Abdul-Salaam v. Beard

MEMORANDUM

JOHN E. JONES III, District Judge.

Pending before the Court is a counseled petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 , on *430 behalf of Petitioner Seifullah Abdul-Salaam (“Petitioner” or “Abdul-Salaam”), a state inmate under sentence of death and currently incarcerated at the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania. (Doc. 8.) Abdul-Salaam is challenging his 1995 convictions and sentence in the Court of Common Pleas of Cumberland County, Pennsylvania. For the reasons set forth below, and after careful consideration of the petition, this Court concludes that Petitioner’s claims are without merit. Thus, the petition for writ of ha-beas corpus will be denied.

I. FACTUAL AND PROCEDURAL HISTORY

On March 15, 1995, Abdul-Salaam was found guilty of first degree murder, robbery, and conspiracy, following a six-day jury trial in the Court of Common Pleas of Cumberland County, Pennsylvania (“trial court” or “Cumberland County court”). The Pennsylvania Supreme Court summarized the relevant facts as follows:

The record reveals that on the morning of August 19, 1994, [Abdul-Salaam] and Scott Anderson drove toward the town of New Cumberland, Pennsylvania in a borrowed Suzuki Sidekick. First, in Camp Hill, Pennsylvania, then outside of New Cumberland, the two men asked for directions. At approximately 10:30 a.m., [Abdul-Salaam] and Anderson arrived in New Cumberland and parked their car in Maple Alley. Maple Alley runs perpendicular to Fourth Street. [Abdul-Salaam] walked across Fourth Street to the D & S Coin Shop which was owned by Mr. Dale Rishel. The coin shop was a one-room building with storefront windows. [Abdul-Salaam] knocked on the door to the coin shop and entered. A resident of Fourth Street, Mr. Vinh Tran, observed [Abdul-Salaam] pass him on the street and noted that [Abdul-Salaam] knocked on the coin shop door, since few people knocked before entering. Anderson followed and entered the coin shop shortly thereafter, carrying gloves and a bag. Again, Mr. Tran observed Anderson and found remarkable Anderson’s heavy clothing on such a warm summer’s morning.

Once inside the coin shop, [Abdul-Salaam] asked Mr. Rishel about specific gold coins. Mr. Rishel responded that he did not carry that inventory but suggested another dealer. [Abdul-Salaam] then pulled a revolver from under his shirt and he and Anderson came across the counter onto Mr. Rishel to subdue him. The front window of the store was broken during this altercation. Mr. Rishel was taped across the face and around his legs, and his hands were tied behind his back with a cord. [Abdul-Salaam] kicked Mr. Rishel in the head, while Anderson began to go through Mr. Rishel’s goods.

Immediately upon hearing the breaking of the front window of the coin shop, Mr. Tran alerted his landlord, Mr. James Howie, of the situation. Mr. Howie called 911. Officer Willis Cole of the New Cumberland Police Department ultimately responded to the 911 call. Officer Cole parked his squad car on Fourth Street in front of Mr. David Michael’s barbershop, which is on the same side of Fourth Street as the coin shop. As Officer Cole approached the coin shop, the perpetrators apparently became aware of his presence and, finding no rear escape, exited the front door, first [Abdul-Salaam], then Anderson.

[Abdul-Salaam] was able to escape from the scene, however, Officer Cole intercepted Anderson. Officer Cole ordered Anderson to lie face down and prepared to handcuff him. Mr. Michaels watched as [Abdul-Salaam], with his back against *431 a building and revolver drawn, reappeared from Maple Alley as if he had circled part of the block. [Abdul-Salaam] then sprinted from the alley toward Officer Cole shooting at Officer Cole as he ran. Having been warned by individuals in the street, Officer Cole was able to return [Abdul-Salaam]’s fire, hitting [Abdul-Salaam] in the leg. However, [Abdul-Salaam] continued shooting. Officer Cole staggered into the middle of Fourth Street and collapsed after receiving a bullet through his heart. These events, literally unfolding in front of them, were observed by various witnesses who lived and/or worked in the neighborhood, including Mr. Rishel, Mr. Tran, Mr. Howie, and Mr. Michaels.

[Abdul-Salaam] and Anderson fled the scene, dropping the revolver used to kill Officer Cole as they ran. They returned to their car and proceeded in the direction of Harrisburg.

After receiving a description of the Suzuki and of [Abdul-Salaam] and Anderson via police radio, Officer Rodney Smith of the Middlesex Township Police Department spotted and pursued the two individuals outside of Harrisburg. After a high speed chase, [Abdul-Salaam] and Anderson lost control of the Suzuki which then came to a stop. The men abandoned the car, fleeing on foot. As [Abdul-Salaam] exited the vehicle, he looked directly at Officer Smith. Anderson was found several blocks away and was arrested. Shortly thereafter, [Abdul-Salaam] was arrested in an alley near the home of his girlfriend, Christina Reeves, while the two were walking her dog.

Ms. Reeves agreed to allow the police to search her home, where [Abdul-Salaam] occasionally spent the night. She also signed a consent form indicating that the police were searching for a handgun and clothing. Pursuant to the search, the police found a briefcase in Ms. Reeves’ bedroom closet which contained ammunition and correspondence belonging to [Abdul-Salaam].

After his arrest, [Abdul-Salaam] invoked his right to counsel and his right to remain silent. [Abdul-Salaam] requested treatment for his leg wound and was taken to a local hospital accompanied by a custodial officer, Detective Victor Rivera. [Abdul-Salaam] and the officer engaged in small talk when [Abdul-Salaam] asked the officer, “What are my options?” The officer readvised [Abdul-Salaam] of his rights and told him that he could tell his attorney whatever it was that he wanted to tell him. [Abdul-Salaam] then stated: “All I’m going to say is that ‘Scotty Love’ did it.” No follow-up questions were asked by Detective Rivera.

At trial, various witnesses, including Mr. Rishel, Mr. Tran, Mr. Howie, Mr. Mi-chaels, and Officer Smith, testified as to the events surrounding the robbery and the murder of Officer Cole. Among those witnesses, a ballistics expert was able to match the revolver left at the scene with the bullet recovered from Officer Cole’s body and a Pennsylvania State Police Officer employed in the Latent Print and Automated Fingerprint Identification sections of the Laboratory Division was able to match [Abdul-Salaam]’s fingerprint with a latent fingerprint found in the Suzuki.

Commonwealth v. Abdul-Salaam, 544 Pa. 514 , 678 A.2d 342, 345-47 (1996) (“Abdul- Salaam — I ”). The penalty phase commenced on the following day, March 16, 1995. During the penalty phase, the jury found four aggravating circumstances: (1) the victim was a peace officer who was killed in the performance of his duties, see 42 Pa. Cons.Stat. § 9711(d)(1); (2) Abdul- *432 Salaam committed a killing while in the perpetration of a felony (robbery), see 42 Pa. Cons.Stat. § 9711(d)(6); (3) in the commission of the offense, Abdul-Salaam knowingly created a grave risk of death to another person in addition to the victim of the offense, see 42 Pa. Cons.Stat. § 9711(d)(7); and (4) Abdul-Salaam has a significant history of felony convictions involving the use or threat of violence to the person, see 42 Pa. Cons.Stat. § 9711(d)(9). The jury also found one mitigating circumstance: “[a] background that includes both physical and mental abuse does have a negative impact on a person’s development and therefore his future behavior,” see 42 Pa. Cons.Stat. § 9711(e)(8) (relating to the character and record of the defendant). The jury concluded that the aggravating circumstances outweighed the mitigating circumstances and returned a sentence of death, see 42 Pa. Cons.Stat. § 9711(c)(l)(iv).

On March 24, 1995, the trial court formally imposed the sentence of death for first degree murder rendered by the jury. In addition, Abdul-Salaam was sentenced to concurrent terms of imprisonment of four (4) to eighteen (18) years on the robbery conviction, one and one half (1-1/2) to five (5) years and prosecution costs on the conspiracy conviction.

Represented by his trial counsel, Spero T. Lappas, Esquire, Abdul-Salaam filed a timely direct appeal to the Pennsylvania Supreme Court, 1 raising six (6) claims for relief. Specifically, Abdul-Salaam presented the following issues for review, as characterized by the Pennsylvania Supreme Court:

1.Does a suppression court err by denying a pre-trial motion to suppress eyewitness identifications where the witnesses had a poor opportunity to observe the perpetrator, and where the identifications follow prejudicial pre-trial exposure to the defendant, in-person and in media reports?

2. Does a suppression court err when it refuses to suppress a statement which results from custodial interrogation after the defendant’s expression of his desire to exercise his rights to silence and to counsel?

3. Does a suppression court err when it denies a motion to suppress the fruits of the warrantless search of a closed container, where there is no effective consent for the search?

4. Does a trial court err in denying a defense motion for payment of eyewitness expert witness expenses, when the Commonwealth’s case is based in large part on eyewitness identifications?

5. Does a trial court err in denying the defendant’s pre-trial motions which are aimed to preclude the death penalty in a case where the Commonwealth did not file or serve any Rule 352 notice at formal arraignment?

6. Does a trial court err by failing to charge the jury that if they were not convinced that the defendant fired the fatal shot, that could be considered a mitigating factor?

(Doc. 197, Yol. 1, Ex. 1, App.’s Br., at 2.)

The Pennsylvania Supreme Court affirmed Abdul-Salaam’s convictions and sentence by its order of June 18, 1996. Abdul-Salaamr-I, 678 A.2d 342 (Pa.1996). Following the conclusion of the direct appeal, then-Governor Thomas J. Ridge signed a warrant scheduling Abdul-Salaam’s execution for the week of October 27, 1996. Abdul-Salaam then filed a motion for a stay of execution in the Pennsyl *433 vania Supreme Court on October 10, 1996, and a stay was issued on October 25, 1996, see Commonwealth v. Abdul-Salaam, 546 Pa. 240 , 684 A.2d 539 (1996), pending the resolution of Abdul-Salaam’s petition for writ of certiorari by the United States Supreme Court. That petition was denied on March 31, 1997. Abdul-Salaam v. Pennsylvania, 520 U.S. 1157 , 117 S.Ct. 1337 , 137 L.Ed.2d 496 (1997).

On April 29, 1997, then-Governor Ridge signed a second warrant scheduling Abdul-Salaam’s execution for the week of May 25, 1997. Abdul-Salaam filed a motion for a stay of execution in the trial court in order to obtain staté post-conviction review of his convictions and sentence. The Honorable Kevin A. Hess of the Cumberland County court issued a stay of execution on May 22,1997.

In addition to filing the motion for a stay of execution, on May 13, 1997, Abdul-Salaam filed a pro se petition (“First PCRA Petition”) for relief under Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. §§ 9541-9546. Counsel was appointed to represent Abdul-Salaam and an amended petition was filed on September 23, 1997. (Doc. 197, Vol. 1, Ex. 4.) In the amended petition, Abdul-Salaam raised the following claims:

I. Ineffective assistance of counsel at capital sentencing rendered Seifullah Abdul-Salaam’s death sentence constitutionally infirm and requires relief under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding portions of the Pennsylvania Constitution.

II. The prosecutor violated the dictates of Brady v. Maryland and its progeny, the due process clause of the Fourteenth Amendment to the United States Constitution and the corresponding portions of the Pennsylvania Constitution when it withheld Petitioner’s juvenile records from Petitioner.

III. Petitioned ] was denied due process of law guaranteed under the State and Federal Constitutions when the court failed to instruct the jury during the penalty phase that it could find mitigation under 42 Pa.C.S. § 9711(e)(2) & (3). Petitioner was also denied the effective assistance of counsel at trial and on appeal when trial counsel failed to request such an instruction and when appellate counsel failed to litigate this issue on direct appeal.

IV. Petitioner is entitled to relief from his death sentence because the arbitrary, inconsistent and unprincipled broadening of the (d)(9) aggravating circumstance — “felony convictions involving the use or threat of violence to the person” — to include juvenile adjudications of delinquency deprived Petitioner of his rights under the Eighth and Fourteenth Amendments to the United States Constitution and the corresponding portions of the Pennsylvania Constitution.

V. Pennsylvania’s “significant history” of violent felony convictions aggravating circumstance is unconstitutionally vague on its face and as it was applied to Petitioner, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution.

VI. Petitioner’s death sentence must be vacated because the “proportionality review” performed by the Pennsylvania Supreme Court did not provide him the meaningful appellate review mandated by 42 Pa.C.S. § 9711(h)(3)(iii) and State and Federal Constitutional law.

VII. Counsel was ineffective for failing to raise the issues presented in this petition at trial, in post-trial motions and for *434 failing properly to litigate these issues on direct appeal to the Pennsylvania Supreme Court.

VIII. Petitioner is entitled to relief from his conviction and sentence because of the cumulative effect of the errors described in this petition.

(Id.) The trial court, now serving as the PCRA court, held hearings in late 1997 and early 1998. In addition, during the PCRA hearings, Abdul-Salaam filed a supplement to his amended PCRA petition on March 3, 1998, asserting the following additional claim:

Petitioner was denied due process of law secured by the Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution when the Commonwealth and its agents suppressed material and exculpatory evidence in violation of Brady v. Maryland and made false evidentiary presentations and argument which were contradicted by the suppressed evidence.

(Doc. 197, Vol. 1, Ex. 6.) Following the hearing, the PCRA court denied all of Abdul-Salaam’s claims for relief on November 12, 1998. Commonwealth v. Abdul-Salaam, 94-1499 Crim. Term, In re Post-Conviction Relief Hearing (filed Nov. 12, 1998) (Hess, J.) (Doc. 19-2 at 8-23) (“PCRA Op.”). The Pennsylvania Supreme Court affirmed that decision on December 31, 2001. Commonwealth v. Abdul-Salaam, 570 Pa. 79 , 808 A.2d 558 (2001) (“Abdul-Salaam-II ”). On January 10, 2002, Abdul-Salaam filed an application for reconsideration of Pennsylvania Supreme Court’s December 31, 2001, decision.

While this application was pending, Abdul-Salaam filed a second state post-conviction petition (“Second PCRA Petition”) in the trial court on February 28, 2002. In this petition, Petitioner presented the following claims:

I. The Pennsylvania Supreme Court’s failure to review the merits of the bulk of Petitioner’s substantive claims on appeal violated due process. In order to vindicate Petitioner’s right to due process, this court must permit renewed post-conviction proceedings and subsequently, restore Petitioner’s appellate rights which were denied to him by the Pennsylvania Supreme Court’s retroactive application of new rules.

II. Petitioner’s death sentence violates due process of law under the State and Federal Constitutions because the jury was not instructed to find that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt as required by Apprendi v. New Jersey. The Pennsylvania death penalty statute permitting the imposition of a death sentence upon a finding of less than beyond a reasonable doubt also violates due process.

III. Petitioner’s conviction resulted from the unavailability at the time of trial of exculpatory evidence regarding the scientific unreliability of fingerprint evidence. Moreover, since this evidence was in the possession of the prosecutor’s expert witness, failure to disclose it violated due process.

IV. New scientific evidence reveals brain abnormalities in victims of childhood abuse, neglect and dysfunction. This new evidence must be considered in mitigation of the offense.

(Doc. 198, Vol. 2, Ex. 9.)

On July 10, 2002, the PCRA court issued a notice of its intention to dismiss the Second PCRA Petition, and, on July 18, 2002, it entered an order giving Abdul-Salaam twenty (20) days within which to show cause why his Second PCRA Petition should not be dismissed without a hearing. *435 In response to that order, Abdul-Salaam asserted, inter alia, that any dismissal of his Second PCRA Petition while his request for re-argument was pending on his First PCRA Petition would be premature. The PCRA court agreed and withheld judgment in the case pending disposition of the First PCRA Petition. Subsequently, on September 20, 2002, the Pennsylvania Supreme Court denied Abdul-Salaam’s application for reconsideration of his First PCRA Petition. See Abdulr-Salaamr-II, 808 A.2d 558 (Pa.2001).

On October 22, 2002, then-Governor Mark Schweiker signed Abdul-Salaam’s third death warrant, scheduling his execution for December 12, 2002. Because the PCRA court had not yet acted on the Second PCRA Petition and given the imminent execution date, on November 8, 2002, Abdul-Salaam filed an emergency motion for a stay of execution in the Pennsylvania Supreme Court. On that same day, the PCRA court filed its opinion pursuant to Pa. R.App. P.1925 in support of its denial of the Second PCRA Petition. Commonwealth v. Abdul-Salaam, 94-1499 Crim. Term, In re Opinion Pursuant to Rule 1925 (filed Nov. 8, 2002) (Hess, J.). After hearing oral argument on one of Abdul-Salaam’s claims presented in his Second PCRA Petition, on December 4, 2002, the Pennsylvania Supreme Court issued an order denying Abdul-Salaam’s November 8, 2002 request for a stay of execution. An opinion followed on December 12, 2002. Commonwealth v. Abdul-Salaam, 571 Pa. 219 , 812 A.2d 497 (2002) (“Abdul-Salaam-III ”).

In the meantime, on November 25, 2002, Abdul-Salaam filed in this Court a motion for a stay of execution, as well as for appointment of counsel and leave to proceed in forma pauperis. (Doc. 1.) The Court granted the motion by Order dated December 9, 2002, staying Abdul-Salaam’s execution pending disposition of the forthcoming habeas petition. (Doc. 6.)

On March 25, 2003, Abdul-Salaam filed the instant petition for writ of habeas corpus, in which he alleges twelve (12) claims for relief. (Doc. 8.) Specifically, those claims are set forth as follows:

I. Petitioner was denied due process of law in violation of the Fourteenth Amendment to the United States Constitution, when the prosecution suppressed exculpatory evidence;

II. Petitioner was denied due process of law when unreliable identification testimony was admitted against him at trial, when the identifications were made under highly suggestive circumstances and where the identifying witness did not possess an independent source;

III. Petitioner received ineffective assistance of counsel when trial counsel failed to make a sufficient, specific proffer to support his request for the appointment of an eyewitness identification expert, where eyewitness identification was crucial to the case;

IV. Petitioner’s right to due process of law was violated when the Commonwealth consumed an entire blood sample that would have exculpated him. Due process was further violated by the Commonwealth’s manipulation of a photo of the co-defendant so as to falsely eliminate him as the source of the blood evidence in question;

V. Petitioner’s conviction resulted from the unavailability at the time of trial of exculpatory evidence regarding the scientific unreliability of fingerprint evidence. Moreover, since this evidence was in the possession of the prosecution’s expert witness, failure to disclose it violated due process;

VI. The jury’s finding of the (d)(9) aggravating circumstance, that Petitioner had a “significant history of felony con *436 victions involving the use- or threat of violence to the person” violated Petitioner’s rights in multiple respects;

VII. Petitioner’s death sentence must be vacated because the arbitrary “proportionality review” performed by the Pennsylvania Supreme Court violated his right to due process and denied him the meaningful appellate review of death penalty cases constitutionally mandated by the Eighth Amendment;

VIII. Pennsylvania’s capital sentencing scheme, and therefore Petitioner’s death sentence violate the notice and jury trial guarantees of the Sixth Amendment and the due process clause of the Fifth Amendment in failing to require either that aggravating circumstances be pled in a charging mechanism or that a finding that aggravating circumstances outweigh mitigating circumstances be made beyond a reasonable doubt;

IX. Petitioner received constitutionally ineffective assistance of counsel at capital sentencing;

X. The prosecution also withheld from defense counsel documents in its possession that would have mitigated punishment in violation of the due process clause;

XI. Trial counsel was also ineffective when he failed to request instructions that the jury could consider evidence of Petitioner’s abusive and dysfunctional upbringing under 42 Pa.C.S. § 9711(e)(2) & (3) and the trial court erred when it failed to provide such instructions; and,

XII. The jury improperly found the existence of the (d)(6) aggravating circumstance in violation of due process of law and the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

(Doc. 8.) Respondents, represented by the Cumberland County District Attorney, filed a response to the petition on August 11, 2003. (Doc. 19.) On October 27, 2003, Abdul-Salaam filed his reply memorandum. (Doc. 23.)

On that same day, Abdul-Salaam filed a motion for omnibus intermediate relief in habeas corpus proceedings, requesting various forms of relief, including the right to conduct additional discovery and to have the Court conduct an evidentiary hearing on a number of his claims. (Doc. 22.) Following responsive and reply briefing, the Court granted in part and denied in part the motion on July 26, 2004. (Doc. 33.) Specifically, among other things, the Court denied Abdul-Salaam’s request for an evi-dentiary hearing, but permitted Abdul-Salaam to conduct limited discovery.

In permitting limited discovery, the Court allowed Abdul-Salaam to: (1) propound an interrogatory regarding whether the Commonwealth had provided the so-called Harlacker Report (which contains information about one Tony Clifton) to trial or appellate defense counsel; (2) inspect certain biological evidence; and (3) take limited depositions. (See Doc. 33 at 8-10.) Subsequent to the Court’s determination, the parties reached a stipulation, filed August 11, 2004, in lieu of the interrogatory regarding the Harlacker Report. (Doc. 35.) The stipulation stated, in relevant part:

[T]he parties agree that based upon the state of the full record before this Court that there is no evidence that the Har-lacker Report was provided to Petitioner’s counsel at any time prior to April 16, 1998, and Respondents do not contend to the contrary.

(Id.)

The Court also permitted Abdul-Salaam to inspect all remaining biological evidence in order to determine whether additional discovery and/or scientific testing of such *437 would, be appropriate. (Doc. 33 at 9-10.) Following that inspection, Abdul-Salaam filed a second motion for discovery on March 1, 2005, seeking the Court’s permission to conduct DNA testing of apparent blood found on the steering wheel of the Suzuki sport utility vehicle, presented by the Commonwealth as the getaway vehicle. (Doc. 43.)

Following additional briefing on the motion, oral argument, and an evidentiary hearing, on August 11, 2005, the Court granted in part Abdul-Salaam’s motion and allowed his expert to gather the apparent blood evidence from the steering wheel and to conduct DNA testing. (See Doc. 77.) Respondents took an interlocutory appeal of that Order to the United States Court of Appeals for the Third Circuit. (See Doc. 78.) On October 6, 2005, the Third Circuit dismissed the appeal for lack of appellate jurisdiction. (See Doc. 83.) Respondents then filed in this Court a motion for a stay of the Court’s August 11, 2005 Order, (Doc. 85), which the Court granted on January 2, 2006, (Doc. 87). The Court also stayed the August 11, 2005 Order, pending Respondents’ appeal to the United States Supreme Court. (Id.) Respondents’ petition for writ of certiorari was denied on May 22, 2006. Beard v. Abdul-Salaam, 547 U.S. 1159 , 126 S.Ct. 2295 , 164 L.Ed.2d 834 (2006).

Following these interlocutory appellate proceedings, biological evidence from the steering wheel was gathered and DNA testing was conducted. The results of testing established that the blood gathered from the steering wheel was not Abdul-Salaam’s; rather, the blood on the steering wheel was that of the co-defendant, Scott Anderson. Respondents did not contest the results of this DNA testing.

On January 16, 2007, while the instant action remained pending, Abdul-Salaam protectively filed a third state post-conviction petition (“Third PCRA Petition”) in the Cumberland County court. (See Doc. 109.) In that petition, Abdul-Salaam presented the results of his expert Dr. Blake’s testing of the steering wheel. Additionally, Abdul-Salaam requested that the court hold the petition in abeyance pending this Court’s disposition of the instant motion.

On April 6, 2007, Abdul-Salaam filed in this Court a motion for relief on the merits, seeking relief on the merits of two of his claims presented in his habeas petition. (Doc. 118.) Specifically, Abdul-Salaam asked the Court to review the following claims: (1) the Commonwealth withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), when it failed to disclose the existence of blood remaining on the steering wheel that, after subsequent DNA testing, proved to be that of Scott Anderson and not Abdul-Salaam; and (2) the Commonwealth withheld exculpatory evidence in violation of Brady when it failed to provide to defense counsel the Harlacker Report containing information from Tony Clifton, which suggested that Abdul-Salaam was not the man discussing a robbery with Scott Anderson in a vehicle the night before the robbery and killing of Officer Cole. After reviewing the submissions of the parties and hearing oral argument on November 14, 2007 (see Doc. 131), on July 7, 2008, this Court denied the motion for relief on the merits without prejudice, but stayed litigation in this matter pending exhaustion of state court remedies of unexhausted claims, (Doc. 155, Order).

Thereafter, Abdul-Salaam filed supplements to his Third PCRA Petition in the Cumberland County court on August 27, 2008, and April 21, 2009, respectively. (Doc. 200, Vol. 4, Exs. 14 & 15.) After holding an evidentiary hearing on October 28, 2010, the Cumberland County court *438 denied the Third PCRA Petition on April 1, 2011. (See Doc. 172-1.) On April 5, 2012, the Pennsylvania Supreme Court affirmed the denial of relief on the Third PCRA Petition. Commonwealth v. Abdul-Salaam, 615 Pa. 297 , 42 A.3d 983 (2012) (“Abdul-Salaamr-IV”). Further, Abdul-Salaam’s motion for reconsideration was denied by the Pennsylvania Supreme Court on September 13, 2012. (See Doc. 178.)

On September 17, 2012, Abdul-Salaam filed a notice of exhaustion of state remedies and motion to reactivate habeas corpus proceedings. (Doc. 178.) By Order dated September 18, 2012, the Court granted Abdul-Salaam’s motion to reactivate his habeas proceedings and scheduled a status conference. (Doc. 182.) As a result of the conference, on October 1, 2012, the Court issued an Order directing supplemental briefing to address the Pennsylvania Supreme Court’s disposition of the claims that were presented to the state court for exhaustion, and updating the case law on other claims contained in Abdul-Salaam’s habeas petition. (Doc. 185.) That supplemental briefing has been submitted. (See Docs. 188-190.) Thus, Abdul-Salaam’s petition for writ of habeas corpus (Doc. 8) is now ripe for disposition.

II. STANDARDS OF REVIEW

On April 24,1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into effect and amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254 . A habeas corpus petition pursuant to § 2254 is the proper mechanism for a prisoner to challenge the “fact or duration” of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 , 93 S.Ct. 1827 , 36 L.Ed.2d 439 (1973). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991). Rather, federal habeas review is restricted to claims based “on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (a); Estelle, 502 U.S. at 68 , 112 S.Ct. 475 .

A. Exhaustion and Procedural Default

Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254 (b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.2000).

A state prisoner exhausts state remedies by giving the “state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999). Respect for the state court system requires that the petitioner demonstrate that the claims in question have been “fairly presented to the state courts.” 2 Castille v. Peoples, 489 U.S. *439 346, 351 , 109 S.Ct. 1056 , 103 L.Ed.2d 380 (1989). To “fairly present” a claim, a petitioner must present its “factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir.2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts). While the petitioner need not cite “book and verse” of the federal Constitution, Picard v. Connor, 404 U.S. 270, 278 , 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971), he must “give the State ‘the opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights” before presenting those claims here, Duncan v. Henry, 513 U.S. 364, 365 , 115 S.Ct. 887 , 130 L.Ed.2d 865 (1995) (quoting Picard, 404 U.S. at 275 , 92 S.Ct. 509 ).

In this case, the Court will address exhaustion and procedural default in its discussion of each issue herein.

B. Merits Standard

Once a court has determined that the exhaustion requirement is met and, therefore, that review on the merits of the issues presented in a habeas petition is warranted, the scope of that review is set forth in 28 U.S.C. § 2254 (d). That section states, in relevant part, that exhausted claims that have been adjudicated on the merits by the state courts are subject to review under the standard of whether they are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254 (d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). AEDPA places the burden on the petitioner to make this showing. Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

The “contrary to” and “unreasonable application of’ clauses of Section 2254 have independent meanings. Bell v. Cone, 535 U.S. 685, 694 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002). A state court judgment is “contrary to” federal law when it is “diametrically different, opposite in character or nature, or mutually opposed” to “clearly established” decisions of the United States Supreme Court. Williams, 529 U.S. at 405 , 120 S.Ct. 1495 . This may occur if “the state court ignores or misapprehends clear precedent or it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.’ ” Wilkerson v. Klem, 412 F.3d 449, 452 (3d Cir.2005) (quoting Williams, 529 U.S. at 406 , 120 S.Ct. 1495 ). Alternatively, “[a]n ‘unreasonable application’ occurs when a state court ‘identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts[ ] of petitioner’s case.” Rompilla v. Beard, 545 U.S. 374, 380 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 519, 520 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003)). For the purposes of Section 2254(d)(1), “[i]t is not enough that a federal habeas court, in its independent review of the legal question, is left with a *440 firm conviction that the state court was erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003) (internal citations omitted). “Under § 2254(d)(l)’s ‘unreasonable application’ clause ... a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 75-76, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 411 , 120 S.Ct. 1495 ). Rather, “[t]he state court’s application of clearly established law must be objectively unreasonable” before a federal court may grant the writ. Andrade, 538 U.S. at 75 , 123 S.Ct. 1166 .

By its terms, Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the state court’s decision comports with “clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254 (d)(1). Thus, § 2254(d)(l)’s “clearly established Federal law” signifies the holdings, not the dicta, of Supreme Court decisions. Howes v. Fields, — U.S. -, -, 132 S.Ct. 1181, 1187 , 182 L.Ed.2d 17 (2012). Specifically, only Supreme Court law established at the time of the state court’s decision can be a basis for habeas relief under AEDPA. See Greene v. Fisher, — U.S.-,-, 132 S.Ct. 38, 44 , 181 L.Ed.2d 336 (2011) (“§ 2254(d)(1) requires federal courts to ‘foeu[s] on what a state court knew and did,’ and to measure state-court decisions ‘against this Court’s precedents as of ‘the time the state court renders its decision. ’ ”) (quoting Cullen v. Pinholster, — U.S.-,-, 131 S.Ct. 1388, 1399 , 179 L.Ed.2d 557 (2011) (emphasis added)). Therefore, federal habeas review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen , — U.S. at -, 131 S.Ct. at 1398 . Finally, “under the AEDPA standard, the ‘[s]tate eourt[s’] relevant factual determinations are presumed to be correct unless the petitioner rebuts [that] presumption by clear and convincing evidence.’ ” McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 101 (3d Cir.2012) (quoting Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir.2012)) (citing 28 U.S.C. § 2254 (e)(1)).

Turning to Section 2254(d)(2), the test for the “unreasonable determination of facts” clause is whether the petitioner has demonstrated by “clear and convincing evidence,” 28 U.S.C. § 2254 (e)(1), that the state court’s determination of the facts was unreasonable in light of the record. Rountree v. Balicki, 640 F.3d 530, 537 (3d Cir.2011) (citing Rice v. Collins, 546 U.S. 333, 338-39 , 126 S.Ct. 969 , 163 L.Ed.2d 824 (2006) (“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ”)); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir.2009) (“Under the § 2254 standard, a district court is bound to presume that the state court’s factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence.”). Further, as with Section 2254(d)(1), the evidence against which a federal court measures the reasonableness of the state court’s factual findings is the record evidence at the time of the state court’s adjudication. Rountree, 640 F.3d at 538 (citing Cullen , — U.S. at- -, 131 S.Ct. at 1401-03 ).

Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error:

[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious ef- *441 feet” standard set forth in Brecht v. Abrahamson, 507 U.S. 619 , 118 S.Ct. 1710 , 123 L.Ed.2d 353 (1993), whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

Fry v. Pliler, 551 U.S. 112, 121-22 , 127 S.Ct. 2321 , 168 L.Ed.2d 16 (2007). Thus, even if the Court concludes that constitutional error occurred in the state court, the Court may not grant relief unless the error “had a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 631 , 113 S.Ct. 1710 ; Bond v. Beard, 539 F.3d 256, 276 (3d Cir.2008); see also O’Neal v. McAninch, 513 U.S. 432, 436 , 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995) (“When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict, that error is not harmless.” (quotations omitted)).

In addition, the Supreme Court has stated, “If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86 ,-, 131 S.Ct. 770, 786 , 178 L.Ed.2d 624 (2011). Section 2254(d) “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [Supreme Court] precedents. It goes no farther.” Id. Further, it was designed to be difficult “to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.” Martinez v. Ryan, — U.S.-,-, 132 S.Ct. 1309, 1316 , 182 L.Ed.2d 272 (2012).

Finally, AEDPA scrutiny is applicable only if the state court adjudicated the petitioner’s claims “on the merits.” 28 U.S.C. § 2254 (d); see Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001). “An ‘adjudication on the merits’ has a well settled meaning: a decision finally resolving the parties’ claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir.2004), rev’d on other grounds, Rompilla v. Beard, 545 U.S. 374 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001)). Further, an “adjudication on the merits” can occur at any level of state court. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir.2009). However, “to qualify as an ‘adjudication on the merits,’ the state court decision must finally resolve the claim. This means that the state court’s resolution of the claim must have preclusive effect.” Id. (citing Rompilla, 355 F.3d at 247 (quoting Sellan, 261 F.3d at 311 )). Where a state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential AEDPA standards do not apply, and the federal court must exercise de novo review over pure legal questions and mixed questions of law and fact. Simmons v. Beard, 581 F.3d 158, 165 (3d Cir.2009) (citing Appel, 250 F.3d at 210 ). However, the state court’s factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence. 3 Simmons, 581 F.3d at 165 (citing Appel, 250 F.3d at 210 ).

*442 C. Ineffective Assistance of Counsel Standard

Because several of Abdul-Salaam’s habeas claims presented herein raise the issue of whether his counsel was effective, we will set forth the applicable standard here. A claim for ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance claim, a petitioner must show that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) the deficient representation was prejudicial to the petitioner. Id. at 688 , 104 S.Ct. 2052 ; see also Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir.2007). In determining whether counsel has met the objective standard of reasonableness, courts must be highly deferential towards trial counsel’s conduct. See Strickland, 466 U.S. at 686 , 104 S.Ct. 2052 . “In assessing counsel’s performance, ‘every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. There is a ‘strong presumption’ that counsel’s performance was reasonable.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir.2001) (alteration in original) (citations and quotations omitted). Counsel cannot be deemed ineffective for failing to raise a meritless claim. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir.1999). To satisfy the prejudice prong, a petitioner must show a reasonable probability that, but for the errors of his or her counsel, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 .

The two-prong test for ineffective assistance of counsel established in Strickland “qualifies as ‘clearly established Federal law’ ” for purposes of AEDPA. Rainey v. Varner, 603 F.3d 189, 197 (3d Cir.2010) (quoting Williams v. Taylor, 529 U.S. 362, 391 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). 4 Thus, under § 2254(d)(l)-(2), the relevant inquiry in assessing ineffectiveness claims that have been adjudicated on the merits is whether the state court’s decision involved an unreasonable application of Strickland or is based on an unreasonable determination of the facts. Jacobs v. Horn, 395 F.3d 92 , 107 n. 9 (3d Cir.2005); Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir.2000). In conducting this analysis, the Court is cognizant that:

Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential,” [Strickland, 466 U.S.] at 689, 104 S.Ct. 2052 ; Lindh v. Murphy, 521 U.S. 320, 333, n. 7 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, [Knowles v. Mirzayance, 556 U.S. 111 , 129 S.Ct. 1411 , 173 L.Ed.2d 251 (2009) ]. The Strickland standard is a general one, so the range of reasonable appliea- *443 tions is substantial. 556 U.S. at 123-25 , 129 S.Ct. 1411 .

Harrington, 131 S.Ct. at 788 ; see also Knowles, 556 U.S. at 123 , 129 S.Ct. 1411 (“[BJecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” (citing Yarborough v. Alvarado, 541 U.S. 652, 664 , 124 S.Ct. 2140 , 158 L.Ed.2d 938 (2004))).

Finally, the reviewing court must evaluate counsel’s performance in light of the totality of the evidence. Strickland, 466 U.S. at 695-96 , 104 S.Ct. 2052 ; see also Jacobs, 395 F.3d at 106-07 . It is the petitioner’s burden to establish both deficient performance and resulting prejudice in order to state an ineffective assistance of counsel claim. Strickland, 466 U.S. at 697 , 104 S.Ct. 2052 ; see also Jacobs, 395 F.3d at 102 .

III. DISCUSSION

Abdul-Salaam’s habeas petition contains twelve claims for relief and involves both the guilt phase and the penalty phase of Abdul’s Salaam’s trial. The Court will address his claims in turn. For purposes of discussion, the Court will address Claims I and IV together because both allege suppression of exculpatory evidence that could have been used during the guilt phase of trial. As stated by Petitioner, those claims are as follows.

A. Claim I — Petitioner was denied due process of law in violation of the Fourteenth Amendment to the United States Constitution, when the prosecution suppressed exculpatory evidence; and,

Claim IV — Petitioner’s right to due process of law was violated when the Commonwealth consumed an entire blood sample that would have exculpated him. Due process was further violated by the Commonwealth’s manipulation of a photo of the co-defendant so as to falsely eliminate him as the source of the blood evidence in question. 5

In Claim I, Abdul-Salaam claims that the Commonwealth withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), 6 when it failed to pro *444 vide to defense counsel the Harlacker Report containing information from Tony Clifton, which suggested that Abdul-Salaam was not the man discussing a robbery with Scott Anderson in a vehicle the night before the robbery and killing of Officer Cole. In Claim IV, Abdul-Salaam claims that the Commonwealth withheld exculpatory evidence in violation of Brady when it failed to disclose the existence of blood remaining on the steering wheel which, after subsequent DNA testing, proved to be that of Scott Anderson and not Abdul-Salaam. Upon careful review, habeas relief on both claims will be denied.

In Brady, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” Brady, 873 U.S. at 87, 83 S.Ct. 1194 . To establish a Brady violation, a petitioner must demonstrate that: (1) evidence was suppressed by the state, either willfully or inadvertently; (2) the evidence is favorable to the accused, either because it is exculpatory or impeaching; and (3) that the evidence was material to the outcome of the case. Strickler v. Greene, 527 U.S. 263, 281-82 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999). The materiality standard is satisfied when the evidence places the “whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 434-35 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995). Further, this standard is satisfied “if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would be different.” Strickler, 527 U.S. at 281-82 , 119 S.Ct. 1936 . In order for evidence to be material, it is not necessary that the evidence establish by a preponderance that disclosure of the evidence would have resulted in an acquittal. Kyles, 514 U.S. at 434-35 , 115 S.Ct. 1555 . However, in making a determination of materiality, the assessment of the omitted evidence’s impact must take account of the cumulative effect of the suppressed evidence in light of the other evidence, not merely the probative value of the suppressed evidence standing alone. Id. at 436-37 , 115 S.Ct. 1555 .

In this case, Abdul-Salaam argues that the Commonwealth suppressed two items of favorable evidence that are material. With respect to this evidence, the Court notes the following factual background in addition to the procedural history that has already been discussed, see supra, Section I, at 15-19.

1. Clifton Evidence

Approximately four months after the killing of Officer Cole, New Cumberland Police Officer Brian Nailor prepared a report dated December 29, 1994, which described his attempts to investigate a tip that a previously unidentified man may have information on the robbery and killing of Officer Cole. (See Petitioner’s Appendix, Ex. 1, Doc. 11) (“Nailor Report”). Through information provided by several persons, Officer Nailor tracked down Viola Troyan, a woman who had an individual named Tony Clifton in her employ around the time of Officer Cole’s killing. According to Ms. Troyan,

Tony would talk about being involved with the two (2) guys that were in prison for shooting a Police Officer in New Cumberland.... [H]e was with them in a vehicle and that they had talked about robbing a jewelry store in New Cumberland and when he found out what they were going to do, he didn’t want any part of it, they dropped him off at a gas station and he walked back across the bridge into Harrisburg.

(Nailor Report at 2.)

Officer Nailor then spoke with Mr. Clifton’s ex-girlfriend, Terri Garret, and her *445 daughter, Tasha, by telephone. Both women recalled, “Tony saying something about being with some guys and that they were talking about doing something stupid at a coin store and when Tony found out what was going to happen, he got out of the vehicle and walked back.” {Id. at 3-4.)

Finally, Officer Nailor attempted to find Tony Clifton, but was unsuccessful. He did note, however, Mr. Clifton’s ties to both Pennsylvania (through his employer and acquaintances) and Virginia (through relatives and a criminal history in that state). {Id. at 4.)

Officer Nailor’s report of December 29, 1994, was provided to Abdul-Salaam’s defense counsel prior to the trial. (Doc. 8 at 26.) Mr. Clifton was not called as a witness at trial, and in fact the record indicates that he was located by Abdul-Salaam’s appellate counsel in February 1998, approximately three years after Abdul-Salaam was convicted and sentenced. {Id.)

As stated above, Abdul-Salaam filed his counseled First PCRA Petition on September 23, 1997. Hearings on the petition took place in late 1997 and early 1998. After Abdul-Salaam’s PCRA counsel located Mr. Clifton, he signed a declaration on February 12, 1998, describing his knowledge of the robbery and killing of Officer Cole. {See Petitioner’s Appendix, Ex. 2, Doc. 11) (“Clifton Declaration”). Specifically, he stated the following:

On the night of August 18th 1994, I approached Gary [Miller, manager of the Midnight Special,] inside the Midnight Special [bar in Harrisburg] and asked whether he knew anyone at the bar that could give me a ride home. Gary indicated he might be able to find someone that could provide me with a ride home and he approached another man inside the bar whom I now know was Scott Anderson. I was able to hear Gary ask Scott whether Scott could give me a ride and overheard Scott ask Gary whether I was “cool.” I understood Scott’s question of Gary as an attempt to determine whether I could be trusted. Gary indicated he knew me and that I could be trusted.

Very early in the morning, I along with Scott Anderson, and another black man that I had not previously met left the Midnight Special and got into a car driven by Scott Anderson. As we pulled out of the parking lot and Scott Anderson began speaking with the other man and pretty soon it became clear to me that they were discussing plans to commit a robbery. Although I did not hear what the specific target of the robbery was, I did understand that the robbery was of a jewelry or coin store across the river from Harrisburg. It was clear that the robbery was Scott Anderson’s plan and he was the one in charge. It was also clear that the other man agreed to do the robbery as Anderson had planed [sic] it. When I realized what was going on I became frightened and asked them to drop me off at the next intersection which they did.

I managed to get home by myself and as I didn’t have to go to work the next day, I slept in and woke up in the afternoon. Later that same day I was watching TV when the show I was watching was interrupted for a special news report about a shooting of a police officer that had taken place in New Cumberland. The report indicated that the officer had been shot during a robbery and immediately, I began to think about the conversation that I overheard the night before. The TV report said that the police had captured two suspects in the shooting and showed pic *446 tures of the two men that had been taken into custody.

I immediately recognized one of those men as Scott Anderson, the same man planing [sic] the robbery as he was driving me home. However, the pictures of the other man in custody I did not recognize and had never seen before. This man was most definitely not the man that was in the front seat with Scott Anderson as Scott discussed his plans for a robbery.

:]: * *

A couple months later I was approached by a Detective from Cumberland County. Apparently, some of my friends had told the police about what I had told them about how I had been given a ride by one of the men arrested for the shooting of the officer. I do not recall the name of the Detective from Cumberland County that interviewed me. All I can remember was that he was a large white man in plain clothes that showed me law enforcement identification from Cumberland County.

This Detective began to ask me about the events of August 18th and August 19th and I proceeded to tell him what I have stated in this AffidaviVDeclaration. I recall that as I was talking to him he was taking notes and asked me several times to slow down so he could catch up with what I was telling him. I also recall that he asked me specifically if the other individual in the car with Scott Anderson on the night of August 18th was Seifullah Abdul-Salaam. I told him that the other man in the car was most definitely not the other man shown on TV on August 19, 1994 when Scott Anderson was arrested.

I have since been shown a single photograph of a man that has been identified to me as Seifullah Abdul-Salaam. This was the same man that I saw on TV who was identified as one of the robbers. As I told the detective from Cumberland County in 1995, I am positive that Seifullah Abdul-Salaam was not the other man in the car with Scott Anderson and myself on the night of August 18,1994.

(Clifton Declaration at 1-3.)

In light of Clifton’s Declaration, Abdul-Salaam filed a supplement to the amended First PCRA Petition, in which he argued, inter alia, that the Commonwealth had failed to provide defense counsel with information on the identity of the officer who had interviewed Mr. Clifton after submission of the Nailor Report and before trial, as well as information on Mr. Clifton’s whereabouts. (See Petitioner’s Appendix, Ex. 3, Doc. 11) (“Petitioner’s PCRA Supplement”). Abdul-Salaam requested, inter alia, that the PCRA court conduct an evidentiary hearing on the Clifton issue; that the Commonwealth identify the officer who interviewed Mr. Clifton; and that the Commonwealth produce a copy of the notes and police report of that officer. (Id. at 13-14.) The Commonwealth filed an answer to Petitioner’s PCRA Supplement, but did not at the time provide the requested information.

Instead of conducting a separate eviden-tiary hearing, the PCRA Court continued to hear evidence in early 1998 in proceedings on the First PCRA Petition. In particular, on April 16, 1998, Abdul-Salaam called as a witness Officer Nailor. During his testimony Officer Nailor identified Detective John Harlacker of the Dauphin County Criminal Investigation Division (“CID”) as the “person that actually spoke to Mr. Clifton.” (PCRA Hearing, Notes of Testimony (“PCRA NT”) 4/16/1998, at 11, Doc. 125.) Mr. Nailor also provided a copy of the report which detailed Detective Harlaeker’s efforts to gather information on Mr. Clifton in January 1995. (See *447 Petitioner’s Appendix, Ex. 5, Doc. 11) (“Harlacker Report”). Further, Mr. Nai-lor provided a transmittal sheet showing that Detective Harlacker faxed his report to New Cumberland Police Chief Oren Kauffman and the Cumberland County CID on January 17, 1995, approximately two months prior to the commencement of jury selection in Abdul-Salaam’s case. (See id.) Officer Nailor also expressed his opinion that the Cumberland County District Attorney’s (“D.A.”) Office received the Harlacker Report at that time as well. (PCRA NT 4/16/1998, at 21.) Detective Norman Chronister of the Cumberland County D.A.’s Office also testified at the PCRA hearings that the Commonwealth’s prosecuting attorneys 7 were provided with the Harlacker Report prior to commencement of jury selection. (PCRA NT 4/22/1998, at 16-17, Doc. 126-2.)

As a result of the foregoing, Detective Harlacker was called and testified about his investigation and interview of Tony Clifton. Detective Harlacker testified that he interviewed Mr. Clifton in January 1995 in Harrisburg, Pennsylvania. (Id. at 37-38.) As recounted by Detective Harlacker, Mr. Clifton explained to Harlacker that he had been with Scott Anderson in a vehicle driven by another unknown individual in the early morning hours of August 19, 1994. (Id. at 38.) Mr. Anderson and the unknown individual were discussing a plan to rob a coin shop the next day. (Id.) The day after the robbery of the coin shop and killing of Officer Cole, Mr. Clifton saw Mr. Anderson on the local news covering the incident, but was not sure that the other man identified as a suspect in the killing (Abdul-Salaam) was the same man who had been in the vehicle with Mr. Anderson and Mr. Clifton. (Id. at 39.) Mr. Clifton did tell Detective Harlacker, however, that he was willing to look at a photographic array or a lineup in order to identify the man from the vehicle. (Id. at 39-40.) Detective Harlacker testified that neither he nor, to his knowledge, any other detective followed up with Mr. Clifton about such an identification. (Id. at 40.) He simply “gathered the information and forwarded it.” (Id.)

Detective Harlacker transmitted his report to Chief Kauffman of the New Cumberland Police Department within a few days of interviewing Mr. Clifton, but received no further requests from that Department, Cumberland County CID, or the Cumberland County D.A.’s Office. (PCRA NT 4/22/1998, at 37.) Detective Harlacker did indicate, however, that he would have performed further investigation after the report was transmitted, had it been requested of him. (Id.)

Tony Clifton also testified at the PCRA hearing. 8 Mr. Clifton testified that he had been drinking the night he got in the vehicle with Mr. Anderson and the unidentified man, but was still able to remember what he saw and heard in the vehicle. (PCRA NT 4/23/1998, at 101-02.) When Mr. Clifton saw the television news coverage, he focused mainly on the photograph of Mr. Anderson because he remembered him from the vehicle. (Id. at 105.) When asked about the unidentified individual in the vehicle, Mr. Clifton provided the following testimony:

Q: Mr. Clifton, the other individual that was in the car along with Mr. *448 Anderson, did you have an opportunity to see that individual?

A: Yeah, I saw him.

Q: You saw him approach the vehicle and get into the front of the vehicle with Mr. Anderson?

A: No, I didn’t see him get in, but when I looked up he was like I told you. You know, I was like leaning out the window. When he got in the car and started the car, I looked up to see who was getting in and who was driving, right, okay?

Q: Okay.

A: I looked up and I seen the dude, the other guy.

Q: You did see the other gentleman in the car; is that correct?

A: Yeah.

Q: Okay. Were you able to see the other gentleman’s profile, the side of his face?

A: Yeah.

Q: Okay. Were you able to see the back of his head?

A: Yeah.

Q: Were you able to get an idea of his approximate size?

A: Yeah.

* * *

Mr. Nickerson: Mr. Abdul-Salaam, please stand up.

Q: Mr. Clifton, I would ask you to look at the gentleman that’s standing next to me right now, is this the gentleman that was in the car with Scott Anderson on the early morning hours of August the 19th, 1994?

A: Not when I was in the car.

(Id. at 106-08.)

Finally, at the PCRA hearing, Abdul-Salaam’s trial counsel, Speros Lappas, Esquire, testified about both Mr. Clifton and the Harlacker Report. Attorney Lappas indicated that he did have knowledge of Mr. Clifton’s existence prior to trial through Detective Nailor’s report, but he did not “recall making an issue out of Mr. Clifton’s existence.” (PCRA NT 4/23/1998, at 157.) Further, he did not recall receiving the Harlacker Report prior to trial. (Id. at 126.)

2. New Blood Evidence

At Abdul-Salaam’s original 1995 trial in the Cumberland County court, Donald P. Bloser, Jr., a forensic scientist with the Pennsylvania State Police Crime Laboratory, testified on behalf of the Commonwealth that, when he tested the Suzuki steering wheel for the presence of blood, he found Type B blood, which matched Abdul-Salaam’s blood type to within ten percent (10%) of the population. 9 (Trial, Notes of Testimony (“Trial NT”) 3/14/1995, at 125, Doc. 144.) Mr. Bloser, however, performed this testing without using DNA testing modalities. (Id. at 118.) Rather, he separated the Type B blood to identify enzymes which would further narrow the results. (Id. at 120-21.) When the Commonwealth asked why he did not get results on two enzymes he had tested, Mr. Bloser stated,

A: I did not get a result. There was not enough blood there to do those two.

Q: Not enough blood on the steering wheel?

A: Yes.

*449 (Id. at 121.) On cross examination, Mr. Bloser further testified:

Q: Now, can you recognize .on that photograph [of the steering wheel] discolored areas on the steering wheel consistent with the blood which you found when it was delivered to you for testing?

A: Yes.

Q: And your testimony is that even with this quantity of discoloration that we see, there was insufficient blood for the purposes of doing the Isoenzyme tests?

A: On some I got three of the five enzymes. So I used most of it for the three. And I did not have enough — what I used for the last two did not give me results.

Q: And I guess you tried to remove all of the blood from the wheel?

A: As much as I could.

(Id. at 124,128.)

In light of Mr. Bloser’s trial testimony, before the PCRA court Abdul-Salaam asserted that the Commonwealth violated his due process rights in violation of Arizona v. Youngblood, 488 U.S. 51 , 109 S.Ct. 383 , 102 L.Ed.2d 281 (1988), 10 when it consumed the entire blood sample for testing. In relying on Youngblood, Abdul-Salaam contended that the police had destroyed the entire blood sample in bad faith. The PCRA court disagreed, however, finding that Abdul-Salaam had failed to offer evidence that the blood sample was in fact destroyed in bad faith. (Doc. 19-2 at 16, PCRA Op.) Noting that “[t]he presence or absence of bad faith by the police must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed,” Young-blood, 488 U.S. at 56 n. 1, 109 S.Ct. 333 , the PCRA court denied Abdul-Salaam’s claim that his due process rights were violated when the entire blood sample was used. (Doc. 19-2 at 16, PCRA Op.)

In his habeas petition filed in this Court, Abdul-Salaam originally raised this same claim regarding the blood evidence pursuant to Youngblood. (See Doc. 8-2 at 84-88.) In support of that claim, at the hearing on Abdul-Salaam’s second motion for discovery, the Court heard testimony from Mr. Bloser. Specifically, Mr. Bloser read from his laboratory notes which had been generated contemporaneously with his work on the case. His notes read, in pertinent part,

Inside [an evidence box] is one dark green steering wheel with suspected blood. Lots of blood, but on different areas.

(Discovery Hearing, Notes of Testimony (“Discovery NT”) 8/2/2005, at 36-37, Doc. 107.) He also testified as follows:

Q: Do I understand your testimony to be, sir, that when you handed off the wheel to the fingerprint folks, that in your view there was blood remaining on the wheel?

A: I could not say it was blood, I did not test it, but it looked like it was possible blood.

Q: Are you suggesting, after having read that [his own trial testimony], that you meant to say that there *450 was still remaining blood on the steering wheel?

A: The question was, was there — the results mean there was not enough blood on the steering wheel, not enough — and I said not enough— they said not enough blood on the steering wheel, I said yes, for—

Q: But you meant—

A: —the enzymes. I did not — of the sample I collected. Of the sample — of the sample I collected there was not enough blood.

Q: That’s what you’re saying now. My question is, your answer at the time was that there was not enough— you responded yes to the question that there’s no remaining blood—

A: I answered the question yes.

(Discovery NT 8/5/2005, at 51-52.)

By Memorandum and Order dated August 11, 2005, the Court found that Abdul-Salaam had demonstrated good cause for his discovery request, and that state exhaustion of the request in the context of this case was not required. (See Doc. 77.) As a result, the Court crafted a protocol for examination of remaining biological evidence on the steering wheel, removal of a sample, and for DNA testing of the same. (See id. at 12-14.)

Pursuant to the Court’s directives, Abdul-Salaam’s DNA expert, Dr. Edward T. Blake of the Forensic Science Associates in Richmond, California, conducted the DNA testing of the biological evidence remaining on the steering wheel in cooperation with Respondents. Dr. Blake subsequently authored three reports, which were provided to Respondents and the Court. (See Docs. 99, 101, 116.) These reports, read together, establish that the blood recovered from the steering wheel according to our protocol was that of the co-defendant, Scott Anderson, rather than Abdul-Salaam’s. Respondents did not contest the results of this DNA testing.

On April 6, 2007, Abdul-Salaam filed a motion for relief on the merits, asking the Court to consider these Brady claims related to the Clifton evidence and new blood evidence. (Doc. 118.) By Order dated July 7, 2008, the Court denied the motion, but stayed litigation pending exhaustion of these claims before the state courts. (Doc. 155.) Thereafter, Abdul-Salaam filed supplements to his Third PCRA Petition in the Cumberland County court on August 27, 2008, and April 21, 2009, respectively. (Doc. 200, Vol. 4, Exs. 14 & 15.) After holding an evidentiary hearing on October 28, 2010, the Cumberland County court denied the Third PCRA Petition on April 1, 2011. (See Doc. 172-1.)

3. Pennsylvania Supreme Court Decision

Thereafter, on April 5, 2012, the Pennsylvania Supreme Court affirmed the denial of relief on the Third PCRA Petition containing both the Clifton and blood claims. See Abdul-Salaam-TV, 42 A.3d 983 . In so ruling, the court specifically addressed the Brady cumulation analysis for materiality. Addressing the Clifton evidence first, the court found:

Respecting the Clifton evidence, it appears that the Harlacker report was not turned over to the defense before trial. The interview with Clifton occurred on or about January 10, 1995 (2 months before trial)/ ] Detective John Harlacker testified to the contents of the report during the first PCRA proceeding. Specifically, his testimony outlined that Clifton had stated that he was with appellant’s co-conspirator, Scott Anderson, and another individual six hours prior to the robbery during which appellant murdered New Cumberland Police Officer Willis Cole. At that time, Clifton overheard the two men discussing a robbery. *451 Clifton also told Detective Harlacker that he was intoxicated when he was with the two men. Furthermore, Clifton told Detective Harlacker that he was able to identify Anderson, but was unable to identify the man who was with him. Clifton also testified at the first PCRA proceeding and claimed that the man he saw with the co-conspirator six hours prior to the robbery and murder was not appellant.

For purposes of the Kyles / Brady cumulation analysis now of concern to Judge Jones, even if it is assumed that this information in the possession of governmental authorities was subject to Brady disclosure under U.S. Supreme Court precedent governing in March of 1995, we agree with the initial PCRA court’s determination that the Clifton interview was neither material nor exculpatory. Clifton’s account may have been relevant to further inculpate Anderson, indicating his intention to commit a robbery, but it did nothing to exculpate appellant. Detective Harlacker’s testimony indicated that Clifton claimed that he was able to identify Anderson, but was unable to identify the individual who was with Anderson. Clifton’s inability to identify the other individual to Detective Harlacker does not exculpate appellant, it just fails to inculpate him in an association many hours before the robbery and murder. By the same token, Clifton’s account to police that he had overheard Anderson and another individual discussing a robbery six hours before it occurred does nothing to exculpate appellant for his conduct, attested to by numerous eyewitnesses, and corroborated by, among other things, the gunshot wound he suffered in his exchange of lethal gunfire with Officer Cole. Therefore, it is not apparent that this evidence should even be considered in a cumulative effect of “suppressed” evidence analysis under Kyles and Brady .

Abdul-Salaantr-IV, 42 A.3d at 985-86 .

The court found the following with respect to the blood evidence:

For purposes of a Kyles / Brady cu-mulation inquiry, there is a similar difficulty with appellant’s new claim deriving from blood/DNA evidence uncovered through federal habeas supplemental discovery. This evidence showed that DNA testing of another sample of blood on the steering wheel of the getaway ear, which testimonial and other evidence at trial had shown had been driven by Anderson, was consistent with Anderson’s DNA profile. Evidence that would further incriminate Anderson, and corroborate the Commonwealth’s evidence that he was the driver of the getaway vehicle, does not tend to exculpate appellant.

Id., 42 A.3d at 986 . The court also noted:

Appellant’s briefing to this Court does not accurately account for the actual trial and PCRA evidence. Both appellant and Anderson were injured during the criminal episode: the evidence suggested that appellant was shot by Officer Cole, and Anderson’s hand was injured during a skirmish with the store owner. At trial, the Commonwealth presented evidence that blood taken from the steering wheel of the getaway car, when tested, matched the blood type and blood enzymes of appellant and did not match the blood type and enzymes of Anderson. The Commonwealth used this evidence to help establish appellant’s presence in the getaway car. The Commonwealth also presented evidence that blood taken from the driver’s side door of the getaway car when tested, was determined to match the *452 blood type of Anderson and did not match appellant’s blood type. The new blood evidence, deriving from the habeas proceedings and relating to different blood samples taken from the steering wheel than that tested by the Commonwealth before trial, corroborated Anderson’s role, but did not disprove or negate the evidence of appellant’s presence. Nor does the new evidence prove appellant’s federal counsel’s unsupported accusation that the Commonwealth “fabricated” the trial evidence. It is unsurprising that two confederates, on the run after having just murdered a police officer, and both having been injured, would both leave blood on the steering wheel of the vehicle.

Id., 42 A.3d at 986 n. 4.

In addressing both pieces of evidence together for purposes of the cumulation analysis, the court concluded the following:

In any event, assuming that both the Clifton evidence and the new blood evidence should be considered in a Kyles cumulation analysis, the cumulative effect of these allegedly suppressed items of evidence does not warrant relief. In the Brady context, materiality includes an assessment of whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles, 514 U.S. at 433-34 , 115 S.Ct. 1555 ; see also Strickler v. Greene, 527 U.S. 263, 280 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999); Commonwealth v. Lambert, 584 Pa. 461 , 884 A.2d 848, 854 (2005). Notably, in his argument on Brady materiality, appellant fails to address the breadth of the trial evidence. That evidence makes clear that whatever marginal use may have been made of Clifton’s account and the blood evidence, its collective effect does not establish a reasonable probability that the result of the trial would have been different, i.e., that appellant would have been acquitted.

The trial evidence included the following. The robbery and murder here occurred on a Friday morning during business hours on a commercial street. No less than four eyewitnesses identified appellant as Officer Cole’s shooter at trial. The getaway car, driven by Anderson, was followed by an off-duty police officer. When appellant and Anderson abandoned the car and fled on foot, the off-duty police officer observed them and identified appellant as the individual exiting the passenger side of the car. In addition, trial evidence showed that the shooter was injured at the scene of the crime by Officer Cole; notably, when appellant was apprehended mere hours after the crime, he was transported to a hospital for a bullet wound to his leg. After appellant was apprehended, police conducted a consensual search of his girlfriend’s residence where they found bloody clothing and a briefcase containing ammunition. Finally, appellant told the police officer who transported him to the hospital that he would tell his lawyer that “ ‘Scotty Love’[ ] did it,” further implicating himself by revealing his knowledge of the fresh crime and Anderson’s involvement. Given this overwhelming evidence, and considering the minimal, if any, effect of the Harlacker report and the blood/ DNA evidence in exculpating appellant, he has not established a reasonable probability that the outcome of the trial would have been different.

Id., 42 A.3d at 986-87 .

4. Analysis

a. Exhaustion; Standard of Review

Both the Clifton and blood claims have taken a decidedly winding path to ex *453 haustion in order for us to finally reach their merits. However, Abdul-Salaam nevertheless now makes two arguments in support of his position that no AEDPA deference is due to our review of the Pennsylvania Supreme Court decision. First, Abdul-Salaam suggests that the state courts have “prejudged the [Clifton- Brady ] claim as a frivolous delay tactic and in doing so demonstrated a bias against Petitioner and counsel.” (Doc. 188 at 32.) Because of this bias, he argues, this Court is free to abandon the state court’s analysis and decision on these issues and apply de novo review rather than a more narrow review under AEDPA. To demonstrate bias, Abdul-Salaam points to the Abdul-Salaam-II decision in which the Pennsylvania Supreme Court found that his claim that the Commonwealth suppressed the exculpatory Clifton evidence was waived because it was not raised at either trial or on direct appeal. See Abdulr-Salaam-II, 808 A.2d at 560-61 . This finding of waiver, Abdul-Salaam argues, made “little sense,” and thus suggests that it was linked to Justice Michael Eakin’s taking his seat on the court less than one week after the court issued its opinion. (Doc. 188 at 27.) Abdul-Salaam seemingly bolsters this argument by reminding us of the subsequent procedural history in the state court in which his attempts to raise a conflict of interest were thwarted, despite conceding in a footnote that Justice Eakin has recused himself from decisions regarding Abdul-Salaam. (See id. at 27-29.) He also contends that in subsequent opinions, the state court made statements against counsel and Abdul-Salaam suggesting a “less than an unbiased view of the issues in this case.” (Id. at 28-29.) All of these speculative assertions relative to bias are meritless. Abdul-Salaam and his counsel’s suggestion that the Pennsylvania Supreme Court was anything but professional and unbiased in its review and disposition of the issues is without foundation and in no way a justification for bypassing AEDPA review of the state court decision at hand.

Second, Abdul-Salaam suggests that because the Pennsylvania Supreme Court stated in its review of these claims that “[w]e write in elaboration primarily to address concerns of the federal district court ... Out of respect for the concerns of Judge Jones ... we will address Brady cumulation,” the court somehow did not resolve the claims in a manner that would enable us to employ AEDPA deference in our review. Rather, Abdul-Salaam contends, the state court simply “answered” our opinion regarding exhaustion, and did so by engaging in a “superficial and distorted review of the facts and baldly declared the due process violation was not material.” (Doc. 188 at 32.) What Abdul-Salaam fails to point out is that, in introducing its Brady cumulation analysis, the court’s entire statement is as follows: “Out of respect for the concerns of Judge Jones, and cognizant that appellant adverts to the cumulation theory in his brief, albeit he does not separately argue the point, we will address Brady cumulation.” Abdul-Salaam-IV, 42 A.3d at 985 . In light of this complete statement, we easily conclude that the Pennsylvania Supreme Court’s opinion is a thorough analysis addressing the issues and concerns of all parties, rather than the superficial treatment posited by Petitioner.

In sum, Abdul-Salaam has not persuaded the Court to bypass AEDPA review of the Pennsylvania Supreme Court decision on these claims. Rather, upon review under AEDPA, and for the reasons set forth below, the Court concludes that the state court’s determination regarding this issue is consistent with federal law and is based on a reasonable determination *454 of the relevant facts. See 28 U.S.C. § 2254 (d)(l)-(2).

b. Brady ¡Kyles Analysis

In its decision, the Pennsylvania Supreme Court determined that Abdul-Salaam failed to prove Brady violations occurred because he did not prove that the Clifton evidence or new blood evidence would be both favorable, i. e., exculpatory, and material. See Abdulr-Salaam-IV, 42 A.3d at 985-87 . Upon review, the Court fully agrees with the state court’s decision in this regard. 11

Turning first to whether the Clifton evidence was favorable to Abdul-Salaam, even assuming as true Clifton’s later statement that the man in the vehicle with Anderson on the night before the incident was someone other than Abdul-Salaam, we agree with the state court that this information does nothing to exculpate Abdul-Salaam. See id., 42 A.3d at 986 . Rather, it simply further inculpates Anderson by providing further information on his whereabouts the day before he robbed the coin shop with Abdul-Salaam. As the state court found, Abdul-Salaam’s involvement was corroborated by numerous eyewitnesses and the gunshot wound he suffered in the exchange of fire with Officer Cole. Id. We agree with the state court that the Clifton evidence indicating that Anderson was in a vehicle the night before the incident planning a robbery with a man Clifton could not readily identify as Abdul-Salaam is not exculpatory. 12 See 28 U.S.C. § 2254 (d)(2), (e).

Next, in determining whether the new blood evidence was favorable to Abdul-Salaam, 13 the Pennsylvania Supreme Court found that the DNA testing on the new sample of blood from the steering wheel served to further incriminate Anderson and identify him as the driver of the getaway vehicle rather than exculpate Abdul-Salaam from the murder of Officer Cole. Abdulr-Salaam-IV, 42 A.3d at 986 . Here, Abdul-Salaam requests the Court to find that the state court’s decision was objectively unreasonable under § 2254(d)(2) because it allegedly presumes a previous state court finding that both Anderson’s and Abdul-Salaam’s blood were on the steering wheel. Specifically, in Abdul-Salaam-IV, the state court provides in a *455 footnote that the new blood evidence taken from samples on the steering wheel were different than those tested by the Commonwealth before trial, and which matched only Anderson’s DNA, does not “disprove or negate the evidence of [Abdul-Salaam]’s presence,” presumably in the getaway vehicle. Id., 42 A.3d at 986 n. 4. Abdul-Salaam argues the erroneous presumption, that he was in the getaway vehicle, should be deemed unreasonable under Section 2254(d)(2), and this Court should, therefore, apply de novo review. (See Doc. 188 at 34.) However, while the language with respect to the blood evidence expressed in a footnote by the state court invokes, in part, the matter of Abdul-Salaam’s presence in the getaway vehicle, the state court’s ultimate conclusion does not turn on that point. Rather, the state court relied on the findings of the new blood evidence, which proved only that Anderson was present in the getaway vehicle. See Abdulr-Salaamr-IV, 42 A.3d at 986 (“This [blood/DNA evidence uncovered through federal habeas supplemental discovery] showed that DNA testing of another sample of blood on the steering wheel of the getaway car, which testimonial and other evidence at trial had shown had been driven by Anderson, was consistent with Anderson’s DNA profile. Evidence that would further incriminate Anderson, and corroborate the Commonwealth’s evidence that he was the driver of the getaway vehicle, does not tend to exculpate appellant.”). We agree with the state court that the new blood evidence only proves to be further inculpatory to Mr. Anderson rather than exculpatory to Abdul-Salaam. See 28 U.S.C. § 2254 (d)(2), (e).

Despite finding that both the Clifton and new blood evidence were not favorable to Abdul-Salaam, the Pennsylvania Supreme Court went further in its analysis of these claims. Notably, the state court expressly concluded “[Assuming that both the Clifton evidence and the new blood evidence should be considered in a Kyles cumulation analysis, the cumulative effect of these allegedly suppressed items of evidence does not warrant relief.” Abdub-Salaa/m-IV, 42 A.3d at 986-87 (emphasis added). In doing so, the state court looked to the “collective effect” of the Clifton evidence and the new blood evidence with the “overwhelming evidence” of guilt presented at trial to determine that Abdul-Salaam had not established a reasonable probability that the outcome of the trial would have been different. Id. at 987. Specifically, the court relied on “[n]o less than four eyewitnesses” who identified Abdul-Salaam as the shooter of Officer Cole. Id., 42 A.3d at 987 . Also, an off-duty police officer, Rodney Smith, observed the getaway vehicle and identified Abdul-Salaam as the individual exiting the passenger side in flight. 14 Id. The court also noted that trial evidence demonstrated that the shooter had been injured at the scene by Officer *456 Cole, 15 and when Abdul-Salaam was apprehended just hours after the shooting, he was transported to hospital with a bullet wound in his leg. 16 Id. In connection, a consensual search of Abdul-Salaam’s girlfriend’s residence revealed bloody clothing and a briefcase containing ammunition. Id. Finally, the court noted that Abdul-Salaam told the police officer who transported him to hospital mere hours after the shooting that he would tell his attorney that “ ‘Scotty Love’ [ (a nickname of Anderson) ] did it.” Id. In light of this evidence of guilt relied upon by the state court, this Court concludes that Abdul-Salaam has not established that the Clifton material or new blood evidence was material and would have changed the outcome of the trial. See Kyles, 514 U.S. at 420 , 115 S.Ct. 1555 (the defendant must show “the favorable evidence [withheld] could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict”). In evaluating the cumulative effect of the Clifton and new blood evidence in light of the evidence of guilt found at trial, the state court’s decision on these matters that Abdul-Salaam has not established materiality because there is no reasonable probability that the outcome of the trial would have been different, see Strickler, 527 U.S. at 281-82 , 119 S.Ct. 1936 , is not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. 28 U.S.C. § 2254 (d)(l)-(2).

Abdul-Salaam also argues that the materiality prong of Brady is met with both the Clifton and new blood evidence because both pieces of evidence were material for impeachment purposes, not just as exculpatory evidence. Even if we were to find the Clifton and new blood evidence favorable to Abdul-Salaam for impeachment purposes, we cannot escape our finding that this evidence is not material or that its inclusion would not have produced a different result. The Court does recognize that additional, non-cumulative impeachment evidence may have the potential to be material under Brady. See Lambert v. Beard, 633 F.3d 126, 134-35 (3d Cir.2011), rev’d on other grounds. As the Third Circuit Court has recognized, “ ‘[confidence in the outcome is particularly doubtful when the withheld evidence impeaches a witness whose testimony is uncorroborated and essential to the conviction.’ ” Id. at 134 n. 3 (quoting Norton v. Spencer, 351 F.3d 1, 9 (1st Cir.2003)). However, even where withheld evidence is found to be favorable for impeachment purposes, unless the evidence is also found to be material, the prosecution’s failure to disclose the evidence does not constitute a Brady violation. Again, “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985).

Here, as to the Clifton evidence, Mr. Clifton’s account to Detective Harlacker of being unable to identify Abdul-Salaam as the passenger in the vehicle the night be *457 fore the robbery and shooting, and his testimony at the PCRA hearing that Abdul-Salaam was not the passenger, could not have been used to cast doubt on the testimony of the eyewitnesses on the scene because Mr. Clifton’s encounter with Mr. Anderson and the unknown passenger in the vehicle occurred many hours before the robbery and shooting. Nothing Mr. Clifton stated to either Detective Harlacker in January 1995 or during the PCRA hearing about the presence of another individual in the vehicle brings into serious question Abdul-Salaam’s presence that morning in New Cumberland at the coin shop or on the street encountering Officer Cole, as overwhelming evidence of his presence was demonstrated. Thus, the Court rejects Abdul-Salaam’s contention that the Clifton evidence could have been used to discredit testimony of the eyewitnesses on the scene and therefore his evidence is exculpatory under Brady .

As to the new blood evidence, even if the new evidence was used in an attempt to impeach the credibility of Mr. Bloser or to call into question whether Abdul-Salaam was in the getaway vehicle, in light of the other evidence of Abdul-Salaam’s guilt, we do not believe a jury would have been reasonably troubled by the lack of blood evidence linking Abdul-Salaam to the getaway vehicle. Importantly, there was other significant testimony from Officer Smith, as aforestated, placing Abdul-Salaam in the getaway vehicle such that the jury had an independent basis upon which to rely that was fully separate from Mr. Bloser’s testimony. Thus, the Court is not persuaded that this blood evidence was favorable as impeachment or exculpatory evidence under Brady .

In sum, in light of the overwhelming evidence of Abdul-Salaam’s guilt, the Court finds that even if the Commonwealth had produced the Clifton and new blood evidence, it cannot be said that a reasonable probability exists that the outcome of the trial would have been different. Therefore, the Pennsylvania Supreme Court’s decision on these issues is not contrary to, or an unreasonable application of, clearly established federal law, nor is it an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d)(l)-(2j. Habeas relief on Claims I and IV will be denied.

B. Claim II — Petitioner was denied due process of law when unreliable identification testimony was admitted against him at trial, when the identifications were made under highly suggestive circumstances and where the identifying witness did not possess an independent source.

Abdul-Salaam argues that his right to due process was violated when various identification testimony was admitted at trial, despite that testimony being a product of impermissibly suggestive influences and identification procedures that created a significant risk of misidentification. In support, he claims that “[a] review of the totality of the circumstances surrounding the identifications reveals that the identifying witnesses who were subjected to these suggestive influences had no reliable independent basis upon which to ground their identifications of Petitioner.” (Doc. 8-2 at 21.)

The federal standard for evaluating the reliability of identification evidence was articulated by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972). In Neil , the Court held that “convictions based on eye-witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was *458 so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 196-97 , 93 S.Ct. 375 (quoting Simmons v. United States, 390 U.S. 377, 384 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968)). The Court observed that the central question in this analysis is “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive” and specified that the factors to be considered are “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ pri- or description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id. at 199-200, 93 S.Ct. 375 .

In considering the instant identification claim, the Pennsylvania Supreme Court articulated a standard which is clearly in line with prevailing federal law, as it recited the Biggers factors as the guideposts it would use in assessing the propriety of the witness identifications:

We recently held that in-court identifications, despite impermissibly suggestive pre-trial procedures, are admissible if there exists an independent basis for the identifications. In Commonwealth v. Carter, 537 Pa. 233 , 643 A.2d 61 (1994), we set forth the analysis to be used when considering the issue of an imper-missibly suggestive identification. To allow an in-court identification following a suggestive pre-trial identification, the Commonwealth must establish, by clear and convincing evidence, that the identification was not a product of the events occurring between the time of the crime and the in-court identification. Carter, 537 Pa. at 253 , 643 A.2d at 71 . Therefore, an in-court identification will be permitted if, considering the totality of the circumstances, the in-court identification “had an origin sufficiently distinguishable to be purged of the primary taint.” Id.

In determining whether an independent basis exists for the identification, the factors to be considered in this determination are: “(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.” Id., at 253-54 , 643 A.2d at 71 .

Abdulr-Salaam-I, 678 A.2d at 349 .

In the instant petition, Abdul-Salaam points out that, although trial counsel challenged the identifications of each of the five witnesses (Rishel, Michaels, Tran, Gerberich, and Howie), both the trial court and the Pennsylvania Supreme Court found suggestivity as to all witnesses, but only made independent source findings with regard to Rishel and Michaels. (Doc. 8-2 at 29.) As a result, Abdul-Salaam argues that: (1) this Court must credit the state court’s finding of suggestivity as to all witnesses; (2) this Court must conduct a de novo review of whether an independent basis exists for the identifications made by witnesses Tran, Gerberich, and Howie; and (3) the state court’s independent source findings as to witnesses Rishel and Michaels were contrary to clearly established federal law and involved an unreasonable application of the facts in light of available evidence. (Id. at 29-30.)

Initially, the Court agrees with Abdul-Salaam as to the state court’s treatment of the suggestivity as to all witnesses. Specifically, the Pennsylvania Supreme Court stated, “the trial court noted that the one-on-one confrontation at the preliminary *459 hearing as well as certain pre-trial publicity may have been suggestive.... Our review of the record confirms the trial court’s findings.” Abdul-Salaam-I, 678 A.2d at 349-350 . The Court will credit the state court’s decision on that issue. See 28 U.S.C. § 2254 (e).

In crediting the state court’s finding on suggestivity, we are left with a consideration of whether an independent basis exists for the five witness identifications. The Pennsylvania Supreme Court addressed this issue at length as follows:

Mindful that our scope of review is limited to a determination of whether sufficient evidence has been offered to establish an independent basis for the in-court identification, we believe that the trial court’s determination concerning the in-court identifications was supported by sufficient evidence. [Commonwealth v. Carter, 537 Pa. 233, 254 , 643 A.2d 61, 71 (Pa.1994) ].

In the case sub judice, the trial court noted that the one-on-one confrontation at the preliminary hearing as well as certain pre-trial publicity may have been suggestive. However, the trial court reviewed the testimony of various eyewitnesses to the crime. The court determined that each of the witnesses viewed the Appellant in extremely favorable circumstances. Further, the trial court credited the testimony of their ability to identify Appellant and that their identification had an independent basis, separate from any taint. Our review of the record confirms the trial court’s findings.

Appellant specifically objects to the identifications made by Mr. Rishel and Mr. Michaels, both of whom testified at the preliminary hearing. The testimony at trial by Mr. Rishel, the owner of the coin shop, established that he had more than sufficient opportunity to observe Appellant. Mr. Rishel observed Appellant as he entered the coin shop. Mr. Rishel engaged in conversation with Appellant, watched him draw a revolver and ultimately knock Mr. Rishel to the ground. Mr. Rishel testified that his view of Appellant was unimpeded and that he viewed Appellant on a sunny day in a well lit room at close range. (N.T. 3/9/95 p. 96.) Mr. Rishel was unwavering in his identification of Appellant. The period of time between the crime and the initial confrontation at the preliminary hearing was only ten days, although the period of time between the crime and the trial was seven months. Although the description of Appellant given to police was somewhat general (N.T. 3/3/95 p. 132), and the encounter somewhat brief, we find that there was sufficient evidence to support the trial court’s determination that Mr. Rishel’s in-court identification of Appellant had a basis independent of any suggestive encounter between the crime and the in-court identification.

Mr. Michaels, the owner of a barber shop on Fourth Avenue, testified at trial that on August 19, 1994, he watched Anderson emerge from Maple Alley. He observed Officer Cole’s arrival, Officer Cole’s attempt to arrest Anderson, Appellant’s later emergence from Maple Alley firing at Officer Cole, and Anderson and Appellant’s escape. (N.T. 3/10/95 pp. 86-87, 89. 94-96, 104-05, and 106). Later that day, Mr. Michaels immediately announced to a friend when watching a newscast showing Appellant, “That is the shooter.” (N.T. 3/10/95 p. 112). Mr. Michael[s] gave a detailed description of Appellant. (N.T. 3/10/95 pp. 101, 112). As to the level of certainty exhibited by Mr. Michael[s], he identified Appellant and testified that his in-court identification was based solely on his observations at the scene of the *460 crime. (N.T. 3/10/95 p. 113). Again, we believe that there was sufficient evidence that Mr. Michaels’ in-court identification of Appellant was distinguishable from any taint.

Although Appellant does not specifically object to other eyewitnesses’ identification of Appellant, he argues generally that the circumstances under which the eyewitnesses observed the perpetrators of the crime were such as to make the identifications unreliable. Our review of the record confirms the trial court’s determination that the Commonwealth established that the other witnesses who testified were not induced by events occurring between the time of the crime and the in-court identification. Appellant was given the opportunity to, and did cross-examine each of the witnesses as to the accuracy of their identification. Therefore, we find Appellant’s first issue on appeal to be without merit.

Abdul-Salaam-I, 678 A.2d at 349-50 .

As stated above, Abdul-Salaam contends that we should conduct a de novo review of whether an independent basis exists for the identifications made by witnesses Tran, Gerberich, and Howie because neither the trial court nor the Pennsylvania Supreme Court made any such findings in their opinions. Upon review of the record, the Court disagrees that we should conduct a de novo review with respect to these eyewitnesses. In the trial court’s February 10, 1995 opinion and order addressing Abdul-Salaam’s omnibus pretrial motions, the trial court stated:

We agree with the defendant that the one-on-one confrontation between the defendants and the witnesses, as well as the fact that certain of the witnesses saw the defendant(s) on an evening newscast, might prove to be suggestive. Thus, it is incumbent upon the Commonwealth to establish, by clear and convincing evidence, that the identification was not induced by events occurring between the time of the crime and the in-court identification.

(Trial Ct. Op. re. Omnibus Pretrial Motions 2/10/1995, Doc. 197-1 at 29) (citation omitted). After setting forth the factors for determining whether an independent basis for identification existed, the trial court provided this factual analysis:

Here, the witnesses included Dale Rish-el. He was the coin store operator who observed the defendants for a number of minutes at close range. Mr. David Mi-chaels and Mr. Vinh Tran were outside the coin shop on the street and watched the entire event unfold from beginning to end. They observed the incident in broad daylight. The witnesses testified credibly that they were unwavering in their ability to identify the perpetrator. There was no evidence of any impediment in either their sight line or their vision. We are satisfied that the Commonwealth has more than established an independent basis for in-court identification as far as these witnesses are concerned.

(Id. at 29-30.) Further, in his brief on direct appeal, Abdul-Salaam argued as follows with respect to the eyewitness identifications:

All of the “eyewitnesses” testified that they had never seen the perpetrator before or since the date of the crime. (NT Preliminary Hearing, 20, 95.) However, after the inherently prejudicial circumstances of the preliminary hearing “show up,” they claimed that they could recognize and identify the Defendant. (NT Preliminary Hearing, 9, 62.) The prejudice inherent in that in-court “show up” was the direct result of the fact that the Defendant was forced to attend a preliminary hearing without a prior determination of probable cause to arrest.

*461 With respect to Rishel and Michaels, the alleged eyewitnesses made an identification of this Defendant at the preliminary hearing in this case. (NT Preliminary Hearing, 9, 62.) The occurrence of that one on one identification was itself unduly and impermissibly suggestive, it compounded the taint which already existed by virtue of the circumstances described above, and it was itself unreliable based on these same circumstances and facts. Where there exists an impermissible risk that a witness would be identifying the person whom they saw at a pre-trial prejudicial “show up” procedure, and not making an identification based upon their alleged recollection of the date and time of the crime, the testimony should be excluded. The pretrial identification procedure was so infected by suggestiveness as to give rise to a substantial likelihood of irreparable misidentification. See, Commonwealth v. Sample, [ 321 Pa.Super. 457 ] 468 A.2d 799 (Pa.Super.Ct.1983).

Furthermore, where the circumstances under which the alleged eyewitnesses observed the perpetrator of these crimes — including duration of observation, surrounding circumstances, and other factors — are such as to make any testimony about the identity of the perpetrator fundamentally unreliable, the in court testimony should be suppressed. The factors which apply in this case include the following: prior to the day in question the alleged eyewitnesses had never seen and did not know the alleged perpetrator; the alleged eyewitnesses’ statements to the police which have included descriptions of the perpetrator may have been inconsistent in material respects with respect to those descriptions; the poor opportunity of the witness to view the criminal at the time of the crime; the witness’s degree of attention; the accuracy of this prior description of the criminal; the level of certainty demonstrated at the confrontation; and the time between the crime and the confrontation. See, e.g., Commonwealth v. Thompkins, [ 311 Pa.Super. 357 ] 457 A.2d 925, 928 (Pa.Super.Ct.1983); Manson v. Brathwait [Brathwaite ], 432 U.S. 98, 114 , 97 S.Ct. 2243, 2253 [ 53 L.Ed.2d 140 ] (1977). The “totality of the circumstances analysis” militates against the admission of this alleged eyewitness identification. Commonwealth v. Spiegal [Spiegel, 311 Pa.Super. 135 ] 457 A.2d 531, 536 (Pa.Super.Ct.1983).

(App. Direct Appeal Br., Doc. 197 at 19-21) (emphasis added). In light of the trial court’s decision on Abdul-Salaam’s Omnibus Pretrial Motions, as well as Abdul-Salaam’s subsequent argument on direct appeal, both of which make specific references to witnesses Rishel and Michaels, 17 but also refer to “all” eyewitnesses, this Court will not set aside the Pennsylvania Supreme Court’s analysis with respect to the other witnesses raised here by Abdul-Salaam. Again, that court noted that “[a]lthough Appellant does not specifically object to other eyewitnesses’ identification of Appellant, he argues generally that the circumstances under which the eyewitnesses observed the perpetrators of the crime were such as to make the identifications unreliable.” Abdul-Salaam-I, 678 A.2d at 350 . Therefore, because the Pennsylvania Supreme Court addressed this issue with respect to witnesses Rishel, Mi-chaels, Tran, Gerberich, and Howie, the *462 Court will employ AEDPA’s deferential standard of review in addressing Abdul-Salaam’s claim as to all these witnesses.

Applying that deferential standard, the Court first recognizes that the Pennsylvania Supreme Court determined that the identification procedure as to all the eyewitnesses was unduly suggestive, but, based on the totality of the circumstances, there was sufficient evidence to establish an independent basis for the in-court identifications. After careful review of the record, the Court finds that the Pennsylvania court’s determination was not contrary to or an unreasonable application of federal law. 28 U.S.C. § 2254 (d)(1). In particular, the court’s determination that the identifications possessed sufficient aspects of reliability was not contrary to or an unreasonable application of Biggers. See Biggers, 409 U.S. at 199 , 93 S.Ct. 375 . As to witness Rishel, the state court evaluated Mr. Rishel’s testimony and found that he had more than sufficient opportunity to observe Abdul-Salaam, and that his view of Abdul-Salaam was unimpeded. The court also found that although Mr. Rishel’s description of Abdul-Salaam to the police was somewhat general, and that his encounter with Abdul-Salaam was somewhat brief, Mr. Rish-el’s identification of Abdul-Salaam was unwavering. In addition, the court noted that the period of time between the crime and the trial was seven months, but the period of time between the crime and the initial confrontation at the preliminary hearing was only ten days. Turning to witness Michaels, the state court evaluated his testimony and found that he actually witnessed Abdul-Salaam emerge from Maple Alley and fire his weapon at Officer Cole, and later gave a detailed description of him. The court found significant that when Mr. Michaels saw a newscast later that day showing Abdul-Salaam, he immediately announced to a friend that Abdul-Salaam was the shooter. Further, the court noted that Mr. Michaels clearly stated that his in-court identification was based entirely on his observations of Abdul-Salaam at the time of the crime. Finally, turning to the remaining witnesses, the court reviewed their testimony and found that the identifications made were not induced by events occurring between the time of the crime and the in-court identifications. The court also noted that Abdul-Salaam cross-examined each of the witnesses as to the accuracy of their identifications.

Consequently, under these circumstances, and recognizing that the state court’s analysis clearly reflects its consideration of the Biggers factors, the Court concludes that the state courts’ adjudication of this identification claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254 (d). Further, Abdul-Salaam has not demonstrated by clear and convincing evidence that the state court’s factual findings pertaining to any witness’ testimony were incorrect, as required by 28 U.S.C. § 2254 (e)(1). Therefore, Abdul-Salaam is not entitled to habeas relief on this claim.

C. Claim III — Petitioner received ineffective assistance of counsel when trial counsel failed to make a sufficient, specific proffer to support his request for the appointment of an eyewitness identification expert, where eyewitness identification was crucial to the case.

Abdul-Salaam argues that trial counsel was ineffective for failing to make a sufficient and specific proffer to support his request for the appointment of an eyewitness identification expert. Upon review, the Court will deny this claim as it was not *463 exhausted in the state courts prior to filing the instant federal petition.

The background of this claim is as follows. Prior to trial, Abdul-Salaam’s trial counsel, Attorney Lappas, filed a pretrial motion in which he requested, inter alia, the payment of expert witness fees for an expert in the “psychology of eyewitness testimony.” (Defendant’s Brief in Support of Pre-Trial Motions, Doc. 11, Ex. 15.) In support, trial counsel offered the following reasoning for the request:

Psychology of eyewitness testimony — to testify as to the unreliability of any eyewitness testimony which the court does not suppress. On this point defense counsel notes that he does not believe that a vigorous and exhaustive cross-examination will by itself suffice.

(Id.) In a January 20, 1995 order, the trial court denied trial counsel’s request for the appointment of a psychologist to testify as to the unreliability of eyewitness testimony. (In re: Motion for Payment of Expert Witness Expenses Order (Jan. 20, 1995), Doc. 11, Ex. 18.) On direct appeal, Abdul-Salaam, still represented by Attorney Lap-pas, argued that the trial court erred in denying his motion for the funding for an expert on eyewitness identification. The Pennsylvania Supreme Court affirmed the trial court’s ruling, finding that an “expert on the psychology of eyewitness identification was not necessary for the preparation of a defense.” Abdul-Salaam-I, 678 A.2d at 352 .

Abdul-Salaam did not raise the instant ineffective assistance of counsel claim in the state courts. In his habeas petition, he contends that he did not raise the claim in his PCRA petition because the substantive and underlying claim of trial court error was denied by the Pennsylvania Supreme Court on direct appeal, and therefore the related ineffectiveness claim “would have been deemed ‘previously litigated’ ” by the PCRA court. (Doc. 8-2 at 42) (emphasis added). In opposition, the Commonwealth argues that this claim is unexhausted because Abdul-Salaam failed to present it in his PCRA petition.

A review of this issue as presented in the habeas petition reveals that Abdul-Salaam has not presented the federal ineffective assistance of counsel claim raised here to any state court for review. Pursuant to § 2254(b)(1), exhaustion of state court remedies is excused if there is “an absence of available State corrective process[,] or ... circumstances exist that render such process ineffective to protect the rights of the applicant.” Courts use the term “futile” or “futility” in referring to these exceptions to exhaustion. See, e.g., Lines v. Larkins, 208 F.3d 153, 162-63 (3d Cir.2000). In Lines , the Third Circuit Court of Appeals identified one such situation as “where a state’s highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition and there is no plausible reason to believe that a reply will persuade that court to reverse its field.” Id. at 162 (quoting Allen v. Attorney Gen. of Me., 80 F.3d 569, 573 (1st Cir.1996)).

In the instant petition, Abdul-Salaam argues in favor of this exception, that is, that exhaustion of this claim would be futile “because the Pennsylvania Supreme Court has already decided factually and procedurally indistinguishable claims.” (Doc. 8 at 83 ¶ 162.) He adds:

Here, the state courts have clearly spoken to circumstances identical to those at hand-that Petitioner has raised the predicate claim below, and now, in light of subsequently appointed counsel, raises counsel’s ineffectiveness with regard to his presentation of that claim. For this reason, it would be futile to require the technical exhaustion of returning to *464 state court to have the claim rejected as barred by Pennsylvania law. Accordingly, this issue is exhausted for federal habeas purposes.

(Id. at 83 ¶ 163.)

The problem with Abdul-Salaam’s argument is that he is essentially asking the Court to extend the futility doctrine to this ineffectiveness claim not presented to the state courts on the speculative basis that there appears to be no possibility of success on the merits of his claim in state court. However, as the Third Circuit Court of Appeals has established, “likely futility on the merits does not excuse a failure to exhaust a claim in state court.” Parker v. Kelchner, 429 F.3d 58, 63 (3d Cir.2005). Here, Abdul-Salaam has not even afforded the state courts the opportunity to consider his ineffectiveness claim “previously litigated” based on the Pennsylvania Supreme Court’s disposition of the substantive and underlying claim in Abdul-Salaam-I. To emphasize, this is not a case where the PCRA court already denied a claim of ineffectiveness as “previously litigated” based on disposition of the underlying claim. If that were the case, it is possible that we could excuse exhaustion based on futility. See Hughes v. Beard, Civ. No. 06-250, 2012 WL 1569567 , at *21 n. 19 (E.D.Pa. Apr. 30, 2012) (finding PCRA court’s denial of an ineffectiveness claim as “previously litigated” not to be a bar to consideration of the claim). Rather, the Court must follow the Third Circuit Court’s precedential statement in Parker , namely “that the exhaustion requirement is not excused merely because a petitioner’s claim will likely be denied on the merits in state court.” Parker, 429 F.3d at 63 . To do otherwise is to turn the exhaustion requirement on its head. As such, Abdul-Salaam’s ineffectiveness claim here is unexhausted because the state courts have not yet had the opportunity to review it, and therefore the Court cannot review this claim on the merits.

Notwithstanding the foregoing analysis, Petitioner would not be entitled to relief, even if the Court were to consider the merits of Abdul-Salaam’s ineffectiveness claim. In Abdul-Salaam-I, the Pennsylvania Supreme Court resolved that underlying claim as follows:

Appellant argues that the trial court improperly denied his motions for the payment of expert witness expenses with respect to an expert on eyewitness identification. Appellant contends that as eyewitness testimony was critical to the Commonwealth’s case, an expert in the field of psychology of eyewitness testimony was necessary.

The decision to appoint an expert witness is within the sound discretion of the trial court. The trial court’s determination will not be disturbed except for a clear abuse of that discretion. [Commonwealth v. Carter, 537 Pa. 233, 257 , 643 A.2d 61, 73 (1994) ]. However, in a capital case such as this, a defendant is entitled to the assistance of experts necessary to prepare a defense. Id.

Here, the trial court granted Appellant’s request for funding for experts in the fields of ballistics, fingerprints, serology, and hair and fiber analysis. However, the trial court denied Appellants request for funds for experts in the fields of forensic pathology and the psychology of eyewitness testimony, thereby finding such experts to be unnecessary.

In the capital case of Commonwealth v. Simmons, 541 Pa. 211, 230 , 662 A.2d 621, 630-31 (1995)[J we recently addressed the issue of whether the trial court’s exclusion of an expert in the field of eyewitness identification was proper. As we stated in Simmons, testimony concerning the reliability of eyewitness identification by appellant’s ex *465 pert “would have given an unwarranted appearance of authority as to the subject of credibility, a subject which an ordinary juror can assess. Moreover, appellant was free to and did attack the witnesses’ credibility and point out inconsistencies of all the eyewitnesses at trial through cross-examination and in his closing argument.” Simmons, 541 Pa. at 230 , 662 A.2d at 631 .

Our analysis in Simmons is instructive for our determination of the necessity of an expert in eyewitness testimony. For the reasons offered in Simmons, we find that the trial court properly determined that an expert on the psychology of eyewitness identification was not necessary for the preparation of a defense, and that therefore, the trial court properly denied Appellant’s request for expert witness fees.

Abdul-Salaamr-I, 678 A.2d at 352 . Here, the Pennsylvania Supreme Court reasoned that, while a defendant is entitled to the assistance of experts “necessary to prepare a defense” in a capital case, expert testimony on the reliability of eyewitness identification in this capital case is not such “necessary” testimony. Abdul-Salaam-I, 678 A.2d at 352 . See also Washington v. Beard, Civ. No. 07-3462, 2012 WL 1033526 , at *2 n. 3 (E.D.Pa. Mar. 28, 2012) (“Expert testimony that eye-witness identification is not reliable is not admissible in Pennsylvania state court.”) (citing Abdul-Salaam-I, 678 A.2d at 352 ); Commonwealth v. Selenski 18 A.3d 1229, 1232-33 (Pa.Super.Ct.2011) (acknowledging Pennsylvania’s “long-standing principle guarding the jury’s function of deciding credibility by prohibiting expert testimony on the reliability of eyewitness identifications”); Commonwealth v. Bormack, 827 A.2d 503, 512 (Pa.Super.Ct.2003) (“Courts of this Commonwealth have deemed [expert testimony on the unreliability of eyewitness identification] inadmissible because it intrudes upon the jury’s credibility determination.”); Commonwealth v. Simmons, 541 Pa. 211 , 662 A.2d 621, 631 (1995) (affirming exclusion of expert on reliability of eyewitness identification as “[s]uch testimony would have given an unwarranted appearance of authority as to the subject of credibility, a subject which an ordinary juror can assess”); Commonwealth v. Spence, 534 Pa. 233 , 627 A.2d 1176, 1182 (1993) (“Expert opinion may not be allowed to intrude upon the jury’s basic function of deciding credibility.”). Clearly, then, trial counsel cannot be found ineffective for failing to secure the appointment of an expert on the reliability of eyewitness testimony, if such testimony would not have been admissible. See Strickland, 466 U.S. at 691 , 104 S.Ct. 2052 (reasoning that counsel’s performance cannot be deficient based on a failure to advance meritless claims).

Based on the foregoing discussion, Abdul-Salaam is not entitled to relief on this claim. Further, Petitioner’s request for an evidentiary hearing on this issue is denied.

D. Claim V — Petitioner’s conviction resulted from the unavailability at the time of trial of exculpatory evidence regarding the scientific unreliability of fingerprint evidence. Moreover, since this evidence was in the possession of the prosecution’s expert witness, failure to disclose it violated due process.

Abdul-Salaam argues that his conviction was based on what new scientific evidence has proven to be unreliable fingerprint evidence introduced at trial by the Commonwealth, and the failure of the prosecution to disclose the infirmities in such evi *466 dence violated due process of law. 18 (Doc. 8-2 at 48-50; Doc. 8-3 at 1-2.) Upon review, the Court will deny relief on this claim.

The background of this claim is as follows. At trial, Pennsylvania State Police Sergeant Dennis Loose testified that the latent print recovered from an extension cord wrapper found at the crime scene matched the ink. impressions taken from Abdul-Salaam. 19 (Trial NT, 3/14/1995, at 152-53.) Also at trial, Federal Bureau of Investigation Specialist Michael Wieners opined that Abdul-Salaam’s inked impression matched two latent impressions recovered from the cord wrapper. 20 (Trial NT, 3/15/1995, at 26.) Abdul-Salaam now claims that this testimony on fingerprint evidence was unreliable based on three reports published after Abdul-Salaam’s trial: (1) a National Institute of Justice Report — FoRensiC SCIENCES: Review of Status and Needs (1999); (2) a Department of Justice, National Institute of Justice Solicitation: Foeensio FRICtion Ridge (Fingerprint) Examination Validation Studies (2000); and (3) a National Academy of Sciences report — Strengthening Forensic Science in the United States: A Path Forward (2009).

Abdul-Salaam presented this claim in the state courts. The Pennsylvania Supreme Court addressed it on the merits in its disposition of Abdul-Salaam’s Second PCRA petition. The state supreme court concluded as follows:

Appellant raises a claim challenging the adequacy of the fingerprint evidence. According to Appellant, recent scientific disclosures undermine the reliability and admissibility of fingerprint evidence. Thus, Appellant is attempting to craft an after-discovered evidence claim that fits within an exception to the jurisdictional time bar. See 42 Pa.C.S. § 9545(b)(l)(ii).

Appellant’s argument conveniently overlooks that even in the absence of such fingerprint evidence, there was overwhelming eyewitness testimony placing Appellant at the scene of the crime. At least four persons who were at the scene of the crime testified that Appellant shot the police officer. See Commonwealth v. Abdul-Salaam, 544 Pa. 514 , 678 A.2d 342, 346 (1996). Thus, even if we were to accept Appellant’s argument regarding the fingerprint evidence, Appellant is simply unable to show that the evidence would have altered the outcome of the trial. 42 Pa. C.S. § 9543(a)(2)(vi).

Abdul-Salaam,-III, 812 A.2d at 503 . Further, when the Pennsylvania Supreme Court affirmed the denial of Abdul-Salaam’s Third PCRA petition, it noted towards the conclusion of its opinion:

Appellant raises a second claim on appeal, unrelated to the Brady claim *467 Judge Jones directed him to exhaust. This claim alleges that a “new” National Academy of Science Report demonstrated the unreliability of the fingerprint evidence introduced at his trial. Appellant attacked the same fingerprint evidence, albeit premised upon different “new” evidence, in the appeal from the denial of his first serial PCRA petition in Abdul-Salaam III. This Court rejected the serial claim as follows: “Appellant’s argument conveniently overlooks that even in the absence of such fingerprint evidence, there was overwhelming eyewitness testimony placing Appellant at the scene of the crime. At least four persons who were at the scene of the crime testified that Appellant shot the police officer. Thus, even if we were to accept Appellant’s argument regarding the fingerprint evidence, Appellant is simply unable to show that the evidence would have altered the outcome of the trial.” Abdul-Salaam III, 812 A.2d at 503 . Since our disposition in Abdul-Salaam III turned on appellant’s failure to demonstrate prejudice, his present claim, alleging a new basis for the same theory, does not remotely affect the prejudice assessment finally litigated during his second collateral proceedings and is plainly frivolous. Cf. Commonwealth v. Williams, 597 Pa. 109 , 950 A.2d 294, 320 (2008) (conclusion on direct appeal that error was harmless because of overwhelming evidence of guilt undermined and ultimately defeated appellant’s claim of ineffectiveness on collateral review because appellant could not demonstrate prejudice); Commonwealth v. Collins, 585 Pa. 45 , 888 A.2d 564, 574-75 (2005).

Abdul-Salaam-IV, 42 A.3d at 987 n. 7. Because the state courts addressed this claim on the merits, we will review it under the AEDPA standard of review.

To succeed in this claim, Abdul-Salaam must show that the admission of the testimony on the fingerprint evidence “undermined the fundamental fairness of the entire trial,” Keller v. Larkins, 251 F.3d 408, 413 (3d Cir.2001), because “the probative value of the [fingerprint] evidence, though relevant, is greatly outweighed by the prejudice to the accused from its admission.” Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir.2012) (quoting Bisaccia v. Attorney Gen., 623 F.2d 307, 313 (3d Cir.1980)). Here, the Pennsylvania Supreme Court denied this claim on the basis that Abdul-Salaam failed to demonstrate prejudice. Abdulr-Salaamr-III, 812 A.2d at 503 . Specifically, the court determined that, in light of the overwhelming evidence placing Abdul-Salaam at the scene of the crime, even if the fingerprint evidence at issue was to be excluded, the outcome of the trial would not have been altered. Id. Upon review, we agree with the Pennsylvania Supreme Court. 28 U.S.C. § 2254 (d)(2). As the state court found, in light of the overwhelming evidence of Abdul-Salaam’s involvement in the crimes, the Court finds that even had the fingerprint evidence been excluded as unreliable, it cannot be said that a reasonable probability exists that the outcome of the trial would have been different due to the overwhelming evidence placing Abdul-Salaam at the scene. Thus, Abdul-Salaam has not shown that the fingerprint evidence’s inclusion undermined the fundamental fairness of the entire trial on the basis that the probative value of the fingerprint evidence is greatly outweighed by the prejudice to Abdul-Salaam from its admission. See Han Tak Lee, 667 F.3d at 403 . Therefore, the Pennsylvania Supreme Court’s decision on this issue is not contrary to, or an unreasonable application of, clearly established federal law, nor is it an unreasonable determination of the facts. See 28 *468 U.S.C. § 2254 (d)(l)-(2). Habeas relief on this claim will be denied.

E. Claim VI — The jury’s finding of the (d)(9) aggravating circumstance, that Petitioner had a “significant history of felony convictions involving the use or threat of violence to the person” violated Petitioner’s rights in multiple respects.

Abdul-Salaam argues that the jury’s finding of the (d)(9) “significant history” aggravating circumstance violated his constitutional rights in that the aggravating circumstance is facially vague and, in this case, was impermissibly found based upon juvenile “adjudications” rather than “convictions.” In addition, he claims that his trial and appellate counsel were ineffective for failing to litigate this claim. Upon review, the Court will deny relief on this claim.

The background of this claim is as follows. Among the four aggravating circumstances found by the jury in the sentencing phase was that Abdul-Salaam had a “significant history of felony convictions involving the use or threat of violence to the person” pursuant to 42 Pa. Cons.Stat. § 9711(d)(9). 21 During the sentencing phase, the Commonwealth had offered the following evidence in support of the “significant history” aggravating circumstance: (1) a juvenile delinquency adjudication dated March 31, 1986, from Northampton County, Pennsylvania, relating to charges of robbery and conspiracy when Petitioner was age 15; (2) a juvenile delinquency adjudication dated January 23, 1987, from Lehigh County, Pennsylvania, relating to charges of robbery, assault, and theft when Petitioner was age 16; (3) a juvenile delinquency adjudication dated February 20, 1987, from Lehigh County, Pennsylvania, relating to a charge of assault when Petitioner was age 16; and (4) a criminal conviction dated February 1, 1989, from Cumberland County, Pennsylvania, on a charge of robbery when Petitioner was age 18. (Sentencing NT 3/16/1995, at 53.) At a sidebar discussion before the jury heard testimony, defense counsel objected to the use of the juvenile adjudications in support of the “significant history” aggra-vator. (Id. at 5-11.) However, counsel acknowledged that under Commonwealth v. Baker, 531 Pa. 541 , 614 A.2d 663 (1992), the law in Pennsylvania is settled that juvenile acts are admissible for sentencing purposes in a capital proceeding, and the trial court overruled his objection. (Sentencing NT 3/16/1995, at 11.) As a result, the jury heard evidence of the previous juvenile adjudications, and in its charge to the jury the trial court instructed the jury to consider, inter alia, whether the Commonwealth had proven the aggravating circumstance “that the defendant has a significant history of felony convictions involving the use or threat of violence to the person” beyond a reasonable doubt. (Id. at 113.) The trial court added:

Now, in this regard the Commonwealth did make argument to you concerning undertaking the career in armed rob *469 bery. And I make the observation to you that there is no evidence that the prior robberies involved any particular kind of weapon, though I add that in this case and in the matter that you heard and as to which you rendered a verdict yesterday there was a firearm that was used.

{Id. at 114.) After deliberation, the jury found all four (4) aggravating factors, including the “significant history” aggravator, and one (1) mitigating circumstance, and thus handed down the penalty of death. {Id. at 121-22.)

Abdul-Salaam raised this claim in his PCRA petition and on appeal to the Pennsylvania Supreme Court. However, the Pennsylvania Supreme Court deemed this claim waived because Petitioner could have raised it in his direct appeal but failed to do so. Abdul-Salaamr-II, 808 A.2d at 560 . Thus, we will review this claim de novo.

1. “Significant History” Aggravator as Vague

As stated above, Abdul-Salaam first contends that the § 9711(d)(9) aggravating circumstance is unconstitutionally vague on its face in violation of the Eighth Amendment. An aggravating circumstance is unconstitutionally vague when “the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion which was held invalid in Furman.” 22 Maynard v. Cartwright, 486 U.S. 356, 362 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988).

In support of his contention that § 9711(d)(9) is unconstitutionally vague, Abdul-Salaam cites three state supreme court cases from outside Pennsylvania. See State v. David, 468 So.2d 1126, 1129-30 (La.1984) (invalidating an aggravating circumstance based on the defendant’s “significant prior history” of criminal activity); Gall v. Commonwealth, 607 S.W.2d 97 , 111 n. 8 (Ky.1980) (invalidating an aggravating circumstance based on the defendant’s “substantial history” of serious assaultive criminal convictions); Arnold v. State, 236 Ga. 534 , 224 S.E.2d 386 (1976) (same). In addition, Abdul-Salaam attempts to distinguish Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976), in which the United States Supreme Court rejected a vagueness challenge to a mitigating circumstance in Florida’s death penalty statute that permitted a sentencing jury to consider that a defendant had “no significant history of prior criminal activity.” Petitioner posits that because mitigating circumstances do not perform the narrowing function of determining who is eligible for the death penalty unlike aggravating circumstances, the Court’s decision in Proffitt is “simply inapposite” to this claim and cannot be binding on our determination of the constitutionality of Pennsylvania’s aggravating circumstance at issue here. However, we do not read the Proffitt Court’s analysis on this matter as making the distinction as argued by Abdul-Salaam. See Holland v. Horn, 150 F.Supp.2d 706, 776 (E.D.Pa. 2001) (rejecting the petitioner’s interpretation of Proffitt as inapposite to vagueness challenge to § 9711(d)(9) aggravator). In explaining its decision to uphold Florida’s mitigating circumstance statutory provision, the Proffitt Court stated:

*470 While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or [against] imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition. The directions given to judge and jury by the Florida statute are sufficiently clear and precise to enable the various aggravating circumstances to be weighed against the mitigating ones. As a result, the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in decided whether the death penalty is to be imposed.

Proffitt, 428 U.S. at 258 , 96 S.Ct. 2960 . Further, the Pennsylvania Supreme Court has repeatedly applied Proffitt in finding that the § 9711(d)(9) is constitutional. See, e.g., Commonwealth v. Fahy, 512 Pa. 298 , 516 A.2d 689, 698 (1986) (“We find no basis ... to ignore the holding[ ] of Prof-fitt .... Appellant’s contention that 42 Pa.C.S. § 9711(d) is vague and overbroad is dismissed as being meritless.”); Commonwealth v. Holcomb, 508 Pa. 425 , 498 A.2d 833, 854 (1985) (“[Section 9711(d)(9) ] as here interpreted and applied does sufficiently channel jury consideration of the factors which warrant the imposition of the death penalty.”). Abdul-Salaam has cited to no Supreme Court eases that would require a different outcome. As a result, and in light of the federal and state court precedent, Abdul-Salaam has failed to establish that the § 9711(d)(9) aggravator is unconstitutionally vague and thus violates the Eighth Amendment. See Holland, 150 F.Supp.2d at 775-76 (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). Abdul-Salaam is not entitled to relief on this subclaim.

2. “Signiftcant History” Aggravator Based on Juvenile Adjudications Rather Than Convictions

Abdul-Salaam also argues that the § 9711(d)(9) aggravator was unconstitutionally applied in his ease because the jury was permitted to consider not only his one previous conviction, but also three previous juvenile adjudications. It is Abdul-Salaam’s position that, at the time of his trial in 1995, Pennsylvania law was “inconsistent” on the question of whether juvenile adjudications could be used as part of the significant history aggravator.

Contrary to Abdul-Salaam’s assertion, at the time of his trial, Pennsylvania law was clear on the subject of whether to include juvenile adjudications in a capital sentencing proceeding. In Commonwealth v. Baker, 531 Pa. 541 , 614 A.2d 663 (1992), the Pennsylvania Supreme Court held that, for evidentiary purposes during a capital sentencing proceeding, juvenile adjudications are admissible to establish a defendant’s “significant history of felony convictions involving the use or threat of violence to the person.” 42 Pa. Cons.Stat. § 9711(d)(9). The court reasoned that:

Pennsylvania adheres to a system of individualized sentencing which must explore the defendant’s prior behavior and dangerousness before sanctions are imposed. For the care of capital sentencing, indeed, is “a function of character analysis ... and the central idea of the present sentencing status is to allow a jury to take into account such relevant information, bearing on a defendant’s character and record, as is applicable to *471 the task of considering the enumerated aggravating circumstances.”

Baker, 614 A.2d at 676 (quoting Commonwealth v. Beasley, 505 Pa. 279 , 479 A.2d 460, 465 (1984)). The court also recognized the limitations of its holding:

[W]hile the delinquent record could not be used as “evidence ... in another court,” to “deprive the Courts of the right to be informed of and to consider the history and background of the person subject to sentence may result in sentences which are unjust and unfair to both society and defendants.”

Baker, 614 A.2d at 676 (quoting Commonwealth ex rel. Hendrickson v. Myers, 393 Pa. 224 , 144 A.2d 367, 371 (1958)). The holding of Baker has subsequently been upheld in Pennsylvania. See Commonwealth v. Birdsong, 611 Pa. 203 , 24 A.3d 319, 348-49 (2011); Commonwealth v. Moore, 594 Pa. 619 , 937 A.2d 1062, 1068 (2007); Commonwealth v. Carson, 590 Pa. 501 , 913 A.2d 220, 274 (2006). 23 Therefore, in light of the law established at the time of Abdul-Salaam’s trial, it is clear that the trial court’s decision to follow precedent and overrule defense counsel’s objection to the introduction of Abdul-Salaam’s juvenile adjudications was not in error. There is no violation of the Eighth Amendment here, and thus habeas relief on this sub-claim will be denied.

3. “Notice” of Use of Juvenile Adjudications for Capital Sentencing’

Abdul-Salaam also argues that his sentence violated due process when he did not receive “notice” that his juvenile adjudications could be used in the “significant history” aggravator because at the time he received those adjudications (in 1987 and 1989), the law was clear that juvenile adjudications could not be used to establish the § 9711(d)(9) aggravator. The Court again turns for guidance to the Pennsylvania Supreme Court’s decision in Baker .

In Baker , the Pennsylvania Supreme Court set forth the state of the law prior to its decision as follows:

The Commonwealth established a separate court with exclusive jurisdiction over accused minors in 1933. Up to that time, youthful offenders were tried equally with adults in the Quarter Sessions Courts. Act of June 2, 1933, P.L. 1933, 11 P.S. § 261. Section 19 provided:

No order made by any juvenile court shall operate to impose any of the civil disabilities ordinarily imposed by the criminal law of the Commonwealth, nor shall any child be deemed to be a criminal by reason of any such order or be deemed to have been convicted of crime. The disposition of a child or any evidence given in a juvenile court shall not be admissible as evidence against the child in any case or proceeding in any other court. (Footnote omitted).

The contemporary counterpart appears in 42 Pa.C.S. 6354:[ ]

Section 6354. Effect of adjudication

(a) General rule. — An order of disposition or other adjudication in a proceeding under this chapter is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to *472 disqualify the child in any civil service application or appointment.

(b) Effect in subsequent judicial matters. — The disposition of a child under this chapter may not be used against him in any proceeding in any court other than a subsequent juvenile hearing, whether before or after reaching majority, except:

(1) in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report.

Both this Court and the Superior Court found occasion to rule on the issue of whether a record of delinquency could be employed for the determination of sentence of an adult under the Act of 1933, and in each instance of review, these tribunals determined that the juvenile acts indeed were admissible for that purpose. Our seminal case on point is Commonwealth ex rel. Hendrickson v. Myers, 393 Pa. 224 , 144 A.2d 367 (1958), where the majority held (Justice Mus-manno dissenting on the grounds that the juvenile record was unclear), specifically addressing Section 19, that while the delinquent record could not be used as “evidence ... in another court,” to “deprive the Court of the right to be informed of and to consider the history and background of the person subject to sentence may result in sentences which are unjust and unfair to both society and defendants.” Myers, 393 Pa. at 231 , 144 A.2d at 371 (affirming the Superior Court’s holding that the “judge was entitled to all of the material facts to inform him as to what kind of offender he was dealing with to assist him in determining the appropriate penalty.” 182 Pa.Superior Ct. 169, 173-74, 126 A.2d 485, 486-87 [1956]). The Superior Court in Myers , in fact, baldly concluded that the statute was not applicable to prevent the sentencing judge from considering the defendant’s juvenile court record. 182 Pa.Superior Ct. at 174, 126 A.2d at 487 .

The rationale behind both decisions in Myers derived from our previous ruling in Commonwealth v. Petrillo, 340 Pa. 33 , 16 A.2d 50 (1940), where we settled on the broader principle that sentencing judges have wide latitude in considering facts, “regardless of whether such facts are produced by witnesses whom the court sees and hears.” Petrillo was a death case. Petrillo’s principle was applied in the same manner in Commonwealth v. Johnson, 348 Pa. 349, 354 , 35 A.2d 312, 314 (1944). Moreover, the Superior Court applied Petrillo to the 1933 Act and approved the use of juvenile records as sentencing considerations. See, Commonwealth ex rel. Miller v. Maroney, 179 Pa.Superior Ct. 305, 116 A.2d 755 (1955); Commonwealth ex rel. Yeschenko v. Keenan, 179 Pa.Superior Ct. 145, 115 A.2d 386 (1955); and Commonwealth ex rel. Czarnecki v. Stitzel, 179 Pa.Superior Ct. 80, 115 A.2d 805 (1955).

More recent decisions by the Superior Court have affirmed uniformly this rule. Commonwealth v. Woodward, 368 Pa.Superior Ct. 363, 534 A.2d 478 (1987); allocatur denied, 520 Pa. 575 , 549 A.2d 135 (1988); Commonwealth v. Krum, 367 Pa.Superior Ct. 511, 533 A.2d 134 (1987); Commonwealth v. Morio, 302 Pa.Superior Ct. 407, 448 A.2d 1106 (1982); and Commonwealth v. Allen, 287 Pa.Superior Ct. 88, 429 A.2d 1113 (1981) (citing Myers).

Baker, 614 A.2d at 675-76 . Given this state of the law with respect to the use of juvenile adjudications in criminal sentencing matters prior to Baker , the Court rejects Abdul-Salaam’s argument related to the inconsistent application of the § 9711(d)(9) aggravator to juvenile adjudications. Nor is the Court convinced that *473 the Baker decision and its progeny have expanded the § 9711(d)(9) aggravator to the point that Abdul-Salaam was subjected to an ex post facto and therefore unconstitutional change in the law. Therefore, Abdul-Salaam’s right to due process with respect to notice has not been violated here, and habeas relief on this subclaim will be denied.

Moreover, as the Court has determined that all three subclaims with respect to the § 9711(d)(9) aggravator are meritless, the ineffective assistance of counsel claim also fails. See Strickland, 466 U.S. at 691 , 104 S.Ct. 2052 (reasoning counsel’s performance cannot be deficient based on a failure to advance meritless claims). Again, as found supra, Abdul-Salaam’s entire claim here will be denied.

F. Claim VII — Petitioner’s death sentence must be vacated because the arbitrary “proportionality review” performed by the Pennsylvania Supreme Court violated his right to due process and denied him the meaningful appellate review of death penalty cases constitutionally mandated by the Eighth Amendment.

At the time of Abdul-Salaam’s direct appeal of his death sentence in 1995, the Pennsylvania Supreme Court was statutorily required to determine whether his sentence was “excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.” 42 Pa. Cons.Stat. § 9711 (h)(3)(iii) (1992). Abdul-Salaam argues that the Pennsylvania Supreme Court failed to provide him with a meaningful proportionality review because the database relied upon by the court was fundamentally flawed and inaccurate, and that he had no notice or opportunity to meaningfully participate in the Pennsylvania Supreme Court’s review, thereby violating his right to due process.

Abdul-Salaam raised this claim in his PCRA petition, (Doc. 197, Vol. 1, Ex. 4), and the PCRA court denied it. Further, the Pennsylvania Supreme Court refused to consider the merits of this claim upon appeal from the PCRA court decision, finding that it was waived because counsel failed to raise it on direct appeal. Abdul-Salaam-II, 808 A.2d at 560 . Therefore, this Court will review this claim de novo.

The United States Constitution does not require state appellate courts to engage in proportionality review in capital cases, Pulley v. Harris, 465 U.S. 37, 50-51 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984), and it is not the “province of a federal habeas court to reexamine state-court determinations on state court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991). Further, it is “unclear whether, under Third Circuit law, a state proportionality-review statute creates any cognizable liberty interest for due process purposes.” Riley v. Taylor, 277 F.3d 261, 311-12 (3d Cir.2001); see also Frey v. Fulcomer, 132 F.3d 916 , 925 n. 7 (3d Cir.1997). Even assuming such a liberty interest exists, a federal court’s review of state proportionality review is generally limited. If a federal court finds that the state court performed its proportionality review in good faith, “it cannot ‘look behind’ the state court’s conclusion of proportionality to consider whether the state court misapplied state proportionality law.” Id. (quoting Walton v. Arizona, 497 U.S. 639, 656 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990), rev’d on other grounds Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002)); see also Bannister v. Delo, 100 F.3d 610, 627 (8th Cir.1996).

In this case, in light of the directive set forth in 42 Pa. Cons.Stat. § 9711(h)(3)(iii), *474 the Pennsylvania Supreme Court, relying upon “sentencing data compiled by the Administrative Office of the Pennsylvania Courts[,]” determined that “the sentence was not an improper product of passion, prejudice, or any other arbitrary factor, but, rather, was based upon the overwhelming evidence that [Abdul-Salaam] murdered Officer Willis Cole.” Abdul-Salaam-I, 678 A.2d at 355 n. 16. Specifically with respect to the court’s reliance on the AOPC database, the court stated,

[W]ith respect to the final consideration, and in accordance with Commonwealth v. Zettlemoyer, 500 Pa. [16] at 63, 454 A.2d [937] at 961 [ (1982) ], this court has performed an independent review of the cases involving the sentence of death to determine whether [Abdul-Salaam]’s sentence of death was proportional to the sentences imposed in similar cases taking into consideration both the circumstances of the offense and the character and record of [Abdul-Salaam].

Id., 678 A.2d at 355 .

Abdul-Salaam now contends that the Pennsylvania Supreme Court’s proportionality review was not meaningful because the database of cases that it relied upon included flaws and methodological infirmities. Further, he claims that when he raised this proportionality challenge in his state post-conviction proceedings, the PCRA court would not permit him to develop an evidentiary record in support of the claim. Even so, the Pennsylvania Supreme Court has repeatedly rejected claims challenging its proportionality review process, including claims based upon the alleged errors Abdul-Salaam relies upon here. In Commonwealth v. Gribble, 550 Pa. 62 , 703 A.2d 426, 440 (1997), the Pennsylvania Supreme Court held that “we believe that our proportionality review comports with the General Assembly’s desire to afford capital defendants an additional check against the arbitrary imposition of the death penalty.” Id. In Commonwealth v. Harris, 550 Pa. 92 , 703 A.2d 441, 451-52 (1997), the Pennsylvania Supreme Court rejected a claim that the “data base maintained by the Administrative Office of Pennsylvania Courts (AOPC) is substantially flawed and the procedures which produce the results are inherently defective.” Id.; see also Commonwealth v. Laird, 555 Pa. 629 , 726 A.2d 346, 361 (1999); Commonwealth v. Albrecht, 554 Pa. 31 , 720 A.2d 693, 708-09 (1998) (rejecting challenge to proportionality review because “litigants are afforded no access to the data upon which it is based and because that data, by virtue of underinclu-siveness, is fundamentally flawed”). Given the Supreme Court’s pronouncement on this issue, there is no indication that the court performed its proportionality review of Abdul-Salaam’s claim in bad faith. Therefore, we will not “look behind” the Pennsylvania Supreme Court’s conclusion to consider whether it properly applied state proportionality law. See Riley, 277 F.3d at 311-12 ; Stevens v. Beard, 701 F.Supp.2d 671, 706-07 (W.D.Pa.2010).

Abdul-Salaam further asserts that he was unable to challenge the integrity of the database, since he “had no notice or opportunity to meaningfully participate in what amounted to appellate factfinding done by the Pennsylvania Supreme Court regarding what constituted ‘similar’ cases and whether the sentence imposed in this case was disproportionate.” (Doc. 8-3 at 33.) However, it is well-settled that the information that the Pennsylvania Supreme Court relied upon in performing its review “is made available by ... [the Administrative Office of Pennsylvania Courts] free of charge.” Commonwealth v. De -Hart, 512 Pa. 235 , 516 A.2d 656 , 669-70 (1986). In addition, the proportionality review process was “an appellate process, statutory mandated, to ensure that sen *475 tences of death are not imposed by Pennsylvania juries and/or jurists, in a disproportionate manner.” Laird, 726 A.2d at 361 . Under state law, it was not an “adversarial part of the trial or the sentencing procedures in a death penalty case.” Commonwealth v. Banks, 540 Pa. 143 , 656 A.2d 467, 474 (1995).

In denying Abdul-Salaam federal relief on this basis, our decision is in accordance with decisions in our district, as well as those in other district courts rejecting challenges to the Pennsylvania Supreme Court’s proportionality review process. Marinelli v. Beard, Civ. No. 4:CV-07-0173, 2012 WL 5928367 , at *98-100 (M.D.Pa. Nov. 26, 2012) (rejecting the petitioner’s claim that the Pennsylvania Supreme Court failed to provide meaningful proportionality review on the basis that the state court’s review of petitioner’s case under its stated procedures was not “arbitrary or capricious”); Stevens v. Beard, 701 F.Supp.2d 671, 706-07 (W.D.Pa.2010); Lambert v. Beard, Docket No. 02-9034, 2007 WL 2173390 , *51-52 (E.D.Pa. July 24, 2007) (rejecting claims that petitioner was denied a meaningful proportionality review because he was not given an opportunity to review and challenge the information relied on by the Pennsylvania Supreme Court, and because the database, data collection instruments, and methodology employed in the review process allegedly were “egregiously” flawed; petitioner presented no evidence that the Pennsylvania Supreme Court conducted its proportionality review in bad faith; and denying certificate of appeala-bility); Rollins v. Horn, Docket No. 00-1288, 2005 WL 1806504 , *39-40 (E.D.Pa. July 26, 2005) (denying petitioner’s challenges to the procedure by which the Pennsylvania Supreme Court conducted its proportionality review because that court had examined the procedures in Commonwealth v. Gribble, 550 Pa. 62 , 703 A.2d 426 (1997), and had found nothing arbitrary or capricious about them, and denying certificate of appealability); Kindler v. Horn, 291 F.Supp.2d 323, 351-53 (E.D.Pa.2003) (denying petitioner’s claims that the Pennsylvania Supreme Court’s proportionality review did not provide him with the meaningful appellate review in violation of the Eighth and Fourteenth Amendments, and denying certificate of appealability); Laird v. Horn, 159 F.Supp.2d 58, 124 (E.D.Pa.2001) (denying petitioner’s challenge to proportionality review because there was no evidence that the Pennsylvania Supreme Court had undertaken its review in bad faith); Jermyn v. Horn, Docket No. 97-634, 1998 WL 754567 *52-54 (M.D.Pa. Oct. 27, 1998) (rejecting petitioner’s due process and Eighth Amendment challenges to his proportionality review), aff'd 266 F.3d 257 (3d Cir.2001) (affirming summarily district court’s denial of certain claims, including the petitioner’s challenge to proportionality review).

Here, because the state court reviewed Abdul-Salaam’s ease under procedures found not to be “arbitrary or capricious,” the Court finds that there is no basis for federal review of this claim.

G. Claim VIII — Pennsylvania’s capital sentencing scheme, and therefore, Petitioner’s death sentence violate the notice and jury trial guarantees of the Sixth Amendment and the due process clause of the Fifth Amendment in failing to require either that aggravating circumstances be pled in a charging mechanism or that a finding that aggravating circumstances outweigh mitigating circumstances be made beyond a reasonable doubt.

Abdul-Salaam argues that his sentence was impermissibly enhanced to a death *476 sentence because the aggravating factors were neither pled in a charging document nor proven to outweigh the mitigating circumstances beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002). In Apprendi , the United States Supreme Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi 530 U.S. at 490 , 120 S.Ct. 2348 . Thereafter, in Ring , the Supreme Court applied the rule of Apprendi to capital sentencing schemes, holding that under the Sixth Amendment, the facts that render a defendant eligible for the death sentence, including the requisite state of mind and at least one statutory aggravating factor, are the functional equivalent of elements of the offense and must be found by a jury beyond a reasonable doubt rather than by a judge. Ring, 536 U.S. at 607-09 , 122 S.Ct. 2428 . Abdul-Salaam argues that, because the Pennsylvania statutes related to aggravating factors do not require that the factors be pled in a charging document or be proven to outweigh the mitigating circumstances beyond a reasonable doubt, his death sentence violates the Sixth Amendment and habeas relief on sentencing should be granted. Upon review, the Court finds that neither Appren-di nor Ring is applicable to Abdul-Salaam’s claim, 24 and therefore habeas relief here will be denied.

Generally, a federal habeas petitioner may not rely on new rules of erimi-nal procedure if they were announced after his conviction became final. Schriro v. Summerlin, 542 U.S. 348, 352 , 124 S.Ct. 2519 , 159 L.Ed.2d 442 (2004); Teague v. Lane, 489 U.S. 288, 306 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989) (stating that “new constitutional rules of criminal procedure ■will not be applicable to those cases which become final before the new rules are announced”). In this case, Abdul-Salaam’s conviction became final before the decisions in Apprendi and Ring , or on March 31, 1997, when the United States Supreme Court denied certiorari review. See Abdul-Salaam v. Pennsylvania, 520 U.S. 1157 , 117 S.Ct. 1337 , 137 L.Ed.2d 496 (1997).

Under the Supreme Court’s retro-activity analysis set forth in Teague , a federal habeas petitioner may not avail themselves of a new rule of criminal procedure unless that rule meets one of two narrow exceptions: (1) “it places certain kinds of primary, private individual conduct beyond the power of the criminal-law making authority to proscribe,” or (2) it requires the observance of those procedures that are implicit in the concept of ordinary liberty. Teague, 489 U.S. at 311 , 109 S.Ct. 1060 . The first Teague exception applies to the type of rule characterized as “substantive” rather than “procedural.” See Beard v. Banks, 542 U.S. 406 , 411 n. 3, 124 S.Ct. 2504 , 159 L.Ed.2d 494 (2004) (citing Schriro, 542 U.S. at 352 n. 4, 124 S.Ct. 2519 ). The second Teague exception is reserved for “watershed rules of criminal procedure that not only improve the accuracy of trial, but also ‘alter our understanding of the bedrock procedural *477 elements’ essential to the fairness of a proceeding.” United States v. Swinton, 338 F.3d 481, 487 (3d Cir.2003) (quoting Sawyer v. Smith, 497 U.S. 227, 242 , 110 S.Ct. 2822 , 111 L.Ed.2d 193 (1990) (emphasis in original) (citations omitted)).

Neither the Third Circuit nor the Supreme Court has held that the rule announced in Apprendi or Ring meets either Teague exception. First, as to Apprendi , in United States v. Swinton, 333 F.3d 481, 489-90 (3d Cir.2003), the Third Circuit Court initially concluded that Apprendi itself announced a new rule of criminal procedure, 25 and therefore analyzed whether the second Teague exception applied to permit a retroactive application of Appren-di on collateral review. In holding that Apprendi does not satisfy Teague’s second exception to non-retroactivity, the Third Circuit joined the Courts of Appeals from several other Circuits in finding that the rule in Apprendi is not a “watershed” rule that improved the accuracy of determining the guilt or innocence of a defendant, or that an Apprendi violation does not necessarily undermine the fairness of judicial proceedings. Swinton, 333 F.3d at 490 (citing Coleman v. United States, 329 F.3d 77 (2d Cir.2003); United States v. Brown, 305 F.3d 304, 309 (5th Cir.2002); Curtis v. United States, 294 F.3d 841, 843-44 (7th Cir.2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 670 (9th Cir.2002); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.2002); McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir.2001); United States v. Sanders, 247 F.3d 139, 151 (4th Cir.2001); United States v. Moss, 252 F.3d 993, 998-99 (8th Cir.2001)). As a result, the Court in Swinton expressly held that Apprendi itself does not apply retroactively. Swinton, 333 F.3d 481 at 491 (“[W]e hold that Apprendi does not apply retroactively to cases on collateral review.”).

As to Ring , in Schriro , the Supreme Court held that the Ring rule “does not apply retroactively to cases already final on direct review.” Schriro, 542 U.S. at 358 , 124 S.Ct. 2519 ; see also Bell v. Cone, 543 U.S. 447 , 454 n. 6, 125 S.Ct. 847 , 160 L.Ed.2d 881 (2005) (confirming that Ring does not apply retroactively) (citing Schriro, 542 U.S. at 358 , 124 S.Ct. 2519 ). The defendant in Schriro was convicted of first-degree murder and related charges in an Arizona state court. Schriro, 542 U.S. at 350 , 124 S.Ct. 2519 . Pursuant to Arizona’s capital sentencing scheme, the trial court judge found two aggravating factors and no mitigating circumstances, and consequently sentenced the defendant to death. Id. The Arizona Supreme Court affirmed the sentence on direct review, and the defendant subsequently filed a post-conviction petition seeking habeas review of his conviction. Id. While review was pending in the Ninth Circuit, the Supreme Court decided Ring , which, again, required that aggravating factors be found by a jury rather than a judge. Id. at 351 (citing Ring, 536 U.S. at 603-09 , 122 S.Ct. 2428 ). Relying on Ring , the Ninth Circuit Court reversed the defendant’s death sentence. Schriro, 542 U.S. at 351 , 124 S.Ct. 2519 ; see Summerlin v. Stewart, 341 F.3d 1082, 1121 (9th Cir.2003). Thereafter, the Supreme Court reversed the Ninth Circuit, holding that “Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review.” Schriro, 542 U.S. at 358 , 124 S.Ct. 2519 . To hold otherwise would invite “criminal defendants] [who already] had a full trial and one round of appeals ... [to] *478 nevertheless continue to litigate [their] claims indefinitely in hopes that we will one day have a change of heart.” Id.

Considering that Ring is simply the application of the principles of Apprendi to a particular subject, namely capital sentencing schemes, and that the Supreme Court and Third Circuit have expressly held that neither holding applies retroactively to cases on collateral review, see Schriro, 542 U.S. at 358 , 124 S.Ct. 2519 ; Swinton, 333 F.3d 481 at 491 , it is clear that the rule established in thes

This text is long and has been trimmed here. Open the source document for the complete record.