Commonwealth v. Hackett,
534 Pa. 210 , 627 A.2d 719 .
Id.
As mentioned earlier, it is improper to only analyze a
Mills
claim based solely upon state court precedent and the fact that the verdict form language mirrored the language of the Pennsylvania death sentence statute.
See supra
Part rV.C.l.a.3.). Under
Mills ,
a court is required “to assess whether a need for a unanimous finding of mitigating circumstances is one that ‘a reasonable jury could have drawn from ... the verdict form employed.’ ”
Banks,
271 F.3d at 549 (quoting
Mills,
486 U.S. at 375-76 , 108 S.Ct. 1860 ). Thus, as evidenced by the
Porter II
opinion, the
Porter II
court undertook a different inquiry than that required under
Mills .
By basing its decision upon an improper inquiry, the
Porter II
court conducted an unreasonable application of
Mills .
Upon review of the verdict form in accordance with the proper inquiry under
Mills ,
this Court finds that a reasonable juror could have drawn from the verdict form that there was a need for a unanimous finding of mitigating circumstances.
The
Porter
verdict form states as follows:
We, the jury, having heretofore determined that the above-named defendant is guilty of murder of the first degree, do hereby further find:
1. □ at least one aggravating circumstance and no mitigating circumstance. The aggravating circumstance(s) is/are_
*309
2. □ one or more aggravating circumstance(s) which outweigh any mitigating circumstance(s).
The aggravating circumstance(s) is/are_
The mitigating eircumstance(s) is/are_
3. □ no aggravating circumstance; or mitigating circumstance(s) which outweigh any aggravating circumstance(s).
The aggravating circumstance(s) is/are_
The mitigating circumstanee(s) is/are_
Therefore, we, the jury, unanimously sentence the defendant to:
death □
life imprisonment □
DATE FOREMAN
Porter
Penalty Phase Verdict Form, p. 1 (emphasis added). Just like my previous analysis of the
Porter
jury instructions, the
Banks
decision also offers direction regarding unconstitutional jury confusion precipitated by a penalty phase verdict form.
Banks,
271 F.3d at 549-50 . Similar to the instant case, the
Banks
Court engaged in an analysis of the verdict form after concluding that the Pennsylvania Supreme Court failed to engage in the proper analysis required by
Mills. Id.
The verdict form utilized in
Banks
states as follows:
1.We the jury unanimously sentence the defendant in the above matter to
X Death
_Life Imprisonment
2.(To be completed if the Sentence is Death) We the jury have found unanimously
_ At least one aggravating circumstance and no mitigating circumstances. The aggravated circumstance(s)(is)(are):
1._In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.
2. _The defendant has a significant history of felony convictions involving the use or threat of violence to the person.
3._The defendant has been convicted of another federal or state offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or
the
defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.
Or
X One or more aggravating circumstances which outweigh any mitigating circumstance or circumstances.
The aggravating eircumstance(s)(is)(are):
1._In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.
2._The defendant has a significant history of felony convictions involving the use of threat of violence to the person.
3. X The defendant has been convicted of another federal or state offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.
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The mitigating cireumstance(s)(is)(are):
1.X The defendant was under the influence of extreme mental or emotional disturbance.
2._The capacity of the defendant to appreciate the criminaiity of his conduct or to conform his conduct to the requirements of law was substantially impaired.
3. _Any other mitigating matter concerning the character or record of the defendant or the circumstances of his offense.
Banks,
271 F.3d at 549-50 (emphasis supplied). The
Banks
Court focused its analysis primarily upon the language of the verdict form.
Id.
Specifically, the Court concentrated on the language found in the introduction to the second question dealing with aggravating and mitigating circumstances.
Id.
The Court determined that since that question began with the phase “We the jury have found unanimously”, then “[b]y implication, everything that follow[ed] was found unanimously.”
Id.
at 550. On that basis, the Court explained that “[w]hat follows is a reference both to aggravating and to mitigating circumstances, with no additional language that would imply that there is a different standard for aggravating circumstances than there is for mitigating circumstances.”
Id.
Noting the absence of any affirmative language explaining that a mitigating circumstance may be found even if only one juror had found that circumstance to exist, the
Banks
Court concluded that “the structure and form of the verdict slip itself runs afoul of the dictates of
Mills.” Id.
Based upon the aforementioned, the
Banks
Court found “it only reasonable to conclude that the form itself is at least confusing, and more likely suggestive, regarding the need for unanimity as to mitigating circumstances.”
Id.
at 550.
Like the
Banks
verdict form, the language employed in the
Porter
form is confusing and, at the least, is more likely suggestive of a need for unanimity regarding mitigating circumstances. Unlike in
Banks,
the portion of Petitioner’s verdict form which specifically dealt with aggravating and mitigating circumstances did not explicitly begin with the phrase “We the jury have found unanimously”, but began with ‘We, the jury, having determined that the above-named defendant is guilty of murder of the first degree, do hereby further find.”
21
Admittedly, the
Porter
verdict form is not as misleading as the
Banks
verdict form in regards to unanimity. Nevertheless, the
Porter
verdict form is still confusing in light of the fact that the jury was previously required to unanimously determine that Petitioner was guilty of murder in the first degree. Any confusion concerning unanimity could have been clarified by additional language implying that there is a different standard for aggravating circumstances than there is for mitigating circumstances, however, as was the case in
Banks,
such affirmative language was not employed. Like the
Banks
verdict form, the
Porter
verdict form did not contain any affirmative language explaining that a mitigating circum
*311
stance may be found even if only one juror had found that circumstance to exist. Based upon review of the
Porter
verdict form, in conjunction with the
Banks
ruling and the
Porter
jury instructions, this Court concludes that a reasonable juror could have drawn from the verdict form that there was a need for a unanimous finding of mitigating circumstances.
Banks,
271 F.3d at 549 (quoting
Mills,
486 U.S. at 375-76 , 108 S.Ct. 1860 ).
5.) Conclusion
After considering the
Porter
jury instructions in combination with the penalty phase verdict form, and in light of the decision in
Banks v. Horn,
271 F.3d 527 , this Court concludes that there exists “a reasonable likelihood the jury has applied the challenged instructions in a way that prevents the consideration of constitutionally relevant evidence.”
Boyde,
494 U.S. at 380 , 110 S.Ct. 1190 . It is the combined impact of the unclear jury charge and misleading verdict form which requires the Court to grant Petitioner habeas relief regarding his
Mills
claim. Based upon the teachings of
Mills ,
its progeny, Supreme Court and Third Circuit precedent, this Court concludes that the
Porter II
court unreasonably applied the dictates of
Mills
and
Boyde
in reviewing the
Porter
penalty phase jury instructions and verdict form. As a result, Petitioner is granted habeas relief on Claim V and his sentence of death is vacated.
2. Petitioner’s Guilt Phase Claims
a. Claim III Petitioner is not enti-tied to relief from his conviction and sentence because trial counsel was not ineffective at the guilt phase for failing to investigate, develop and present diminished capacity and guilty but mentally ill defenses based on Petitioner’s alleged brain damage and alleged history of mental illness.
Petitioner asserts that trial counsel, Michael Floyd, Esq., rendered ineffective assistance of counsel because he failed to investigate, develop and present diminished capacity and guilty but mentally ill defenses based upon Petitioner’s impaired mental health. (Pet. Wit Habeas Corpus, ¶¶ 89-90). Petitioner’s argument focuses on the assertion that his alleged mental health impairments, including organic brain damage and a long history of mental illness, “would have, presented viable defenses at the guilty phase of the trial— including diminished capacity and/or guilty but mentally ill defenses — had they been properly investigated, prepared and presented by counsel.”
(Id.,
¶ 89). Petitioner claims that the
Porter II
court’s denial of his claim was contrary to, and an unreasonable application of,
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). (Pet.’s AEDPA Mem. Law at 49).
1.) State Court Decision
In
Porter II ,
the Pennsylvania Supreme Court denied Petitioner’s claim based upon the ground that, as found on direct appeal, the psychiatric report prepared by Dr. Camiel for the trial court revealed that Petitioner was not mentally ill.
22
Porter
*312
II,
728 A.2d at 897 . Thus, the
Porter II
court held that “trial counsel was not ineffective for failing to investigate and present diminished capacity and guilty but mentally ill defenses as the contemporary records indicated that such theories were unsupportable.”
23
Id.
Petitioner claims that the
Porter II
court’s disposition of his claim was “contrary to, and an unreasonable application of,
Strickland.”
(Pet’s AEDPA Mem. Law at 49).
2.) Strickland v. Washington
a.) Ineffective Assistance of Counsel
Standard
24
Under
Strickland ,
in order to establish a claim of ineffective assistance of counsel at trial or at a death penalty sentencing proceeding, a convicted defendant must satisfy a two-part test.
Strickland,
466 U.S. at 687-89 , 104 S.Ct. 2052 . First, Petitioner must show that counsel’s performance was deficient.
Id.
Second, Petitioner is obligated to show that counsel’s “deficient performance prejudiced the defense.”
Id.
“[T]he burden of proof and persuasion rests with the Petitioner to establish ineffective assistance of counsel at trial.”
U.S. v. Lively,
817 F.Supp. 453, 459 (D.Del.1993) (citations omitted).
In order to satisfy the first prong of the
Strickland
test, Petitioner must establish that counsel’s performance was deficient.
Strickland,
466 U.S. at 687 , 104 S.Ct. 2052 . This requirement consists of “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id.
Thus, Petitioner must show that “counsel’s representation fell below an objective standard of reasonableness.”
Id.
at 688-90 , 104 S.Ct. 2052 . The objective standard of reasonableness is measured under “prevailing professional norms.”
Id.
In determining the reasonableness of counsel’s actions, courts must be highly deferential to counsel’s decisions because there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”
Id.
at 689 , 104 S.Ct. 2052 . Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”
Jermyn,
266 F.3d at 282 (quoting
Berryman v. Morton,
100 F.3d 1089, 1094 (3d Cir.1996);
Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 )(internal quotation marks omitted). When assess
*313
ing counsel’s performance, a court must make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 . “A lack of success is not proof of unreasonableness ... and strategic and tactical decisions are not grounds for an ineffective assistance claim unless counsel displayed ineptitude, inexperience, lack of preparation or unfamiliarity with basic legal principles.”
Holloway v. Horn,
161 F.Supp.2d 452, 478-79 (E.D.Pa.2001) (citations and internal quotation marks omitted).
The second prong of the
Strickland
test requires Petitioner to show that counsel’s ineffectiveness was prejudicial.
Strickland,
466 U.S. at 687 , 104 S.Ct. 2052 . A showing of prejudice requires Petitioner to prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id.
at 694 , 104 S.Ct. 2052 . A “reasonable probability” is defined as “a probability sufficient to undermine confidence in the outcome.”
Id.
“Stated differently, there will be no award of relief unless the defendant affirmatively establishes the likelihood of an unreliable verdict.”
McAleese v. Mazurkiewicz,
1 F.3d 159, 166 (3d Cir.1993) (citation omitted). When determining the likelihood that the result of the court proceeding may have been different, courts “must consider the totality of the evidence before the judge or jury.”
Strickland,
466 U.S. at 695 , 104 S.Ct. 2052 . A court must evaluate the “prejudice” prong in light of the totality of the evidence at trial since “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”
Id.
at 696 , 104 S.Ct. 2052 .
3.) Diminished Capacity Defense
Petitioner argues that trial counsel was ineffective by failing to investigate, develop and present a diminished capacity defense at the guilt phase of his trial. (Pet. Writ Habeas Corpus, ¶¶ 89-90). Petitioner contends that his “many cognitive and mental impairments are so severe that they would have established a diminished capacity defense at the guilt/innocence phase.” (Pet.’s AEDPA Mem. Law at 49)(citing Affidavit of Julie Kessel, M.D. ¶ 11; Affidavit of Carol Armstrong, Ph.D. ¶ 7). At the evidentiary hearing, in support of his claim, Petitioner presented the testimony of psychiatrist, Julie Kessel, M.D. (“Dr.Kessel”), and neuropsychologist, Carol Armstrong, Ph.D. (“Dr.Armstrong”).
{See
N.T. 9/5/02). The Commonwealth countered Petitioner’s argument with testimony from psychiatrist, John O’Brien II, M.D. (“Dr.O’Brien”), and neuropsychologist, John Gordon, Ph. D. (“Dr.Gordon”), expressing that Petitioner did not suffer from diminished capacity at the time he killed Mr. Fiss.
(See
N.T. 11/25/02 and 11/26/02). Upon consideration of Petitioner’s claim, all responses and replies thereto, and in light of the testimony and evidence adduced at the evidentiary hearing, this Court concludes that Petitioner has not established that his counsel was ineffective for failing to assert a defense of diminished capacity. As a result, the Court finds that the
Porter II
court’s denial of Petitioner’s claim was in agreement with, and a reasonable application of,
Strickland .
Thus, Petitioner’s Claim III seeking habeas relief is denied.
a.) Pennsylvania Law Regarding the Diminished Capacity Defense
In order to resolve Petitioner’s ineffective assistance of counsel claim, the Court must consider Petitioner’s counsel’s conduct within the context of Pennsylvania
*314
law regarding the defense of diminished capacity. Pennsylvania recognizes the defense of diminished capacity “to show that a defendant did not have the capacity to possess the state of mind required by the legislature to commit a
particular degree
of the crime charged.”
Zettlemoyer v. Fulcomer,
923 F.2d 284, 295 (3d Cir.1991)(citing
Commonwealth v. Walzack,
468 Pa. 210 , 360 A.2d 914, 919-20 (1976))(footnote omitted). Diminished capacity is an extremely limited defense.
See Williams,
732 A.2d at 1190;
Travaglia,
661 A.2d at 359 n. 10;
Commonwealth v. Larkins,
340 Pa.Super. 56 , 489 A.2d 837, 843 (1985);
Commonwealth v. Davis,
331 Pa.Super. 59 , 479 A.2d 1077, 1080 (1984). The diminished capacity defense is extremely limited because it “entails the assertion that the defendant’s mental condition at the time of the offense was such that he was incapable of forming the specific intent to kill.”
Williams,
732 A.2d at 1190 (citation omitted).
“Defendants invoking the defense of diminished capacity ... concede general criminal liability.”
Zettlemoyer,
923 F.2d at 295 (citing
Walzack,
360 A.2d at 919-20 ). “Evidence of diminished capacity is admissible at the guilt phase of trial and a jury finding diminished capacity may not find the defendant guilty of first degree murder, but it may find the defendant guilty of third degree murder.”
Id.
In order to prove diminished capacity, “only expert testimony on how the mental disorder affected the cognitive functions necessary to form the specific intent is relevant and admissible.”
Id.
(citations omitted). Thus, “[t]o prove a claim of diminished capacity, expert psychiatric testimony ‘that addresses mental disorders affecting the cognitive functions [of deliberation and premeditation] necessary to formulate specific intent is admissible.’”
Commonwealth v. Moore,
569 Pa. 508 , 805 A.2d 1212, 1217 (2002)(quoting
Commonwealth v. Legg,
551 Pa. 437 , 711 A.2d 430, 433 (1998)).
4.) Analysis of Petitioner’s Claim
As mentioned before, a showing of ineffective assistance of counsel requires satisfaction of two components. First, counsel must have been so deficient that his “representation fell below an objective standard of reasonableness.”
Strickland,
466 U.S. at 687 , 104 S.Ct. 2052 . Second, a petitioner must show that counsel’s “deficient performance prejudiced the defense.”
Id.
a.) Deficient Performance
As explained earlier,
Strickland
requires that Petitioner first show that Mr. Floyd’s performance was deficient.
Id.
at 687 , 104 S.Ct. 2052 . This requirement involves Petitioner proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.
Id.
at 688 , 104 S.Ct. 2052 . In Petitioner’s case, the assertion of a diminished capacity defense would have been in direct contradiction to Petitioner’s claim of innocence and his theory that someone else had committed the murder. At the evidentiary hearing, Petitioner’s trial counsel testified that Petitioner consistently denied any involvement in the murder of Mr. Fiss. (N.T. 9/4/02, p. 64, lines 18-20). When questioned about his actions pertaining to a diminished capacity defense, trial counsel testified as follows:
diminished capacity is totally inconsistent with what my client always told me. He told me that he had nothing to do with this, so if you want to enter a defense of diminished capacity, that to me seems to admit that you participated in a crime.... [t]here wasn’t much of an alternative defense to speak to [Petitioner] about, because he repeatedly told me
*315
that he did not commit this crime, and he told me that he had an alibi, that he knew nothing about it. So based upon that, I don’t see what other possible defense is available.
(Id.,
p. 53-54). Mr. Floyd stated that Petitioner always seemed rational and that there was nothing which led him to believe that there was a potential mental health issue. (Id, p. 64, lines 8-20). Mr. Floyd testified that Petitioner was able to rationally discuss his case “at great length.”
(Id.,
p. 64, fines 16-17). Further, Mr. Floyd stated that Petitioner understood the proceedings and “wrote notes to me during the course of trial.”
(Id.,
p. 64-65). Mr. Floyd also testified that there was nothing about the facts of the case which made him think that there was some sort of mental health issue.
(Id.,
p. 67, fines 14-17).
As mentioned earlier, “[defendants invoking the defense of diminished capacity ... concede general criminal liability.”
Zettlemoyer,
928 F.2d at 295 (citation omitted). Thus, “[a] defense of diminished capacity is only available to a defendant who admits criminal liability but contests the degree of guilt.”
Commonwealth v. Johnson,
572 Pa. 283 , 815 A.2d 563, 578 (2002) (citations and internal quotation marks omitted). Accordingly, “an accused offering evidence under the theory of diminished capacity concedes general criminal liability and the authority to make such a concession is solely that of the accused.”
Commonwealth v. Weaver,
500 Pa. 439 , 457 A.2d 505, 506 (1983)(internal citations omitted). In order for a diminished capacity defense to be asserted in Petitioner’s case, Petitioner is required to concede general liability for the murder of Mr. Fiss. There is no evidence that Petitioner has ever conceded guilt in this case. In fact, Petitioner has consistently maintained his innocence.
25
(See N.T. 7/9/02, 9/4/02, 9/5/02, 11/25/02). Even as recently as the August 6, 2002 clinical examination by the Commonwealth’s expert, Dr. O’Brien, Petitioner upheld his claim of innocence and stated that he had alibi witnesses to prove it. (N.T. 11/25/02, p. 36-37; Ex. C-9 (Dr. O’Brien’s Report)). Thus, not only has Petitioner never conceded guilt in this case, but he has consistently upheld his innocence, even sixteen years after the trial. Consequently, the defense of diminished capacity directly conflicts with Petitioner’s version of events and claims of innocence.
In fight of Petitioner’s consistent claims of innocence, Mr. Floyd’s strategy at all times during trial was to obtain an acquittal for Petitioner. Mr. Floyd’s performance during trial was consistent with the Petitioner’s defense of innocence. Thus, had Petitioner’s trial counsel sought a diminished capacity defense, it would have been inconsistent and completely undermined his strategy to seek an acquittal based upon Petitioner’s innocence. In fight of Petitioner’s constant claims of innocence, trial counsel’s interactions with Petitioner and the specific facts of the case, counsel had a reasonable basis for not presenting a diminished capacity defense.
26
Since the record reflects a rea
*316
sonable basis to support Mr. Floyd’s trial strategy seeking acquittal based upon Petitioner’s own claims of innocence, counsel should not be deemed ineffective for failing to assert a contradictory defense.
27
Accordingly, counsel’s representation of Petitioner was not deficient and, therefore, does not constitute ineffective assistance of counsel.
b.) Prejudice
The Court concludes that Petitioner has failed to meet his burden of showing that Mr. Floyd’s representation was deficient. However, even assuming that Petitioner has proved that Mr. Floyd’s performance did .fall beneath prevailing professional norms, Petitioner is unable to show that he suffered prejudice as a result of that deficient performance. In order to prove prejudice, Petitioner is required to show that Mr. Floyd’s failure to present a diminished capacity defense resulted in “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 .
Petitioner argues that he is organically brain damaged and has a long history of serious mental health illness. (Pet. Writ Habeas Corpus, ¶ 89). According to Petitioner, these mental health impairments are such that they would have presented a viable diminished capacity defense.
(Id.).
The
Porter II
Court rejected Petitioner’s claim of ineffectiveness by finding that Petitioner’s diminished capacity claim was unsupportable based upon contemporary records and the psychiatric report prepared for trial.
Porter II,
728 A.2d at 897 . At the evidentiary hearing before this Court, both sides presented testimony from their respective mental health experts regarding Petitioner’s mental health. (N.T. 9/5/02, 11/25/02, 11/26/02). In support of his mental health claims, Petitioner presented testimony by Dr. Kessel and Dr. Armstrong asserting that he suffers from serious cognitive dysfunction which creates a pervasive diminished capacity. (N.T. 9/5/02). As for the Commonwealth, it presented testimony by Dr. O’Brien and Dr. Gordon expressing that Petitioner did not suffer from diminished capacity at the time of the murder of Mr. Fiss. (N.T. 11/25/02 and 11/26/02). Upon consideration of the testimony at the evidentiary hearing, the parties’ submissions and exhibits, this Court concludes that Petitioner has not shown that he suffered mental impairments severe enough to warrant a diminished capacity defense. As such, Petitioner has not established that he was prejudiced because he has failed to show that a reasonable probability exists that, but for counsel’s failure to assert and investigate a diminished capacity defense, the result of the proceeding would have been different.
Strickland,
466 U.S. at 694 , 104 S.Ct. 2052 .
*317
At the evidentiary hearing, Petitioner presented the testimony of Dr. Armstrong. (N.T. 9/5/02). Dr. Armstrong performed a neuropsychological evaluation of Petitioner.
{Id.,
p. 16-17). The scope of Dr. Armstrong’s testing of Petitioner did not include any discussion about the robbery and murder of Mr. Fiss or Petitioner’s criminal history.
{Id.,
p. 61, 79). Dr. Armstrong testified that Petitioner suffers from, among other things, anti-social behavior, cognitive impairments and borderline mental retardation.
(See
N.T. 9/5/02). Relying upon her evaluation of Petitioner, Dr. Armstrong testified that there is evidence that Petitioner has suffered from diminished capacity for a long period of time.
(Id.,
p. 39). Dr. Armstrong went on to state that Petitioner has always had a diminished capacity in all of his actions, including his criminal actions.
(Id.,
p. 51-52). When specifically questioned about whether Petitioner had the capacity to understand and have the intent to rob Mr. Fiss, Dr. Armstrong stated that “it’s a misuse of my knowledge about brain function in this case — in this individual’s case to ask me to apply that to whether someone knows what’s coming in the future in their mind.”
(Id.,
p. 58, lines 18-25). When further questioned regarding whether Petitioner was able to understand and form the intent to rob Mr. Fiss, Dr. Armstrong went on to state that she “can’t— nor can anyone — take this knowledge and tell you what is in someone’s mind at that time.”
(Id.,
p. 59, lines 1-8).
In response to direct questions about Petitioner’s mental capacity at the time of the murder of Mr. Fiss, Dr. Armstrong testified that she never discussed Petitioner’s version of the case. (Id, p. 60-62). Dr. Armstrong explained that her medical opinion is premised upon what is in the record. (Id, p. 62). Dr. Armstrong asserted that it was not necessary to ask Petitioner about the crime because she was already aware that Petitioner had competency issues at the time of the crime. (Id). When questioned about her role regarding Petitioner’s diminished capacity defense, Dr. Armstrong testified that her “role was very clearly to assess whether [Petitioner] has neurocognitive evidence and brain dysfunction.” (Id, p. 61).
As for Dr. Kessel, her testimony at the evidentiary hearing revealed that she believed, to a reasonable degree of medical certainty, that Petitioner suffered from diminished capacity at the time of the murder of Mr. Fiss based upon his cognitive impairments, mental retardation and mental disorder. (Id, p. 141-42). Similar to Dr. Armstrong, Dr. Kessel’s opinion that Petitioner suffered from a diminished capacity is not based upon the specific facts of the crime, but is based upon the “pervasive state of [Petitioner’s] brain damage and impaired mental function, impulse control, difficulty reasoning [and] difficulty with planning an executive function.” (Id, p. 180). Dr. Kessel explained that “it’s the pervasive state of [Petitioner’s] cognitive impairments that make him diminished in his ability to reason, plan and execute complicated activities.” (Id, p. 182, lines 14-21). When explicitly questioned about whether Petitioner understood and specifically intended that the bullet he fired at Mr. Fiss would enter Mr. Fiss, hurting and ultimately killing him, Dr. Kessel restated that she believed that Petitioner’s capacity to appreciate his actions was substantially diminished by his cognitive impairments.
28
(Id, p. 184).
*318
In response to Petitioner’s expert mental health testimony, the Commonwealth presented the testimony of Dr. O’Brien. (N.T. 11/25/02). In contrast to Petitioner’s mental health experts, Dr. O’Brien rendered the following diagnosis of Petitioner, “he has an antisocial personality disorder, this is also a diagnosis that appears in his medical records, and that he has a history of alcohol and mixed substance abuse, and that he on psychological testing has what we call borderline intellectual functioning or low average IQ on testing.”
(Id.,
p. 8, lines 16-23). After performing a psychiatric evaluation of Petitioner, Dr. O’Brien opined, to a reasonable degree of medical certainty, that Petitioner did not suffer from a diminished capacity at the time he committed the robbery and murder of Mr. Fiss.
29
(N.T. 11/25/02, p. 6-7). Specifically, Dr. O’Brien testified that:
there is nothing in the materials I reviewed nor in my clinical examination of Mr. Porter that indicated to me that at the time of the alleged offense he was suffering from a diminished capacity; that he was unable to formulate intent or carry out intentional behaviors; that he was substantially impaired in his understanding of right and wrong, or in his ability to conform his conduct to the requirements of the law; or that he was suffering from an extreme mental or emotional disturbance which caused him to have difficulties comprehending his circumstances.
(N.T. 11/25/02, p. 6, lines 13-23). In additional support of his finding that Petitioner did not suffer from diminished capacity, Dr. O’Brien relied upon the facts of the robbery and murder of Mr. Fiss.
(Id.,
p. 37). Regarding the facts of the case, Dr. O’Brien testified that “the crime ... to have taken place involving a number of steps ... and also involving a robbery or some kind of personal gain to Mr. Porter, is not the type of factual scenario that is consistent with an individual who is incapable of carrying out intentional behaviors and then carrying them out successfully.”
(Id.,
p. 37, lines 17-24). Thus, Dr. O’Brien went on to state that, in his opinion, “the facts as established in reference to the conviction are not consistent with a conclusion ... that Mr. Porter was suffering from a diminished capacity at the time of the offense.”
(Id.,
p. 37-38).
Regarding his interview of Petitioner, Dr. O’Brien testified that he found nothing to suggest that Petitioner suffers from a psychiatric illness or psychosis.
(Id.,
p. 8, lines 12-23). In response to a specific question regarding whether Petitioner’s interview suggested psychiatric illness or psychosis, Dr. O’Brien responded, “[p]sy-chosis, no, absolutely not. There was nothing about the interview that suggested [Petitioner] suffers from a significant or primary psychiatric illness.”
(Id.,
p. 8, lines 14-16). Dr. O’Brien also found nothing in Petitioner’s interview to suggest that he suffers from brain damage.
(Id.,
p. 8-9). Dr. O’Brien found Petitioner to be “an individual who both by history and on clinical evaluation with me is an individual who attempts to manipulate situations.”
(Id.,
p. 9, lines 1-3). During his interview of Petitioner, Dr. O’Brien noticed “regular, consistent inconsistency in [Petitioner’s] clinical presentation.”
(Id.,
p. 9, lines 15-16). Dr. O’Brien further
*319
testified that “in my opinion, [Petitioner] was attempting to portray himself manipulatively as being impaired when that impairment is not supported by the records and not consistently apparent on clinical examination.”
(Id.,
p. 10, lines 10-13).
The Commonwealth also presented the testimony of its other mental health expert, Dr. Gordon. (N.T. 11/26/02). In relation to Petitioner’s diminished capacity defense, Dr. Gordon testified that there was nothing about the testing, the facts of Petitioner’s case or Petitioner’s medical records, that led him to believe that Petitioner suffered from a diminished capacity at the time of the crime.
30
(Id.,
p. 38, lines 15-19). Based upon Dr. Armstrong’s test results, the records and all of the voluminous materials he reviewed in this case, Dr. Gordon opined, to a reasonable degree of medical certainty, that there is no evidence that Petitioner suffered from a diminished capacity or was incompetent at the time of trial.
(Id.,
p. 77). Dr. Gordon disagreed with Dr. Armstrong’s conclusion that Petitioner’s test results support a diagnosis that Petitioner has brain damage.
(Id.,
p. 13). Dr. Gordon stated that Dr. Armstrong’s assessment was based upon testing that utilized inadequate norms.
(Id.,
p. 23-26). According to Dr. Gordon, Dr. Armstrong’s assessment did not utilize norms pertaining to Petitioner’s educational background, age or intellectual level, but utilized norms relating to elderly people with respect to the dementia rating scale.
(Id.).
Even assuming that Dr. Armstrong’s test was an acceptable measuring mechanism, Dr. Gordon testified that her conclusion is not supported by her own data because Petitioner’s total score was higher than what would be considered the dementia range.
(Id.,
p. 24, lines 19-25; p. 25, fines 1-5).
Regarding Petitioner’s intelligence level, Dr. Gordon testified that Petitioner has borderline to low average IQ and, in no way, should be classified as mentally retarded.
(Id.,
p. 33-34). Based upon the records that are available for review, Dr. Gordon stated that Petitioner does not meet the criteria for being mentally retarded.
(Id.,
p. 56-57). After examining Petitioner’s records, including records pertaining to Petitioner’s previous hospitalizations, Dr. Gordon asserted that the records reveal that Petitioner had an antisocial personality disorder, not brain damage or psychiatric illness.
(Id.,
p. 27-28).
The aforementioned medical testimony was offered for the issue of whether Petitioner was prejudiced by his trial counsel’s failure to raise the defense of diminished capacity. As mentioned beforehand, in order for Petitioner to prove prejudice he must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland,
466 U.S. at 694 , 104 S.Ct. 2052 . Thus, in this case, Petitioner must establish by a reasonable probability that the diminished capacity defense would have proven successful if trial counsel had advanced it. Upon examination of all of the aforementioned, including all exhibits and testimony, Petitioner has not shown that there is a reasonable probability that if the diminished capacity defense had been asserted the result of Petitioner’s trial would have been different.
As noted by the
Porter II
court, diminished capacity is an extremely limited defense.
Porter II,
728 A.2d at 897 n. 6. The diminished capacity defense is extremely limited because it “entails the assertion that the defendant’s mental condition at
*320
the time of the offense was such that he was incapable of forming the specific intent to kill.”
Williams,
732 A.2d at 1190 (citation omitted). Thus, the defense of diminished capacity requires the proponent to prove that, at the time of the killing, he was suffering from a mental disease or illness that affected the cognitive functions of deliberation and premeditation necessary to formulate specific intent.
Moore,
805 A.2d at 1217 . After careful consideration, this Court concludes that Petitioner has not proven that he was suffering from a mental disease or illness that precluded his cognitive functions of planning, premeditation and deliberation. Upon weighing all testimony, reports and records, the Court concludes that Petitioner’s mental health evidence fails to show that his mental condition was such that he was incapable of forming the specific intent to kill. In light of all of the mental health evidence presented to the Court, especially the Commonwealth’s expert testimony and reports, the Court finds that Petitioner did have the mental capacity to understand and form the intent to kill. Thus, Petitioner has not established that he suffered from a diminished capacity at the time he shot and killed Mr. Fiss.
In order to reach its conclusion, the Court weighed all relevant testimony, records and evaluations. In addition to the aforementioned, the Court also looked to the facts of the robbery and murder for insight into Petitioner’s mental state at the time of the crime.
31
The facts of the case establish that Petitioner struck early on a Saturday morning, when Mr. Fiss was arriving to open up his shop and before the arrival of any customers. Petitioner pushed Mr. Fiss into his shop, out of sight of the street, against protestations by Mr. Fiss. Away from the front of the shop and the front window, Petitioner forced Mr. Fiss into the back bathroom of the shop. While in the back bathroom, out of view, Petitioner shot, robbed and killed Mr. Fiss. After successfully shooting and robbing Mr. Fiss, Petitioner immediately fled the scene. Petitioner exited the shop, brushing by Catherine Valente, got into Mr. Fiss’s automobile which was parked at the front curb and swiftly drove away.
32
As evidenced by the facts of the case, Petitioner’s robbery and murder of Mr. Fiss incorporated multiple and layered steps which required both premeditation and deliberation. Petitioner’s crime was not a crime committed by someone who was so mentally ill that he was incapable of deliberating or forming the specific intent to kill, but was a crime involving multiple and intentional steps leading to Petitioner’s own self gain.
In addition to the facts of the murder and robbery of Mr. Fiss, Petitioner’s actions during an armed robbery three days after the crime also shed some light on Petitioner’s mental capacity. On April 30, 1985, Petitioner and two other armed men robbed Gentile’s Golden Nugget jewelry store. (N.T. 2/21/86, p. 153-77). At Petitioner’s trial, Vincent Gentile, the jewelry store owner, testified that Petitioner and
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two other men entered his shop and attempted to rob the store.
(Id.).
Mr. Gentile testified that, during the robbery, Petitioner led him into the residential area in the back of the store.
(Id.,
p. 158). While heading back into the residential area, Mr. Gentile pushed a silent alarm twice to notify police of the robbery.
(Id.,
p. 158). In the residential area, two of Mr. Gentile’s friends and one of his employees were seated at a kitchen table having coffee and talking.
(Id.,
p. 155). Petitioner pointed his gun directly at the three people and stated, “Don’t look at us or we’ll kill you.”
(Id.,
p. 159, lines 14-18). Petitioner proceeded to slap the three people in their faces with his hand.
(Id.,
p. 159-60). Petitioner then handcuffed two of Mr. Gentile’s friends together.
(Id.,
p. 167, lines 17-19). When everyone was handcuffed, they were instructed to lay down on the kitchen floor.
(Id.,
p. 168). While on the floor, Mr. Gentile felt one of the men take his wallet out of his pocket and a ring from his finger.
(Id.,
p. 168, fines 6-15). After a couple of minutes, the police arrived and the three men ran out the back door.
(Id.).
As he was being chased by the police, Petitioner discarded a white bag underneath a parked car.
(Id.,
p. 181-82). The bag was discovered to contain jewelry valued at approximately $45,000.
(Id.,
p. 182-88). Also, while being chased, Petitioner discarded his gun under a car.
33
(Id.,
p. 187-88, 206-207). After the chase, Petitioner was apprehended approximately three blocks from Gentile’s Golden Nugget jewelry store.
(Id.,
p. 184, fines 8-16). After Petitioner was apprehended, Mr. Gentile positively identified Petitioner as one of the men with a gun involved in the armed robbery. (N.T. 2/21/86, p. 169, lines 6-19).
Upon examination of the facts of this particular crime, it is evident that Petitioner does not suffer from a pervasive mental condition that precludes him from forming the cognitive functions of premeditation and deliberation necessary to formulate a specific intent to kill. During the robbery, Petitioner’s actions reveal a man who is able to reason, plan and execute complicated activities. Thus, Petitioner’s actions regarding the robbery of the jewelry store three days after his murder of Mr. Fiss contradict the expert testimony of Dr. Armstrong and Dr. Kessel that his cognitive functioning is so impaired that he suffers from a pervasive diminished capacity. In fact, the robbery of the jewelry store supports the Commonwealth’s medical expert testimony that Petitioner does not suffer from a pervasive diminished capacity, but has the mental capability to both comprehend and intend for his actions and their attendant consequences.
As a result of the aforementioned, the Court concludes that Petitioner has not shown by a reasonable probability that he suffered from a diminished capacity at the time of the robbery and murder of Mr. Fiss. Petitioner has failed to show that there is a reasonable probability that the diminished capacity defense would have proven successful if trial counsel had advanced it. Thus, the jury’s failure to hear the diminished capacity evidence does not undermine the confidence in Petitioner’s conviction. As a result, Petitioner has not established that he was prejudiced by counsel’s failure to present a diminished capacity defense. Consequently, Petitioner has not established ineffective assis
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tance of counsel because he has failed to meet his burden of showing prejudice.
5.) Conclusion
In sum, trial counsel acted reasonably by asserting a defense of innocence, instead of a diminished capacity defense. Thus, Petitioner has not shown that “counsel’s representation fell below an objective standard of reasonableness.”
Strickland,
466 U.S. at 688-90 , 104 S.Ct. 2052 . Since Petitioner has consistently maintained his innocence, trial counsel’s strategy seeking acquittal for Petitioner was consistent with the defense of innocence. In light of Petitioner’s constant claims of innocence, trial counsel’s dealings with Petitioner and the specific facts of the case, counsel had a reasonable basis for not presenting a diminished capacity defense. Since a reasonable basis appears on the record for Mr. Floyd’s trial strategy seeking acquittal based upon Petitioner’s own claims of innocence, counsel should not be deemed ineffective for failing to assert a contradictory defense. Even if counsel had not acted reasonably, Petitioner has not proven that he was prejudiced by counsel’s actions. Petitioner has not established by a reasonable probability that the diminished capacity defense would have proven successful if trial counsel had advanced it. The jury’s failure to hear the diminished capacity evidence does not undermine the confidence in Petitioner’s conviction. Thus, Petitioner has faded to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland,
466 U.S. at 694 , 104 S.Ct. 2052 . Accordingly, under the relevant
Strickland
standards governing ineffective assistance of counsel claims, Mr. Floyd’s representation of Petitioner does not constitute ineffective assistance of counsel. Consequently, the
Porter II
Court’s denial of Petitioner’s ineffective assistance of counsel claim was not contrary to
Strickland ,
but was a reasonable application of
Strickland .
Thus, Petitioner’s claim for habeas relief in Count III is denied.
6.) Guilty But Mentally III Defense
In addition to the diminished capacity defense, Petitioner’s claim also relies upon trial counsel’s failure to assert the “Guilty But Mentally Ill” defense. (Pet. Writ Ha-beas Corpus, ¶¶ 89-90). As already stated, the Court held an evidentiary hearing regarding Claim III. (N.T. 9/4/02, 9/5/02, 11/25/02 and 11/26/02). At the evidentiary hearing, the testimony regarding Claim III focused solely upon a diminished capacity defense and did not include testimony concerning the “Guilty But Mentally Ill” defense.
(Id.).
Thus, even though Petitioner’s ineffective assistance of counsel claim is based, in part, upon trial counsel’s failure to assert a “Guilty But Mentally Ill” defense, Petitioner did not present any evidence or testimony in support of that portion of his claim. Petitioner’s failure to support his allegations pertaining to the available “Guilty But Mentally Ill” defense is inconsequential because such an argument is misplaced in this case due to this Court’s prior finding that Petitioner is already entitled to a new sentencing or sentencing proceeding. Regarding Claim V, the Court concluded that Petitioner is entitled to habeas relief and granted him a new sentencing or sentencing proceeding.
See supra
Part IV.C.l. As a result of this ruling, since Petitioner is granted relief upon his sentencing phase argument, the Court concluded that it would not address Petitioner’s remaining claims concerning the sentencing phase. Instead, this Court focused solely upon Petitioner’s claims relating to the guilt phase.
The Pennsylvania Supreme Court has held that “[t]he ‘Guilty But Mentally Ill’
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defense ... is available in capital cases only in the sentencing phase, and not in the guilt phase.”
Commonwealth v. Stevens,
559 Pa. 171 , 739 A.2d 507, 514 (1999)(citing
Commonwealth v. Faulkner,
528 Pa. 57 , 595 A.2d 28, 36 (1991));
see also Commonwealth v. Williams,
557 Pa. 207 , 732 A.2d 1167, 1190 (1999)(stating that “[i]n a capital case, an assertion of ‘guilty but mentally ill’ is properly considered only in the penalty phase of trial and is subsumed within the mitigating circumstances set forth at [42 Pa.C.S.] Section 9711(e)(2) and (e)(3)).” Since, in the instant case, the “Guilty But Mentally Ill” defense is only available in the sentencing phase, Petitioner’s ineffective assistance of counsel claim as to this particular defense has no application in the guilt phase. Because the Court has previously held that it would only address Petitioner’s remaining claims pertaining to the guilt phase, any testimony or evidence pertaining to a “Guilty But Mentally Ill” defense would be misplaced. As a result, the Court has solely addressed Petitioner’s Claim III as it pertains to a diminished capacity defense.
b. Claim IV Petitioner was not mentally ill and incompetent at the time of his trial proceedings and his conviction and death sentence do not violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
Petitioner asserts that his due process right not to be tried while incompetent and his Sixth Amendment right to effective assistance of counsel were violated when he was tried without a competency hearing and without any investigation of his competency by trial counsel. (Pet’s AEDPA Mem. Law. at 50). Petitioner argues that his due process rights were violated because the trial court faded to make an inquiry into Petitioner’s competency despite the court’s awareness, prior to the capital sentencing hearing, that Petitioner suffered from a history of mental illness.
(Id.).
Petitioner also argues that trial counsel, Michael Floyd, Esq., rendered ineffective assistance of counsel because he failed to investigate Petitioner’s competency or request a competency hearing.
(Id.).
1.) State Court Decision
In
Porter II ,
the Pennsylvania Supreme Court stated the relevant law on competency to stand trial.
Porter II,
728 A.2d at 897 n. 7. In relation to Petitioner’s claim, the
Porter II
court refused to “revisit its finding made on direct appeal that there was no evidence that [Petitioner] ever had, or was at the time of direct appeal suffering from, any thought disorder or psychosis.”
Id.
(citing
Porter I,
569 A.2d at 946-47 ). Previously, on direct appeal, the
Porter I
court stated the following regarding Petitioner’s mental health evidence:
[a]t all events there were no such records that appellant did or ever suffer from a mental defect or injury. Prior to sentencing, the trial court had appellant examined. The examination established that there was then and none before, evidence of thought disorder or psychosis. The court allowed the appellant’s mother to testify as to his mental condition. She did as best she could. The court did not err in refusing a continuance when there was no showing that a report favorable to the contention existed.
Porter I,
569 A.2d at 946-47 . Petitioner alleges that the
Porter II
court’s disposition of his claim asserting that he was not actually mentally ill is erroneous and unreasonable. (Pet.’s AEDPA Mem. Law at 51). Thus, Petitioner argues that the
Porter II
court’s disposition was “contrary
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to, and an unreasonable application of,
inter alia, Cooper v. Oklahoma,
517 U.S. 348 , 116 S.Ct. 1373 , 134 L.Ed.2d 498 (1996);
Drope v. Missouri,
420 U.S. 162 , 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975);
Pate v. Robinson,
383 U.S. 375 , 86 S.Ct. 836 , 15 L.Ed.2d 815 (1966) and
Strickland.” (Id.).
2.) Analysis of State Court Decision
As previously noted, the Pennsylvania Supreme Court mentioned Petitioner’s competency-related arguments, although the basis for its ruling on Petitioner’s incompetency claim is difficult to understand.
Porter II,
728 A.2d at 897 . The
Porter II
court’s decision seems to be based upon its previous ruling regarding Petitioner’s direct appeal in
Porter I. (Id.).
The
Porter II
court’s reliance upon the direct appeal ruling is problematic because the
Porter I
opinion does not specifically address Petitioner’s competency-related claim. The
Porter II
court seems to have interpreted Petitioner’s competency-related claim as predicated upon the related, but legally distinct, issue of whether trial counsel was ineffective for failing to timely request Petitioner’s psychiatric records for use at the penalty phase. As evidenced by Petitioner’s competency claim, it involves both a due process claim against the trial court and an ineffective assistance of counsel claim for failing to investigate Petitioner’s competency or request a competency hearing.
Although Petitioner did not make this point in his brief, the Court believes that the Pennsylvania Supreme Court’s disposition of Petitioner’s competency claim is tantamount to its not having addressed the merits of the claim at all. “Where the state court fails to adjudicate a habeas petitioner’s claim on the merits, we have held that AEDPA’s deferential standards are inapplicable.”
Jermyn,
266 F.3d at 299 -300 (citing
Appel,
250 F.3d at 210 )(finding that state courts mischarac-terized petitioner’s claim as based on ineffective assistance of counsel rather than a constructive denial of counsel, and thus, petitioner’s claim had not been adjudicated properly on the merits in state court). “Thus, if the defendant properly preserves an issue but the state court does not reach the merits of the claim, pre-AEDPA review is appropriate, and we ‘must examine, without special heed to the underlying state court decision,’ whether the claim has merit.”
Id.
(quoting
Appel,
250 F.3d at 210 ;
Hameen,
212 F.3d at 248 ). Accordingly, the Court must independently examine whether Petitioner’s due process rights were violated because the trial court failed to make an inquiry into Petitioner’s competency to stand trial and whether Petitioner’s Sixth Amendment right to effective assistance of counsel was violated by counsel’s failure to investigate his competency or request a competency hearing.
3.) Legal Standards
a.) Competency to Stand Trial
Petitioner asserts that his due process right not to be tried while incompetent was violated when he was tried without a competency hearing. (Pet.’s AEDPA Mem. Law at 50). “A defendant has a due process right not to be tried while incompetent.”
Jermyn,
266 F.3d at 283 (citing
Drope,
420 U.S. at 171-72 , 95 S.Ct. 896 ;
Pate,
383 U.S. at 385 , 86 S.Ct. 836 ). In order “[t]o be competent to stand trial, a defendant must have ‘a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and must possess ‘a rational as well as factual understanding of the proceedings against him.’ ”
Id.
(quoting
Dusky v. United States,
362 U.S. 402 , 80 S.Ct. 788 , 4 L.Ed.2d 824 (1960)(per curiam)). “Due Process requires the trial court to inquire
sua sponte
as to the defen
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dant’s competence in every case in which there is a reason to doubt the defendant’s competence to stand trial.”
Id.
(citing
Drope,
420 U.S. at 173 , 95 S.Ct. 896 )(find-ing that Illinois statute, which required a court to grant competency hearing
sua sponte
if there was “reasonable cause to believe” that the defendant was incompetent, comported with due process, and that trial court’s failure to hold hearing despite indicia of incompetence violated defendant’s right to fair trial);
Pate,
383 U.S. at 385 , 86 S.Ct. 836 (stating that failure to hold competency hearing violated due process where state statute required trial court to order hearing where there was “reason to doubt” defendant’s competency, and the evidence was sufficient to put the trial court on notice of potential problem);
United States v. Haywood,
155 F.3d 674, 680 (3d Cir.1998)(finding that federal competency statute, 18 U.S.C. § 4241 , “requires a record-based judicial determination of competence in every case in which there is reason to doubt the defendant’s competence to stand trial,” and noting that “the Due Process Clause ... requires no less”);
United States v. DiGilio,
538 F.2d 972, 987 (3d Cir.1976)(stating that “[a]l-though § 4244 does not say so explicitly, due process requires that the trial court inquire
sua sponte
into the defendant’s competence if there is reason to doubt it”).
Further, “counsel’s failure to request the trial court to order a hearing or evaluation on the issue of the defendant’s competency, see Pa. Stat. Ann. tit. 50, § 7402(c), (d), could violate the defendant’s right to effective assistance of counsel provided there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt the defendant’s competency, and there is a reasonable probability that the defendant would have been found incompetent to stand trial had the issue been raised and fully considered.”
Id.
at 283-84 (e.g.,
Hull v. Kyler,
190 F.3d 88, 106 (3d Cir.l999)(noting that defendant could establish the prejudice prong of an ineffectiveness claim if there were sufficient indi-cia of incompetence and counsel failed to request a competency hearing).
b.) Ineffective Assistance of Counsel Standard
Petitioner’s claim also asserts that his Sixth Amendment right to effective assistance of counsel was violated when he was tried without a competency hearing and without any investigation of his competency by trial counsel. (Pet. Writ Habeas Corpus, ¶¶ 94-95). As explained earlier, to successfully present a claim for ineffective assistance of counsel under
Strickland ,
Petitioner must establish that: (1) counsel’s performance was deficient and (2) he was prejudiced by counsel’s deficient performance.
Strickland,
466 U.S. at 687 , 104 S.Ct. 2052 ;
see supra
Part IV.C.2.a.2.).
4.) Analysis of Petitioner’s Claims
a.) Trial Court’s Failure to Order Competency Evaluation or Hearing
Petitioner asserts that the trial court violated his right to a fair trial by fading to order a competency hearing or evaluation pursuant to Pennsylvania law. Petitioner maintains that, as a result of the trial court’s omission, he was tried while incompetent. Petitioner asserts that there were sufficient signals to call his competence into question such that the trial court should have held an evidentiary hearing to determine if Petitioner was competent. According to Petitioner, the trial court was made aware, prior to the capital sentencing hearing, that he had “a lifelong history of mental illness, including indications of brain damage, depression and suicidal tendencies, and that he had been committed to mental institutions for psychiatric care several times since the age of twelve.”
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(Pet’s AEDPA Mem. Law at 50). In support of his claim, Petitioner also argues that the trial court was informed that Petitioner wanted to absent himself from the sentencing hearing and, at the sentencing hearing, Petitioner’s mother testified about Petitioner’s lifelong history of mental impairments.
(Id,.).
Petitioner relies upon the aforementioned as indicia of incompetency that should have given the court reason to doubt his competence to stand trial.
Upon review of Petitioner’s claim, the Court concludes that Petitioner’s indicia of incompetency is not sufficient to have instilled doubt in the trial court as to his competency to stand trial. First, there was nothing peculiar or strange about the c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2465303. Public record. Not legal advice.