# Charleston v. Gilmore

> District Court, E.D. Pennsylvania · March 29, 2018 · 305 F. Supp. 3d 612

URL: https://www.frixlaw.com/law-library/cases/7247663

## Case

- **Full name:** Brandon CHARLESTON v. Robert D. GILMORE, Superintendent at SCI-Greene The Attorney General of the State of Pennsylvania the District Attorney of Philadelphia County
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 29, 2018
- **Citations:** 305 F. Supp. 3d 612
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Leeson
- **Judges:** Leeson
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7247663

## How later opinions describe it (automated extraction)

- applying Seibert to review Charleston’s habeas corpus petition, after this Court refused to do so

## Opinion text

Joseph F. Leeson, Jr., United States District Judge
I. Introduction
Brandon Charleston has filed a counseled Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . He is challenging his August 2009 conviction for murder in the first degree and possession of an instrument of crime, following a trial by jury before the Honorable George W. Overton in the Court of Common Pleas of Philadelphia County. ECF No. 1. The charges arose from the June 15, 2008 shooting death of William Stanton inside the residence located at 2428 North 25 th Street in Philadelphia. In September 2009, Judge Overton sentenced Charleston to life imprisonment for the murder and a concurrent term of 3 to 24 months' imprisonment for the weapons offense.
Upon review of Charleston's Petition, United States Magistrate Elizabeth T. Hey issued a Report and Recommendation (R & R) recommending that the Petition be denied. ECF No. 21. Charleston timely filed objections to the R & R. ECF No. 24. After de novo review and for the reasons set forth below, the R & R is adopted in part and the Petition is denied.
II. Factual and Procedural History
The Court adopts the factual and procedural history as summarized by Magistrate Judge Hey in the R & R, as there are no objections to this portion of the R & R.
III. Standard of Review
12 When objections to a report and recommendation have been filed under 28 U.S.C. § 636 (b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. Sample v. Diecks , 885 F.2d 1099 , 1106 n.3 (3d Cir. 1989) ; Goney v. Clark , 749 F.2d 5 , 6-7 (3d Cir. 1984) ("providing a complete de novo determination where only a general objection to the report is offered would undermine the efficiency the magistrate system was meant to contribute to the judicial process"). "District Courts, however, are not required to make any separate findings or conclusions when reviewing a Magistrate Judge's recommendation de novo under 28 U.S.C. § 636 (b)." Hill v. Barnacle , 655 Fed.Appx. 142 , 147 (3d Cir. 2016). The district court "may accept, reject, or modify, in whole or in part, the findings and recommendations" contained in the report. 28 U.S.C. § 636 (b)(1)(C) (2009).
IV. Analysis
Charleston's Petition presents five claims for relief. First, he contends that the Pennsylvania courts acted contrary to clearly established federal law, under Miranda 2 , in allowing the admission at trial *618 of a statement he made to a detective while in custody. Second, he contends that the admission of evidence of his tattoo deprived him of a fundamentally fair trial. Charleston's third, fourth, and fifth claims each assert the ineffective assistance of trial counsel. Specifically, he claims he was deprived of effective assistance of counsel when his counsel (1) failed to request a proper instruction to the jury regarding the hearsay testimony of a witness; (2) failed to object when, in the course of the trial judge's closing instructions to the jury, the judge advised the jury that Charleston's "reputation for telling the truth is bad"; and (3) failed to ask that the jury be instructed as to the possible verdict of involuntary manslaughter.
The Magistrate Judge, in her R & R, recommended denying relief on each of these five claims. Charleston's Statement of Objections to the R & R presents five objections, or sets of objections, to the Magistrate Judge's analysis of each claim. The Court addresses Charleston's objections in turn. As explained below, although the Court agrees with the Magistrate Judge that Charleston is not entitled to relief on any of the five grounds presented in his Petition, the Court departs from the R & R's analysis in some respects and, accordingly, adopts the R & R in part.
A. Objection One, concerning the admission of Charleston's statement, is overruled.
i. Introduction
Charleston's first objection to the R & R concerns the admissibility of a statement he made to Homicide Detective Greg Singleton. As explained in detail below, Charleston was taken into police custody the evening of July 16, 2009, and was questioned by Detective Singleton the following morning. After obtaining some biographical information from Charleston, the detective asked Charleston about the circumstances of Stanton's death, and Charleston "described his involvement in the incident." The detective then provided the Miranda warnings to Charleston and took a formal statement from him, which the detective transcribed.
In a pretrial motion, Charleston moved to suppress his formal post-warning statement, 3 arguing that it was coerced in violation of Miranda. After a suppression hearing, the motion was denied, and the post-warning statement was read into the record during the trial. The Pennsylvania Superior Court affirmed the trial court's ruling that the statement was admissible.
In his present Petition, Charleston contends that Detective Singleton deliberately withheld the Miranda warnings until after he had obtained a confession (i.e., the initial, pre-warning statement) and that the formal, post-warning statement was therefore inadmissible under the rule established by the United States Supreme Court in the case of Missouri v. Seibert , 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004). The Magistrate Judge, in the R & R, found that Charleston's statement was admissible under Seibert and that Charleston was not entitled to relief on this claim. Charleston objects to this analysis and contends that Seibert , properly understood, renders his formal, post-warning statement inadmissible.
ii. Factual and procedural background
The factual background of Charleston's statement is as follows. Around 9:00 p.m. on July 16, 2008, approximately one month after William Stanton's death, Philadelphia *619 Police Officer Anthony Soliman and his partner, responding to a 911 call concerning the presence of a homicide suspect in the area, drove to 25 th and Hagert Streets, where they encountered Charleston, who matched the description of the suspect. Suppression Hearing, N.T., Aug. 17, 2009, at 8-34 (hereinafter "Suppr. N.T."). The officers told Charleston that they needed to ask him some questions but that he was not under arrest, and they asked him to sit in their police car. Id. at 10, 30. Charleston agreed to do so. Id. at 10, 30. While Charleston was sitting in the car, Clara Stanton, the mother of the victim, approached the officers and told them that she was the one who had called 911 and that Charleston had murdered her son, William Stanton. Id. at 12-13. Officer Soliman asked Charleston what he knew about William Stanton, and Charleston stated that he knew nothing. Id. at 14, 39, 43-44. Officer Soliman then called the Homicide Unit, and Detective Singleton, who had been investigating the Stanton murder, told Officer Soliman to handcuff Charleston and bring him to the station. Id. at 14, 80; Trial N.T., Aug. 24, at 5-12. 4 Officer Soliman told Charleston that some detectives wanted to talk to him, and the officers brought Charleston to the Homicide Unit of the police station, where they arrived at about 9:35 p.m. Suppr. N.T. at 33, 36.
After Charleston was brought to the station, Officer Soliman, along with Detective Singleton, took Charleston into an "interview room." Id. at 35, 52, 79. Officer Soliman did not know if the door was locked, but both Officer Soliman and Detective Singleton acknowledged that Charleston was not free to leave at that point. Id. at 35, 80.
Detective Singleton testified that after he helped place Charleston in the interview room that evening, he briefly spoke with Charleston but declined to interview him at that time because he appeared to be "under the influence of either alcohol or some narcotics substance." Id. at 51-53. Detective Singleton did not mention to Charleston anything about the Stanton killing. Id. at 54. The detective left Charleston alone in the room at about 10:00 p.m. and did not see him again until 10:00 a.m. the next morning. Id. at 78-79, 88.
At 10:00 a.m. the next morning, Detective Singleton, along with another detective, returned to the interview room where Charleston had been placed. Detective Singleton observed that Charleston "appeared to be sober and more coherent," and he gave him a cheese sandwich and water. Id. at 54, 90. He began asking Charleston biographical questions in order to fill out a biographical form. Id. at 54. Charleston was cooperative in answering these questions. Id. at 55. After Detective Singleton completed the biographical form, he "asked [Charleston] about the circumstances surrounding the murder of William Stanton, and [Charleston] explained in *620 some detail what occurred in the house." Id. at 56. Detective Singleton testified that when he first started speaking to Charleston about the incident, Charleston "was immediately receptive." Id. at 71. 5
Detective Singleton testified that, after Charleston explained what occurred in the house, "[a]t some point, I stopped [Charleston] and read him his rights and prepared the memorandum form for...the sheets, the warnings for his rights, and he signed off on them." Id. at 56. 6 Specifically, Detective Singleton used a "75-331 form," which "reflects the warnings and the information on who's being interviewed, the date, time, location, who's interviewing and who's present at the time of the interview." Id. at 57. Detective Singleton testified that, as reflected on the form, he read a series of warnings to Charleston concerning his rights to remain silent and to have an attorney, and Charleston provided his signature or initials under each warning, signifying that he understood his rights. Id. at 57-60.
Detective Singleton testified that he provided the Miranda warnings to Charleston at approximately 10:20 a.m. See Trial N.T., Aug. 21, at 160. 7 After Charleston signed the forms waiving his Miranda rights, Detective Singleton "then proceeded to take a statement from [Charleston], a formal statement." Suppr. N.T. at 56. In so doing, Detective Singleton asked Charleston a series of questions about the shooting, and the detective transcribed the questions and answers onto the above-mentioned 75-331 form, after which Charleston reviewed and signed the form, as well a "statement adoption attestation form." Id. at 56-70. The interview was completed at 12:20 p.m. Id. at 69. Detective Singleton testified that Charleston "seemed very cooperative and eager to tell his portion of the story" during the course of making his statement. Id. at 70. The interview was completed at 12:20 p.m., about two hours and twenty minutes after it had begun. Id. Later that day, Charleston was formally arrested for Stanton's murder. Id. at 71.
In Charleston's formal statement, which Detective Singleton read into the record during the suppression hearing and at trial, Charleston stated that on June 15, the day of the shooting, he and Stanton were standing outside on the street "talking about the Xanies" (Xanax pills) that Charleston wanted to buy from Stanton, when they decided to enter the residence on 2428 North 25 th Street to conduct the transaction. Id. at 62, 65, 66. After they entered the residence, they began to argue about the pills, at which point, according to Charleston's statement, "[Stanton] pulled out the gun and I started rustling with him over the gun. While I was rustling with him, the gun went off about three times. I took the gun and left the house threw it *621 into the sewer right on the corner of [25 th ] Street." Id. at 63. Charleston stated that the gun was "in both of our hands" when the shots were fired. Id. He added that "[i]t was self-defense" and "[i]t's not like I pointed it at him and shot him or nothing like that." Id. at 69.
Before trial, Charleston moved to suppress his formal, post-warning statement, arguing that, among other things, he was subjected to coercive conditions when he was kept in the interview room overnight. Id. at 105. The trial judge held a suppression hearing, at the conclusion of which he denied the motion, finding that the Miranda warnings were properly given, that there was "no evidence of coercion," and that, on the contrary, there was evidence of a lack of coercion, "given the provisions of food and the ability to sleep to ward off the effects of substances which caused the intoxication." Id. at 115-19.
3 On direct appeal, the Pennsylvania Superior Court affirmed the trial court's denial of Charleston's motion to suppress his statement. See Com. v. Charleston , 16 A.3d 505 (Pa. Super. Ct. 2011), abrogated on other grounds by In re L.J. , 622 Pa. 126 , 79 A.3d 1073 (2013). In his present Petition, Charleston contends that the Pennsylvania courts' determination that his statement was admissible at trial was contrary to clearly established federal law, particularly as set forth by the United States Supreme Court in the case of Missouri v. Seibert , 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004). 8
iii. United States Supreme Court case law on "two-step interrogations"
The interrogation at issue in this case is an example of what is known as a "two-step interrogation" (or "two-stage interview" or "question-first procedure"), in which officers first elicit a custodial statement without providing Miranda warnings and then, after providing the warnings, elicit a second statement. In this case, as detailed above, Detective Singleton initially elicited a statement from Charleston about his involvement in the Stanton murder and then, after obtaining this initial statement, read Charleston his Miranda rights and obtained a formal statement, which the detective transcribed and which was introduced at trial. In cases involving two-step interrogations, generally the initial, pre-warning statement is clearly inadmissible. Here, as noted above, there was no attempt to introduce Charleston's initial statement at trial. But often a contested issue in such cases, as here, is whether the second, post-warning statement is admissible. As the Magistrate Judge observed, an overview of the relevant United States Supreme Court case law on this issue is helpful in order to understand the parties' arguments concerning what constitutes "clearly established Federal law" in this area.
Two-step interrogations were first specifically addressed by the Supreme Court *622 in the case of Oregon v. Elstad , 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), in which an officer inadvertently elicited a custodial statement prior to administering Miranda warnings and then, after providing the warnings, obtained a more complete statement. Reversing the state court's determination that the second statement must be suppressed, the Supreme Court held that "absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion" with respect to the second statement. Id. at 314 , 105 S.Ct. 1285 . Rather, "[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made" and, "[a]s in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements." Id. at 318 , 105 S.Ct. 1285 . The Court held that "[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." Id. at 314 , 105 S.Ct. 1285 .
Nearly twenty years later, in Missouri v. Seibert , 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004), the Supreme Court again confronted a two-step interrogation, but under a very different set of facts. Whereas the initial interrogation in Elstad had been brief and inadvertent, the technique used in Seibert revealed a police strategy that was, by the officers' own admission, "adapted to undermine the Miranda warnings" and included pre-warning questioning that was "systematic, exhaustive, and managed with psychological skill." See id. at 616 , 124 S.Ct. 2601 (2004) (plurality). Although a majority of the Court determined that the suspect's post-warning statements in Seibert must be suppressed, the Justices were unable to agree on a majority opinion. Rather, the result in Seibert included a plurality opinion authored by Justice Souter, in which three other Justices joined; a concurrence by Justice Breyer, who joined the plurality opinion but wrote separately to articulate his own test; and an opinion by Justice Kennedy concurring in the judgment only. The four remaining Justices dissented.
Justice Souter's plurality opinion in Seibert concluded that the admissibility of statements made after a two-step interrogation depends on "whether Miranda warnings delivered midstream could be effective enough to accomplish their object," based on an objective inquiry from the perspective of the suspect, in which the following five factors should be considered:
[1] the completeness and detail of the questions and answers in the first round of interrogation, [2] the overlapping content of the two statements, [3] the timing and setting of the first and the second, [4] the continuity of police personnel, and [5] the degree to which the interrogator's questions treated the second round as continuous with the first.
Id. at 615 , 124 S.Ct. 2601 (plurality). The plurality opinion noted that "[b]ecause the intent of the officer will rarely be as candidly admitted as it was here...the focus is on facts apart from intent that show the question-first tactic at work." Id. at 617 n.6, 124 S.Ct. 2601 . 9
*623 Justice Kennedy, concurring only in the judgment, wrote that he agreed with the plurality's decision that Seibert's statements must be suppressed and he "agree[d] with much in the careful and convincing opinion for the plurality," but he wrote separately to set forth his own approach, which differed from the plurality's approach "in some respects." Id. at 618 , 124 S.Ct. 2601 (Kennedy, J., concurring). Justice Kennedy explained that he believed that the plurality's test, which "envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations,...cuts too broadly." Id. at 621-22 , 124 S.Ct. 2601 . In particular, Justice Kennedy believed that applying "a multifactor test...to every two-stage interrogation" could undermine the clarity of Miranda . Id. at 622 , 124 S.Ct. 2601 . Instead, Justice Kennedy wrote that he "would apply a narrower test applicable only in the infrequent case...in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." Id. In other words, under Justice Kennedy's approach, the court begins by asking whether a "deliberate two-step strategy has been used." Id. If so, then "postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made." Id. 10 If, however, a deliberate two-step strategy was not employed, then the court should apply the test previously articulated by the Supreme Court in Elstad , and the question simply would be whether the subsequent statement was voluntary. In sum, for Justice Kennedy, "[w]hen an interrogator uses [a] deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps." Id. at 621, 124 S.Ct. 2601 .
Finally, Justice O'Connor, writing for the four dissenters, rejected the plurality's approach because she believed it gave "insufficient deference to Elstad ," but she also disagreed with Justice Kennedy's approach, believing that it placed improper weight on the subjective intent of the officer. Id. at 622-29, 124 S.Ct. 2601 (O'Connor, J., dissenting).
Following the Supreme Court's decision in Seibert , a clear majority of Circuit courts have held that Justice Kennedy's concurrence is the controlling opinion in the case. This majority includes the Third Circuit, which held in United States v. Naranjo , 426 F.3d 221 (3d Cir. 2005), that "Justice Kennedy's opinion provides the narrowest rationale for resolving the issues raised by two-step interrogations where Miranda warnings are not administered until after police obtain an inculpatory statement." Id. at 231-32 . But in view of the divided nature of the Seibert decision, a small minority of Circuit courts have indicated that the Seibert case lacks a clear holding. See Reyes v. Lewis , 833 F.3d 1001 , 1002 (9th Cir. 2016) (collecting cases).
*624 iv. The Pennsylvania Superior Court's decision, Charleston's Petition, and the Magistrate Judge's Report and Recommendation
In upholding the denial of Charleston's pretrial motion to suppress, the Pennsylvania Superior Court closely examined the United States Supreme Court's decisions in Elstad and Seibert . Specifically rejecting the Third Circuit's holding in Naranjo and similar cases from other Circuits, the Superior Court concluded that " Seibert establishes no new binding precedent." Charleston , 16 A.3d at 525 . In this respect, the court stated that it was persuaded by a dissenting opinion authored by the Honorable Marsha S. Berzon of the Ninth Circuit, who reasoned that "while Justice Kennedy's was the crucial fifth vote for the result...Justice Kennedy's opinion is not the narrowest opinion embodying a position supported by at least five Justices in the majority" because his intent-based approach was "squarely rejected by seven Justices," i.e., the four dissenters as well as three of the four Justices who joined the plurality opinion. Id. at 525 (quoting United States v. Rodriguez-Preciado , 399 F.3d 1118 , 1138-40 (9th Cir. 2005) (Berzon, J., dissenting) ). 11 The Superior Court concluded that because Seibert did not establish new precedent, the court was required to apply the standard set forth in the Supreme Court's earlier Elstad case. Id.
Applying that standard, the Superior Court focused on whether Charleston's post-warning statement was knowing and voluntary. The court reviewed Detective Singleton's testimony that he read Charleston his rights, that Charleston was "immediately receptive" and was "very cooperative and eager to give his portion of the story," and that Charleston was given something to eat and drink during the interrogation. Id. at 526. "Under these circumstances," the court had "no difficulty concluding that [Charleston's] waiver of his rights and the subsequent statement were both knowing and voluntary." Id.
Charleston contends that the Superior Court's decision was contrary to clearly established federal law. That is, he contends that Justice Kennedy's concurrence in Seibert is clearly established federal law and that, under that standard, he was entitled to the suppression of his statement. In particular, he contends that the "sequence of interrogation demonstrates that the detectives deliberately withheld Miranda warnings until after obtaining a confession"; in other words, "the initial violation of Miranda was not merely hapless or inadvertent but was clearly the result of an intentional withholding designed to prevent [him] from invoking his rights in order to obtain a confession." Pet'r's Mem. Supp. 3, 5, ECF No. 9.
Respondents contend that, despite the Third Circuit's holding in Naranjo , Justice Kennedy's opinion is not clearly established federal law in light of the diversity of approaches that other federal Circuit courts (and state courts) have taken to Seibert . Further, Respondents contend that even if Justice Kennedy's concurrence were clearly established federal law, Charleston would not be entitled to relief, because there is no evidence that Detective Singleton deliberately withheld the Miranda warnings prior to Charleston's initial statement. Finally, Respondents contend that even if the state court's ruling was contrary to clearly established federal law, Charleston cannot show that the admission of his statement "had substantial and injurious effect or influence in determining the jury's verdict," under the standard *625 set forth by the United States Supreme Court in Brecht v. Abrahamson , 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993). 12
The Magistrate Judge reviewed the relevant case law in this area, including the Third Circuit's decision in Naranjo , and ultimately concluded that the Court need not decide whether Justice Kennedy's concurrence is clearly established federal law. Rather, the Magistrate Judge agreed with Respondents that, even under Justice Kennedy's approach, Charleston's statement would be admissible because "there is no evidence in the record that Detective Singleton's failure to Mirandize Charleston was purposeful or part of a two-stage technique as in Seibert . " R & R 23. The Magistrate Judge proceeded to review the Superior Court's analysis under Elstad and concluded that the Superior Court's decision was neither contrary to nor an unreasonable application of Elstad , nor did it result in an unreasonable determination of the facts. 13
Objecting to the Magistrate Judge's analysis, Charleston contends that "[t]he absence in the record of any specific reason for the omission of Miranda warnings prior to the first stage of interrogation should be held against the Respondent, not the Petitioner, as the Magistrate Judge has apparently concluded." Pet'r's Statement of Objections 11, ECF No. 24 (hereinafter "Pet'r's Objections"). He argues that there "should be no presumption that the failure to provide warnings was not deliberate, especially in a case where the detective conducts a second interview with full warnings." Id. at 11-12.
v. De novo review
At the outset, this Court acknowledges that the question of whether Justice Kennedy's concurrence is "clearly established Federal law" for the purposes of habeas corpus review is not easy to resolve. As mentioned above, a clear majority of the Circuit Courts-including the Third Circuit-have held that Justice Kennedy's concurrence constitutes the holding in Seibert . Dissenting from this majority, however, one Circuit court has held that Seibert lacks a clear holding, see United States v. Ray , 803 F.3d 244 , 272 (6th Cir. 2015) ("[W]e conclude that Seibert did not announce a binding rule of law with respect to the admissibility standard for statements given subsequent to midstream Miranda warnings."), and a number of other Circuit courts have found the matter to be uncertain, see United States v. Widi , 684 F.3d 216 , 221 (1st Cir. 2012) ("[H]ow to read the split decision in Seibert may be an open question."); 14 United States v. Heron , 564 F.3d 879 , 885 (7th Cir. 2009) ("In the *626 case of Seibert , the only thing we know for sure is that at least seven members of the Court rejected an intent-based approach and accepted some kind of exception to Elstad , even if the scope of that exception remains unclear."); 15 United States v. Carrizales-Toledo , 454 F.3d 1142 , 1151 (10th Cir. 2006) ("[A]rguably Justice Kennedy's proposed holding in his concurrence was rejected by a majority of the Court.").
4 Disagreement among the Circuits on a given issue "may be indicative of a lack of clarity in the Supreme Court's jurisprudence." See Hall v. Zenk , 692 F.3d 793 , 799 (7th Cir. 2012). But such disagreement does not necessarily mean that there is an absence of clearly established federal law on that issue. See Dennis v. Secretary, Pennsylvania Department of Corrections , 834 F.3d 263 (3d Cir. 2016) (en banc) (holding that it was clearly established federal law that inadmissible evidence could be the basis for a Brady 16 violation, despite the fact that a minority of Circuit courts had held that only admissible evidence could be the basis for such a violation); 17 see also Williams v. Bitner , 455 F.3d 186 , 193 (3d Cir. 2006) (stating, in the context of a qualified immunity analysis, that "[e]ven if our sister circuits had in fact split on the issue, we would not necessarily be prevented from finding that the right was clearly established"); but see Garrus v. Sec'y of Pennsylvania Dep't of Corr. , 694 F.3d 394 , 416 (3d Cir. 2012) (Hardiman, J., dissenting) ("The existence of a circuit split demonstrates that it is wrong to conclude that fairminded jurists could not disagree on the correctness of the state court's decision in this case." (internal quotation marks and alterations omitted) ); see generally Ruth A. Moyer, Disagreement About Disagreement: The Effect of A Circuit Split or "Other Circuit" Authority on the Availability of Federal Habeas Relief for State Convicts , 82 U. Cin. L. Rev. 831 , 847 (2014). Ultimately, however, the Court agrees with the Magistrate Judge that it need not resolve the question of whether Justice Kennedy's concurrence is "clearly established Federal law" because, even under Justice Kennedy's standard, Charleston's formal statement was admissible.
56 As set forth above, the threshold question in Justice Kennedy's test is whether a "deliberate two-step strategy has been used" or, in other words, if "the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." 18 In applying Justice *627 Kennedy's test, courts have "review[ed] the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness." United States v. Capers , 627 F.3d 470 , 479 (2d Cir. 2010) ; see United States v. Shaird , 463 Fed.Appx. 121 , 124 (3d Cir. 2012) (considering "the surrounding circumstances and [the officer's] testimony of his own actions and motivation" to determine deliberateness). 19 Where credible subjective evidence of the officer's intent is available, it will "of course be persuasive, and often decisive." See United States v. Moore , 670 F.3d 222 , 230 n.3 (2d Cir. 2012) ; Shaird , 463 Fed.Appx. at 124 ("Critically, [the officer] testified that his [pre-warning] conversation with the [defendant] was a deliberate strategy to elicit a confession"). But because such evidence often will be unavailable, "in most instances, the inquiry will rely heavily, if not entirely, upon objective evidence." Capers , 627 F.3d at 479 (2d Cir. 2010). In seeking guidelines for how to assess "objective evidence" in this context, courts have turned to the five factors articulated by the Seibert plurality, namely:
[1] the completeness and detail of the questions and answers in the first round of interrogation[;]
[2] the overlapping content of the two statements[;]
[3] the timing and setting of the first and the second [interrogations;]
[4] the continuity of police personnel[;] and
[5] the degree to which the interrogator's questions treated the second round as continuous with the first.
Seibert , 542 U.S. at 615 , 124 S.Ct. 2601 (plurality). Although these factors "were developed by the [ Seibert ] plurality to gauge whether the later Miranda warnings 'could be effective enough to accomplish their object,' " courts have found that they "likewise will often serve as helpful indicia for whether an alleged two-step interrogation was intended to circumvent Miranda. " See Moore , 670 F.3d at 230 . 20
A review of the evidence in this case leads the Court to conclude that Respondents have shown by a preponderance of the evidence that the detectives did not engage in a deliberate two-step strategy to deprive Charleston of his Miranda rights. The Court begins by observing that the record lacks any subjective evidence of Detective Singleton's intent. As set forth above, Detective Singleton testified that, prior to administering the Miranda warnings, he asked Charleston "about the circumstances surrounding the murder of William Stanton," in response to which Charleston "explained in some detail what occurred in the house," and that "at some point" thereafter the detective provided the Miranda warnings to Charleston. But Detective Singleton did not testify as to *628 why he did not provide the Miranda warnings before asking Charleston about the circumstances of Stanton's murder, nor did he testify as to why he chose to administer the warnings when he did.
Turning to the objective evidence, the first Seibert factor considers the "completeness and detail of the questions and answers in the first round of interrogation." In particular, courts have found that where the pre-warning questioning is "systematic, exhaustive, and managed with psychological skill," as in Seibert , it is more likely that the omission of the Miranda warnings was deliberate. See United States v. Aguilar , 384 F.3d 520 , 525 (8th Cir. 2004) (concluding that, under Seibert , "the Miranda warnings between the two questioning sessions did not serve the purpose of the dictates in Miranda ," where, inter alia , "the first questioning session consisted of more than routine booking questions, included some good cop/bad cop questioning tactics, and lasted approximately ninety minutes"). Conversely, when an interrogation is brief, it is more likely that the omission of Miranda warning was not deliberate. See United States v. Williams , 681 F.3d 35 , 44 (2d Cir. 2012) (determining that omission of Miranda warnings was not deliberate when, among other factors, the initial questioning was "brief and spare"); United States v. Materas , 483 F.3d 27 , 33 (1st Cir. 2007) (determining that omission of Miranda warnings was not deliberate where, among other factors, "the first questioning was not at all systematic or extensive" (internal quotation marks omitted) ); United States v. Street , 472 F.3d 1298 , 1314 (11th Cir. 2006) (determining that the omission was not deliberate where, among other factors, the pre-warning questioning was "brief and general"); but see United States v. Young , No. 15-50158, 720 Fed.Appx. 846 , 848-49, 2017 WL 6603511 , at *2 (9th Cir. Dec. 27, 2017) (finding detectives deliberately engaged in a two-step interrogation where, among other things, they interrogated the defendant "at the police station for at least twenty minutes without providing any Miranda warnings"). Similarly, where the pre-warning questioning is non-confrontational, it is more likely that the omission of Miranda warnings was not deliberate. See United States v. Nunez-Sanchez , 478 F.3d 663 , 668-69 (5th Cir. 2007) (determining that there was "no evidence of a deliberate attempt to employ a two-step strategy" when "[a]ll evidence suggests that [the suspect] was calm and cooperative, and the agents did not act with aggressiveness or hostility" during brief pre-warning questioning).
Here, Detective Singleton testified that he administered the Miranda warnings about twenty minutes after he entered the interview room that morning. Within that twenty-minute period, Detective Singleton gave Charleston water and a cheese sandwich, asked Charleston a series of biographical questions, and then asked Charleston about his involvement in the shooting. Moreover, within this brief span of time, there is no evidence that Detective Singleton's questioning of Charleston was in any respect systematic or "managed with psychological skill." Rather, according to Detective Singleton's testimony, he simply "asked [Charleston] about the circumstances surrounding the murder of William Stanton," and Charleston, in response, "seemed eager to tell his portion of the story" and "explained in some detail what happened in the house." Likewise, as indicated above, the trial judge found that there was no evidence of coercion before or during the questioning. The brief and non-confrontational pre-warning questioning in this case, then, is in sharp contrast with the intensive and extended pre-warning interview in Seibert , a factor that weighs in favor of finding that Detective Singleton's omission of the Miranda warnings was not deliberate.
*629 The fifth Seibert factor-concerning the degree to which the interrogator's questions treated the second round as continuous with the first-also weighs in favor of a finding of non-deliberateness in this case. In Seibert , as Justice Kennedy observed, the officer's intent to subvert Miranda was evidenced by the fact that the post-warning questioning "resembled a cross-examination" in which the officer "confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them." See Seibert , 542 U.S. at 621 , 124 S.Ct. 2601 (Kennedy, J., concurring); United States v. Gonzalez-Lauzan , 437 F.3d 1128 , 1136 (11th Cir. 2006) ("Thus the type of two-step questioning that falls within Justice Kennedy's narrow concurrence is the type used in Seibert , where officers in a calculated manner first obtained unwarned incriminating statements from a suspect, and then used those incriminating statements in the warned interrogation in order to undermine the midstream Miranda warnings." (emphasis added) ). Here, by contrast, Detective Singleton's post-warning questions were open-ended in nature; the detective did not pressure Charleston to conform his answers to his earlier statement, nor did the detective even refer back to that statement.
In addition to the first and fifth Seibert factors, there are other considerations weighing in favor of a finding of non-deliberateness in this case. As Respondents point out, Detective Singleton had declined to interview Charleston the previous night because he believed Charleston was not sober. Arguably, if Detective Singleton had been intent on subverting Miranda , he would have seized the opportunity to question Charleston when his judgment was possibly impaired. Further, as detailed above, on the night Charleston was taken into custody he told Officer Soliman that he knew nothing about the Stanton killing. Although the record does not reflect whether Detective Singleton and Officer Soliman discussed Charleston's answer, it is a fair assumption that they had done so, given that they worked together on the evening that Charleston was brought to the station. Accordingly, Detective Singleton might well have expected that Charleston, in response to a neutrally-worded question about "the circumstances surrounding the murder of William Stanton," would continue to claim that he knew nothing about the incident.
On the other hand, several of the Seibert factors weigh in the opposite direction. In particular, under the third and fourth Seibert factors, the two interrogations occurred at the same place and time and the same police personnel were present at each interrogation, considerations that weigh in favor of a finding of deliberateness. 21 On balance, however, the Court finds that there is a preponderance of evidence that Detective Singleton's initial omission of Miranda warnings was not a deliberate attempt to subvert Miranda. Particularly in view of the brief and non-confrontational nature of the initial questioning and the open-ended and similarly non-confrontational nature of the second questioning, the Court finds the detective's initial failure to read Charleston his Miranda rights, "though unfortunate and unexplained, seems much more likely to *630 have been a simple failure to administer the warnings rather than an intentional withholding that was part of a larger, nefarious plot." See Reinert v. Larkins , 379 F.3d 76 , 91 (3d Cir. 2004). Accordingly, the two-step interrogation in this case does not present the Court with "the infrequent case...in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." 22
789 Finally, the Court finds that even if Charleston's statement was erroneously admitted, the admission did not have "[a] substantial and injurious effect or influence in determining the jury's verdict," under the standard set for by Brecht v. Abrahamson , 507 U.S. 619 , 637, 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993). Under this test, the court may grant relief only if it has a "grave doubt" as to whether the error at trial had a substantial and injurious effect or influence. See Johnson v. Lamas , 850 F.3d 119 , 133 (3d Cir. 2017). In other words, "[t]here must be more than a 'reasonable probability' that the error was harmful." Id. (quoting Davis v. Ayala , --- U.S. ----, 135 S.Ct. 2187 , 2198, 192 L.Ed.2d 323 (2015) ). The court's role is to ask whether the constitutional error "substantially influenced the jury's decision." See Adamson v. Cathel , 633 F.3d 248 , 259-60 (3d Cir. 2011) (quoting O'Neal v. McAninch , 513 U.S. 432 , 436, 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995) ). "If, when all is said and done, the [court's] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand." Id. (quoting O'Neal, 513 U.S. at 437 , 115 S.Ct. 992 ). "The Supreme Court has cautioned that 'the uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict.' " Id. (quoting O'Neal , 513 U.S. at 435 , 115 S.Ct. 992 ).
As indicated above, Respondents contend that the admission of Charleston's statement did not cause Brecht prejudice in this case. This is because, in their view, Charleston's statement was not a "confession" but rather was a "substantially exculpatory explanation of events," Charleston "freely admitted at trial that he shot the victim (or at least that the gun discharged while he struggled for control of it)," and the evidence that Charleston murdered Stanton "would have been overwhelming even in the absence of his statement to police and testimony." Resp. 28-29, ECF No. 18.
Charleston, on the other hand, contends that the admission of the statement did cause Brecht prejudice in view of the fact that the statement was read to the jury, and that the prosecutor, in her closing argument, "argued that [Charleston] had drastically changed his story" at trial:
The prosecutor pointed out that in the Petitioner's statement to the police, he had told Detective Singleton that both of the parties had their hands on the firearm while all three shots were fired; however, after hearing the ballistician testify that the firearm would have jammed in that scenario, the Petitioner testified *631 at the trial that his hand was on the victim's arm and not on the firearm. Additionally, the prosecutor argued that in the police interview, the Petitioner had said that he had told his mother about self-defense, yet at trial, the Petitioner testified that he had not so informed his mother.
Pet'r's Objections 12.
The Court finds that, in light of the evidence presented at trial, the admission of Charleston's statement did not have a substantial and injurious effect or influence in determining the jury's verdict under Brecht . Charleston is correct that the prosecutor, in her closing argument, pointed out several inconsistencies between Charleston's statement and his trial testimony. But this was by no means the focus of the prosecutor's argument, nor was this the only evidence that served to undermine Charleston's credibility. Rather, there was a wide range of evidence pointing to Charleston's guilt and undermining his credibility.
Above all, the prosecutor showed that the account of the shooting that Charleston presented in his testimony at trial 23 was not believable in light of common sense and the other evidence presented at trial. As in his statement to Detective Singleton, Charleston testified at trial that on the day of the shooting, after he and Stanton had entered the home at 2428 North 25 th Street to conduct a purchase of Xanax pills, they got into an argument about the pills and Stanton pulled out a gun, which Charleston attempted to wrestle away from him. See Trial N.T., Aug. 24, at 33-41, 52-110. Charleston testified that during the struggle over the gun, his hands were on Stanton's wrists and forearm. Id. at 48, 101-110. (As indicated above, this differed from his statement, where he indicated that both of their hands were on the gun.) Charleston further testified that the gun fired several times and Stanton fell to the ground, facedown. Id. at 42-43, 109-119. As Stanton was lying on his stomach, Charleston asked Stanton if he was ok, but Stanton did not respond, and Charleston was not sure if Stanton had been shot. Id. at 112-118. After Stanton failed to respond to him, Charleston took the gun out of Stanton's hand, exited the home with the gun concealed under his shirt, and then threw the gun into a sewer. Id. at 44, 120-124. He testified that he threw the gun in a sewer because he was concerned that one of the neighborhood children might come across it if he left it in the house. Id. at 122-123.
As the prosecutor contended in her closing argument, common sense and the evidence presented at trial contradicted every aspect of this story. First, with respect to the shooting itself, forensic evidence showed that Stanton had been shot three times, in the chest, lower abdomen, and right thigh, and that the gunshot to his chest was fired from two to six inches away and traveled horizontally straight through Stanton's heart and lungs. See *632 N.T., Aug. 21, at 62-114. The evidence also showed that the gun from which the shots were fired requires that the trigger must be pulled for each shot fired, with a force of six to seven pounds. Trial N.T., Aug. 21, at 124-30. Given these facts, it is nearly impossible to imagine that the shooting occurred as Charleston testified that it did. That is, it is not credible that Charleston, who was smaller than Stanton, controlled Stanton's forearm and wrist in such a way that he caused Stanton to shoot himself three times-including one shot straight through the chest, from two to six inches away-applying six to seven pounds of pressure on the trigger each time. In short, as the prosecutor argued, Charleston's testimony that Stanton "shoots himself and then continues to shoot himself" does not make sense. See Trial N.T., Aug. 24, at 176.
Charleston's testimony concerning his conduct after the shooting is similarly incredible. As the prosecutor emphasized in her closing argument, the notion that Charleston did not realize that Stanton had been shot when, by Charleston's own account, Stanton was lying on the ground in an unresponsive state, is not believable. Moreover, according to Charleston's testimony, Stanton was his friend. But, as the prosecutor pointed out, after the shooting, Charleston made no effort to call 911 or otherwise seek help. Likewise, Charleston's account of his decision to dispose of the gun also makes little sense when, if Charleston's testimony about the circumstances of the shooting were true, the gun would have had only Stanton's fingerprints on it, which would have been powerful evidence in support of Charleston's account. Finally, the jury heard evidence that Stanton's body was found with only a set of keys, a cell phone, and $3 on his person. See Trial N.T., Aug. 20, at 96. But according to Stanton's mother, Stanton had over $500 on him earlier in the day, and Charleston testified that Stanton had Xanax pills. As the prosecutor argued, the fact that Stanton was found without the money and pills supports the prosecution's theory that Charleston robbed Stanton.
The jury also heard testimony that, in the hours after the shooting, Charleston denied to several persons that he had been at 2428 North 25 th Street or that he knew what had happened to Stanton. See Trial N.T., Aug. 19, at 88-89, 168-70. 24 In particular, Stanton's mother testified that on the afternoon of the shooting, after trying unsuccessfully to reach her son by phone, she saw Charleston walk by her house, coming from the direction of 2428 North 25 th Street. Trial N.T., Aug. 21, at 48-61. She asked Charleston if he had seen her son, as the two were good friends and she considered Charleston to be like a son to her. Id. at 48-52, 60-61. Charleston replied "no" and kept walking. Id. at 48-52.
In short, even in the absence of Charleston's statement, there was overwhelming evidence of Charleston's guilt and lack of credibility, and the prosecutor drew upon all of this evidence in making her closing argument. In particular, the prosecutor closely examined the account of the shooting that Charleston presented in his testimony and showed that even if one takes that account on its own terms-setting aside its contradictions with Charleston's statement-it is not believable. Accordingly, the Court finds that the admission of Charleston's statement did not have a substantial and injurious effect or influence in determining the jury's verdict under Brecht . Even without Charleston's statement, *633 there was overwhelming evidence that Charleston murdered Stanton. Charleston's first objection is overruled.
B. Objection Two, concerning the admission of tattoo evidence, is overruled.
10 Charleston's second objection concerns his claim that his due process rights were violated by the admission of evidence that he had a tattoo of the words "By any means necessary, f--- it, s--- happens." He contends that the admission of this evidence deprived him of a fundamentally fair trial because the prosecutor used this evidence to improperly launch an attack on his character. 25
The Magistrate Judge determined that Charleston procedurally defaulted on this claim because he failed to present this claim to the state courts. Rather, at the state level, Charleston challenged the admission of the tattoo evidence as being an error only in state evidentiary rulings, not a federal due process violation. The Magistrate Judge acknowledged that Charleston's brief in support of his direct appeal at the state level cited a federal case, namely, Boliek v. Delo , 912 F.Supp. 1199 (W.D. Mo. 1995), but the Magistrate Judge determined that Charleston's citation to Boliek , by itself, did not serve to notify the state courts that he was challenging the admission of the tattoo evidence on due process grounds. This is because the relevant finding in Boliek was that counsel's failure to object to the admission of irrelevant tattoo evidence violated the defendant's right to effective assistance of counsel, not that the admission of such evidence violated the defendant's due process rights. 26
Charleston objects that the Boliek opinion "went beyond the question of effective assistance of counsel in order to determine whether or not the underlying claim of the [defendant's] had arguable merit." Pet'r's Objections 17. But the Boliek opinion was clear that the issue on which it was ruling was the ineffectiveness of counsel: "This Court finds that trial counsel was ineffective. His performance and the prejudice petitioner suffered as a result of his performance undermine this Court's confidence in the outcome of the trial and of the penalty phase." Boliek , 912 F.Supp. at 1214 . The Boliek court made no determination as to whether admission of the tattoo evidence violated the defendant's due process rights. Accordingly, Charleston's citation to Boliek alone did not alert the state court that he was challenging the tattoo evidence on due process grounds, and Charleston's objection on this point is overruled. 27
C. Objections Three through Five, concerning the ineffective assistance of counsel, are overruled.
Charleston's final three objections concern claims of ineffective assistance of counsel.
*634 i. Objection Three, concerning counsel's failure to object to the trial court's limiting instruction for Clara Stanton's testimony, is overruled in part.
Charleston's first ineffectiveness of counsel objection concerns trial counsel's failure to object to a limiting instruction the trial court gave concerning the testimony of Clara Stanton, the mother of the victim.
During the trial, the prosecution called to the stand a witness named Nashua Sanders, a friend of Charleston and an acquaintance of the victim and the victim's mother, Clara Stanton. The prosecutor asked Ms. Sanders whether she had told Ms. Stanton that she (Sanders) had a conversation with Charleston in which Charleston stated that he planned to rob the victim. Trial N.T., Aug. 20, at 36. Sanders denied that she said this to Ms. Stanton, and she also denied that Charleston had ever told her such a thing. Id.
Following Nashua Sanders's testimony, the prosecutor called Ms. Stanton as a witness. When the prosecutor began to ask Ms. Stanton about whether she had a conversation with Nashua Sanders about what had happened to her son, defense counsel objected and a sidebar discussion was held concerning whether Ms. Stanton could testify about what Ms. Sanders had purportedly said to her. Id. at 63. The trial judge deferred issuing a definitive ruling on the matter and later that same afternoon heard further argument from the parties. The prosecutor argued that Ms. Stanton's testimony would be admissible under Pennsylvania Rule of Evidence 613(b), which permits the admission of extrinsic evidence of a witness's prior inconsistent statement under certain circumstances. See id. at 103. The prosecutor argued that this testimony was "classic impeachment," i.e., she would be impeaching Nashua Sanders by providing evidence of a prior inconsistent statement that she made to Ms. Sanders. Id. at 105. The trial court ruled that the testimony was admissible as extrinsic evidence of a prior inconsistent statement, but advised the attorneys that because the statement was hearsay, he would "give a limiting instruction because just [sic] the statement was said does not mean it's true." Id. at 108. The prosecutor then stated that she was not "asking for it to come in substantively. It's for impeachment purposes," id. at 108, to which the trial court responded, "I'll allow it under that limited circumstances and I'll give a limited instruction." Id. at 109. Defense counsel stated, "Yes, your Honor." Id.
Ms. Stanton was then recalled to the stand, where she testified that about three weeks after her son's death, Ms. Sanders told her about a conversation that she (Sanders) had with Charleston about a week before the shooting, in which Charleston said that he planned to rob the victim. Id. at 111-12. Following Ms. Stanton's testimony, the trial court gave the following limiting instruction:
Ladies and gentlemen, with regard to the testimony that you just heard, I'm just going to give you an instruction and that evidence is not necessarily to be accepted for the truth of the statements made by Ms. Sanders to Ms. Stanton, okay. It doesn't-they were statements and you will be given additional instructions at the appropriate time.
Id. at 116. There were no objections made to this instruction. No further instruction regarding this testimony was included in the closing instructions.
The parties agree that Ms. Stanton's testimony was admissible solely for the purpose of impeaching Ms. Sanders under Pennsylvania Rule of Evidence 613. Charleston contends that the trial court's instruction that Ms. Stanton's statements were "not necessarily" to be accepted for *635 the truth of the matter asserted was erroneous and prejudicial, and that trial counsel's failure to request a proper instruction deprived him of the effective assistance of counsel.
In its review of Charleston's appeal under Pennsylvania's Post-Conviction Relief Act (PCRA), the Superior Court determined that Charleston had waived this claim for two reasons. See Com. v. Charleston , 94 A.3d 1012 , 1021 (Pa. Super. Ct. 2014). First, the Superior Court determined that Charleston had failed to adequately develop an argument under Commonwealth v. Pierce , 515 Pa. 153 , 527 A.2d 973 (1987), which requires that, in order to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. The Superior Court determined that Charleston's briefing (1) "fail[ed] to develop an argument or present pertinent authority that the court's use of the colloquial expression 'not necessarily' rendered its instruction fatally equivocal"; (2) "fail[ed] to develop an argument that counsel had no reasonable basis not to request an additional instruction,"; and (3) failed to develop an argument that there exists a "a reasonable probability that, but for counsel's alleged unprofessional error in not requesting a second instruction, the result of the proceedings would have been different." Charleston , 94 A.3d at 1021 . Second, the Superior Court indicated that Charleston waived this claim under Pennsylvania Rule of Appellate Procedure 2119(a). 28 This is because Charleston "merely assume[d] that the statement at issue was introduced by the Commonwealth as substantive evidence of [his] intent to commit 'murder and robbery,' rather than as evidence of an inconsistent statement" and because he merely "relie[d] on a lengthy quotation from the prosecutor's closing argument" in support of this claim. Id. at 1022 .
In addition to its waiver analysis, the Superior Court also determined that Charleston's "challenge to the jury instruction which the trial court actually gave does not have merit," in view of the broad discretion that trial courts have in phrasing their instructions under Pennsylvania law. Id. at 1021 . Moreover, the court found that "trial counsel had an obvious reasonable basis not to seek an additional instruction, which would have necessarily reminded the jury of the underlying statement that [Charleston] planned to rob the victim." Id. Accordingly, the court concluded that Charleston's claim "is waived and would not merit relief." Id.
In reviewing this claim as presented in Charleston's habeas corpus Petition, the Magistrate Judge initially considered the question of whether the Court has an independent duty to review the Superior Court's determination that Charleston waived this claim under Pennsylvania law. As the Magistrate Judge observed, several *636 courts in this Circuit have determined that the question of whether a habeas corpus petitioner complied with state appellate rules "is a matter of state law, beyond [the federal court's] review." See Klein v. Kelchner , No. CIV.A. 02-8451, 2003 WL 22204561 , at *3 (E.D. Pa. Sept. 4, 2003) ; see also Leake v. Dillman , 594 Fed.Appx. 756 , 759 (3d Cir. 2014) ("[E]ven if the Superior Court incorrectly deemed waived certain of Petitioner's ineffective assistance claims ... habeas relief would not be warranted, as it is 'well established that a state court's misapplication of its own law does not generally raise a constitutional claim.' " (quoting Taylor v. Horn , 504 F.3d 416 , 448 (3d Cir. 2007) ) ). Nevertheless, relying on Rolan v. Coleman , 680 F.3d 311 (3d Cir. 2012), the Magistrate Judge determined that the Court has a duty to independently review the Superior Court's analysis of the waiver issue. R & R at 21. 29
Applying that analysis, the Magistrate Judge reached the same conclusion as the Superior Court, namely that Charleston waived this claim by failing to adequately develop his Pierce argument in his state court briefing. Specifically, the Magistrate Judge determined that Charleston failed to adequately present an argument that he had suffered actual prejudice, as his sole argument on this point in his state court briefing was that "[s]ince intent was the key issue for the jury to resolve, he was surely prejudiced." R & R at 53 (quoting Appellant's Brief at 12-13). Because Charleston "offered no argument or pertinent caselaw to establish that the admission of such hearsay evidence regarding motive could result in a different result," the Magistrate Judge concluded that he failed to substantially comply with Pennsylvania's appellate rules. R & R at 35-36. 30
Charleston objects that his PCRA briefing did, in fact, fairly present his argument on this issue. In particular, he directs this Court's attention to the dissenting opinion of the Honorable Judith Olson of the Superior Court, who disagreed with the conclusion of Superior Court majority's opinion that Charleston had waived this issue.
1112 Reviewing this issue de novo, first, with respect to the waiver issue, the Court agrees with the Magistrate Judge that, in light of the Third Circuit's opinion in Rolan , the Court has a responsibility to independently review the Superior Court's determination that Charleston waived this claim. Having reviewed Charleston's PCRA briefing, the Court finds that although Charleston's argument on this issue was somewhat lacking in legal citations and analysis, his argument was sufficiently clear to avoid waiver of the claim. As *637 Judge Olson observed, Charleston's brief "devoted over 1600 words, filling six and one-half pages, of his argument section to addressing this single issue," providing thirteen citations to trial testimony and four case citations. Charleston , 94 A.3d at 1029 (Olson, J., concurring and dissenting). In particular, with respect to the prejudice element of his claim, Charleston's argument that "intent was the key issue to resolve" was sufficiently clear where it was evident that one of the issues in this case was whether (as Charleston testified) the shooting occurred as the result of a struggle over Stanton's gun or whether (as the prosecutor argued) the shooting occurred as the result of Charleston's attempt to obtain Stanton's Xanax and money.
13 Second, with respect to the merits of Charleston's claim, this Court must defer to the Superior Court's determination that Charleston's "challenge to the jury instruction which the trial court actually gave does not have merit" under Pennsylvania law. See Priester v. Vaughn , 382 F.3d 394 , 402 (3d Cir. 2004) (holding that the federal court is "[b]ound by the state court's determination that the instruction at issue comported with state law").
14 Moreover, even if the jury instruction was erroneous, 31 the Court is unable to say that the state court's application of the Strickland 32 standard was unreasonable. See Grant v. Lockett , 709 F.3d 224 , 232 (3d Cir. 2013) ("When a federal habeas petition under § 2254 is based upon an ineffective assistance of counsel claim, '[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable,' which 'is different from asking whether defense counsel's performance fell below Strickland's standard.' " (quoting Harrington v. Richter , 562 U.S. 86 , 88, 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011) ) ). The Superior Court's conclusion that trial counsel may have made a calculated decision not to request a revised instruction, in an attempt not to highlight the testimony, is not unreasonable.
Accordingly, the Court defers to the Superior Court's decision that the instruction was not contrary to Pennsylvania law and, in any event, finds that the state court's application of the Strickland standard was not unreasonable. 33 Charleston's objection *638 is therefore overruled in part.
ii. Objection Four, concerning counsel's failure to object to the trial court's statement concerning evidence that Charleston's "reputation for telling the truth is bad," is overruled.
Charleston's second ineffectiveness of counsel objection, and fourth objection overall, concerns his trial counsel's failure to object to the trial court's statement that Charleston's "reputation for telling the truth is bad." On this issue, Charleston's Statement of Objections simply repeats the arguments presented in his earlier Memorandum in Support of his Petition and does not specify which aspects of the R & R's analysis, if any, he objects to.
During the trial, the prosecution read a stipulation to the jury that Charleston had three prior convictions-namely, that he had been found guilty of theft on September 1, 2004, of unauthorized use of an automobile on December 17, 2004, and of theft on July 26, 2005. Trial N.T., Aug. 24, at 146. Then, in the closing instructions, the judge stated the following:
The defendant took the stand as a witness. In considering the defendant's testimony [, y]ou are to follow the general instructions I gave you for judging the credibility of witnesses. You should not disbelieve the defendant's testimony merely because he is the defendant.
There was evidence tending to prove that the defendant has prior criminal convictions. And I'm speaking of the record introduced by the Commonwealth by stipulation. The assistant district attorney introduced evidence tending to show that the defendant's reputation for telling the truth is bad.
This evidence is not evidence of the defendant's guilt. You must not infer guilt from the evidence of prior convictions. This evidence may be considered by you for one purpose only, that is, to help you judge the credibility and weight of the testimony given by the defendant as a witness in this trial.
In considering the evidence of prior convictions, you may consider the types of crimes committed, how long ago they were committed, and how it may affect the likelihood that the defendant has testified truthfully in this case.
Id. at 226-27 (emphasis added).
In his Petition, Charleston contends that the trial judge conflated crimen falsi evidence and credibility evidence, and that there was, in fact, no evidence presented at trial that his "reputation for telling the truth is bad." He claims that his counsel's failure to object to the judge's instruction on this point deprived him of the effective assistance of counsel.
1516 Applying the Strickland standard, the Magistrate Judge determined that counsel's failure to object was not objectively unreasonable in the context of the case. As the Magistrate Judge points out, the trial court's reference to Charleston's reputation was "sandwiched between sentences referring to Charleston's prior convictions." R & R at 42. Accordingly, "[r]ather than objecting and having the court focus its attention even further on Charleston's prior convictions, perhaps even repeating that he had two theft convictions and one conviction for unauthorized use of a vehicle, counsel may have strategically chosen to remain silent on the issue." Id. With respect to the prejudice element of Strickland , the Magistrate Judge concluded that "it is unlikely that the jury was well-versed in Pennsylvania evidentiary law or that it appreciated the distinction between Charleston's prior convictions and a reputation for untruthfulness" and, furthermore, "the jury had other reasons to question Charleston's credibility," including the crimen falsi evidence *639 and the discrepancies between his version of events and the physical evidence set forth at trial. Id. Accordingly, the Magistrate Judge concluded that Charleston "has failed to establish a reasonable probability that counsel's failure to object to the judge's use of the term reputation during the charge affected the outcome of the trial." Id.
After de novo review of this matter, the Court adopts the R & R's analysis of this issue and the objection is overruled.
iii. Objection Five, concerning counsel's failure to request an involuntary manslaughter instruction, is overruled in part.
In his final objection, Charleston argues that his trial counsel was ineffective when he failed to request a jury instruction for involuntary manslaughter. 34 The Superior Court determined that, like Charleston's claim concerning Ms. Stanton's testimony, this claim was waived because Charleston failed to develop an argument for his claim under the Pierce test. Further, the court determined that Charleston's claim would not merit relief because, among other things, involuntary manslaughter was not "at issue in the trial." Charleston , 94 A.3d at 1026 . Moreover, the court's "independent review of the pertinent authority confirm[ed] that there is no arguable merit to [Charleston's] claims" on this issue. Id. at 1027 . Accordingly, the Superior Court concluded that "[t]rial counsel's strategic decision not to pursue [the] competing theor[y] of ... involuntary manslaughter with requested instructions had a reasonable basis." Id. Finally, the Superior Court stated that it "discern[ed] no basis to find trial counsel ineffective, based on the information supplied by [Charleston], for pursuing his claim of self-defense and presenting the jury with a consistent theme and strategy of the case." Id.
The Magistrate Judge agreed with the Superior Court that Charleston waived this claim by failing to adequately brief it, concluding that Charleston failed to provide any support in his state court briefing for his contention that trial counsel "could have no reasonable basis" for failing to request this instruction. R & R at 37. Likewise, the Magistrate Judge determined that Charleston's assertion that "the outcome of this trial may well have been different" had counsel requested the instruction was insufficient to support an argument for prejudice under Strickland. 35
17 Beginning with the waiver issue, although it is true that Charleston's PCRA briefing did not include significant analysis for each aspect of this claim, this Court finds that he sufficiently presented the *640 claim. As Judge Olson observed in her dissent:
[Charleston] allotted over 900 words, approximately four pages, to the portion of his argument addressing counsel's alleged dereliction in failing to seek a jury instruction on involuntary manslaughter and/or homicide by misadventure.... He cited to the notes of testimony six times. He cited approximately ten cases from this Commonwealth addressing relevant legal issues. He discussed how these cases were applicable to the case at bar and why he was entitled to relief.
Charleston , 94 A.3d at 1035 (Olson, J., dissenting and concurring).
1819 With respect to the merits of this claim, the Superior Court's majority opinion determined-despite a dissent from Judge Olson on this point-that an involuntary manslaughter instruction was not appropriate in this case under Pennsylvania law. As Respondents indicate, this Court is "[b]ound by the state court's determination" on this issue of state law. See Priester , 382 F.3d at 402 . Accordingly, the Court must defer to the Superior Court's ruling that Charleston was not entitled to an involuntary manslaughter conviction under Pennsylvania law. Further, the Court finds that the Superior Court reasonably concluded that Charleston's counsel was not ineffective when he presented "a consistent theme and strategy of the case" of self-defense, rather than seek an involuntary manslaughter instruction. As the Superior Court observed, in Charleston's statement to Detective Singleton and in his testimony, Charleston maintained that he acted in self-defense. As the Superior Court reasonably concluded, an involuntary manslaughter charge might have obscured this consistent theme. Charleston's objection is therefore overruled in part.
V. The Court will not issue a certificate of appealability.
20212223 When a district court issues a final order denying a § 2254 petition, the court must also decide whether to issue a certificate of appealability (COA). See 3d Cir. L.A.R. 22.2. A certificate of appealability is appropriate when a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel , 529 U.S. 473 , 484, 120 S.Ct. 1595 , 146 L.Ed.2d 542 (2000). By contrast,
when the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Id. "A prisoner seeking a COA must prove 'something more than the absence of frivolity' or the existence of mere 'good faith' on his or her part." Miller-El v. Cockrell , 537 U.S. 322 , 338, 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003) (quoting Barefoot v. Estelle , 463 U.S. 880 , 893, 103 S.Ct. 3383 , 77 L.Ed.2d 1090 (1983) ). But the Supreme Court does "not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus." Id. "Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received *641 full consideration, that petitioner will not prevail." Id.
24 Here, the Court has ruled on the merits of Charleston's first, third, fourth, and fifth claims. The Court denied his second claim on procedural grounds. 36 For the reasons set forth herein and in the R & R, Charleston has not made a substantial showing of the denial of a constitutional right, nor would jurists of reason find the Court's assessment debatable or wrong. 37 The Court therefore finds that a certificate of appealability is not warranted for Charleston's claims.
VI. Conclusion
After de novo review of the habeas corpus petition and supporting briefs, the state court records, the R & R, and Charleston's objections to the R & R, and for the reasons set forth herein, the R & R is adopted in part. The Court adopts the Magistrate Judge's recommendations with respect to Charleston's first, second, and fourth claims in their entirety. With respect to Charleston's third and fifth claims, the Court does not adopt the recommendation that these claims be deemed waived; rather, the Court finds that these claims do not merit relief. Accordingly, the Court adopts the Magistrate Judge's conclusion that Charleston is not entitled to relief on any of his claims and the recommendation that his Petition be denied. The Court also adopts the conclusion that there has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
For the above stated reasons, Charleston's Petition is denied. A separate order follows.
REPORT AND RECOMMENDATION
October 20, 2016
ELIZABETH T. HEY, U.S.M.J.
BRANDON CHARLESTON
v.
ROBERT D. GILMORE, et al. 1
*642 This is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 , on behalf of Brandon Charleston ("Charleston"), who is currently incarcerated at SCI-Greene. For the reasons that follow, I recommend that the petition be denied.
I. FACTS AND PROCEDURAL HISTORY
On August 25, 2009, following a trial before the Honorable George W. Overton of the Court of Common Pleas of Philadelphia County, a jury convicted Charleston of murder in the first degree and possession of an instrument of crime. N.T. 8/25/09 at 7-8. The charges arose from the June 15, 2008 shooting death of William Stanton inside 2428 North 25 th Street in Philadelphia. 2 On September 23, 2009, Judge Overton sentenced Charleston to life imprisonment for murder and a concurrent term of 3 -to- 24 months' imprisonment for the weapons offense. Commonwealth v. Charleston , CP-51-CR-0010713-2008, Docket Sheet (Phila C.C.P.) ("Docket Sheet"); see also Commonwealth v. Charleston , CP-51-CR-0010713-2008, Opinion (Phila. C.C.P. May 27, 2010) (Overton, J.) ("Trial Ct. Op.").
After Judge Overton denied Charleston's post-sentence motions, Charleston filed a timely direct appeal claiming:
1. The trial court erred in failing to suppress the statements he made to the police as the fruits of an unlawful arrest and detention and as the fruit of impermissible questioning in violation of Missouri v. Seibert , 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004).
2. The court erred in permitting impermissible hearsay through the decedent's mother.
3. The court erred in permitting evidence regarding Charleston's tattoos.
4. The court erred in permitting hearsay evidence regarding the search of the sewer.
5. The court erred in precluding Charleston from presenting evidence that the victim was known to have a criminal record for violent conduct.
Commonwealth v. Charleston , CP-51-CR-0010713-2008, Statement of Matters Complained of on Appeal (Phila. C.C.P. filed Dec. 3, 2009). On May 27, 2010, Judge Overton issued an opinion recommending that the judgment of sentence be affirmed. Trial Ct. Op. On February 18, 2011, the Superior Court affirmed the judgment of sentence. Commonwealth v. Charleston , 3226 EDA 2009 (Pa. Super. Feb. 18, 2011) ("Superior Ct. Direct Op."). The Pennsylvania Supreme Court denied Charleston's petition for allowance of appeal on September 27, 2011. Commonwealth v. Charleston , No. 280 EAL 2011, 612 Pa. 696 , 30 A.3d 486 (Pa. Sept. 27, 2011).
On February 2, 2012, Charleston filed a counseled petition pursuant to Pennsylvania's Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541 - 9551, claiming that trial counsel was ineffective in:
1. failing to request a jury instruction regarding hearsay testimony provided by the victim's mother,
2. failing to object to improper remarks by the prosecutor in closing argument regarding his characterization of Charleston's credibility and a possible motive,
3. failing to object when the court instructed the jury that the prosecution had proven Charleston had a *643 bad reputation for telling the truth, and
4. presenting a defense of self-defense, and failing to argue homicide by misadventure or criminal negligence.
Commonwealth v. Charleston , CP-51-CR-0010713-2008, Petition for Relief under the Post Conviction Relief Act (Phila. C.C.P filed Feb. 2, 2012). 3 On November 26, 2012, Judge Overton denied Charleston's PCRA petition without a hearing. Commonwealth v. Charleston , CP-51-CR-0010713-2008, Order (Phila. C.C.P. Nov. 26, 2012).
Charleston filed a timely appeal presenting the same four claims listed above. Commonwealth v. Charleston , CP-51-CR-0010713-2008, Statement of Errors to be Complained of on Appeal (Phila. C.C.P. filed Dec. 24, 2012). On January 11, 2013, Judge Overton issued an opinion explaining his denial of PCRA relief. Commonwealth v. Charleston , CP-51-CR-0010713-2008, Opinion (Phila. C.C.P. Jan. 11, 2013). On June 6, 2014, the Superior Court affirmed the denial of PCRA relief. Commonwealth v. Charleston , 94 A.3d 1012 (Pa. Super. 2014) (" Superior Ct. PCRA Op."). The Pennsylvania Supreme Court denied Charleston's petition for allowance of appeal on December 23, 2014. Commonwealth v. Charleston , 434 EAL 2014, 628 Pa. 636 , 104 A.3d 523 (Pa. Dec. 23, 2014).
Charleston's counsel filed this habeas petition on his behalf on March 20, 2015, claiming:
1. "The Pennsylvania Courts have erroneously and unreasonably applied the rule of ... Seibert ..., in allowing the admission of the confession of Petitioner which was obtained after the assigned detective conducted a full custodial interrogation of the Petitioner without giving him Miranda warnings."
2. "The Pennsylvania Courts have erroneously and unreasonably applied the due process rule of Spencer v. Texas , 385 U.S. 554 , 563[ 87 S.Ct. 648 , 17 L.Ed.2d 606 ] (1967), by allowing tattoo evidence which deprived Petitioner of his right to a fundamentally fair trial."
3. "The Pennsylvania Courts erroneously and unreasonably applied Strickland v. Washington , [ 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 ] (1984), in rejecting without a hearing Petitioner's claims of ineffective assistance of counsel and thus denying him due process of law." The petition identifies three specific instances of ineffectiveness:
a. Trial counsel failed to request a proper instruction regarding the hearsay testimony of the victim's mother,
b. Trial counsel failed to object when the court instructed the jurors that Petitioner had a bad reputation for telling the truth in his closing instructions.
c. Trial counsel failed to ask that the jury be instructed on involuntary manslaughter or homicide by misadventure.
Doc. 1 ¶ 12 GROUNDS ONE-THREE. Charleston's counsel filed a memorandum of law in support of the petition on August 7, 2016. Doc. 9. On May 9, 2016, the District Attorney filed a response to the habeas petition, arguing that all but the first of *644 Charleston's claims are procedurally defaulted and all of them are meritless. Doc. 18. Petitioner's counsel filed a reply on June 22, 2016. Doc. 20. The Honorable Joseph F. Leeson referred the case to the undersigned for a Report and Recommendation. Doc. 2.
II. LEGAL STANDARDS
A. Exhaustion & Procedural Default
Before the federal court can consider the merits of a habeas claim, the petitioner must comply with the exhaustion requirement of section 2254(b). Exhaustion requires a petitioner to "give 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). In addition, federal constitutional claims must be fairly presented to the state courts, meaning that the petitioner must present the same factual and legal basis for the claim to the state court to put the state court "on notice that a federal claim is being asserted." McCandless v. Vaughn , 172 F.3d 255 , 261 (3d Cir. 1999).
The doctrine of procedural default is closely related to the exhaustion requirement. If the petitioner has failed to present his claims to the state court and he is now precluded from doing so based on a state procedural rule, the claim is subject to the rule of procedural default. See Werts v. Vaughn , 228 F.3d 178 , 192 (3d Cir. 2000). Likewise, it is not enough that the petitioner present his claims to the state court; he must also comply with the state's procedural rules in presenting his claims, thereby giving the state courts a full and fair opportunity to address them. A failure to do so results in a procedural default. Coleman v. Thompson , 501 U.S. 722 , 750, 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991).
[A] state prisoner's habeas claims may not be entertained by a federal court "when (1) 'a state court has declined to address those claims because the prisoner had failed to meet a state procedural requirement,' and (2) 'the state judgment rests on independent and adequate state procedural grounds.' " Walker v. Martin , 562 U.S. [307, 316], 131 S.Ct. 1120 , 179 L.Ed.2d 62 (2011) (quoting Coleman , 501 U.S. at 729 -30 , 111 S.Ct. 2546 ).
Maples v. Thomas , 565 U.S. 266 , 132 S.Ct. 912 , 922, 181 L.Ed.2d 807 (2012). A decision based on a state procedural rule is considered independent if it does not rely on the merits of the federal claim or rest primarily on federal grounds. Harris v. Reed , 489 U.S. 255 , 260, 109 S.Ct. 1038 , 103 L.Ed.2d 308 (1989) ; see also Ake v. Oklahoma , 470 U.S. 68 , 75, 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985). "[A] state procedural ground is not 'adequate' unless the procedural rule is 'strictly or regularly followed,' " Johnson v. Mississippi , 486 U.S. 578 , 587, 108 S.Ct. 1981 , 100 L.Ed.2d 575 (1988), and the rule "speaks in unmistakable terms." Doctor v. Walters , 96 F.3d 675 , 683 (3d Cir. 1996) (abrogated on other grounds, Beard v. Kindler , 558 U.S. 53 , 130 S.Ct. 612 , 175 L.Ed.2d 417 (2009) ). Thus, the procedural disposition must comport with similar decisions in other cases such that there is a firmly established rule that is applied in a consistent and regular manner "in the vast majority of cases." Banks v. Horn , 126 F.3d 206 , 211 (3d Cir. 1997) (quoting Dugger v. Adams , 489 U.S. 401 , 410 n.6, 109 S.Ct. 1211 , 103 L.Ed.2d 435 (1989) ).
If a claim is found defaulted, the federal court may address it only if the petitioner establishes cause for the default and prejudice resulting therefrom, or that a failure to consider the claim will result in a fundamental miscarriage of justice. Werts , 228 F.3d at 192 (citing *645 McCandless , 172 F.3d at 260 ; Coleman , 501 U.S. at 731 , 111 S.Ct. 2546 ). To meet the "cause" requirement to excuse a procedural default, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Id. at 192-93 (quoting and citing Murray v. Carrier , 477 U.S. 478 , 488-89, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986) ). To establish prejudice, the petitioner must prove " 'not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.' " Id. at 193.
In order for a petitioner to satisfy the fundamental miscarriage of justice exception to the rule of procedural default, the Supreme Court requires that the petitioner show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo , 513 U.S. 298 , 327, 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995) (quoting Carrier , 477 U.S. at 496 , 106 S.Ct. 2639 ). This requires that the petitioner supplement his claim with "a colorable showing of factual innocence." McCleskey v. Zant , 499 U.S. 467 , 495, 111 S.Ct. 1454 , 113 L.Ed.2d 517 (1991) (citing Kuhlmann v. Wilson , 477 U.S. 436 , 454, 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986) ). In other words, a petitioner must present new, reliable evidence of factual innocence. Schlup , 513 U.S. at 324 , 115 S.Ct. 851 .
B. Merits Review
The federal courts' habeas review is limited in nature. See Werts , 228 F.3d at 195 (describing limits on judicial review imposed by the Antiterrorism and Effective Death Penalty Act of 1996). A petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim "resulted in a decision contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or if (2) the adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d)(1), (2). Factual issues determined by a state court are presumed to be correct, rebuttable only by clear and convincing evidence. Werts , 228 F.3d at 196 (citing 28 U.S.C. § 2254 (e)(1) ).
The Supreme Court has explained that "[u]nder the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor , 529 U.S. 362 , 412-13, 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). With respect to "the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413 , 120 S.Ct. 1495 . The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409 , 120 S.Ct. 1495 . As the Third Circuit has noted, "an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts , 228 F.3d at 196 (citing Williams , 529 U.S. at 411 , 120 S.Ct. 1495 ).
*646 III. DISCUSSION 4
A. Evidence Summary
Before turning to Charleston's claims, I will summarize the trial evidence. As noted above, William Stanton was shot and killed inside 2428 North 25 th Street on June 15, 2008. The Commonwealth's theory was that Charleston shot Mr. Stanton "over drugs and money." N.T. 8/18/09 at 178. In her opening statement, the prosecutor acknowledged that Mr. Stanton was a known drug dealer in the neighborhood. Id. at 180-81. 5 There were no witnesses to the shooting.
Mr. Stanton lived with his mother at 2424 North 25 th Street. N.T. 8/19/09 at 7; 8/20/09 at 31-32, 42. Their next door neighbor David Taylor testified that he was in his kitchen on the late morning, early afternoon of June 15, 2008, when he heard three or four noises that sounded like a car backfiring, fire crackers, or gunshots. N.T. 8/19/09 at 74, 79-80. A few seconds later he came outside, and twenty or thirty seconds after that he saw Charleston come out of 2428 North 25 th Street and jog across the street and down Hagert Street. Id. at 83-85.
Travis Leslie testified that he and his brother Tracey Leslie lived at 2428 North 25 th Street. Travis testified that he left the house for work at about 11:30 a.m. N.T. 8/19/09 at 154, 157-58, 164. Between 1:30 and 2:00, Travis received a call telling him that something had happened at his house. Id. at 165. Travis then called his brother, Tracey. Id. Tracey Leslie testified that when he arrived back home he saw Mr. Stanton lying unresponsive on the floor between the living room and dining room. Id. at 20-22, 26-27. Tracey saw a blood stain and hole towards the back of Mr. Stanton's shirt, and he could not find a pulse. Id. at 28-29. He went outside and called 911. Id. at 21-22, 29. Travis Leslie testified that when he arrived at the house, he saw paramedics taking Mr. Stanton out on a stretcher. Id. at 166. He also saw Charleston that night. When Travis asked Charleston if he knew what happened in the house, Charleston replied that he was not there. Id. at 169, 172.
The victim's mother, Clara Stanton, testified that her son had between $600 and $650 with him when she last saw him between 10:00 and 11:00 in the morning of June 15, 2008. N.T. 8/20/09 at 45-46, 89-90. She then went to sleep, and when she woke up, she could not find or reach him. 6 Id. at 44. When she left to go shopping at 2:15 or 2:30, she saw Charleston coming from the direction of 2428 North 25 th Street and asked if he had seen William, and Charleston replied that he had not.
*647 Id. at 48, 51. Neither the money nor Mr. Stanton's wallet or identification card was ever recovered. Id. at 47, 96.
After her son's death, Ms. Stanton had a conversation with Nashua Sanders, who frequently visited family next door to Ms. Stanton. 7 According to Ms. Stanton, three weeks after her son's death, Ms. Sanders told her about a conversation that she (Ms. Sanders) had with Charleston about a week before the shooting, in which Charleston said that he planned to rob Mr. Stanton. N.T. 8/20/09 at 109, 111-12. 8 Ms. Stanton also testified that she did not see Charleston in the days following the incident, which was unusual because he was normally at her house every morning. Id. at 56-57. The day after the murder, people in the neighborhood told her that Charleston was involved in her son's death. Id. at 57.
On July 16, 2008, nearly a month after Mr. Stanton's death, Officer Anthony Soliman and his partner received information regarding a suspect in a gang-related homicide. N.T. 8/20/09 at 166-67. The officer observed Charleston on the street near 25 th and Hagert Streets and believed that he matched the description. Id. at 168. After Charleston entered a house at 2432 North 25 th Street, the officer knocked on the door and asked to speak to Charleston. Charleston came out, was patted down for weapons, and was placed in the back of the patrol car. Id. at 169-70. Charleston denied any knowledge of the homicide the officers were investigating. Id. at 171. However, Ms. Stanton approached them and told Officer Soliman that the person in the back of the car killed her son. Id. at 172. Officer Solliman transported Charleston to the police station where homicide detectives eventually interviewed him. Id. at 173, 175.
Homicide Detective Greg Singleton spoke with Charleston when he was brought to the station, but believed he was under the influence of alcohol. N.T. 8/21/09 at 150. 9 At about 10:00 a.m. the next day, Detective Singleton began questioning Charleston, starting with routine biographical information (birthdate, height, weight, nickname, etc.). Id. at 151. The detective then "asked him about the incident involving the murder of William Stanton. And he described his involvement in the incident. And at some point I stopped him and ... read him his rights and ... proceeded to take a formal interview ...." Id. at 154. 10 According to the detective, Charleston "seemed eager to speak with me. He was calm and cooperative." Id.
The interview was conducted in question-and-answer form, and Detective Singleton read the interview into the trial record. N.T. 8/21/09 at 162-68. Charleston implicated himself in the shooting, but maintained that the victim pulled the gun and the shots were fired while the two were wrestling over the gun. Id. at 162-64, 168.
Charleston, who took the stand in his own defense, testified to the same effect, *648 but in greater detail. N.T 8/24/09 at 40-43. He described himself and Mr. Stanton as "close friends" who were "always together." Id. at 33. Charleston stated that on the day in question, he and Mr. Stanton were smoking marijuana together on the corner and each purchased Xanax from a dealer passing by, and each took two Xanax pills (4 miligrams each). Id. at 52-56, 58. They entered the corner house to avoid being harassed by police, and a disagreement ensued because Charleston wanted to buy some of Mr. Stanton's Xanax but Mr. Stanton believed Charleston should have just purchased more from the dealer on the street. Id. at 38-39, 85-87. Mr. Stanton pulled a gun from his waistband, pointed it in Charleston's face, and snatched the sunglasses off Charleston's face. Id. at 40, 42, 92-95, 99. Mr. Stanton threatened to shoot Charleston for disrespecting him. Id. at 40, 96. Charleston grabbed the wrist of the hand holding the gun. Id. at 42. While they were wrestling, the gun went off, three shots in a row. Id. at 42, 109-11. After the shots, Charleston let go of Mr. Stanton's arm and they both fell to the ground. Id. at 43, 113. Charleston testified, as he had reported in his statement to Detective Singleton, that he took the gun and threw it in the sewer at the corner of Hagert. Id. at 44-45, 120; N.T. 8/21/09 at 163.
Dr. Sam Gulino, the Chief Medical Examiner, testified that Mr. Stanton died as a result of multiple gunshot wounds. N.T. 8/21/09 at 69. Dr. Gulino described three gunshot wounds which resulted in six visible wounds as each bullet traveled through Mr. Stanton's body. Id. at 70. 11 One shot entered the left chest area, traveled horizontally through both lungs and the heart, and exited the right side of Mr. Stanton's back. Id. at 74-75, 80-81. 12 Another shot entered Mr. Stanton's right lower abdomen just above the groin and exited the lower part of the right buttock. Id. at 75. A third shot entered the lower right thigh and exited thought the outer part of the right knee. Id. at 76. Based on the gun powder residue or soot on the entrance wounds and clothing, Dr. Gulino testified that the chest wound was not a contact wound, but was within eight inches of the gun's muzzle when it was fired. Id. at 77-78. Markings around the wound to the pelvic area showed the weapon was fired from less than three feet away, and the absence of markings around the thigh wound indicated that the weapon was fired from at least two feet away. Id. at 78-79. According to the toxicology report, the only drug in Mr. Stanton's system was Zanax (Alprazolam ). Id. at 86.
The Commonwealth also called Officer Louis Grandizio as a firearms expert. N.T. 8/21/09 at 116. Officer Grandizio examined two fired cartridge casings that were retrieved from the scene and a bullet retrieved from Mr. Stanton, all of which were .45 caliber. Id. at 123-25. Markings on the casings showed they were fired by the same weapon, but there was no way to determine whether the bullet was fired from the same gun. Id. at 125-26. The officer explained how a .45 caliber semi-automatic handgun works and explained that one must pull the trigger each and every time for the gun to fire. Id. at 127-28. Any obstruction to the slide on the exterior of the gun will jam the gun and it will not respond to further pulls of the trigger. Id. at 131-32.
*649 B. Claim One-Admission of Charleston's Confession
In his first claim, Charleston argues that the Pennsylvania courts unreasonably applied the rule of Seibert in allowing the admission of his confession which was obtained after he was interrogated without Miranda warnings. Doc. 9 at 3-6; Doc. 20 at 2-8. As will be discussed, there was no majority opinion in Seibert , and the District Attorney argues that there is no clearly established federal law under Seibert . Doc. 18 at 18 & n.3. In the alternative the District Attorney argues that Charleston is not entitled to relief under Seibert even if it is clearly established. 13
In order to understand the parties' arguments, a brief analysis of the landscape regarding the admission of so called two-step confessions and a more lengthy discussion of the Seibert opinions are necessary. The foundation for this discussion is Miranda , which requires that "the accused must be adequately and effectively apprised of his rights [against self-incrimination] and the exercise of those rights must be fully honored." Miranda v. Arizona , 384 U.S. 436 , 467, 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). In Oregon v. Elstad , 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), the Supreme Court confronted a scenario in which officers first obtained an un-Mirandized statement and then obtained a second Mirandized statement. Police came to the defendant's house with a warrant for his arrest for burglary and, during a brief (but concededly custodial) stop in the living room, a police officer said that he thought the suspect was involved in a burglary, and the suspect responded "Yes I was there." Id. at 301 , 105 S.Ct. 1285 . The suspect was then taken to the police station where he was read the Miranda warnings and provided a full confession. Id. at 301, 314-15 , 105 S.Ct. 1285 . The state appellate court had ruled that the Mirandized confession should have been suppressed, but the Supreme Court disagreed, focusing on whether coercive tactics were used in the first interrogation. Id. at 310-14 , 105 S.Ct. 1285 . Because no "deliberately coercive or improper tactics" were used, and both statements were made voluntarily, only the un-Mirandized statement had to be suppressed. Id. at 314 , 105 S.Ct. 1285 .
In Elstad , the Court rejected a "the cat is out of the bag" theory, noting that "[t]his Court has never held that the psychological impact of voluntary disclosure of *650 a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver." 470 U.S. at 311-12, 105 S.Ct. 1285 . Instead, the Court held that "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Id. at 318 , 105 S.Ct. 1285 . The Elstad Court directed the courts to avoid a rigid rule.
[T]here is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda , was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.
470 U.S. at 318, 105 S.Ct. 1285 . Factors relevant to the analysis include " 'who initiated the [initial] interrogation, the time that elapsed between the two interrogations, the extent to which the same police were involved in both interrogations, the manner in which the [initial]interrogation was conducted,' and any other relevant factors." United States v. Latz , 162 Fed.Appx. 113 , 119 (3d Cir. 2005) (quoting United States v. Tyler , 164 F.3d 150 , 158 (3d Cir. 1998) ).
The facts of Seibert presented a challenge to application of the ruling in Elstad , 542 U.S. 600 , 124 S.Ct. 2601 , namely the purposeful use of a two-step interrogation technique. 542 U.S. at 609 , 124 S.Ct. 2601 . The defendant was suspected in setting a fire which killed a mentally ill teenager living in her home. Police took her to the police station at 3:00 a.m. and questioned her for thirty to forty minutes, repeatedly squeezing her arm and suggesting that the victim was intended to die in the fire. Id. at 604-05 , 124 S.Ct. 2601 . After the defendant finally admitted that this was true, she was given a fifteen -to- twenty minute break. The same officer then obtained a Miranda waiver and resumed questioning by referring to the statement she had just made, and she again admitted the victim was intended to die in the fire. Id. The evidence showed that the police purposely used this technique as part of a "question-first practice of some popularity" among police departments. Id. at 610-11 , 124 S.Ct. 2601 . At trial, the pre-warning statement was suppressed, but the post-warning statement was admitted into evidence.
The Supreme Court determined that the post-warning statement was inadmissible. Justice Souter, writing for the four-member plurality (joined by Justices Stevens, Ginsburg, and Breyer), concluded that two-step interrogation would reasonably be seen as "parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before." Id. at 616-17 , 124 S.Ct. 2601 . In finding the Miranda warnings ineffective, the plurality focused on factors such as "the completeness and detail of the ... first ... interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." Id. at 615 , 124 S.Ct. 2601 . Under the facts presented,
[t]hese circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect's shoes would not have understood them to convey a message that she retained a choice about continuing to talk.
Id. at 617 , 124 S.Ct. 2601 (footnote omitted).
*651 Although Justice Breyer concurred in the plurality opinion, he wrote separately to state that he would adopt a simple rule: "Courts should exclude the 'fruits' of the initial unwarned questioning unless the failure to warn was in good faith. Seibert , 542 U.S. at 617 , 124 S.Ct. 2601 (Breyer, J., concurring).
Justice Kennedy, who concurred in the judgment, explained his disagreement with the plurality's opinion.
The plurality concludes that whenever a two-stage interview occurs, admissibility of the postwarning statement should depend on "whether [the] Miranda warnings delivered midstream could have been effective enough to accomplish their object" given the specific facts of the case." ... In my view, this test cuts too broadly.
Seibert , 542 U.S. at 621 -22 , 124 S.Ct. 2601 . Instead, in a case in which the two-step interrogation technique "was used in a calculated way to undermine the Miranda warning," "postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made." Id. at 622 , 124 S.Ct. 2601 . 14 Thus, Justice Kennedy focused not on whether a reasonable person in the suspect's shoes could appreciate his Miranda rights, but whether the police purposely used a two-step technique to undermine Miranda . 15
Returning to Charleston's case, habeas relief is available only if the state court decision is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts." 28 U.S.C. § 2254 (d) ( (1) & (2). Charleston argues that the Pennsylvania courts unreasonably applied Seibert . The District Attorney argues that Seibert does not provide any clearly established law. Doc. 18 at 18-24. "[C]learly established law for purposes of [ section] 2254(d)(1) includes only the holdings, as opposed to the dicta, of t[he Supreme Court's] decisions," as of the time of the relevant state-court decision. Woods v. Donald , --- U.S. ----, 135 S.Ct. 1372 , 1376, 191 L.Ed.2d 464 (2015) (quoting White v. Woodall , 572 U.S. 415 , 134 S.Ct. 1697 , 1702, 188 L.Ed.2d 698 (2014) ).
As previously explained, three other justices joined Justice Souter's opinion in Seibert . Justice Kennedy concurred in the judgment, but wrote separately. Justice Breyer, who joined Justice Souter's opinion also wrote a concurring opinion, and four justices dissented. As discussed at length by the District Attorney, courts throughout the country have struggled to determine, what, if anything, is the holding of Seibert . Doc. 18 at 21-23. The Third Circuit has answered that question in the context of a direct appeal, applying Marks v. United States , 430 U.S. 188 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977), which instructs lower courts how to identify the Court's holding where it lacks a majority opinion. In United States v. Naranjo , the Third Circuit determined that Justice Kennedy's opinion was controlling.
*652 Where, as in Seibert , no one view garners a majority of the Justices, the Supreme Court has instructed us on how to proceed. In Marks ..., 430 U.S. [at] 193, 97 S.Ct. 990 ..., the Court explained, "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the 'holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.' " In Seibert , Justice Kennedy's opinion provides the narrowest rationale for resolving the issues raised by two-step interrogations where Miranda warnings are not administered until after police obtain an inculpatory statement.
Naranjo , 426 F.3d at 231 ; see also United States v. Kiam , 432 F.3d 524 , 532 (3d Cir. 2006) ("This Court applies the Seibert plurality opinion as narrowed by Justice Kennedy;" holding that where Miranda violation was not deliberate, Elstad controls admissibility). 16
The Pennsylvania Superior Court specifically rejected Naranjo in its decision in Charleston's case, finding instead that " Seibert establishes no new binding precedent." Commonwealth v. Charleston , No. 3226 EDA 2009, Opinion at 36 (Pa. Super. Feb. 18, 2011). Although this court is bound to follow the Third Circuit on the question whether a holding can be found in the opinions of Seibert , and thereby to reject the Superior Court's contrary decision, the relevant question is whether the Superior Court's decision is contrary to "clearly established" federal law. As interesting a discussion as this question may generate, it is ultimately unnecessary, as Charleston is not entitled to habeas relief under either Justice Kennedy's Seibert opinion 17 or Elstad .
Justice Kennedy's opinion offers Charleston no assistance because his opinion limited relief to cases in which the authorities purposely delayed warnings to undermine Miranda . Despite Petitioner's categorization of Detective Singleton's failure to administer Miranda warnings at the outset of his questioning as deliberate or intentional, Doc. 1 at 16; Doc. 9 at 5, there is no evidence in the record that Detective Singleton purposely declined to read Charleston the requisite warnings to undermine their efficacy.
At the suppression hearing, when asked how the interrogation proceeded once he had completed obtaining the biographical information, Detective Singleton stated:
I asked the defendant about the circumstances surrounding the murder of William Stanton, and he explained in some detail what occurred in the house. At some point, I stopped him and read him his rights and prepared the memorandum form for, you know, the sheets, the warnings for his rights, and he signed off on them.
N.T. 8/17/09 at 56. After Charleston signed the waiver form, Detective Singleton explained that he "then proceeded to take a statement from [Charleston], a formal statement." Id. Likewise at trial, the detective *653 testified that after he completed reviewing Charleston's biographical information, he asked Charleston about the murder of William Stanton and Charleston described his involvement. Detective Singleton again stated that "at some point, I stopped him and I read him his rights and we proceeded to take a formal interview." N.T. 8/21/09 at 154. On this record, there is no indication that Detective Singleton's failure to Mirandize Charleston was purposeful or part of a two-stage technique as in Seibert . Thus, Charleston is not entitled to habeas relief under Justice Kennedy's Seibert opinion. 18
In the alternative, applying Elstad , the Superior Court found no Fifth Amendment violation.
Consistent with the rulings in Elstad and [ Commonwealth v. ] DeJesus [, 567 Pa. 415 , 787 A.2d 394 (2001), abrogated on other grounds ], our analysis, ... hinges upon whether [Charleston's] warned statement after he waived his rights was knowing and voluntary. Detective Singleton testified at the suppression hearing as to the procedure he followed in administering Miranda warnings to [Charleston]. He testified that there were seven questions that were read to [Charleston] explaining his rights, among which were his right to remain silent, his right to an attorney even if he cannot afford one, and the fact that what he says can be used against him. N.T., 8/17/09, at 58-59. [Charleston] acknowledged receiving these rights by placing his initials at the conclusion of each answer.
From the beginning of Detective Singleton's interaction with [Charleston] on the morning of July 17 th , [Charleston] was "immediately receptive" and was "very cooperative and eager to give his portion of the story." Id. at 70-71. During the interrogation, he was permitted to use a restroom and was given a sandwich and something to drink. Id. Under these circumstances, we have no difficulty concluding that [Charleston's] waiver of his rights and the subsequent statement were both knowing and voluntary. Accordingly, [Charleston] is not entitled to relief on his first question.
Superior Ct. Direct Op. at 37.
After carefully reviewing both the suppression hearing and trial transcripts, I find that the Superior Court's decision is neither contrary to nor an unreasonable application of Elstad , and did not result in an unreasonable determination of the facts. Here, although Charleston was in custody at the time Detective Singleton began taking his statement, there is no evidence of deliberate coercion or improper tactics. Charleston was taken into custody the night before, but was intoxicated. N.T. 8/21/09 at 150. He was given water and kept overnight. Id. at 198. The next morning he was given a cheese sandwich and water before the detective took his statement. Id. The Miranda warnings read to Charleston were complete and he acknowledged both verbally and by initialing them that he understood the rights he was waiving. Id. at 156-59.
*654 Although the pre-warning questioning in Charleston's case was certainly not as benign as the living room disclosure of a guilty secret in Elstad , the Superior Court's decision does not run afoul of Elstad .
We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.
Elstad , 470 U.S. at 314 , 105 S.Ct. 1285 . Charleston is not entitled to relief on this claim.
C. Claim Two-Tattoo Evidence
Charleston also argues that his due process rights were violated by admission of evidence that he had a tattoo of the words "By any means necessary, fuck it, shit happens." Doc. 1 at 16; Doc. 9 at 6-10; Doc. 20 at 8-11. 19 The District Attorney argues that Charleston did not properly present his due process claim to the state courts, resulting in its default, and alternatively that the claim is meritless. Doc. 18 at 29-33.
As previously noted, in order to satisfy the exhaustion requirement, the petitioner must fairly present his claim to the state courts. Picard v. Connor , 404 U.S. 270 , 275, 92 S.Ct. 509 , 30 L.Ed.2d 438 (1971). This requires that the claim brought in the federal court be the substantial equivalent of that presented in the state courts. Id. at 278 , 92 S.Ct. 509 . Both the legal theory and the facts supporting a federal claim must have been presented to the state courts. Ross v. Petsock , 868 F.2d 639 , 641 (3d Cir. 1989).
When Charleston presented the claim regarding the tattoo evidence to the Superior Court in his direct appeal, he framed the issue as being an error in state evidentiary rulings. "Did not the lower court err in its other evidentiary rulings, in particular, the admission of evidence of [Charleston's] tattoos...." Commonwealth v. Charleston , No. 3226 EDA 2009, 2010 WL 5903533 , Brief for Appellant at *5 (Pa. Super. filed July 1, 2010). His summary of the argument stated that "[t]he lower court also erred by permitting the prosecutor to elicit testimony that [Charleston] had a series of tattoos ... [that] had no relevance, as there was no identification based on a tattoo; and this constituted an impermissible use of character to show propensity for violence." Id. at 13 . The argument was limited to why the evidence was irrelevant and improper under the rules and caselaw of Pennsylvania and other states. Id. at 24-25 . Guided by Charleston's claim and argument, the Superior Court ruled on the claim as one of state evidentiary rule. Superior Ct. Direct Op. at 42-43. "Appellant's main argument is that 'Pennsylvania clearly bars character evidence in a criminal case.' " Id. (quoting Brief for Appellant at 24). Relying on Pennsylvania Rule of Evidence 404(a)(1), the Superior Court concluded that "the trial court did not abuse its discretion in permitting the introduction of [the tattoo] evidence" because the tattoo evidence rebutted Appellant's testimony suggesting that he had a selfless character. Id. at 43 .
*655 In his habeas reply brief, Charleston relies on his citation to Boliek v. Delo , 912 F. Supp. 1199 , 1213 (W.D. Mo. 1995), to argue that he alerted the state court that he was presenting a federal claim. Doc. 20 at 10 (citing page 24 of his Brief on Direct Appeal and Baldwin v. Reese , 541 U.S. 27 , 29, 124 S.Ct. 1347 , 158 L.Ed.2d 64 (2004) (claim not fairly presented if state court "must read beyond a petition or brief ... that does not alert it to the presence of a federal claim") ). Although citation to Boliek may have alerted the Superior Court to the presence of a federal claim, it is the wrong federal claim. In Boliek , the District Court in Missouri found that the petitioner's trial counsel was ineffective for failing to object to the prosecutor's admission of his tattoo evidence. Specifically, applying Strickland v. Washington , 466 U.S. 668 , 689, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), the landmark case applicable to ineffective assistance of counsel claims, the District Court found that counsel's failure to object to the evidence fell below a reasonable standard of performance and the petitioner suffered prejudice as a result. There was no discussion of a due process violation as a result of the admission of the tattoo evidence. 20 Thus, Charleston's due process claim was not properly presented to the state courts. See Tome v. Stickman , 167 Fed.Appx. 320 , 322-23 (3d Cir. 2006) (exhaustion requires petitioner to have presented "[b]oth the legal theory and facts underpinning the federal claim" to the state court) (quoting Evans v. Court of Common Pleas, De. Cnty. , 959 F.2d 1227 , 1231 (3d Cir. 1992) ).
Because Charleston cannot now present this claim to the state courts, see 42 Pa. C.S.A. §§ 9544(b) (governing waiver) & 9545(b) (PCRA statute of limitations), the claim is procedurally defaulted and can only be considered by the federal court if Charleston can show cause and prejudice or that a failure to consider the claim will result in a fundamental miscarriage of justice. See Werts , 228 F.3d at 192 (if exhaustion futile, claim defaulted). Charleston does not recognize his default, nor does he attempt to explain it, leaving the court without grounds to excuse the default. As discussed earlier, cause to excuse a default requires the petitioner to "show that some objective factor external to the defense impeded counsel's effort to comply with the State's procedural rule." Id. at 192-93 (quoting and citing Carrier , 477 U.S. at 488 -89 , 106 S.Ct. 2639 ). Counsel's ineffectiveness in failing to preserve a claim for review in state court can provide cause to excuse a procedural default. Edwards v. Carpenter , 529 U.S. 446 , 451, 120 S.Ct. 1587 , 146 L.Ed.2d 518 (2000) (citing Carrier , 477 U.S. at 488 -89 , 106 S.Ct. 2639 ). However, the ineffectiveness claim providing cause to excuse the default must itself be exhausted. Edwards , 529 U.S. at 453 , 120 S.Ct. 1587 . Here, Charleston has not given the state courts the opportunity to consider such a claim of ineffective assistance of trial counsel. Although he presented several such claims in his PCRA petition, he did not allege ineffectiveness based on counsel's failure to challenge the admission of the tattoo evidence on due process grounds. Therefore, the ineffectiveness of trial counsel cannot provide cause to excuse the default of his due process claim.
A procedural default can also be excused if a failure to consider the claim will result in a fundamental miscarriage of justice. Coleman , 501 U.S. at 750 , 111 S.Ct. 2546 . As noted previously, this would require *656 Charleston to show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent," Schlup , 513 U.S. at 327 , 115 S.Ct. 851 (quoting Carrier , 477 U.S. at 496 , 106 S.Ct. 2639 ), by supplementing his claim with "a colorable showing of factual innocence." McCleskey , 499 U.S. at 495 , 111 S.Ct. 1454 (citing Kuhlmann v. Wilson , 477 U.S. 436 , 454, 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986) ). Charleston has failed to present any new evidence establishing his factual innocence.
D. Claims Three-Five-Ineffective Assistance of Counsel
In his final three claims, Charleston argues that his trial counsel was ineffective for failing to request a proper jury instruction regarding the statement of Nashua Sanders, failing to request an instruction on involuntary manslaughter or homicide by misadventure, and failing to object during closing instructions when the judge commented on Charleston's reputation for telling the truth. Docs. 1 at 17; 9 at 11-19. The District Attorney responds that the ineffectiveness claims are defaulted because Charleston failed to comply with Pennsylvania procedure in presenting the claims to the Superior Cou

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7247663. Public record. Not legal advice.