Opinion

Holland v. Horn

150 F. Supp. 2d 706
2001 U.S. Dist. LEXIS 8401
2001 WL 704493

Court: District Court, E.D. Pennsylvania
Filed: Apr 25, 2001
Status: Published
Author: Van Antwerpen
On the bench: Van Antwerpen
Cited by: 22 cases
Authority: More cited than 76.4%

finding that for a claim to be considered properly raised and exhausted in state court, even though it was not expressly addressed in a state court opinion, a federal court has to assume that the state court decided against the petitioner on the merits of the claim and to grant relief the federal court must find that the decision was contrary to clearly established Supreme Court law or unreasonable under the facts

How later courts described this case

finding that for a claim to be considered properly raised and exhausted in state court, even though it was not expressly addressed in a state court opinion, a federal court has to assume that the state court decided against the petitioner on the merits of the claim and to grant relief the federal court must find that the decision was contrary to clearly established Supreme Court law or unreasonable under the facts
finding prejudice based on an mental health expert’s conclusion that “counsel’s failure to challenge the denial of a defense mental health expert created a reasonable probability that, but for this omission, Petitioner may have been afforded a stronger argument for mitigation and, therefore, a different sentence”
finding Pennsylvania Supreme Court’s denial of petitioner’s vagueness claim regarding § 9711(d)(9) is not contrary to, or an unreasonable application of, clearly established federal law
finding violation of Ake even though defendant had requested that a defense expert be appointed to assist only at the penalty phase

Written by the judges who cited it.

The opinion

OPINION AND ORDER

VAN ANTWERPEN, District Judge.

I. INTRODUCTION

This matter is before us pursuant to a Petition for a Writ of Habeas Corpus, filed by petitioner William Holland (“Petitioner”) on January 14, 2000. Petitioner presents twelve claims in pursuit of relief from his state murder conviction and death sen

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tence under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 . Petitioner was arrested on August 14, 1984 and charged with burglary, robbery, attempted rape, attempted involuntary deviate sexual intercourse, and first degree murder arising from an incident in the home of Jewel Stevens (“Victim”) on August 11, 1984. Alii B. Majeed, Esq. (“trial counsel”) was appointed by the court to assist Petitioner in presenting his defense. Petitioner was found guilty by a jury on all charges in the Court of Common Pleas, First Judicial District of Pennsylvania, Trial Division, on June 12, 1985. The same jury fixed the penalty at death later that day in a bifurcated proceeding. Petitioner filed a timely appeal to the Pennsylvania Supreme Court, which was denied on May 20, 1988.

See Commonwealth v. Holland (“Holland I”),

518 Pa. 405 , 543 A.2d 1068 (1988). He was represented on direct appeal by Norris E. Gelman, Esq. (“appellate counsel”).

On October 6, 1994, Petitioner filed a

pro se

petition for collateral post-conviction relief under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. § 9541

et seq.

On October 7, 1985, the PCRA court entered an order staying Petitioner’s execution for ninety days, pending the filing of a counseled PCRA petition. Barnaby C. Wittles, Esq. (“PCRA counsel”) was appointed to represent Petitioner in his post-conviction proceedings. Three evidentiary hearings were held in conjunction with Petitioner’s claims for state post-conviction relief. The first was held on July 13, 1995, the second on December 14, 1995, and the third on May 22, 1996. Petitioner’s post-conviction claims were denied in the Court of Common Pleas of Philadelphia County, Criminal Trial Division, on September 16, 1996. Petitioner then filed a timely appeal to the Pennsylvania Supreme Court, which was denied on April 1, 1999.

See Commonwealth v. Holland (“Holland II”),

556 Pa. 175 , 727 A.2d 563 (1999).

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

II. BACKGROUND

In the early morning hours of August 11, 1984, Petitioner entered the basement apartment of Jewel Stevens at 7829 Lang-don Street in Northeast Philadelphia by cutting a screen and climbing through the window.

(See

N.T. 6/5/85, at 1.70-1.71.) Ms. Stevens, who was seventy-one years old, was asleep. After cutting the phone line, Petitioner proceeded to stab Ms. Stevens in her side and abdomen with an

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onion peeler.

(See

N.T. 6/6/85, at 2.67.) She suffered a deep laceration on her right arm in an attempt to defend herself.

(See

N.T. 6/10/85, at 4.35.) Petitioner then forcefully removed Ms. Stevens’ pajama bottoms, used them to tie her wrists together, and sexually assaulted her.

(See

N.T. 6/6/85, at 2.67-2.68.) He stuck Ms. Stevens’ toes with straight pins, leaving one in her right foot.

(See

N.T. 6/6/85, at 2.4.) He took a few dollars from a table in the apartment and smoked a cigarette.

(See

N.T. 6/6/85, at 2.57, 2.68.)

At approximately 5 a.m., Betty Roman, Ms. Stevens’ upstairs neighbor, was awakened by noises in Ms. Stevens’ apartment, including the Victim’s cries for help. Ms. Roman called the police.

(See

N.T. 6/5/85, at 1.44-1.49.) When he became aware of the police’s arrival, Petitioner hid the bloody onion peeler above a neighbor’s door and fled the building.

(See

N.T. 6/5/85, at 1.60-1.62.) Officer Randall Straw arrived on the scene first and tended to Ms. Stevens in her apartment. Officer Bridgette McGinnis arrived after Officer Straw, and proceeded to the back of the Ms. Stevens’ apartment building, where she observed Petitioner for about twenty seconds before he fled.

(See

N.T. 6/5/85, at 1.101-1.110.) The next evening, Officer Mitsos, a member of the Sex Crimes Unit of the Philadelphia Police Department, received a call from Ms. Susan Dorfman. Ms. Dorfman identified a man named “Bill” who lived in the building behind Ms. Stevens’, as the potential perpetrator. At approximately 1:30 a.m., Officer Mitsos went to the building behind Ms. Stevens’ in an attempt to ascertain if anyone named Bill lived there. He met Petitioner, who successfully fled Officer Mitsos’ pursuit. The building superintendent notified Officer Mitsos that Petitioner lived with there his mother, Ms. Pauline Rogers, and advised the officer that Petitioner may have gone to his grandmother’s house. Officer Mitsos was, however, unable to locate Petitioner at his grandmother’s house.

(See

N.T. 6/5/85, at 1.140-1.150.)

Two days later, on August 14, 1984, Officer Dennis Graeber, Petitioner’s half-brother, informed Detective Joseph Descher that Petitioner was currently at his grandmother’s house. Detective Descher proceeded to that location, where he found Petitioner and his grandmother. Detective Descher asked Petitioner to accompany him to the police station for questioning, making clear to Petitioner that he was under no legal obligation to do so. Petitioner agreed.

(See

N.T. 6/6/85, at 2.25-2.33.) When they arrived at the station, Officer Descher and his partner, Officer Schol, began to question Petitioner about the incident at Ms. Stevens’ apartment. When Petitioner made it clear that he was in Ms. Stevens’ apartment on the night of the attack, the officers read Petitioner his

Miranda

rights and recorded his full confession.

(See

N.T. 6/6/85, at 2.40-2.69.) On August 24, 1984, Jewel Stevens died from wounds sustained during the incident on August 11.

(See

N.T. 6/6/85, at 2.9.) Petitioner was charged with, among other things, the first degree murder of Jewel Stevens. He was convicted by a jury and sentenced to death. He has been denied relief from his conviction and sentence both on direct appeal and in state collateral proceedings under the PCRA. He now petitions this court for federal habeas corpus relief pursuant to § 2254 of the AED-PA.

III. DISCUSSION

A. Exhaustion

Before filing a petition for habeas corpus relief under 28 U.S.C. § 2254 , a petitioner must exhaust all available state court remedies. 28 U.S.C. § 2254 (b)(1)(A). The exhaustion requirement is a rule of

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comity, not jurisdiction,

Castille v. Peoples,

489 U.S. 346, 349 , 109 S.Ct. 1066 , 103 L.Ed.2d 380 (1989), and is designed to allow state courts the opportunity to correct a state’s alleged violation of federal constitutional law before federal courts consider the matter.

O’Sullivan v. Boerckel,

526 U.S. 838, 844-45 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999). “An applicant shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254 (c).

Exhaustion requires that petitioner fairly present his claims to every level of state court, including offering each claim for discretionary review by a State’s highest court, and afford each reviewing court a fair opportunity to act on those claims.

O’Sullivan,

526 U.S. at 845 , 119 S.Ct. 1728 ;

Picard v. Connor,

404 U.S. 270, 275-76 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971).

The petitioner bears the burden of proving that he has exhausted available state remedies.

See Landano v. Rafferty,

897 F.2d 661, 668 (3d Cir.1990);

Santana v. Fenton,

685 F.2d 71, 73 (3d Cir.1982). The petitioner is not, however, required to revisit claims raised on direct appeal in state collateral proceedings,

see O’Sullivan,

526 U.S. at 844 , 119 S.Ct. 1728 (citing

Brown v. Allen,

344 U.S. 443, 447 , 73 S.Ct. 397 , 97 L.Ed. 469 (1953)), or seek alternatives to state habeas such as “a suit for injunction, a writ of prohibition, or mandamus or a declaratory judgment in the state courts.”

Id.

(citing

Wilwording v. Swenson,

404 U.S. 249, 249-50 , 92 S.Ct. 407 , 30 L.Ed.2d 418 (1971) (per curiam)). If the petitioner is unable to prove that all claims in his petition satisfy the statutory exhaustion requirements, his entire petition must be dismissed without prejudice and returned to the state courts for consideration of the unexhausted claims.

Rose v. Lundy,

455 U.S. 509, 522 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982);

Lines v. Larkins,

208 F.3d 153, 159-60 (3d Cir.2000). In the absence of any colorable federal claim, unexhausted claims may be dismissed on their merits.

See Lambert v. Blackwell,

134 F.3d 506, 515 (3d Cir.1997) (interpreting 28 U.S.C. § 2254 (b)(2): “An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”).

If, however, state procedural rules bar a petitioner from seeking further relief in state courts, “the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.’ ”

McCandless v. Vaughn,

172 F.3d

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255, 260 (3d Cir.1999) (citing 28 U.S.C. § 2254 (b));

see also United States v. DeRewal,

10 F.3d 100, 104 (3d Cir.1993) (defining prejudice as deprivation of “a trial whose result is reliable”). A reasonable probability is “a probability sufficient to undermine confidence in the outcome.”

Strickland,

466 U.S. at 694 , 104 S.Ct. 2052 . Outcome determination is not, however, the sole consideration in establishing prejudice. “[T]he ‘benchmark’ of an ineffective assistance claim is the fairness of the adversary proceeding.”

Nix v. Whiteside,

475 U.S. 157, 175 , 106 S.Ct. 988 , 89 L.Ed.2d 123 (1986). In order to establish prejudice as a result of deficient representation, a defendant must demonstrate that “counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”

Lockhart,

506 U.S. at 369 , 113 S.Ct. 838 (citing

Kimmelman v. Morrison,

477 U.S. 365, 374 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986)). The prejudice standard applied in the ineffective assistance context is nearly identical to the actual prejudice standard for excusing a procedural default articulated in

Coleman .

As a result, we may rely on any findings of prejudice within our ineffectiveness inquiry to satisfy any claims of actual prejudice to Petitioner. Furthermore, the standard used to determine ineffective assistance as grounds for cause is identical to that applied with respect to substantive claims for relief under the Sixth Amendment. As a result, we rely on our above explanation of the

Strickland

standard in all our ineffective assistance inquiries.

If we do find sufficient cause and prejudice to excuse procedural default, then those federal habeas claims that were not submitted to state adjudication should be reviewed by us

de novo. See, e.g., Hameen v. State of Delaware,

212 F.3d 226, 248 (3d Cir.2000) (“[U]nder the AED-PA the limitation on the granting of an application for a writ of habeas corpus is only ‘with respect to any claim that was adjudicated on the merits in state court proceedings.’ Hence we exercise preAEDPA independent judgment ....”);

Smallwood v. Gibson,

191 F.3d 1257, 1264 (10th Cir.1999) (finding that under AED-PA “we are generally subject to two different frameworks of review, depending upon whether the state courts addressed the

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merits of the claim for relief. If the state courts have not heard the claim on its merits, we review the district court’s legal conclusions de novo and its factual findings, if any, for clear error”);

Appel v. Horn,

1999 WL 323805 , at *5 (E.D.Pa. May 21, 1999) (“By the statutory terms, however, AEDPA ... applies] only when the issue facing the reviewing court has been ‘adjudicated on the merits in State court proceedings.’ When the state court fails to reach the merits of an issue presented to a federal habeas court, AEDPA’s deferential standards do not apply ... The district court must, therefore, ‘exercise plenary review over state court conclusions on mixed questions of law and fact and pure issues of law,’ as the court would have done prior to the enactment of AED-PA.”). Of course if cause and prejudice are not present, we cannot review the defaulted portions of a claim and may examine only the remaining exhausted portions in accord with the AEDPA.

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

(1) ... contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) ... based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

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

The “threshold question under AEDPA is whether [petitioner] seeks to apply a rule of law that was clearly established at the time his state court conviction became final.”

Williams v. Taylor,

529 U.S. 362 , 120 S.Ct. 1495, 1511 , 146 L.Ed.2d 389 (2000). An existing federal law is “clearly established” unless it either “breaks new ground or imposes a new obligation on the States,”

id.

at 1495, or was not “dictated” by precedent existing when the petitioner’s conviction became final.

Id.; see also Teague v. Lane,

489 U.S. 288, 301 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). The fact that a federal standard “of necessity requires a case-by-case examination of the evidence, obviates neither the clarity of the rule nor the extent to which the rule must be seen as ‘established’ by this Court.”

Williams,

120 S.Ct. at 1512 (citation omitted) (finding the

Strickland

standard for ineffective assistance of counsel to be clearly established).

A state court decision is contrary to federal law “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.”'

Williams,

120 S.Ct. at 1523 . “[I]t is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court’s; rather,

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the petitioner must demonstrate that Supreme Court precedent

requires

the contrary outcome.”

Matteo v. Superintendent, SCI Albion,

171 F.3d 877, 888 (3d Cir.1999). It is likewise not necessary for a petitioner to cite factually identical Supreme Court precedent. He may instead rely on a Supreme Court rule that, by virtue of its factual similarity or intention to apply to variant factual situations, “can fairly be said to require a particular result in a particular case.”

Id.

at 888-89 .

A state court adjudication is an “unreasonable application” of clearly established federal law if the court “identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

Williams,

120 S.Ct. at 1523 . “[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was

objectively unreasonable.” Id.

at 1521 (emphasis added). Although the term “unreasonable” is often difficult to define, the most important distinction is that “an

unreasonable

application of federal law is different from an

incorrect

application of federal law.”

Id.

at 1522 (emphasis in original). A state court decision cannot be found unreasonable unless, “evaluated objectively and on the merits, [it] resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent.”

Matteo,

171 F.3d at 890 . The Third Circuit is of the view that in evaluating reasonableness, federal habeas courts are not precluded from considering the decisions of lower courts.

Matteo,

171 F.3d at 890 (citing

O’Brien v. Dubois,

145 F.3d 16, 25 (1st Cir.1998)). In fact, such lower court decisions may serve as “helpful amplifications” of Supreme Court precedent.

Id.

2. Claims I and II

Petitioner’s Claims I and II raise two main claims: ineffective assistance of counsel; and an assertion that Petitioner was denied his Fifth Amendment right to a court-appointed defense expert to assist in developing mental health defenses at trial.

(See

Pet. Writ Habeas Corpus at 5-31, 63-81.) Petitioner offers seven subclaims in support of his two main claims. Six of these subclaims address the ineffectiveness of counsel. He argues that his trial counsel was ineffective (1) for failing to obtain potentially helpful records; (2) for failing to investigate, develop, and present expert testimony; (3) for failing to properly interview and present testimony from Petitioner’s family and other acquaintances; (4) for presenting harmful arguments and evidence on Petitioner’s behalf; (5) for improperly investigating and introducing the testimony of two lay witnesses about Petitioner’s level of intoxication on the night of Jewel Stevens’ murder; and (6) for making inaccurate and prejudicial statements in association with Petitioner’s intoxication defense at the penalty phase. The seventh subclaim argues that Petitioner was denied his Fifth Amendment due process right to a court-appointed defense mental health expert for assistance in developing trial defenses. Respondent argues that both of Petitioner’s main claims are defaulted at

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least in part because they contain “different facts and legal theories” from those presented in prior state proceedings.

We find that Petitioner did raise the first two subclaims in state court.

(See

Holland II Brief at 12-38.) They were in turn decided on their merits under federal and state law and, as a result, are properly before this court for review under § 2254 of the AEDPA.

See Duncan v. Henry,

513 U.S. 364, 365-66 , 115 S.Ct. 887 , 130 L.Ed.2d 865 (1995).

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

See Coleman,

501 U.S. at 750 , 111 S.Ct. 2546 .

a. Defaulted Ineffectiveness Subclaims

Petitioner’s third subclaim is that his trial counsel was ineffective at the penalty phase of his trial for failing to properly interview and present testimony from Petitioner’s family members and other acquaintances. Although he failed to present this claim in state court, Petitioner argues that it is properly before this Court for review because his appellate counsel was constitutionally ineffective for failing to raise it on appeal, thereby demonstrating cause and prejudice for Petitioner’s default. We reject Petitioner’s contention that his appellate counsel was constitutionally ineffective on the ground that the underlying claim against his trial counsel is completely meritless.

See Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 (finding that counsel cannot be ineffective for failing to raise a meritless claim). Trial counsel did interview multiple members of Petitioner’s family in preparation for the penalty phase. He presented testimony from Petitioner’s mother, grandmother, and a neighbor and family friend in an attempt to establish Petitioner’s history of mental illness and substance abuse and bolster his case for mitigation in sentencing. Nevertheless, Petitioner claims that counsel asked too few questions of his witnesses, and argues that counsel should have uncovered that Petitioner’s mother drank during her pregnancy, that his stepfather was a “cruel, alcoholic gambler,” and that Petitioner’s basic physical needs were not provided for as a child. (Mem. Law Supp. Pet. Writ Habeas Corpus at 31-33.)

We find that Petitioner’s trial counsel took adequate steps to introduce testimony from family members that would serve as evidence of mitigating circumstances in the eyes of the sentencing jury. This ap

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proach was not objectively unreasonable. Although more could have perhaps been done, it remains very much in question whether further actions would have served counsel’s ultimate purpose, or would have instead given the appearance of a laundry list of unconvincing arguments, presented to the jury as part of a last-ditch, desperate attempt to establish any and all possible mitigating factors. Counsel’s decision to focus on the most reliable and sincere accounts of Petitioner’s childhood and background was well within the broad range of conduct granted a presumption of effectiveness under

Strickland .

Because trial counsel’s method of eliciting testimony from Petitioner’s family was not the product of ineptitude, inexperience, or a lack of knowledge or preparation, we dismiss Petitioner’s argument that counsel was ineffective on this ground on its merits. Because we find that trial counsel was not constitutionally ineffective, appellate counsel cannot be ineffective for failing to raise such a claim. No cause is therefore available to excuse Petitioner’s procedural default of this issue, and Petitioner’s sub-claim (3) is thus not entitled to federal review.

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

See Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 .

Petitioner asserts in his first example that his trial counsel was somehow deficient for referring to the Commonwealth’s attorney as “my respected friend,” “my respected colleague,” and “my learned friend.” (Mem. Law Supp. Pet. Writ Habeas Corpus at 39.) Petitioner argues that an attorney is not permitted to vouch for her own integrity, and therefore that vouching for one’s opponent is equally prejudicial and represents a constitutionally deficient performance.

(See id.

(citing

United States v. Pelullo,

964 F.2d 193, 218 (3d Cir.1992) (finding the prosecutors may not vouch for their own integrity)).) In order for such a finding to be made, however, Petitioner must demonstrate that his counsel “fail[ed] to subject the prosecution’s case to meaningful adversarial testing.”

United States v. Cronic,

466 U.S. 648, 659 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984). Our independent review of the record shows that Petitioner’s trial counsel did no such thing.

He never actually affirmed his opponent’s credibility before the jury. In fact, in his closing argument, trial counsel called both the witnesses and counsel for the Commonwealth liars. (N.T. 6/11/85, at 5.33, 5.35, 5.39, 5.42, 5.44-5.45, 5.48-5.53, 5.74, 5.76.) Petitioner’s counsel knows full well that trial counsel’s references to opposing counsel were simply a common form of trial courtesy. In our view such remarks only serve to increase a lawyer’s credibility with a jury and introduce a degree of proper demean- or, calm, and professionalism into a trial.

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Such an atmosphere helps to prevent a jury from being swept up by emotion, rather than to create prejudice. Petitioner’s argument is at best borderline frivolous. We do not find that trial counsel acted unreasonably or that his statement in any way prejudiced his client’s position. In turn, no cause exists to excuse Petitioner’s procedural default of this issue and we are thereby precluded from reviewing it on its merits.

Petitioner’s second example of trial counsel’s detrimental representation focuses on counsel’s stipulation to statements made by the victim, Jewel Stevens, to police from her hospital bed on the morning of August 11, 1984.

(See

N.T. 6/7/85, at 3.49.) Counsel permitted police officers to read the statements into the record in front of the jury. Petitioner argues that counsel permitted the introduction of otherwise inadmissible hearsay statements that were inflammatory and prejudicial to Petitioner’s defense. Petitioner fails to recognize two circumstances, however, that support trial counsel’s decision to admit the statement. First, Petitioner’s primary defense at the guilt stage of the proceeding was mistaken identity. His trial counsel permitted the victim’s statement to be entered into the record because it further demonstrated the Victim’s inability to identify her assailant; she was unable to describe the man who attacked her in any detail.

(See id.

at 3.50, 3.56-3.57, 3.59.) By preserving this uncertainty on the record, defense counsel was able to strengthen his client’s misidentification defense. Second, counsel permitted the statement into evidence because he did not want to seem as if he were hiding some important information from the jury. Ms. Stevens’ statement added little to the medical reports and signed confession already presented as evidence against Petitioner. By refraining from disputing what was an essentially redundant account of information already available, counsel was able to present himself as forthcoming and cooperative, two qualities that any attorney would like to convey to a jury. We find that trial counsel’s strategic decisions to permit the victim’s statement to be read to the jury were not unreasonable or the product of ineptitude or unfamiliarity with the facts or legal principles relevant to Petitioner’s case. We likewise find that Petitioner was not unduly prejudiced by the statement’s introduction. As a result, trial counsel was not constitutionally deficient in failing to object to the introduction of such statement, and therefore no cause exists to excuse Petitioner’s procedural default of this issue. This question may not be submitted for federal habeas review.

Third, Petitioner cites as an example of his counsel’s harmful tactics counsel’s reference during the penalty phase to the Victim’s age, her family, and to the terrible nature of the crime. Trial counsel acknowledged to the jury that they may be influenced by the age of the victim and that they may also be inclined to grant a harsher sentence out of “sympathy” or “outrage” as a result of the violent nature of the crime. Petitioner argues that counsel’s references incited the jury toward an outcome detrimental to Petitioner’s defense, and that such conduct, if performed by a prosecutor, would constitute reversible misconduct and ineffective assistance of counsel.

(See

Mem. Law Supp. Pet. Writ Habeas Corpus at 40 (citing

Commonwealth v. Fisher,

545 Pa. 233 , 681 A.2d 130, 145-48 (1996) and

Commonwealth v. McNeil,

545 Pa. 42 , 679 A.2d 1253, 1259-60 (1996)).) Petitioner fails to recognize, however, that after confronting these rather obvious facts trial counsel went on to argue strongly against the jury’s succumb

*733

ing to emotional reactions.

Counsel’s recognition of the harsh realities of the case and of the jury’s potentially severe reaction to those circumstances was an attempt at placating any vindictive or aggressive feelings by the jury toward Petitioner. By acknowledging the emotional aspect of his client’s case, counsel was better able to expose any of the jurors’ potentially damaging tendencies and to convince them that following such visceral reactions was not the most appropriate way to decide Petitioner’s fate. Furthermore, the effects of such statements are obviously completely different when uttered by defense counsel as opposed to a prosecutor. We find that trial counsel was not at all unreasonable in his decision to be honest with the jury about the victim’s age and the severity of the crime at issue. This was a strategic decision designed to secure the jury’s trust, and Petitioner presents no evidence convincing us that decision was the product of either incompetent or inadequate representation. Trial counsel was therefore not constitutionally ineffective, and no cause exists to excuse Petitioner’s default of this argument in state court. We are, as a result, without authority to review this issue.

Petitioner’s fourth example argues that trial counsel was ineffective at the guilt phase of the proceeding for permitting evidence that Petitioner was guilty of multi-pie uncharged offenses. According to Petitioner, counsel’s failure to object to two different witnesses’ implications that Petitioner was a suspect in a “series of burglaries in the area that were similar to th[e] type of offense” Petitioner had been convicted of in the past added weight to the Commonwealth’s position that the (d)(9) aggravating circumstance applies.

Petitioner further highlighted the fact that counsel, in his closing argument at the penalty phase, referred to Petitioner’s past convictions as “rather light sentences” in an attempt to establish that counsel was ineffective for acting to Petitioner’s detriment.

We find that counsel was not constitutionally ineffective for choosing not to object to the aforementioned testimony, as his decision was actually part of his overarching trial strategy. Detectives Descher and Schol testified at trial that Petitioner had recently been in jail for a robbery conviction and that they were aware of numerous recent burglaries in Petitioner’s neighborhood. They also testified that they wanted to talk to Petitioner about these burglaries because he previously fled from police and “may have known something about the[m].” (N.T. 6/6/85, at 2.29.) Under cross-examination, however, both detectives admitted to simply wanting to garner information from Petitioner; neither ever referred to him as a suspect in

*734

the robberies or claimed to have questioned him about anything other than why he fled from a prior encounter with police.

(See

N.T. 6/6/85, at 2.75, 2.77, 2.78, 2.83, 2.147.) Trial counsel’s acceptance of the detectives’ testimony reinforced his mis-identification and scapegoat defenses. Counsel intended to demonstrate to the jury that the investigating officers knew of Petitioner's prior record and that their desire to question him despite being unable to connect him directly to the crime was solely a product of their singling Petitioner out as a suspect in the attack on Jewel Stevens without proper foundation. Counsels’ failure to object therefore represents a valid strategic decision designed to impugn the investigatory motives of the two detectives and create doubt in the jury’s mind as to the true identity of the victim’s attacker. Such a tactical choice is not the product of ineptitude, inexperience, or a lack of preparation or adequate legal knowledge, and therefore deserves considerable deference from this court under

Strickland

and

Weatherwax I,

20 F.3d at 579 . Furthermore, due to our conclusion that trial counsel’s decision may have assisted Petitioner’s defense, we find that counsel’s actions were not unduly prejudicial to that defense.

With regard to Petitioner’s allegation that his trial counsel was ineffective at sentencing for referring to Petitioner’s pri- or sentences as “rather light,” we find that counsel had ample strategic justification for such comments and therefore that he was also not constitutionally ineffective on that ground. Counsel mentioned the leniency of Petitioner’s prior sentences for robbery to demonstrate that Petitioner had never been convicted of a crime as serious as the one he was charged with in this case.

(See

N.T. 6/12/85, at 6.26.) This point is consistent with counsel’s strategy at the penalty phase, which relied in part on the uncharacteristic nature of Petitioner’s conduct to support his argument for mitigation on the grounds of mental infirmity. We find that counsel’s attempt to strengthen his mental health defense by showing that the crime at issue in this case was out of character for Petitioner is a reasonable tactical choice within the Sixth Amendment’s broad range of acceptable legal representation. Petitioner’s argument that this choice may have supported the Commonwealth’s argument in favor of an aggravating circumstance under (d)(9) does not change the fact that counsel acted within his professional discretion in permitting the jury to hear certain evidence. Counsel did not perform deficiently or unduly prejudice Petitioner. As a result, Petitioner’s claim that cause and prejudice exist excusing his state court default of this issue is rejected, and his argument is found inappropriate for federal review under 28 U.S.C. § 2254 .

Petitioner’s fifth example insists that his trial counsel was ineffective for using inflammatory and prejudicial language in describing the crime to the jury. Petitioner rests his argument on the fact that “these statements were made by defense counsel in a case where the evidence was overwhelming that Mr. Holland was the assailant.” (Mem. Law Supp. Pet. Writ Habeas Corpus at 41.) What Petitioner fails to acknowledge, however, is that trial counsel made a decision to pursue a defense of misidentification. Although Petitioner argues that overwhelming evidence existed that Petitioner was the assailant, he does not address the presence of even more overwhelming evidence that the crime was brutal and violent. Accounts from police at the scene, as well as numerous medical reports and the statement of the victim herself describe a horrific scene in Jewel Stevens’ apartment on the morning of August 11, 1984.

(See, e.g.,

N.T. 6/5/85, at 1.72-1.75; N.T. 6/6/85, at 2.4-2.11; N.T.

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6/7/85, at 3.47-3.49, 3.55-3.59.) Any attempt to prove otherwise would have seemingly been an exercise in futility; Petitioner’s trial counsel was left with little choice but to argue that his client was not the man at the scene.

Recognizing the seemingly obvious fact that the crime committed against Jewel Stevens was brutal and cruel, counsel continuously presented evidence to the jury that Petitioner was not the assailant, arguing that Petitioner’s prior criminal record served as evidence that such a brutal, violent crime was completely out of character for him.

(See, e.g.,

N.T. 6/12/85, at 6.26.) This decision was not unreasonable and did not unduly prejudice Petitioner. Counsel attempted to further an understandable defense strategy by admitting to the jury that which they already knew. Any attempt to argue otherwise ran the risk of seeming disingenuous and desperate. We find that Petitioner’s trial counsel was not ineffective by virtue of his description of the crime against Jewel Stevens, and therefore that Petitioner is unable to demonstrate cause for his procedural default. We are therefore barred from further review of this issue.

Sixth, Petitioner offers as an example of his trial counsel’s ineffectiveness his counsel’s comments to the jury at the penalty phase regarding Petitioner’s choice not to testify. At the trial’s outset, Petitioner stated on the record that he did wish to testify on his own behalf.

(See

N.T. 6/5/85, at 1.3 — 1.5.) He later changed his mind. At the close of the penalty phase, Petitioner’s counsel explained on the record that Petitioner had changed his mind and no longer wished to testify.

(See

N.T. 6/12/85, at 6.22-6.23.) Petitioner now claims that such an explanation by counsel constituted a violation of his Fifth Amendment right against self-incrimination under

Griffin v. California,

380 U.S. 609, 614 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965). We find that Petitioner’s counsel was not ineffective for failing to raise such a claim. Petitioner’s public insistence that he testify required an explanation by counsel when Petitioner changed his mind. Not presenting such an explanation may have led the jury to believe that Petitioner had been scared by something that happened at trial or had given up in his attempt to prove either his innocence or the presence of mitigating circumstances. By entering a brief explanation on the record, counsel tried to alleviate any speculation as to why Petitioner never took the stand. We find that this was a reasonable tactical decision under

Strickland .

We likewise find that Petitioner was not prejudiced by counsel’s actions, as it would have been obvious to

*736

the jury that Petitioner failed to testify and, as a result, extremely unlikely that trial counsel’s comments in any way affected the jury’s decision or compromised the adversarial process required by the Sixth Amendment. Because we find that trial counsel was not constitutionally ineffective for explaining Petitioner’s decision not to testify to the jury, we also find that Petitioner is unable to show proper cause for his procedural default. Petitioner’s argument is therefore inadmissible before this court.

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

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

(N.T. 6/12/85, at 6.25-6.26.) According to Petitioner, counsel’s reference to whether the defendant is capable of change represents “an appalling ignorance of Pennsylvania’s capital sentencing scheme.” (Mem. Law Supp. Pet. Writ Habeas Corpus at 44.) He contends that counsel’s comments implied that a life sentence should only be granted in cases where the defendant will eventually be capable of reentering society. Pennsylvania law, however, permits a capital jury to sentence a defendant to either death or life in prison without parole. Petitioner insists that his counsel’s improper implication increased his likelihood of receiving a death sentence because

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the jury mistakenly thought Petitioner may eventually be eligible for release. Counsel, however, never mentioned release in his closing. Any talk of personal change can be assumed to apply as easily to people in prison as to those outside. Counsels’ comments were meant to appeal to the jury’s sympathies in an attempt to have them recognize Petitioner’s humanity and spare his life. Counsel did not improperly misrepresent Pennsylvania law, nor did he prejudice his client in such a way as to create a reasonable probability that he would have received a lesser sentence but for his counsel’s comments.

Petitioner next argues that his counsel’s use of the phrase “predator among civilized people” misrepresented Pennsylvania death penalty law by implying that the jury should consider future dangerousness as an aggravating circumstance and by prejudicing the jury into sentencing Petitioner more harshly. Petitioner neglects to notice, however, the context in which counsel used the phrase. Counsel was not referring to his client as a predator. He was instead exposing the Commonwealth’s goal of painting the Petitioner as a danger to society in an attempt to establish that Petitioner was deserving of the death penalty. Counsel never implied that he considered his client dangerous, nor did he encourage the jury to think so. More specifically, counsel never spoke of aggravation in connection with any mention of rehabilitation or future dangerousness. He simply exposed his opponent’s objective in hopes of convincing the fact-finder otherwise. He asked the jury to think about the Commonwealth’s necessary characterization of Petitioner and appealed to their sense of humanity by asking them not to render the ultimate penalty. Petitioner misconstrues counsel’s comments as highly prejudicial misrepresentations of applicable state law, when they are in fact pleas for his client’s life in an otherwise bleak situation. We find that counsel’s attempts to elicit sympathy and to portray the Commonwealth’s goals in the harshest light possible were reasonable approaches to convincing the jury that Petitioner did not deserve to die. Furthermore, we find that Petitioner has shown no evidence to demonstrate a reasonable probability that, but for counsel’s decisions, the jury’s verdict would have varied. The jury found three specific aggravating circumstances and no mitigating circumstances in determining Petitioner’s sentence. Because counsel’s comments did not preclude the jury from finding additional mitigating circumstances, we find it highly unlikely that Petitioner experienced any actual prejudice as a result of counsel’s closing argument. As a result, we find Petitioner’s argument that his trial counsel was ineffective meritless, and in turn conclude that no cause exists for his default. We are therefore unable to consider this issue on its merits.

In short, counsel was not ineffective for presenting allegedly harmful arguments and evidence at trial. As a result, no cause or prejudice exists by which to excuse Petitioner’s state procedural default of this issue, and it is therefore not reviewable by this court. We now turn our attention to the remaining three defaulted issues from Claims I and II.

Petitioner’s fifth subclaim argues that his trial counsel was ineffective for failing to investigate, develop, or properly present evidence of Petitioner’s intoxication through two lay witnesses at trial, Jack Gormley and Thomas Fulcher. He cites the ineffectiveness of his appellate counsel as an excuse for the default of his claim against his trial counsel, and argues that this claim should therefore be brought before this court for review on the merits.

See Murray v. Carrier, 477

U.S. 478, 488, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986).

*738

Because we find that Petitioner’s claim of ineffective assistance of trial counsel is groundless, we conclude that Petitioner’s appellate counsel cannot be constitutionally ineffective for failing to raise such a meritless claim.

See Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 . Jack Gormley was the bartender who served Petitioner on the night of the murder. He testified at trial that he was unable to remember exactly how many beers he served Petitioner that evening between 11 p.m. and 2:30 a.m., but that he was certain he brought him at least one.

(See

N.T. 6/10/85, at 4.78.) Petitioner asserts that his trial counsel was constitutionally ineffective for calling Gormley to testify because Gorm-ley’s testimony was, according to Petitioner, harmful to his intoxication defense. Petitioner also asserts that his counsel was ineffective for not impeaching Gormley on the grounds that he was minimizing his account of Petitioner’s intoxication to protect himself from prosecution under 47 Pa. Cons.Stat. §§ 4-497, 4-493(1), which impose liability for sale of alcohol to “visibly intoxicated persons.” Thomas Fulcher was a companion of Petitioner’s in the early morning of August 11, 1984. He testified at trial that he and Petitioner were together for about four hours that night, during which time Fulcher admitted to drinking approximately four to six beers. He was unable to account for the number of beers consumed by Petitioner.

(See

N.T. 6/10/85, at 4.88-4.89.) Petitioner contends that his trial counsel was similarly ineffective for calling on Fulcher to testify or, in the alternative, for not impeaching Fulcher on the grounds that he was testifying falsely to prevent his own prosecution for driving under the influence or perhaps for somehow being involved in Petitioner’s actions.

We find that none of Petitioner’s arguments with respect to either witness constitute ineffective assistance of counsel. These witnesses were the only two people who were-able to testify at all to Petitioner drinking on the night in question. Counsel’s decision to call them was a perfectly valid tactical decision; he presented the only evidence available in an attempt to establish a potentially powerful defense for Petitioner. Had he not called these two witnesses, counsel would have been unable to demonstrate any possibility of intoxication.

Contrary to Petitioner’s claim, counsel did not act outside the bounds of acceptable professional activity, and did not make his decision out of ineptitude, inexperience, or a lack of preparation or legal understanding.

See Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 ;

Weatherwax I,

20 F.3d at 579 . Similar reasoning can be applied to Petitioner’s argument that counsel was ineffective for not impeaching the witnesses. While their testimony might not have been ideal to Petitioner’s case, refusing to impeach the only two witnesses able to establish that Petitioner was drinking at all on the morning of August 11 cannot be considered an unreasonable decision. Counsel was in a difficult situation and we cannot assume that he could have convinced either witness to testify differently, or that the information in Fulcher’s affidavit eleven years later, which stated that he greatly understated Petitioner’s level of intoxication, was either credible or

*739

available at the time of trial. Moreover, Petitioner presents no evidence to the contrary. We find that counsel’s decision was perfectly reasonable in light of the circumstances present at trial, and that his conduct was therefore well within that required by the Sixth Amendment. As a result, Petitioner is without cause for his state procedural default of this subclaim, and federal habeas review thereof is unavailable under §

2254.

Petitioner’s sixth subclaim asserts that both his trial counsel and the court erred in misrepresenting the record before the jury at the penalty phase, and that his trial counsel was ineffective for making statements that were prejudicial to Petitioner’s intoxication defense at sentencing. Although Petitioner did not raise any of these arguments before the state courts, he asserts that they are properly before this court because he can demonstrate cause and actual prejudice for his omission. He cites his trial and appellate counsel’s ineffective assistance in not bringing these claims before the state courts as cause for his default.

See Murray,

477 U.S. at 488 , 106 S.Ct. 2639 . We find, however, that Petitioner’s claims are without merit, and therefore that neither his trial nor appellate counsel could have been constitutionally ineffective for failing to raise them.

Petitioner claims that his trial counsel was ineffective because he misrepresented evidence to the sentencing jury and because he failed to object to a similar misrepresentation by the court. Petitioner’s ai’guments fail. Neither the court nor counsel misrepresented the trial record. Counsel posed a hypothetical question to an expert witness regarding Petitioner’s possible level of intoxication on the night in question. He asked the witness what effect three or four drinks would have on the functioning of a person’s cerebral cortex.

(See

N.T. 6/11/85, at 5.24.) When the Commonwealth objected to the number of beers used in the hypothetical, the court replied, “we don’t know how much beer [Petitioner] had. We know he had one ... There was testimony, also, that after the bar closed, [Petitioner] with four other people stayed in a parking lot and two six packs of beer were consumed. How much he drank or how little or perhaps even not, that is all we know on the record.” (N.T. 6/11/85, at 5.23.) Petitioner now argues that “[t]he court mischaracterized the evidence. There was unrebutted and unquestioned testimony that Mr. Holland was drinking in the parking lot for hours after the bar closed.” (Pet. Writ Habeas Corpus at 41.) This is simply not true. There is nothing in the record that affirmatively states that Petitioner drank anything after the bar closed. The closest account is that of Fulcher, who testified that he had been drinking and that Petitioner had “[probably the same. But I wasn’t counting.” (N.T. 6/10/85, at 4.88.) Trial counsel’s hypothetical was not an unreasonable account of the evidence on the record; in fact, it was a more favorable account than clearly existed on the record. Counsel chose a number of beers in his hypothetical that would seem believable to the jury and that would still elicit the response he wanted from the expert, namely that “three or four beers are enough to loosen inhibitions.” (N.T. 6/11/85, at 5.24.) Trial

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counsel was also not ineffective for failing to object to the court’s characterization of the record. Not only did the court not misrepresent the record, but it permitted counsel to pose a hypothetical question in which three or four beers were consumed. The statement of the court would have permitted the jury to have a reasonable doubt that Petitioner was sober. We cannot say that counsel acted outside the broad range of professionally acceptable activity in either posing his hypothetical to the jury, or in failing to object when the court permitted him to do so. Counsel was not deficient in his performance and therefore no cause exists for Petitioner’s default under

Strickland

Murray .

Petitioner’s argument that his counsel made prejudicial statements is similarly unfounded. Petitioner argues that counsel improperly used inflammatory language in describing the crime as “planned,” and “committed by an expert.” As we explained in our analysis of subclaim (4), counsel’s trial strategy was one of misiden-tification. By describing the crime as the product of a professional, he was attempting to distance Petitioner from the event in the minds of the jury. Counsel went to great lengths to demonstrate that, despite Petitioner’s criminal record, he had never been involved in any violent crimes. By highlighting the brutality of the crime charged, counsel was demonstrating how far out of character such activity would be for Petitioner. This is a reasonable taetical approach to a difficult case and is therefore not grounds for a finding of ineffective assistance of counsel. Petitioner did not demonstrate cause for his state procedural default, and thus is barred from presenting his subclaim to this court for review.

b. AEDPA Review of Ineffectiveness Subclaims

Petitioner did, however, present two subclaims in state court, namely that his trial counsel was ineffective for failing to obtain records and to investigate, develop, and present expert testimony in mitigation of Petitioner’s sentence. They are therefore subject to federal review in accordance with the AEDPA, which permits us to grant a writ of habeas corpus only if the state court rulings pertaining to Petitioner’s claims were contrary to, or an unreasonable application of, clearly established federal law.

See

28 U.S.C. § 2254 (d).

Petitioner’s first subclaim argues that his trial counsel was constitutionally ineffective at the sentencing phase of his capital murder trial because, among other things, counsel failed to obtain or review documents pertaining to potential mitigating circumstances. Counsel was aware that Petitioner had a prior criminal record, and that he had received psychiatric evaluations and treatment on numerous prior occasions.

(See

N.T. 5/22/96, at 15-16.)

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Nevertheless, counsel chose not to review any of Petitioner’s prior presentence (“PSI”) reports, mental health evaluations, or school records.

(See

N.T. 5/28/96, at 15, 21-22.) He claimed that this omission was a strategic decision designed to avoid introducing further evidence of Petitioner’s prior criminal record.

(See

N.T. 5/22/96, at 15-16.) Counsel instead relied solely on interviews with Petitioner’s family in investigating Petitioner’s psychiatric history. At sentencing, Petitioner’s mother and grandmother testified that Petitioner had an unhappy and difficult childhood which, in their minds, left him emotionally and psychologically disturbed.

In his closing argument at sentencing, trial counsel reminded the jury that Petitioner’s “family sa[id] that it has been quite obvious for a while that he needs psychiatric help,” and that the case at hand is the “first time [Petitioner] has done anything violent.” (N.T. 6/12/85, at 6.27.) He then went on to discuss the philosophical underpinnings of the death penalty,

(See

N.T. 6/12/85, at 6.23-6.24, 6.26), and to plead for mercy and compassion for his client.

(See

N.T. 6/12/85, at 6.30-6.31.) Counsel explained that he failed to review Petitioner’s PSI reports and mental health evaluations because he “did not think getting into past cases and bringing up past reports ... I did not want that to come out to the jury.” (N.T. 5/22/96, at 17.)

The Pennsylvania courts ruled on Petitioner’s ineffective assistance claim at two separate collateral proceedings. The Court of Common Pleas of Philadelphia County denied Petitioner’s claim that his trial counsel was ineffective for failing to review existing PSI reports and mental health evaluations in preparation for sentencing. It concluded that Petitioner’s counsel made a strategic decision not to introduce the reports because they would prove a detrimental reminder to the jury of Petitioner’s lifelong pattern of lawlessness.

See Commonwealth v. Holland,

Nos. 1430-1441, at 8-14 (Pa. Ct. Common Pleas Phila. Cty. Sept. 16, 1996). The court likewise found that no actual prejudice existed in Petitioner’s case, as the reports in question did not contain any information distinct from that elicited at sentencing through the testimony of Peti

*742

tioner’s family members and counsel’s closing argument.

See id.

at 16-21 . On appeal, the Pennsylvania Supreme Court upheld the decision of the Court of Common Pleas.

See Holland II,

727 A.2d 563 (Pa.1999). It echoed the lower court’s determination that counsel had a strategic reason for failing to admit the PSI reports and mental health evaluations, specifically that doing so may have highlighted Petitioner’s prior criminal activity and prejudiced the jury against him.

See id.

at 565-66.

As mentioned above, Petitioner’s claim for habeas corpus relief may only be granted if the state courts’ refusals to do so constitute an “unreasonable application of clearly established federal

law.”

28 U.S.C. § 2254 (d). “It is past question that the rule set forth in

Strickland

qualifies as ‘clearly established Federal law, as determined by the Supreme Court of the United States.’”

Williams,

120 S.Ct. at 1512 . The lone remaining question, then, is whether the Pennsylvania Supreme Court was objectively unreasonable in its decision to reject Petitioner’s- claim that his trial counsel was constitutionally ineffective at capital sentencing. More specifically, we must decide whether, “evaluated objectively and on the merits, [the state court decision] resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent.”

Matteo,

171 F.3d at 890 .

The state courts’ decisions were not unreasonable applications of

Strickland .

Petitioner’s trial counsel made a decision not to exhaust limited resources examining a body of documents he knew were the product of his client’s prior criminal activities. He chose to rely instead on the accounts of Petitioner’s closest relatives to demonstrate Petitioner’s mental infirmities to the jury, thereby denying the Commonwealth the opportunity to repeatedly focus the jury’s attention on Petitioner’s criminal history by referring to the reason such documents were created. We find that it is not unreasonable to conclude that this tactical decision was not the product of ineptitude, inexperience, lack of preparation, or an unfamiliarity with the relevant legal principles and therefore that it does not represent ineffective assistance of counsel under

Strickland .

See Weatherwax I,

20 F.3d at 579 .

We also find that the state courts acted reasonably in determining that trial counsel’s decision not to review Petitioner’s PSI reports and mental health evaluations did not meet Strickland’s actual prejudice standard. They found that the information available in the relevant documents was not appreciably different from that presented at sentencing by Petitioner’s

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family. Under the AEDPA, we are required to defer to state court findings of fact that are not unreasonable “in light of the evidence presented in the State court proceeding.”

See

28 U.S.C. § 2254 (d)(2). As a result, because we do not consider the state trial court’s factual conclusion unreasonable, and because Petitioner did not present clear and convincing evidence to rebut the state courts’ factual findings,

see

28 U.S.C. § 2254 (e)(1), we conclude that their application of Strickland’s prejudice standard to those facts was not unreasonable.

Counsel’s failure to introduce Petitioner’s PSI reports and mental health evaluations did not create a reasonable probability that the jury would have sentenced Petitioner differently, and Petitioner’s claim of ineffective assistance therefore fails.

Petitioner’s second subclaim contains two separate contentions. First, Petitioner argues that his counsel was constitutionally deficient for failing to present expert testimony for purposes of mitigation at sentencing. Petitioner cites two examples of what he considers counsel’s ineffectiveness with respect to expert testimony.

He claims that counsel violated his constitutional duty of representation by failing to present a defense expert in support of mitigation and by improperly limiting the scope of that expert’s examination. Second, Petitioner contends that the trial court erred in excluding the testimony of Dr. Jay Bonovitz regarding Petitioner’s level of intoxication on the evening in question. We address each of these contentions below under § 2254 of the AEDPA.

Petitioner first contends that his trial counsel was constitutionally ineffective for failing to present a defense expert in support of mitigation at sentencing. At a minimum, argues Petitioner, counsel should have recalled Dr. Jay Bonovitz to testify in support of Petitioner’s intoxication on the night of the crime. “Dr. Bonovitz’ report contains significant mitigating evidence and clearly shows the need for further investigation, development and presentation of expert mental health testimony.” (Mem. Law Supp. Pet. Writ Ha-beas Corpus at 33.) Petitioner goes on to claim that his defense was prejudiced by counsel’s failure to present such testimony. He argues that a mental health expert could have testified to Petitioner’s “lifelong history of trauma, mental and emotional impairments, and substance abuse,” and more specifically to Petitioner’s previously

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diagnosed “personality disorder with schizoid and paranoid traits.”

(Id.

at 35-36.)

The Supreme Court of Pennsylvania addressed this claim in Petitioner’s state post-conviction proceedings, and determined that counsel had valid strategic reasons for refraining from requesting a court-appointed defense expert.

See Holland II,

727 A.2d at 566 . Specifically, the court concluded that counsel’s decision was reasonable given the consistency in Petitioner’s prior mental health examinations and the real potential for damage on cross examination.

See id.

The court specifically noted the testimony at Petitioner’s state collateral proceeding of Dr. John O’Brien.

See id.

Petitioner called Dr. O’Brien as a mental health expert in order to show that his trial counsel’s failure to present expert testimony of Petitioner’s mental infirmities at sentencing prejudiced Petitioner’s defense. Dr. O’Brien interviewed Petitioner personally and reviewed all of Petitioner’s prior PSI reports and mental health evaluations.

(See

N.T. 12/14/95, at 15.) Despite Dr. O’Brien’s testimony that he thought expert mental health testimony could have potentially assisted Petitioner’s defense,

(see

N.T. 12/14/95, at 15, 18-19, 53, 56.) the Pennsylvania Supreme Court nonetheless found that the benefit of expert testimony to Petitioner was uncertain and that counsel’s decision to focus on purely mitigating evidence, rather than become involved in a war over the true meaning of various expert evaluations, was not an unreasonable one.

See Holland II,

727 A.2d at 566 . Moreover, the repetitiveness and uncertainty of these evaluations did not, in the eyes of the Pennsylvania Supreme Court, gave rise to a reasonable probability that, but for counsel’s decision, Petitioner would not have been sentenced to death.

See id.; Bryan v. Singletary,

140 F.3d 1354, 1358-61 (11th Cir.1998) (finding that defense counsel’s failure to present expert witnesses, in light of prior mitigation testimony by family members and inconclusive notice that the experts would be certain to provide helpful information if called did not violate the Sixth amendment).

We find that the Pennsylvania Supreme Court’s denial of Petitioner’s claim was not an objectively unreasonable application of

Strickland .

Under § 2254(d) of the AEDPA, we are required to defer to state court decisions that are neither contrary to, nor unreasonable applications of, clearly established federal law. Because Petitioner cites no Supreme Court precedent requiring an outcome different from that reached by the state court, we cannot find their decision contrary to federal law. We likewise cannot find the Pennsylvania Supreme Court’s decision to be an unreasonable application of such law. Regardless of whether we would have arrived at the same conclusion, we cannot find the state court’s decision of such a fact-specific situation objectively unreasonable.

See Williams,

120 S.Ct. at 1521 . As a result, we are bound by the AEDPA to reject Petitioner’s contention.

Petitioner’s next example of his trial counsel’s ineffectiveness is the narrow scope of counsel’s inquiry into Petitioner’s mental state. Petitioner argues that his trial counsel only gathered expert testimo

*745

ny with respect to Petitioner’s competency to stand trial and potential insanity defense, and that he should have looked further into Petitioner’s history of depression. More specifically, Petitioner claims that “the details and depth of Mr. Holland’s depression were not evaluated by the examiner in order that more time would be available to focus on Mr. Holland’s state of mind at the time of the crime.” (Mem. Law Supp. Pet. Writ Habeas Corpus at 73.) Petitioner’s complaint itself defeats his claim of ineffectiveness. Petitioner’s counsel made a strategic decision to focus on his client’s state of mind at the time of the crime, rather than to pursue a bevy of other arguments in less detail. This is precisely the sort of strategic decision protected by

Strickland .

Counsel did not act out of ineptitude or inexperience, but rather out of concern for presenting the most convincing argument available given the resources available and the relative strength of the various defenses. We therefore agree with the state court’s finding that counsel was not deficient in failing to object to the scope of Dr. Bonovitz’ review, and reject Petitioners’ argument on its merits.

Petitioner’s second contention deals with the trial court’s decision to exclude testimony of Dr. Bonovitz regarding Petitioner’s level of intoxication on the evening of the murder. Dr. Bonovitz attempted to repeat on the witness stand what Petitioner had told him in an interview with respect to the number of alcoholic drinks Petitioner consumed on the night in question.

{See

N.T. 6/11/85, at 5.10-5.15.) The trial court excluded the testimony as inadmissible hearsay.

{See

N.T. 6/11/85, at 5.11.) Petitioner argues that the testimony was admissible, and that his counsel was therefore ineffective for not objecting to its exclusion, on the grounds that a psychiatric interview is precisely the sort of information reasonably relied on by psychiatrists in formulating opinions about their subjects. The Commonwealth responds by stating that experts are not exempt from the hearsay rule and by arguing that excluding Dr. Bonovitz’ recitation of Petitioner’s statements does not prohibit the doctor from voicing his opinion of Petitioner’s level of intoxication based on their prior discussions. In fact, Petitioner’s trial counsel was permitted to pose a hypothetical to Dr. Bonovitz based on pri- or testimony regarding Petitioner’s alcoholic consumption in the early morning of August 11, 1984.

{See

N.T. 6/11/85, at 5.24-5.25.) The Pennsylvania Supreme Court denied Petitioner’s claim, finding that Petitioner presented no evidence that Dr. Bonovitz could have presented any additional evidence at trial.

See Holland II,

727 A.2d at 567 . Since Petitioner cites no authority to contradict this conclusion, we find that it is neither contrary to, nor an unreasonable application of, clearly established federal law, and likewise reject both Petitioner’s argument and any claims of ineffective assistance of counsel associated with it.

c. Mental State Defenses

Petitioner’s second main claim is that he was denied his Fifth Amendment Due Process right to his own court-appointed defense expert for assistance in developing his mental health defenses at both the guilt and penalty phases of his state court trial. Petitioner and the Commonwealth had a pretrial conference with the trial judge on November 11, 1984. The parties agreed at that conference to a neutral court-appointed expert, Dr. Jay Bonovitz, to evaluate Petitioner’s mental state and report directly to the court.

{See

Letter of Judge Kubacki 1/17/85.) This was in keeping with the law in effect at that time.

See, e.g., United States ex rel. Smith v. Baldi,

344 U.S. 561 , 73 S.Ct.

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391, 97 L.Ed. 549 (1953);

McGarty v. O’Brien,

188 F.2d 151 (1st Cir.1951).

Ake v. Oklahoma,

470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), was decided on February 26,1985, a month after Dr. Bonovitz’ appointment and nearly four months before Petitioner’s trial.

Ake

held that a defendant asserting a mental health defense is entitled, under the Fifth Amendment, to a court-appointed expert to assist in preparing that defense. Petitioner, however, never explicitly requested that the court appoint a defense mental health expert in accordance with

Ake .

After the penalty phase, the trial court-appointed another neutral expert and ordered a pre-sentence and a psychiatric report.

(See

N.T. 6/12/85, at 6.59.) Petitioner responded by presenting a post-trial motion arguing that, under

Ake ,

he was entitled to “the benefit of a presentence report, psychiatric and a[sic] medical studies” during the penalty phase. (N.T. 2/7/86, at 60.) Petitioner did not include in his post-trial motion any request for expert assistance in regard to the guilt phase of his proceeding. The trial court rejected his motion and accepted the jury’s recommendation of death.

(See

N.T. 2/7/86, at 71-72.)

Although he did not raise this Fifth Amendment due process claim in any of his state court proceedings, Petitioner cites his trial and appellate counsel’s ineffectiveness as cause for this omission, and argues that actual prejudice resulted, his default is thereby excused, and his claim for relief is properly before this court for review. The claims of ineffective assistance of counsel relied on by Petitioner to show cause for his default of his Fifth Amendment Due Process claim are nearly identical to those already denied on their merits in state court. The question therefore arises whether Section 2254(d) of the AEDPA, which establishes the standard to be followed by federal courts when reviewing claims already adjudicated on then-merits in state court, applies to claims of cause aimed at excusing state court procedural default of other substantive claims. Section 2254(d) empowers federal courts to grant a writ of habeas corpus pursuant to “any claim that was adjudicated on the merits in State court proceedings” if the federal court finds that the state adjudication of that claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law.” This is a highly deferential standard of review for federal courts, and was not the predominant standard applied to claims of cause under

Murray,

477 U.S. at 488 , 106 S.Ct. 2639 . Nevertheless,

Muway

predated the AEDPA. Recent decisions, however, have also refrained from applying the AEDPA standard in cases involving claims of cause and prejudice to excuse state procedural default.

See Edwards,

120 S.Ct. at 1591-92 (requiring that claims of cause due to ineffective assistance be exhausted in state court, but failing to expressly require that the AED-PA standard be applied by federal courts in finding a valid excuse to a petitioner’s default).

Section 2254(d) addresses those situations in which a federal court may grant a writ of habeas corpus over a state court’s contrary determination. It requires that a deferential standard of review be applied to

any claims

adjudicated on then- merits in state court. The phrase

any claim

obviously refers to “any claim for habeas relief,” as it is included in the section of the statute empowering federal courts to grant the writ. Does it also include a claim within a claim? Is a claim of ineffective assistance of counsel, when used merely to establish cause for the default of another constitutional claim, a “claim for habeas corpus relief?” Is it instead only an excuse offered to the court to explain why petitioner’s ultimate claim for relief

*747

was not presented for state court review? Could a federal court reach a different result than a state court reached on an identical set of facts? If facts were an issue, would § 2254(d)(2) or § 2254(e)(1) apply?

Applying § 2254(d) would make it more difficult to establish the cause and prejudice excuse for procedural default created by the Supreme Court in

Murray .

If federal courts are required to defer to state courts in evaluating every argument in favor of excusing a petitioner’s procedural default on the terms outlined in § 2254(d)(1), it could be argued that by the language of the statute they would be permitted to grant habeas relief on Sixth Amendment Right to Counsel grounds, and any claim that a petitioner argued was excused from being procedurally defaulted would never need to be heard. We believe that the procedural default doctrine addressed by the Supreme Court in

Murray

is controlling and unchanged by § 2254(d).

There are obviously major comity concerns inherent in such a determination. As mentioned above, petitioners are required to present ineffectiveness of counsel claims in state court before submitting them as cause for the procedural default of additional claims.

See Edwards,

120 S.Ct. at 1591-92 . This requirement creates an inevitable tension between state and federal courts as they perform identical analy-ses without any assurances that the state court’s constitutional ruling will be afforded the deference it deserves. Our conclusion with respect to the ineffectiveness of Petitioner’s counsel depends upon whether or not our analysis is subject to § 2254(d). We do not find the Pennsylvania Supreme Court’s determination that neither Petitioner’s trial nor appellate counsel was constitutionally ineffective for failing to raise Petitioner’s claim that he was enti-tied to a court-appointed defense expert under the Fifth Amendment either contrary to, or an unreasonable application of, clearly established federal law.

See

28 U.S.C. § 2254 (d). We cannot say that the Pennsylvania courts’ determinations that counsel made a constitutionally permissible strategic decision not to pursue further expert, testimony were contrary to that required by a Supreme Court decision “on a set of materially indistinguishable facts,”

Williams,

120 S.Ct. at 1523 , or that state court applications of

Strickland

to the facts of Petitioner’s case were “objectively unreasonable,”

id.

at 1521, or unable to be reasonably “justified under existing Supreme Court precedent.”

Matteo,

171 F.3d at 890 . As a result, if we were to apply § 2254(d)’s standard of review, we would not find that Petitioner satisfied the cause and prejudice requirement of

Murray

or that his Fifth Amendment claim was properly before this Court for review.

We havé found that § 2254(d) does not apply, however, and in turn conclude that Petitioner can demonstrate that his appellate counsel was constitutionally ineffective, and therefore that Petitioner satisfies the cause and actual prejudice standard necessary to gain federal review of his defaulted claim. Petitioner asserts that both his trial and appellate counsel were ineffective. He argues that his trial counsel was deficient for failing to request that the state trial court appoint a defense expert for the purpose of eliciting information about Petitioner’s mental health and substance abuse problems. He clearly should have done so. However, Petitioner’s trial counsel filed a post-trial motion challenging the lack of a court-appointed defense expert in Petitioner’s case. Despite the fact that the motion was dismissed, we cannot find trial

*748

counsel constitutionally ineffective for his lack of success.

*749

We nevertheless find that Petitioner’s appellate counsel on direct appeal to the Pennsylvania Supreme Court was constitutionally deficient. He did not raise any claims regarding Petitioner’s lack of a court-appointed psychiatric expert to assist the defense.

(See

Holland I Brief at 7-30.) Petitioner argues that his appellate counsel’s deficiencies were unreasonable and that they prejudiced his defense at sentencing. The Commonwealth responds by asserting that counsel had a strategic justification for withholding those claims and that, in any event, raising them would have been fruitless due to both an absence of resources for investigation and a lack of a factual basis to support mitigation of Petitioner’s sentence.

Petitioner’s appellate counsel testified at a state collateral proceeding. When asked why he chose not to present claims of trial counsel’s ineffectiveness on direct appeal, counsel responded that he believed such claims could be brought later in collateral proceedings and that they were therefore not a sound use of the scarce funds afforded him by the court for his investigation.

(See

N.T. 12/14/95, at 70-74.) The mere opportunity to raise an issue later, especially when that issue may be subject to a different standard of review under the PCRA, does not constitute a defensible strategic justification under

Strickland .

Neither, as we explained above, does an alleged lack of funds justify inadequate representation. Despite admitting that he thought trial counsel’s performance was “wretched,” appellate counsel requested neither additional funds from the court nor a remand for further evidentiary hearings to investigate trial counsel’s potential ineffectiveness.

(See

N.T. 12/14/95, at 78.) Either of these approaches would have alleviated any funding dilemma counsel faced.

Petitioner’s appellate counsel also testified that he was unsure as to the benefit to be derived from a defense mental health expert.

(See

N.T. 12/14/95, at 79-86.) According to appellate counsel himself, however, this uncertainty was due to his complete lack of knowledge of Petitioner’s mental health, social, and educational backgrounds,

(see id.

at 92-93) as well as

*750

of the controlling Supreme Court precedent requiring courts to appoint defense mental health experts in cases involving the defendant’s mental state so that those experts may assist in the evaluation, preparation, and presentation of the defense.

See Ake,

470 U.S. at 80, 83 , 105 S.Ct. 1087 . Appellate counsel, like his predecessor at trial, knew nothing of Petitioner’s mental health background or Fifth Amendment rights.

(See

N.T. 12/14/95, at 92-93.) His contention that no factual basis existed for pursuing Petitioner’s claim is therefore groundless. There is no evidence that appellate counsel had familiarized himself with either the relevant law or facts of Petitioner’s case sufficiently to make his representation reach acceptable constitutional levels. As a result, he is unable to claim that his omission of related arguments from Petitioner’s direct appeal was the product of a strategic decision not founded on “ineptitude, inexperience, lack of preparation or unfamiliarity with basic legal principles.”

Weatherwax I,

20 F.3d at 579 .

We also find that appellate counsel’s deficient performance prejudiced Petitioner’s case. According to Dr. O’Brien, counsel’s failure to challenge the denial of a defense mental health expert created a reasonable probability that, but for this omission, Petitioner may have been afforded a stronger argument for mitigation and, therefore, a different sentence. The constitutionally ineffective performance of Petitioner’s appellate counsel therefore represents cause and prejudice for Petitioner’s state procedural default. This default is in turn excused under

Coleman,

501 U.S. at 750 , 111 S.Ct. 2546 , and Petitioner’s claim that he was denied his Fifth Amendment rights to a defense expert at sentencing is properly before this court for review on its merits.

Petitioner alleges that he was denied his Fifth Amendment right to a court-appointed psychiatric expert for assistance in developing defenses at the guilt and penalty phases of his state murder trial. Because this claim was procedurally defaulted and is before us by virtue of Petitioner demonstrating cause and prejudice for that default, we are not constrained by the standard of review set forth in the AEDPA, 28 U.S.C. § 2254 (d). Our review of Petitioner’s claim is instead

de novo

with regard to all legal issues.

See Hameen v. State of Delaware,

212 F.3d 226, 248 (3d Cir.2000) (“[U]nder the AEDPA the limitation on the granting of an application for a writ of habeas corpus is only ‘with respect to any claim that was adjudi

*751

cated on the merits in state court proceedings.’ Hence we exercise pre-AEDPA independent judgment .... ”). Applying this standard of review, we find that Petitioner was denied his right to a court-appointed expert to “assist in the evaluation, preparation, and presentation of [his] defense” at the penalty phase only, and grant Petitioner’s request for habeas corpus relief on those grounds.

Ake,

470 U.S. at 83 , 105 S.Ct. 1087 . We do not, however, find that Petitioner is entitled to relief from his murder conviction.

The Supreme Court addressed the importance of making mental health experts available to defendants in

Ake ,

in which it held:

when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in

evaluation, preparation, and presentar tion of the defense.

Id.

at 83 , 105 S.Ct. 1087 (emphasis added). The

Ake

Court distinguished

United States ex rel. Smith v. Baldi,

344 U.S. 561 , 73 S.Ct. 391 , 97 L.Ed. 549 (1953), and

McGarty v. O’Brien,

188 F.2d 151 (1st Cir.1951), which had previously determined that the appointment of neutral psychiatrists, i.e. those that were assigned to perform investigations and prepare reports for submission directly to the court, satisfied an indigent defendant’s Fifth Amendment right to an adversarial proceeding, provided the expert examined the defendant and was not “beholden to the prosecution.”

McGarty,

188 F.2d at 155 . Under

Ake ,

the Fifth Amendment Due Process right to psychiatric assistance “does not mean the right to place the report of a ‘neutral’ psychiatrist before the court; rather it means the right to use the services of a psychiatrist in whatever capacity defense counsel deems appropriate.”

Smith v. McCormick,

914 F.2d 1153, 1157 (9th Cir.1990);

see also Smith,

914 F.2d at 1160 (“Confidentiality must apply not only to psychiatric assistance at trial, but also to such assistance for sentencing in capital cases.”).

A similar situation to that confronting Petitioner here was addressed in

Christy v. Horn,

28 F.Supp.2d 307 (W.D.Pa.1998).

Christy

involved a petition for habeas corpus under 28 U.S.C. § 2254 , and addressed the question, among others, of whether a writ should issue on the grounds that the petitioner was denied his Fifth Amendment right to a court-appointed mental health expert. The court determined that, in order to properly decide this issue, it must establish

(1) whether [petitioner] made a sufficient showing to the trial judge that his sanity would be a “significant factor at trial,” (2) whether petitioner received competent psychiatric assistance for his defense, and (3) whether the refusal to provide [petitioner] with psychiatric assistance was harmless error.

Id.

at 320 . The court performed this analysis with respect to both the guilt and sentencing phases of the petitioner’s capital murder trial. With regard to whether the petitioner made a sufficient showing that his sanity would be a “significant factor at trial,” the court found that petitioner had adequately established that his mental state was at issue by expressly informing the trial court of that fact pre-trial, and by virtue of the fact that the trial judge was aware of the petitioner’s prior mental health problems. For these reasons, the court determined that

“Ake

required the appointment of a psychiatrist to

assist -petitioner in his defense.” Id.

(emphasis added)

The court next found that the psychiatric assistance afforded the petitioner was inadequate. The two psychiatrists appointed by the court, Drs. Olivier and Cha-vern, “failed to address [petitioner’s] needs as the accused. Neither ... aided [petitioner] in marshaling the facts to assist in developing any defenses.” Dr. Chavern, for example, testified at a competency hearing that petitioner was competent and showed no other evidence of insanity at the time of the crime. Because Dr. Cha-vern’s testimony “undermined any defense that [petitioner] might have hoped to pursue,” and because it involved only a “con-clusory review of [petitioner’s] records,” the court found this examination insufficient under the Fifth Amendment and

Ake. Id.

at 321 . The court concluded by stating generally that “[a] defendant is denied the essential benefits of an expert when the services of a doctor must be shared with the prosecution.”

Id.

The

Christy

court then performed a harmless error analysis to ensure that the denial of the petitioner’s Fifth Amendment rights precluded the petitioner from asserting a real defense under Pennsylvania law. The Pennsylvania Supreme Court ruled that this denial was in fact harmless error because “psychiatric assistance would not have provided Christy with a defense under Pennsylvania law because Christy was diagnosed merely with a personality disorder.”

Id.

The federal habeas court, however, disagreed, finding that

Ake

required psychiatric assistance “ ‘to help determine whether the insanity defense is viable.’ Thus, implicit within

Ake ,

such assistance is required when a defendant’s

*753

mental state is at issue, even if the defendant ultimately abandons an insanity defense.”

Id.

(quoting

Ake,

470 U.S. at 82 , 105 S.Ct. 1087 ). The court went on to find that the Pennsylvania Supreme Court’s interpretation of the record was inaccurate, determining that the “record is replete with multiple diagnoses that support the conclusion that Christy suffers from severe mental illness.”

Id.

at 322. The court based this conclusion in part on the post-conviction collateral hearing testimony of an additional mental health expert, Dr. Shields, who indicated that the petitioner “might have, in fact, been able to succeed with a diminished capacity defense.”

Id.

The

Christy

court found that the trial court’s error was not harmless because, under the circumstances, the petitioner’s “mental condition was his only viable defense and his strongest argument in mitigation for sentencing purposes.”

Id.

The court pointed out that a psychiatrist could have testified to the impact of the petitioner’s mental impairments “throughout his lifetime and particularly on the night in question,” as well as “the effect of prolonged drug and alcohol abuse on an individual with [petitioner’s] mental impairments.”

Id.

Finally, the court found that psychiatric testimony was necessary for the petitioner to explain his horrible conduct to the jury, and to rebut aggravating circumstances presented by the prosecution.

See id.

Petitioner’s case strongly resembles that of his counterpart in

Christy .

Petitioner made it clear in a pretrial conference on November 7, 1984 that he intended to present mental health defenses, but did not explicitly request a court-appointed mental health expert for the defense at that time. The trial judge and the parties in turn agreed to a neutral court-appointed expert, Dr. Jay Bonovitz, to evaluate Petitioner’s mental state and report directly to the court.

(See

Letter of Judge Kubacki 1/17/85.) Dr. Bonovitz’ appointment occurred before the Supreme Court’s ruling in

Ake ,

and was consistent with case law at that time. It therefore cannot be considered a violation of defendant’s due process rights.

Ake

was decided on February 26, 1985, nearly four months before Petitioner’s trial. At the close of Petitioner’s penalty phase, the trial court-appointed another neutral expert and ordered a presentence and a psychiatric report. (N.T. 6/12/85, at 6.59.) Petitioner responded by presenting a post-trial motion arguing that, under

Ake ,

Petitioner was entitled to “the benefit of a presentenee report, psychiatric and a[sic] medical studies” during sentencing.

{See

N.T. 2/7/86, at 60.) The trial court rejected his motion and accepted the jury’s recommendation of death.

(See

N.T. 2/7/86, at 71-72.) We find that Petitioner adequately presented his need for a court-appointed mental health expert in his post-trial motion.

(See

N.T. 2/7/86, at 61 (objecting to the lack of scientific evidence available to the defense during the penalty phase).)

Petitioner was also denied proper expert assistance. His case is virtually identical

*754

to that found sufficient to grant the writ in

Christy .

The trial court-appointed a neutral psychiatric expert, Dr. Jay Bonovitz, as the sole evaluator of both Petitioner’s mental history and his mental state at the time of the crime. Dr. Bonovitz was not alerted by trial counsel to the numerous PSI reports and mental health evaluations chronicling Petitioner’s history, and therefore did not take them into account in his analysis. He testified only during the guilt phase of the trial, and then only on the effects of alcoholic beverages on the cerebral cortex.

(See

N.T. 6/11/85, at 5.20-5.24.) He delivered his report directly to the court; it was never introduced into evidence by either party. The report did not address any of Petitioner’s potential mental health defenses. It did, however, point out that Petitioner “became evasive” when asked about the details of the crime, noting that such a reaction could be a function of the lack of confidentiality between Dr. Bonovitz and Petitioner.

(See

Report Dr. J. Bonovitz at 1-2.)

Furthermore, like the experts appointed in

Christy ,

Dr. Bonovitz’ conclusion regarding competency “undermined any defense that [Petitioner] might have hoped to pursue.”

Christy,

28 F.Supp.2d at 321 . Unlike the expert employed in

Christy ,

however, Dr. Bonovitz performed even less than a “conclusory review” of Petitioner’s record; he didn’t review it at all. Such an omission in turn made it virtually impossible for Dr. Bonovitz to meet his duty under the Fifth Amendment of “marshaling the facts to assist in developing any defenses.”

Id.

Dr. Bonovitz provided no assistance in the preparation or formation of Petitioner’s case. Petitioner was in turn denied the essential benefits of an expert because he was forced to share Dr. Bono-vitz with the prosecution.

Unlike the petitioner in

Christy ,

however, we do not find that Petitioner’s lack of a court-appointed mental health expert resulted in actual prejudice at every stage of Petitioner’s state murder trial. We instead find that the trial court’s denial of Petitioner’s post-trial motion constituted harmless error with regard to the guilt phase of his state trial, but was not harmless with respect to the penalty phase. A defendant in Pennsylvania may raise one of two mental health defenses at the guilt phase of a capital murder trial. First, he may assert that he was criminally insane under the

M’Naghten

test.

See

Pa. Cons. Stat. § 314(d).

M’Naghten

entitles a defendant to an acquittal if he can demonstrate, by a preponderance of the evidence, that he had a mental disease or defect that caused him either “not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong.” 18 Pa. Cons. Stat. § 314 (c)(2). Petitioner presented no evidence at trial to support either of these conclusions, and the jury and Pennsylvania Supreme Court on direct review under § 9711(h)(3)(i) both found that the evidence presented was sufficient to support a finding of specific intent to kill.

The second available defense requires a showing that “as a result of an abnormal mental condition [Petitioner] was at the time of the killing incapable of’ the specific intent required for a finding of first-degree murder.

Pennsylvania Criminal Suggested Standard Jury Instructions

§ 5.01B (8th Supp.2000). Petitioner also presents no evidence that he was unable to form the requisite intent for first-degree murder. In fact, the record reflects Petitioner admitting that he entered the Victim’s apartment on the morning of August 11, 1984 with the intent “to rape somebody.” (N.T.6/6/85, at 2.57.) This clearly demonstrates Petitioner’s ability to form a criminal intent, and is consistent with both the jury and the Pennsylvania Supreme Court’s findings regarding the sufficiency

*755

of evidence in support of Petitioner’s first-degree murder conviction. Furthermore, none of Petitioner’s prior psychiatric evaluations or presentence reports found that Petitioner suffered from any condition that would inhibit his ability to form a criminal intent. They focused instead on his having a personality disorder with sociopathic traits, his traumatic background and childhood, and his substance abuse.

(See, e.g.,

Report Dr. J. Bonovitz at 2-3; Report April 1981, at 7.) We find that none of these evaluations represent evidence of an inability to form the intent necessary to be found guilty of first-degree murder, and therefore reject Petitioner’s claim that his lack of a court-appointed mental health expert for assistance in preparing defenses at the guilt phase of his state murder trial was anything other than harmless error.

Our conclusion is further supported by the fact that Petitioner never requested a defense expert during the guilt phase of his state murder trial. His post-trial motion argued only that he needed a court-appointed mental health expert for assistance in developing mitigation evidence at the penalty phase. We find that this is the extent of Petitioner’s remediable claim. Petitioner neither requested relief in conjunction with the guilt phase of his state trial, nor is he entitled to it under the circumstances.

We are not, however, by virtue of our conclusions regarding the guilt phase, precluded from finding that actual prejudice existed at the penalty phase. The standard established for finding mitigation at the penalty phase is different from that relied on as a defense to guilt for first degree murder. As mentioned above, a guilt phase diminished capacity defense requires a showing that the defendant did not form the specific intent necessary to satisfy the statutory definition of first-degree murder. By contrast, Pennsylvania’s mitigating circumstances do not require such a high degree of mental infirmity to justify mitigation. They instead require a showing that the “defendant was under the influence of extreme mental or emotional disturbance” or that a defendant’s poor mental health constitutes “evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.”

See

42 Pa. Cons. Stat. § 9711 (e)(2), (8). The United States Supreme Court has found that penalty phase juries must be afforded every opportunity to exercise their discretion in granting a sentence of life imprisonment.

See Eddings v. Oklahoma,

455 U.S. 104 , 102 S.Ct. 369 , 71 L.Ed.2d 1 (1982);

Lockett v. Ohio,

438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978).

We are satisfied that the evidence presented by Petitioner is relevant to a finding of the two mitigating factors mentioned above, and that his lack of a court-appointed mental health expert actually prejudiced his defense at the penalty phase. Like the petitioner in

Christy ,

Petitioner’s record was replete with multiple diagnoses, as well as expert testimony from his post-conviction proceedings supporting a finding of actual prejudice as a result of his not having a court-appointed mental health expert at the penalty phase of his state trial. Dr. John O’Brien testified at Petitioner’s post-conviction hearing that a diminished capacity defense may have been viable at the penalty phase in light of Petitioner’s mental history.

(See

N.T. 12/14/95, at 18-19.) Dr. O’Brien likewise explained that a mental health expert could have testified to the impact of Petitioner’s prolonged drug abuse and other mental infirmities on his life generally and on his state of mind in the early morning of August 11, 1984.

(See

N.T. 12/14/95, at 15, 18-19, 53, 56.) Finally, like the petitioner in

Christy ,

Petitioner did not experience harmless error because his mental

*756

condition was “his only viable defense and his strongest argument in mitigation for sentencing purposes.”

Christy,

28 F.Supp.2d at 322 . As a result, Petitioner is able to establish, commensurate with the petitioner in

Christy ,

the requisite harm for relief from his death sentence under the Fifth Amendment.

In light of the Supreme Court’s clearly established position in

Ake ,

and in conjunction with a very similar decision by the court in

Christy ,

we find that Petitioner was denied his Fifth Amendment right to a court-appointed defense expert at the penalty phase of his state court proceeding. We do not, however, find that a similar error was committed with respect to the guilt phase of Petitioner’s trial. Petitioner did not make such a claim, nor did he present evidence capable of establishing an inability on the part of Petitioner to form the necessary intent to be acquitted of first-degree murder. As a result, we grant Petitioner’s request for relief from his death sentence on the ground that he was improperly denied a court-appointed defense expert for help in developing defenses in support of mitigation at the penalty phase, but deny such relief in connection with his first-degree murder conviction. Despite our finding that Petitioner is deserving of a writ on these grounds, we nonetheless consider the remainder of his claims in order to determine an appropriate remedy.

S. Claim III

Petitioner’s Claim III argues that the trial court’s “penalty phase jury instructions unconstitutionally prevented the jury from considering and giving effect to mitigating circumstances.” (Pet. Writ Habeas Corpus at 44.) He makes three separate subclaims in support of this claim. First, Petitioner argues that the court’s instructions and verdict sheet violated the rule of

Mills v. Maryland,

486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988), by implying that the jury must find all mitigating circumstances unanimously in order to consider such factors as evidence against sentencing Petitioner to death. Petitioner’s second subclaim contends that the trial court erred in instructing the jury that only mitigating circumstances that caused the victim’s death may be considered in determining Petitioner’s sentence. Finally, Petitioner’s third subclaim maintains that the trial court improperly instructed the jury to count, rather than weigh, aggravating versus mitigating circumstances. All of Petitioner’s contentions were presented to the Pennsylvania Supreme Court, and are therefore subject to substantive review by this court in accordance with the AEDPA.

Petitioner cites problems with the trial court’s jury instructions and verdict sheet in support of his subclaim that the trial court improperly misled the jury to believe that mitigating circumstances must be found unanimously in order to be considered at the penalty phase. Considering each separately, we find that the Pennsylvania Supreme Court’s previous denial of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law.

See

28 U.S.C. § 2254 (d). The Eighth Amendment prohibition on cruel and unusual punishment requires that “the sentencer in a death penalty case 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), and

Lockett v. Ohio,

438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978)). The Supreme Court elaborated on this standard in

Mills v. Maryland,

486 U.S. 367 , 108 S.Ct. 1860 ,

*757

100 L.Ed.2d 384 (1988), in which it vacated a death sentence on the grounds that there existed 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 they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.”

Id.

at 384 , 108 S.Ct. 1860 . The Court relied on the principle that “the jury’s verdict must be set aside if it could be supported on one ground but not on another, and the reviewing court was uncertain which of the two grounds was relied upon by the jury in reaching the verdict,” adding that “in reviewing death sentences, the Court has demanded even greater certainty that the jury’s conclusions rested on proper grounds.”

Id.

at 376 , 108 S.Ct. 1860 .

The Third Circuit applied

Mills

in two later cases,

Zettlemoyer v. Fulcomer,

923 F.2d 284 (3d Cir.1991), and

Frey v. Fulcomer,

132 F.3d 916 (3d Cir.1997). The court in

Zettlemoyer

upheld the state trial court’s jury instructions and verdict sheet under Mills.

It upheld the jury charge based on the finding that a reasonable probability of juror confusion did not exist where the “trial court correctly instructed the jury that its

verdict

must be unanimous” without precluding the jury’s consideration of relevant evidence by requiring either “that the jury must unanimously find the existence of particular mitigating circumstances or that the jury ... weigh only those mitigating circumstances which it found unanimously.”

Zettlemoyer,

923 F.2d at 308 (emphasis in original). With regard to the verdict sheet, the court found that it did not “limit the mitigating circumstances the jury could consider.”

Id.

The court interpreted the form’s language to mean that “the jury’s conclusion on the particular

aggravating

circumstance must be unanimous,” but also found that the “absence of a similar instruction for mitigating circumstances indicates that unanimity is not required.”

Id.

Instead, the form’s lack of specificity regarding mitigating circumstances suggested to the court that the jury’s ability to consider such circumstances was “broad and unrestricted,” and therefore permissible under the Eighth Amendment and

Mills. Id.

*758

By contrast, the

Frey

court vacated a death sentence under

Mills

despite finding that the jury charge at issue was “similar in many respects to the charge at issue in Zettlemoyer.”

Frey,

132 F.3d at 922 . The

Frey

court distinguished

Zettlemoyer

on the basis that the trial court’s instructions in

Frey

implied the need for jury unanimity in decisions

preceding

the ultimate verdict. The court used as evidence in reaching this conclusion the fact that the jury instructions in

Frey

used the word “unanimously” in closer proximity to the phrase “mitigating circumstances” than did the instructions in

Zettlemoyer. See id.

at 923 (finding that, in the

Frey

instructions, the word “unanimously” was used within seven words of a reference to mitigating circumstances, while in

Zettlemoyer,

the two phrases were separated by seventeen words). The

Frey

court also noted that the trial court used the word “unanimously” to modify “finds,” rather than to modify “agree,” as in

Zettlemoyer.

According to the court in

Frey ,

this use of the word unanimously in conjunction with different verbs created a reasonable likelihood that the jury was precluded from considering constitutionally viable mitigating circumstances by their confused belief that they must be unanimous in their consideration of factors affecting sentencing, rather than merely in their ultimate sentencing decision.

See id.

The

Frey

court’s final distinction rested on the way in which the trial judges explained the different burdens of proof that apply to aggravating and mitigating circumstances. In

Frey ,

the court explained that aggravating circumstances must be proven beyond a reasonable doubt, and that mitigating circumstances need only be shown by a preponderance of the evidence. It did not, however, mention the unanimity requirement during its explanation. The

Zettlemoyer

court, on the other hand, performed the same explanation regarding burdens of proof, but added that the jury must find aggravating circumstances “unanimously, beyond a reasonable doubt.” It did not in turn use the term unanimously in connection with the mitigating circumstances’ preponderance standard.

See id.

at 923-24. This further explanation, according to the court in

Frey ,

helped the jury understand the limited application of the unanimity requirement in a way lacking in the

Frey

instructions.

As a result, the Third

*759

Circuit vacated the petitioner’s death sentence due to their finding that the jury-instructions and verdict sheet in

Frey ,

when taken as a whole, violated the Supreme Court’s holding in

Mills .

At the penalty phase of the case before us, the trial judge instructed the jury as follows:

If murder in the first degree is accompanied by at least one of the following aggravating circumstances and none of the following mitigating circumstances, the person convicted shall be sentenced to death. If a murder of the first degree is not accompanied by any aggravating circumstances, or is accompanied by at least one of the following mitigating circumstances, a person shall be sentenced to life imprisonment.... Remember again that your verdict must be unanimous.

(N.T. 6/12/85, at 6.51, 6.55.) The verdict sheet submitted to the sentencing jury included a checklist of all the available aggravating and mitigating circumstances, followed by the following statement:

We the jury have found unanimously [ ]at least one aggravating circumstance and no mitigating circumstance. The aggravating circumstance(s)(is)(are)

[ ]one or more aggravating circumstances which outweigh any mitigating circumstances. The aggravating circumstance(s)(is)(are)_

We the jury unanimously render the following sentencing verdict:

DEATH ()

LIFE IMPRISONMENT ()

(First Degree Murder Verdict Penalty Determination Sheet at 3.) Petitioner contends that by failing to mention that aggravating circumstances must be found unanimously in its jury instructions, the trial court equated aggravating and mitigating circumstances in the minds of the jury. According to Petitioner, this is distinguishable from

Zettlemoyer,

in which the sentence was upheld because the court mentioned the unanimity requirement with regard to aggravating circumstances separately from its discussion of the role of mitigation evidence. It is also, according to Petitioner, reminiscent of

Frey .

Although the trial court in

Frey

did mention the unanimity requirement with respect to finding evidence relevant to sentencing, the petitioner’s sentence was vacated due to the court’s failure to make clear to the jury which evidence the requirement applied to. Petitioner argues that the trial court’s failure in his case to mention unanimity with respect to aggravating or mitigating circumstances is more closely analogous to

Frey

than

Zettlemoyer

and should therefore be the basis for habeas corpus relief under

Mills .

Petitioner likewise argues, with respect to the verdict sheet, that its wording created a substantial probability that reasonable jurors felt precluded from considering mitigating circumstances that the jury did not unanimously agree on. As a result, under

Mills ,

Petitioner would also have a right to habeas corpus relief from his death sentence on these grounds.

Petitioner’s arguments were denied by the Pennsylvania Supreme Court in collateral proceedings.

See Holland II,

727 A.2d at 568 . Relying on the United States Supreme Court’s holding in

Mills

that a jury is not required to be “affirmatively instructed that mitigating circumstances need not be unanimously found before any juror may weigh them ... [but only] that where there is a high risk that instructions could be understood as requiring unanimity as to mitigating circumstances, the sentence must be vacated,” the Pennsylvania Supreme Court validated the trial court’s instructions and verdict form on the

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grounds that they were similar to those found acceptable in

Commonwealth v. Banks,

540 Pa. 143 , 656 A.2d 467 (1995).

Banks

involved a constitutional challenge to the following jury instruction: “the verdict must be a sentence of death if the jury

unanimously

finds at least one aggravating circumstance and

no mitigating

circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstance or circumstances.”

Id.

at 470. The Supreme Court of Pennsylvania upheld the instruction on the grounds that it “mirrors the language of [Pennsylvania’s] Sentencing Code, [and] has previously been reviewed by this Court and determined not to violate

Mills.” Id.

(state court citations omitted). It upheld the verdict sheet because it found it similar to that previously upheld in

Commonwealth v. Frey,

520 Pa. 338 , 554 A.2d 27 (1989).

See Banks,

656 A.2d at 470 .

We find that the Pennsylvania Supreme Court’s decision was not contrary to, or an unreasonable application of, clearly established federal law.

See

28 U.S.C. § 2254 (d). First, neither

Zettlemoyer

nor

Frey

qualify as “clearly established federal law, as determined by the Supreme Court of the United States.”

See id.; Ba

nks

v. Horn,

63 F.Supp.2d 525, 543-44 (M.D.Pa.1999) (finding that, because it was decided prior to the amendments to § 2254, the principles enunciated in

Frey

are not applicable to cases decided thereafter). Moreover, although the Third Circuit recognizes the informative value of lower court decisions in interpreting Supreme Court precedent,

see Matteo,

171 F.3d at 888 , both

Zettlemoyer

and

Frey

are distinguishable from Petitioner’s case. The Pennsylvania Supreme Court acted in accordance with analogous state court decisions applying

Mills

to Pennsylvania’s death penalty statute. It seems clear that this decision was not contrary to clearly established federal law, as Petitioner presents no evidence of an existing Supreme Court precedent that would require a contrary outcome.

See Matteo,

171 F.3d at 888 . We likewise find that the Pennsylvania Supreme Court’s decision did not represent an unreasonable application of such law. We are not at liberty to review the state court’s decision for accuracy. Our inquiry is limited under § 2254(d) to one of reasonableness.

See Williams,

120 S.Ct. at 1522 (explaining that an

“unreasonable

application of federal law [according to § 2254(d) ] is different from an

incorrect

application of federal law”).

Mills ,

like later cases applying it, requires a very fact-specific inquiry into the instructions and verdict sheets offered to the jury. None of the cases cited by Petitioner are

*761

sufficiently analogous to the case at hand to lead us to believe that the state court acted unreasonably in this case in finding its prior holding in

Commonwealth v. Banks

to be compatible with

Mills. See Banks v. Horn,

63 F.Supp.2d at 544 (“That the Third Circuit reached a contrary result does not mean that the decision of the state courts was unreasonable.”). We therefore find that we are unable to conclusively determine, as granting a writ under § 2254 requires us to do, that the Pennsylvania Supreme Court’s application of

Mills

was objectively unreasonable. Petitioner’s argument that the jury instructions and verdict sheet at his sentencing violated

Mills

is denied on its merits.

Petitioner’s second subclaim argues that the trial court’s jury instructions improperly precluded the jury from considering relevant mitigating evidence by limiting such evidence to only those factors that caused Petitioner’s offense. As mentioned above, a “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), and

Lockett v. Ohio,

438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978)). At the penalty phase, the trial court instructed the jury to “remember to consider all the evidence that you have heard here today. Give it the weight which it is entitled and decide for yourselves what circumstances

caused

this killing.” (N.T. 6/12/85, at 6.55 (emphasis added).) Petitioner argues that this instruction improperly limited the scope of the sentencing jury’s review to “causative” circumstances. He contends that this limitation was particularly harmful to him because he presented only “background” evidence in support of mitigation, none of which was even intended to be causative. Petitioner also argues that the trial court’s additional instructions referring to circumstances “accompanying” the crime were not curative. According to Petitioner, the term “accompany” encompasses the term “cause” such that references to circumstances both accompanying and causing a crime would have to be interpreted in accordance with the narrower of the two terms to represent only those circumstances that caused the crime. Finally, Petitioner claims that the trial court’s error was not harmless, in that it unconstitutionally precluded the jury from considering evidence in mitigation of death.

The Supreme Court of Pennsylvania denied this allegation on the merits on direct appeal.

See Holland I,

543 A.2d at 1076 . The court reviewed the jury charge as a whole, and found that it did not have the effect of improperly limiting the jury’s consideration of mitigating evidence. It focused on the fact that the trial court only used the term “cause” in relation to all circumstances related to the killing, and did not mention it with respect to aggravating or mitigating circumstances specifically. The court in

Holland I

also noted that the trial court’s mention of causation occurred after it reminded the jury to consider all the relevant evidence in arriving at a sentence.

See id.

at 1076. The state supreme court continued by explaining that the Commonwealth was able to establish as an aggravating circumstance Petitioner’s significant history of felony convictions. Because this circumstance is in no way causative of the crime, the court found that Petitioner’s allegation that the jury was limited to only causative mitigating circumstances was empirically baseless.

See id.

Finally, the state supreme court determined that Petitioner faced no actual prejudice as a result of the instruction. First, according to its decision in

Holland

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the court determined that the only evidence Petitioner was able to present in support of mitigation was in fact causative, i.e. that he had a troubled background that caused him to behave in a socially irresponsible and irrational manner. The state supreme court also noted that Petitioner was able to establish none of the statutory mitigating circumstances at trial, while the Commonwealth proved three aggravating circumstances. As a result, any error in the jury instruction regarding mitigation was harmless in that it would have been insufficient to overcome the weighing process performed by the jury between aggravating and mitigating circumstances.

See id.

The Pennsylvania Supreme Court’s determination was neither contrary to, nor an unreasonable application of, clearly established federal law.

See

28 U.S.C. § 2254 (d). Petitioner presented no evidence of a Supreme Court precedent that arrived at a conclusion opposite that of the state court on a set of materially indistinguishable facts.

See Williams,

120 S.Ct. at 1523 . Petitioner has likewise failed to demonstrate that the Pennsylvania court was objectively unreasonable in its application of Eighth Amendment Supreme Court precedent. Our review under the AEDPA requires us to evaluate not whether the state court was correct in its application of federal law, but whether it was reasonable. We find that the decision of the court in

Holland I

falls within the broad range of acceptable conclusions outlined by § 2254(d). The manner in which the trial court used the term “caused” was not likely to preclude the jury from considering all the evidence presented by Petitioner. As a result, Petitioner’s argument is rejected and his claim for federal collateral relief based on the trial court’s allegedly improper jury instruction regarding causative circumstances at sentencing is denied on its merits.

Petitioner’s third and final subclaim contends that jurors were unconstitutionally precluded from considering all relevant mitigating evidence by virtue of the trial court’s erroneous instruction regarding the proper treatment of such evidence. During Petitioner’s sentencing proceeding, the trial judge instructed the jury to “follow their oath and their consciences in determining how many aggravating and how many mitigating circumstances there are.” (N.T. 6/12/85, at 6.46.) “To repeat, if you find one aggravating circumstance and no mitigating circumstance, your verdict will be death. If you find no aggravating circumstances and no mitigating circumstances, the sentence will be life. If you find one aggravating and one mitigating, it will be life. If you find more aggravating circumstances than you find mitigating circumstances, then the penalty will be death.” (N.T. 6/12/85, at 6.55.) Petitioner asserts that this instruction required the jury to

count,

rather than

tveigh

aggravating versus mitigating circumstances, and to arrive at its determination on the basis of a quantitative comparison. He makes three distinct allegations as to why such a quantitative comparison would justify ha-beas corpus relief.

First, Petitioner contends that this instruction discouraged jurors from considering mitigating circumstances because Petitioner only presented evidence in favor of one mitigating circumstance and the jury had already found three aggravating circumstances. According to Petitioner, once the jury determined that three aggravating circumstances were present, in may have ceased deliberations in recognition of the fact that finding three or more mitigating circumstances was impossible in light of the Petitioner’s mitigation evidence. The Pennsylvania Supreme Court agreed with Petitioner that the trial court erred in instructing the jury to count, rather than

*763

weigh, aggravating and mitigating circumstances.

See Holland I,

543 A.2d at 1075 . It nevertheless denied Petitioner’s argument that the charge precluded the jury from considering mitigating circumstances on the grounds that any error by the trial court was harmless. It found

[N]o merit in [Petitioner’s] argument that the defective instruction on “weighing” could have caused the jury to refrain from conducting any deliberations on the question of whether mitigating circumstances were present.... [T]he question of whether mitigating circumstances are present is separate and apart from the question of whether, once they are found to exist, the mitigating circumstances are sufficient to prevail over the aggravating circumstances. The record shows that the jury was thoroughly and competently instructed on the subject of what would constitute mitigating circumstances, and there is no reason to believe that the instructions on that subject were ignored.... Further. in announcing the verdict, the jury foreman expressly stated the jury’s finding that no mitigating circumstances were present.

Id.

We are bound by the standard of review set forth in the AEDPA for claims heard on the merits in state court, which permits a reviewing court to grant a writ only when the state court decision was either “contrary to, or ... an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254 (d). In this case, Petitioner cites the Eighth Amendment’s prohibition on cruel and unusual punishment, as interpreted in

Lockett v. Ohio,

438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), as the applicable federal law, and contends that the Pennsylvania Supreme Court decision represented an unreasonable application of that law. The reasonableness inquiry prescribed in § 2254(d) does not require that we affirm the correctness of the state court determination, only that we evaluate whether that court was “objectively unreasonable” in its application of federal law.

See Williams,

120 S.Ct. at 1521 . We find that the Pennsylvania Supreme Court was not objectively unreasonable in its resolution of Petitioner’s prior claim. Although the charge was deemed improper by the state court, there was evidence indicating thao no prejudice resulted to Petitioner’s case as a result of judicial error. We are unable to say that the Pennsylvania Supreme Court was unreasonable in relying on this evidence to deny Petitioner’s claim, and therefore are bound to deny that claim in accord with the standard of review set forth in § 2254(d).

Petitioner next argues that the trial court’s instruction violated Petitioner’s due process liberty interest by contradicting the requirements set forth by Pennsylvania’s Death Penalty Statute, 42 Pa. Stat. Cons.§ 9711(e)(1)(iv).

See Hicks v. Oklahoma,

447 U.S. 343, 346 , 100 S.Ct. 2227 , 65 L.Ed.2d 175 (1980) (finding that a state statutory provision created a due process liberty interest for defendant). Section 9711(c)(1)(iv) requires that,

[b]efore the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters: ... the verdict must be a sentence of

*764

death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds

one or more aggravating circumstances which outiueigh any mitigating circumstances.

Id.

(emphasis added). As stated above, the Pennsylvania Supreme Court recognized that the trial court’s instruction improperly omitted the weighing requirement, but nonetheless denied Petitioner’s claim on the grounds that the error was harmless, i.e. it did not prejudice his defense.

See Holland I,

543 A.2d at 1075-76 . Section 2254(d) of the AEDPA requires us to defer to the state court’s determination unless it was contrary to, or an unreasonable application of, clearly established federal law. We find that the Pennsylvania Sup

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