Full opinion text
MEMORANDUM MUNLEY, District Judge. In this habeas corpus action, we are asked to determine the constitutionality of Petitioner Daniel Jacobs’ conviction of first degree murder and his sentence of death. The respondents are Martin Horn, Commissioner, Pennsylvania Department of Corrections; Conner Blaine, Jr., Superintendent of the State Correctional Institution, Greene County; and Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview. The petitioner raises a multitude of issues involving alleged errors of the trial court and ineffectiveness of counsel. With one exception, we find all of petitioner’s arguments to be either without merit or moot. However, because we find, for the reasons which follow, that the petitioner’s death sentence violates the Constitution of the United States, we will conditionally grant the petition for a writ of habeas corpus. Background In 1992, a York County Court of Common Pleas jury convicted the petitioner of two counts of first degree murder for the slaying of his girlfriend, Tammy Mock, and their infant daughter, Holly Jacobs. The victims’ bodies were found in the apartment where they had lived with the petitioner. Tammy Mock had been stabbed over 200 times and Holly Jacobs, who was seven months old, drowned in the bathtub. For Tammy Mock’s death, petitioner was sentenced to die. He received a life sentence for Holly Jacobs’ death. The facts are addressed with more particularity where appropriate below. Standard of Review Petitioner is seeking a writ of habeas corpus. A district court’s power to grant habeas corpus relief to a state prisoner is outlined in 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 2254(a), a federal court is required to consider only petitions which challenge a state court judgment based upon a violation of the Constitution or the laws or treaties of the United States. In addition, it is required that the petitioner exhaust his state court remedies before bringing a federal habeas corpus action. 28 U.S.C. § 2254(b), Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.2000). This exhaustion requirement does not apply where there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1)(B)(i) and (n). Section 2254 proceeds to state: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”) went into effect and amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. The above-quoted language is part of the amendment. Because Jacobs filed his petition on July 9, 1999, after the effective date of the AEDPA, we are required to apply the amended standards to his claim for federal habeas corpus relief. Werts, 228 F.3d at 195. The Third Circuit has discussed the standard of review as follows: The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts. See Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996). Federal habeas corpus relief is precluded as to any claim that was adjudicated on the merits in a state court proceeding unless such adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. §§ 2254(d)(1) and (2) (1997). Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (1997). Id. at 196. In Williams v. Taylor, the United States Supreme Court provided the following interpretation to the habeas corpus § 2254(d)(1) standard of review: Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) “was contrary to... clearly established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of.. .clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materiality indistinguishable facts. Under the “unreasonable application” clause, a federal habeas corpus court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). By way of explanation, Third Circuit Court of Appeals has held the § 2254(d)(1) requires a federal habeas court to make two inquiries: First, the federal habeas court must determine whether the state court decision was “contrary to” Supreme Court precedent that governs the petitioner’s claim. Relief is appropriate only if the petitioner shows that “Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.” O’Brien [v. Dubois], 145 F.3d [16, 24-25 (1st Cir.1998)]. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an “unreasonable application of’ Supreme Court precedent: that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted. Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir.1999) cert. denied subnom Matteo v. Brennan, 528 U.S. 824, 120 S.Ct. 73, 145 L.Ed.2d 62 (1999) quoted in Werts, 228 F.3d at 196-97. Consequently, two distinct steps are necessary for our analysis of the petitioner’s claims. First, we examine the claims under the “contrary to” provision. We must identify the applicable Supreme Court precedent and determine whether it resolves the petitioner’s claim. In Matteo, the Third Circuit Court of Appeals held: [I]t is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court’s; rather, the petitioner must demonstrate that the Supreme Court precedent requires the contrary outcome. This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent, (emphasis in original) Matteo, 171 F.3d at 888. If it is determined that the state court’s decision is not “contrary to” the applicable United States Supreme Court precedent, we move on to the second step of the analysis, that is whether the state court decision was based on an “unreasonable application of’ Supreme Court precedent. This step requires more than a disagreement with the state court’s decision or ruling because we would have reached a different result. Werts, 228 F.3d at 197. The AEDPA prohibits such de novo review. Id. Rather, we must determine whether the state court’s application of United States Supreme Court precedent was objectively unreasonable. Id. That is, we must decide whether the state court’s application of Supreme Court precedent, when evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent. Id. To summarize, we are empowered to grant relief only in the following two instances: 1) the petitioner demonstrates that Supreme Court precedent requires an outcome contrary to that reached by the state court; or 2) the state court decision represents an unreasonable application of Supreme Court precedent. In other words, the state court opinion, when evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. Matteo, 171 F.3d 877, 891 (3d Cir.1999). With this analytical framework in place, we will address the petitioner’s claims. Procedural history The procedure for capital cases in Pennsylvania is for the defendant to be tried in a county court of common pleas. The defendant is able to file post-trial motions with the trial court. Then the defendant is entitled to an automatic direct appeal to the Pennsylvania Supreme Court. After the direct appeal, the defendant can seek relief under the Post Conviction Relief Act, (hereinafter “PCRA”). PCRA relief is first addressed by the court of common pleas and is then appealable to the Pennsylvania Supreme Court. In the instant case, the petitioner followed the above procedure as follows: The verdict invoking the death penalty was entered on September 18, 1992. Trial counsel filed a motion for a new trial with the trial court. Doc. 13, Respondents’ Appendix (hereinafter “Res.App.”) 10. The trial court denied the motion with a written opinion on January 14, 1993, and formally imposed the death sentence on January 28, 1993. Res.App. 11, 12. The judgment of sentence was affirmed by the Pennsylvania Supreme Court. Commonwealth v. Jacobs, 536 Pa. 402, 639 A.2d 786 (1994). The current petitioner then filed a pro se PCRA petition on January 13, 1997. Res.App. 14. On January 24, 1997, J. Richard Robinson, Esquire was appointed counsel for Jacobs, and a supplemental PCRA petition was filed on May 23, 1997. ResApp. 14,15. The supplemental PCRA petition was orally amended at the PCRA hearing on May 29, 1997. Doc. 10, Response to petition for writ of habeas corpus, ¶ 15. The trial court denied the PCRA petition on June 13, 1997. Res. App. 17. On that same day, a notice of appeal to the Pennsylvania Supreme Court was filed. Subsequently, Robert Dunham, Esquire, of the Center for Legal Education Advocacy and Defense Assistance entered his appearance on behalf of petitioner. The Pennsylvania Supreme Court affirmed the trial court’s denial of PCRA relief on March 26, 1999. Commonwealth v. Jacobs, 556 Pa. 138, 727 A.2d 545 (1999). On July 8, 1999, Matthew Lawry, Esquire, and Stuart Lev, Esquire, of the Defender Association of Philadelphia entered their appearances on behalf of the petitioner, and the instant petition for a writ of habeas corpus was filed on November 16, 1999. Petitioner raises the following fifteen issues: 1) Counsel was ineffective for failing to investigate and present mental health mitigating evidence concerning petitioner’s cognitive and emotional impairments and evidence that he suffers from the effects of a traumatic and neglectful childhood; 2) The trial court and trial counsel failed to ensure through voir dire that petitioner would be tried by a fair and impartial jury, and trial counsel was ineffective for failing to request a change of venue despite pretrial publicity; 3) Counsel was ineffective for failing to adequately investigate and present evidence supporting the diminished capacity defense; 4) Counsel was ineffective for failing to impeach the testimony of petitioner’s mother with evidence that she had a long history of alcoholism and was intoxicated when purported admissions were made; 5) Petitioner was denied a fair trial and effective assistance of counsel when the trial court permitted lay opinion testimony from a police officer that all of petitioner’s wounds were self-inflicted; 6) The trial court erred in failing to instruct the jury that it must find independent evidence that corpus delicti exists beyond a reasonable doubt prior to considering petitioner’s statements, and prior counsel was ineffective for not raising this issue; 7) The Commonwealth failed to prove beyond a reasonable doubt that the petitioner murdered Holly Jacobs; 8) The prosecutor engaged in improper argument, defense counsel ineffectively failed to object, and the court took no action to cure the error; 9) The trial court’s instructions on the torture aggravating circumstance were vague, over broad, and in violation of petitioner’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution; 10) The court’s charge prevented the jury from considering and giving full effect to the mitigating evidence regarding age in violation of the Eighth and Fourteenth Amendments; 11) The trial court erred in failing to instruct the sentencing jury that, if sentenced to life, petitioner would be ineligible for parole; 12) The prosecutor improperly told the jury that it should show petitioner the same mercy he showed the two decedents, misstated the evidence regarding remorse and urged the jury to rely upon the prosecutor’s personal opinion regarding what the evidence showed; 13) Petitioner’s death sentence is invalid because he did not receive the meaningful “proportionality review” mandated by 42 Pa.C.S.A § 9711(h)(3)(iii) and the Eighth and Fourteenth Amendments; 14) To the extent that state court counsel failed to raise and/or properly litigate the issues discussed in his habeas corpus petition, they were ineffective; and 15) Petitioner is entitled to relief because of the cumulative prejudicial effect of the errors in this case. According to the respondents these claims can be broken down into three kinds: 1) claims that are exhausted, having been presented to and addressed by the Pennsylvania Supreme Court; 2) claims that were raised for the first time in state court on appeal to the Pennsylvania Supreme Court from the trial court’s denial of PCRA relief, which the court found to be waived as a matter of state procedural law; and 3) unexhausted claims that were never presented to the state court for review and are procedurally barred from being raised at the current time. Exhaustion analysis Initially, therefore, it is important to address the issue of which claims the petitioner is entitled to bring in a habeas corpus petition. The law provides as follows: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless it appeal’s that- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1). “In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Accordingly, for a habe-as corpus claim to be heard on its merits in federal court, the petitioner must first exhaust his state court remedies. “This exhaustion requirement is predicated on the principle of comity which ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights.” Werts, 228 F.3d at 192. In the instant case, the Pennsylvania Supreme Court found that some of the petitioner’s claims were waived and therefore, did not address their merits. The claims were considered waived because the Supreme Court found that they were not raised in the lower court PCRA proceeding. Commonwealth v. Jacobs, 556 Pa. 138, 727 A.2d 545, 549-50 n. 9 (1999). The first question we are faced with is whether the federal courts can address the merits of the issues that were procedurally defaulted in state court. To decide whether the merits of constitutional claims that were waived in state court can be heard in federal court, it must be ascertained whether the state procedural rule (that barred review in state court) is “adequate” to support the court’s decision “independent” of the merits of the federal claim. Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). This “adequate and independent” analysis requires us to determine whether the rule is a firmly established and regularly followed state practice because only such a rule can be interposed by a state to prevent subsequent federal review of constitutional claims. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Banks v. Horn, 126 F.3d 206, 211 (3d Cir.1997). The Third Circuit Court of Appeals has held that state procedural rules provide independent and adequate basis for precluding federal review of a state prisoner’s habeas corpus claims only if the following three criteria are met: 1) the state procedural rule speaks in unmistakable terms; 2) all state appellate courts refused to review petitioner’s claims on the merits; and 3) the state courts’ refusal is consistent with other decisions—• that is, the state rule is consistently and regularly applied. Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir.1996). In the instant case, the first two factors are clearly met, and the third factor is the only one we need discuss. Accordingly, we must determine whether the state rule in the instant case was a firmly established and regularly followed state practice. The Pennsylvania Supreme Court did not provide a detailed analysis of the waiver rule it was applying in the instant case. It merely stated as follows: “The remainder of the claims raised by Appellant were not asserted before the PCRA court. Accordingly, they are waived.” Jacobs, 727 A.2d at 549. Thus, we must turn our attention elsewhere to find a discussion of the waiver rule that was applied. We find that the most relevant case to examine is Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), which extensively discusses Pennsylvania’s waiver rule. In Albrecht, the Pennsylvania Supreme Court noted that it had been its practice to relax waiver rules in capital cases. Albrecht, 720 A.2d at 700. That is, the court would entertain claims that were actually waived under the law. (With regard to this practice, the Third Circuit Court of Appeals has noted that the Pennsylvania Supreme Court “looks beyond” procedural waiver rules in death penalty cases. Banks v. Horn, 126 F.3d at 213 (3d Cir.1997)). The Pennsylvania relaxed waiver rule was created to prevent the court from being instrumental in an unconstitutional execution. Albrecht, 720 A.2d at 700 (Pa.1998). However, the Albrecht court held that waiver must necessarily be recognized at some point in the criminal process in order that finality be eventually achieved, and to that end it decided that relaxed waiver would no longer be applied by the court in capital PCRA proceedings. Id. Although Albrecht is not specifically cited by the court in petitioner’s Supreme Court opinion, it can be assumed the court applied this rule in deciding that several of the petitioner’s claims were waived. In considering whether this waiver rule was a firmly established and regularly followed state practice at the time it was applied in the instant case, we do not examine the law to ascertain if the rule was firmly established at the time it was applied, but at the time that the petitioner’s alleged waiver occurred. Id. at 684, 720 A.2d 693. After a careful review, we find that the rule was not firmly established and regularly followed state practice at the time of Jacobs’ alleged waiver. This case is akin to the Third Circuit Court of Appeals case Doctor v. Walters, 96 F.3d 675 (3d Cir.1996). Doctor was a federal habeas corpus case dealing with a Pennsylvania Supreme Court opinion that quashed a defendant’s appeal by applying a fugitive forfeiture law. Under the fugitive forfeiture law if a defendant became a fugitive, his appeal would be quashed, that is forfeited. In that case, the Pennsylvania Supreme Court used the rule to quash the defendant’s appeal in 1993 even though the defendant became a fugitive several years earlier, in 1986. An issue in the subsequent federal habeas corpus action was whether the state court default was independent and adequate to foreclose federal review of the merits of the defendant’s appeal. The Third Circuit examined the case to determine the law with regard to fugitive forfeiture at the time that the defendant became a fugitive in 1986, not at the time the Supreme Court made its decision in 1993. After reviewing the law, the court found that in 1986, the law that the Pennsylvania Supreme Court used to quash the defendant’s appeal had not yet been firmly established. Therefore, the court had not relied on an “adequate” procedural rule to deny review of his appeal on the merits, and federal review of the merits of his claim was not precluded. Id. at 684-86. Likewise, in the instant case, the relevant time to examine the waiver issue is not when the petitioner’s Supreme Court decision was handed down, but rather at the time that the petition was filed and briefed. Relaxed waiver was the general rule when the petitioner filed and briefed his PCRA appeal. Jacobs’ brief in support of his PCRA appeal before the Pennsylvania Supreme Court is dated January 80, 1998, and the reply brief is dated May 4, 1998. See ResApp. 18 and 19. The Al-brecht opinion, dispensing with the relaxed waiver rule, was filed nearly eleven months later on November 23, 1998.. We find, therefore, that the strict application of waiver principles was not firmly established and regularly followed state practice at the time of petitioner’s PCRA appeal. Consequently, the strict waiver rule applied by the Pennsylvania Supreme Court is not an adequate and independent state procedural bar to federal court entertainment of constitutional claims, and we can appropriately address the merits of the petitioner’s contentions. The above analysis applies to claims that the Pennsylvania Supreme Court found were waived. We shall therefore address the merits of these claims, infra, where appropriate. As a preliminary matter, the respondents note that the instant habeas corpus petition is not in compliance with Rule 2(e) of the Rules Governing Section 2254 Cases in the United States District Courts. Rule 2(c) provides that the petition shall be signed under penalty of perjury by the petitioner. The original habeas corpus petition filed in this case was not signed by the petitioner. We find that the petitioner has remedied this defect by attaching a verification to his reply brief, verifying that the facts asserted in the habeas corpus petition are true. See Attachment “A” to Petitioner’s Reply Memorandum in Support of Petition for a Writ of Habeas Corpus. Many of petitioner’s claims are raised in terms of in effectiveness of counsel. Accordingly, before discussing the merits of any of the issues, we will discuss the general law regarding ineffectiveness of counsel as set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland A two-part test for judging ineffectiveness of counsel claims was developed in Strickland. First, the defendant must show that counsel’s performance was deficient. This requirement involves demonstrating that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. at 687, 104 S.Ct. 2052; Flamer v. State of Delaware, 68 F.3d 710, 727-28 (3d Cir.1995) cert. denied 516 U.S. 1088, 116 S.Ct. 807, 133 L.Ed.2d 754 (1996). Proof must exist that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 728. The second prong of the ineffectiveness of counsel claim that a habeas corpus petitioner must establish is that counsel’s ineffectiveness was prejudicial. Id. at 728. The Supreme Court has held that “when a defendant challenges a death sentence..., the question is whether there is a reasonable probability that, absent the errors, the sentencer.. .would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052, quoted in Flamer, 68 F.3d at 728. We must be highly deferential to counsel’s decisions as there is a strong presumption that counsel’s performance was reasonable. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052. “The defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” U.S. v. Kauffman, 109 F.3d 186, 189 (3d Cir.1997) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Moreover, the Third Circuit Court of Appeals has held that “[i]t is only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel’s performance.” Id. at 190 (quoting United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989)). Bearing in mind this law with respect to ineffectiveness of counsel and the analytical framework that applies to habeas corpus cases, we now turn to the issues raised by the petitioner. 1. Mental health mitigating evidence First, the petitioner alleges that trial counsel was ineffective for failing to investigate and present mental health mitigating evidence concerning the following: petitioner’s cognitive and emotional impairments; and evidence that he suffers from the effects of a traumatic and neglectful childhood. The respondents contend that the Pennsylvania Supreme Court properly denied this claim. Before examining the manner in which the Pennsylvania Supreme Court dealt with the instant issue, it is important to understand the sentencing procedure for first degree murder in Pennsylvania state court and to review the evidence that was not presented at the sentencing hearing. A. Sentencing procedure After a first degree murder verdict is recorded and before the jury is discharged, the court conducts a separate sentencing hearing in which the jury determines whether the defendant shall be sentenced to death or life imprisonment. 42 Pa.C.S.A. § 9701(a). During the sentencing hearing, evidence is presented regarding aggravating circumstances (those circumstances favoring death) and mitigating circumstances (those circumstances favoring life imprisonment). The jury is then instructed that the verdict must be a sentence of death if it unanimously finds at least one aggravating circumstance and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances that outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases. 42 Pa.C.S.A. § 9711(c)(iv). At Jacobs’ sentencing hearing, the prosecution simply presented the evidence from the guilt phase of the trial. Res.App. 8, N.T. 9/18/92 at 833-34. The defense merely called one witness in addition to the petitioner. The first witness was De-lois Jacobs, the petitioner’s mother, who testified about the petitioner’s relationship with his younger sister; that he loved his daughter, Holly Jacobs; and that he was sorry that it had happened. Id. at 835-37. The petitioner then testified to the following: he was twenty-one years old when the crime occurred; he felt remorseful; he attempted to cut his wrists after the killings; he had strong feelings for his daughter, even after her death; and he had a good relationship with his five year old sister. Id. at 838-39. After this brief testimony, the lawyers presented arguments on the aggravating and mitigating circumstances. The jury’s verdict was a death sentence for the murder of Tammy Mock and life imprisonment for Holly Jacobs’ death. As to Tammy Mock, the jury found the following aggravating circumstances: the offense was committed by means of torture; and the defendant was convicted of another murder committed either before or at the time of the offense at issue. The jury found the following to be mitigating factors: that the defendant was under an emotional disturbance; and his record. Ultimately, the jury concluded that the mitigating circumstances were outweighed by the aggravating circumstances and a death sentence was imposed for the murder of Tammy Mock. B. The evidence Petitioner now claims that powerful mitigation evidence was available. However, because trial counsel failed to investigate, he was not aware of it and did not present it at the sentencing hearing. A summary of what an investigation into the petitioner’s background would have revealed follows: Petitioner does not have a stable family background. Petitioner’s mother was a heavy drinker and drank while she was pregnant with him. She was beaten by his alcoholic father in front of their children, including the petitioner. App. Ex. 4, Declaration/Affidavit of Marjorie Winston, ¶ 8. See also App. Ex. 5, Declaration/Affidavit of Hazel Jacobs Hinson, ¶ 10 and App. Ex. 6, Affidavit/Declaration of Lois Jacobs, ¶ 9. (Hereinafter “Ex. 4”, “Ex. 5” and “Ex. 6” respectively). Petitioner was afraid of his father because of the beatings he gave his mother. • Ex. 4, ¶ 8; Ex. 5, ¶ 11. The beatings would sometimes leave her bloodied and bruised. Ex. 5, ¶ 11; App. Ex. 7, Declaration/Affidavit of Delois Jacobs, ¶ 2 (hereinafter “Ex. 7”). Eventually, petitioner’s mother left her husband, and she and her children never saw him again. Accordingly, the petitioner never had any kind of real relationship with his father. Id.; Ex. 4 ¶ 8. Moreover, petitioner’s mother allowed him to drink in bars from a young age, and he began drinking at home by the age of twelve. His mother gave him money to buy beer. His aunt came to his house several times to find him, his mother and brother intoxicated. Ex. 4, ¶ 16. After the breakup with petitioner’s father, his mother became involved with a new boyfriend, Eugene. They were together for about ten years. Ex. 6, ¶ 11. Eugene started drinking and becoming intoxicated with petitioner when petitioner was thirteen years old. He would sometimes get into a rage and beat petitioner when they were both drunk. Ex. 4, ¶ 11. Petitioner’s mother would take him to the bars and give him drinks. She would also take him with her when she went to spend time on the street and when she met other men. Id. at ¶ 9; Ex. 5, ¶ 11. At times when the petitioner was “older” his mother would sometimes leave him with his aunt as a babysitter while she went out drinking. Despite his age, petitioner would cry when left. Ex. 4, ¶ 4. The mother would often return drunk the next morning to pick up the children. Id. at 10. Additionally, petitioner’s older brother constantly beat him and on one occasion stabbed him. Ex. 4, ¶ 15;Ex. 5, ¶ 13; Ex. 6, ¶ 14; Ex. 7, ¶ 4. When the stabbing occurred, the mother was visiting with a sister in Virginia. After being told of the stabbing, she did not cut short the visit to return home to attend to her son. Ex. 4, ¶ 15. She did not even go to the hospital to see Daniel. Ex. 6, ¶ 14. On several other occasions, petitioner’s mother had to stop petitioner’s brother from beating on him. Ex. 7, ¶4. Petitioner attempted to get employment to help support his mother once her boyfriend left. However, he was not intelligent enough to fill out some of the applications and could not keep a job. Ex. 4, ¶ 18. He was not able to hold even the most simple jobs. Ex. 7, ¶ 7. Eventually, the mother found another boyfriend whom she met at a shelter. She started drinking more heavily, and the boyfriend began to abuse her and the petitioner. Ex. 4, ¶ 14. Petitioner was depressed because of his mother getting beaten and once again, the petitioner’s mother left the boyfriend because she had been beaten so badly. Id. In addition, petitioner also suffered from cognitive problems. He was always slow and confused. Ex. 5, ¶ 2. He would stare into space or at the television for hours. App. Ex. 9,. Declaration/Affidavit of Angie Jacobs, ¶¶2-3. At approximately six years of age, petitioner was involved in a car accident and a piece of metal from the radio went into his head and remained there. At the hospital, he went untreated for a long period of time, because his mother was not there and the hospital needed her permission to treat him. After this accident, he became afraid to go outside and seemed even slower mentally. Ex. 4, ¶ 6. As a teenager, petitioner would sit around the house naked with uncombed hair staring at the television. Id. ¶ 5. His mother had to dress him and comb his hair and treat him like a little child. Id. His mother even bathed him as a young adult. Ex. 5, ¶ 5. Nonetheless, relatives would come to the house and find petitioner naked, or nearly so, dirty and unkempt sitting in front of the television Id. Even when he became a young adult he still acted like a child. His aunt would try to engage him in conversation, and all he would do was giggle and grin. Ex. 4, ¶¶ 3-4; Ex. 5, ¶ 2; Ex. 6, ¶¶ 2-4. His mother knew petitioner had problems but did not seek professional help — she merely kept him home. Id. at ¶ 9. Moreover, medical witnesses could have testified to cognitive, mental and emotional problems suffered by the petitioner. Dr. Patricia Fleming, a licensed clinical psychologist and neuropsychologist, examined the petitioner at the request of post conviction counsel. She interviewed him and his mother and administered a psychological and neuropsychological test battery to him. App. Ex. 2, Affidavit/Declaration of Dr. Patricia Fleming, ¶ 3 (hereinafter “Ex. 2”). She concluded that the petitioner suffers from mild mental retardation with a full scale I.Q. of 63. Id. at ¶ 9. She also found that organic brain damage was suggested and consistent with his background of apparent prenatal maternal alcohol abuse, head traumas -and exposure to physical abuse and neglect. Id. She further concluded that the petitioner suffers from serious psychological and emotional impairments including schizoid personality disorder which causes significant functional impairment and distress. Id. at ¶ 11. Dr. Fleming came to the conclusion that the petitioner’s traumatic childhood, mental retardation, organic brain damage, emotional impairments and personality disorder cause significant psychological, emotional and cognitive impairments. Id. at ¶ 12. Julie Kessel, M.D., a practicing psychiatrist, Board Certified by the American Board of Psychiatry and Neurology, conducted a forensic psychiatric evaluation of the petitioner. She likewise found him to be mentally retarded with an I.Q. below 70. App. Ex. 3, Declaration of Julie Kes-sel, M.D., ¶ 3 (hereinafter “Ex. 3”). She also concluded that for most of his life petitioner has suffered from extreme mental and emotional disturbance, including mental retardation, brain damage and schizoid personality disorder. In addition he has suffered from the effects of childhood abuse, alcohol and drug abuse) trauma and neglect. Id. at 1! 13. Further, he has suffered from dysthymia since his teenage years which is characterized by a chronic depressed mood, impairments in appetite and sleep, lack of energy, low self-esteem and difficulty concentrating and making decisions. Id. ¶ 8. The sole doctor to examine the petitioner prior to the trial was Dr. Robert Davis, a medical doctor and psychiatrist with a clinical and forensic practice in Harrisburg, Pennsylvania. He was not informed that the prosecution was seeking the death penalty. Moreover, he was not asked to conduct an evaluation with respect to any possible mental health-related mitigating circumstances but was asked only to conduct an evaluation concerning any mental health issues regarding the petitioner’s criminal responsibility (insanity or some form of diminished capacity) and competency to stand trial. App. Ex. 1, Affidavit/Declaration of Dr. Robert Davis ¶ 1-2 (hereinafter “Ex. 1”). He was not provided with any materials concerning petitioner’s background. Id. at ¶ 3. Dr. Davis states: As is well understood among forensic mental health professionals, the scope of an evaluation for purposes of mitigation at a capital sentencing proceeding is far broader than that for competency or criminal responsibility at trial. Mental, cognitive and emotional impairments and disturbances that do not render a person incompetent or insane are nevertheless highly relevant for purposes of mitigation. In addition, collateral information concerning the individual’s background and life history, including medical and other records, childhood abuse and/or neglect, history of drug or alcohol abuse, and accounts of the individual’s life, background and development from people who knew him as a child, teenager or adult, are particularly important for purposes of mitigation. Furthermore, to the extent there is any indication of possible organic impairment, psychological and neuropsychological testing is indicated in capital cases. In fact, my practice in capital cases is to request such testing to screen for brain damage or other impairments not immediately seen upon a standard psychiatric evaluation. Id. at ¶ 6. Dr. Davis states that had he been provided with the necessary collateral information in the instant case he could have provided a report and testimony concerning the harmful effects of abuse and neglect on children, the global impairments suffered by those who are mentally retarded, the significance of organic brain damage, the. impairments resulting from schizoid personality disorder and the exacerbating effects on all of these impairments by the abuse of alcohol and drugs. Ex. 1, ¶ 11. Jacobs presents this evidence to establish that mitigating evidence exists that may have influenced the jury' to agree upon a lesser sentence. We have expanded the record to include the affidavits/declarations referenced above that were submitted by the petitioner. See Rule No. 6 of the Rules Governing Habeas Corpus Proceedings under Section 2254. Respondents indicated that they do not oppose the expansion. See Doc. 26. See Blackledge v. Allison, 431 U.S. 63, 81, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (explaining that the court may direct expansion of the record to include any appropriate material that will enable the judge to dispose of some habeas petitions that are not dismissed on the pleadings, without the time and expense required for an evidentiary hearing). Accordingly, we find that this evidence was available and could have been presented to the jury during the penalty phase. No doubt exists but that such evidence as has been presented by petitioner would count as mitigating. Pennsylvania statutory law provides for the following two mitigating factors: “The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.” 42 Pa.C.S.A. § 9711(e)(3); and “The defendant was under the influence of extreme mental or emotional disturbance.” 42 Pa.C.S.A. § 9711(e)(2). C. Pennsylvania Supreme Court analysis In its PCRA opinion, the Pennsylvania Supreme Court addressed trial counsel’s alleged failure to investigate mitigating evidence and found that trial counsel was not ineffective. The court concluded that trial counsel had a reasonable basis for his course of conduct. This conclusion was based upon the following: there was no evidence that counsel was aware of Jacobs’ mental problems; all the mental health evidence that trial counsel had obtained indicated that the petitioner was not mentally incapacitated; petitioner’s mental state was in fact raised as a mitigating factor; and the jury found a mitigating factor in that the petitioner was under extreme mental and emotional disturbance. Commonwealth v. Jacobs, 727 A.2d at 551. To address the merits of the petitioner’s habeas corpus claim with regard to the Pennsylvania court’s ruling, we must determine, as set forth supra, whether: 1) the petitioner has demonstrated that United States Supreme Court precedent requires an outcome contrary to that reached by the state court; or 2) the state court decision represents an unreasonable application of Supreme Court precedent. That is, the state court opinion, when evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. Matteo, 171 F.3d at 891. It is beyond question that clearly established federal law, as determined by the United States Supreme Court, exists and is applicable to the instant case. The law is the previously explained Strickland case which deals with ineffectiveness of counsel. See Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Our task is to determine whether the Pennsylvania Supreme Court’s rejection of the petitioner’s claim is contrary to or involved an unreasonable application of this established law. Id. Pennsylvania’s courts apply a standard for ineffectiveness of counsel that is identical to the standard set forth by the United States Supreme Court in Strickland. Therefore, the Pennsylvania Supreme Court’s ruling was not contrary to established United States Supreme Court precedent. Werts v. Vaughn, 228 F.3d 178, 203-04 (3d Cir.2000). Hence, we must proceed to determine if the Pennsylvania Supreme Court’s decision represents an unreasonable application of federal court precedent. In other words, we must determine whether the state court opinion, when evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. As explained more fully supra, Strickland requires a two step analysis. A court must first examine whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and if so, whether petitioner was prejudiced by counsel’s substandard performance. While addressing this issue, we bear in mind that “[t]he basic concerns of counsel during a capital sentencing proceeding are to neutralize the aggravating circumstances advanced by the state, and to present mitigating evidence.” Starr v. Lockhart, 23 F.3d 1280, 1285 (8th Cir.1994) cert. denied sub now, Norris v. Starr, 513 U.S. 995, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994). Trial counsel even admitted at the PCRA hearing that he was concerned because he believed there was “a real risk” of a first degree murder conviction. Res. Ex. 16, N.T. PCRA hearing 5/29/97 at 46. D. Strickland’s first prong, deficient performance Petitioner claims that his trial counsel was ineffective for failing to investigate and present mitigating evidence. To begin its analysis, the Pennsylvania Supreme Court noted that trial counsel did conduct an investigation into the petitioner’s mental state. As noted above, trial counsel had the petitioner examined by Dr. Robert Davis, a psychiatrist, to determine whether the petitioner suffered from a mental impairment that would have negated his criminal responsibility or rendered him incompetent to stand trial. Dr. Davis determined that the petitioner did not suffer from any such impairment and that he was competent to stand trial. Jacobs, 727 A.2d at 550-51. At issue, currently, however, is whether an evaluation was performed with regard to mitigating evidence not whether the petitioner suffered a mental impairment that would have affected his criminal responsibility or competency to stand trial. As set forth above, Dr. Davis states that an evaluation for mitigating evidence is different from an evaluation for criminal responsibility/competency to stand trial. He was asked only to perform the latter, and was not informed that the prosecution was seeking the death penalty. Moreover, the Pennsylvania Supreme Court misconstrued the affidavit/deelaration of the examining psychiatrist. The court concluded that “[Dr. Davis] notes, however, that collateral information regarding [petitioner’s] upbringing would have been required for him to conclude that further testing was necessary.” Id. at 750, 727 A.2d 545. In support of this conclusion, the court cites paragraphs 6, 8, 10 and 11 of Dr. Davis’s affidavit. Id. A review of the affidavit/declaration, including these paragraphs, reveals that the Supreme Court is incorrect. Dr. Davis was not informed by trial counsel that this was a capital case. In capital cases, it is Dr. Davis’s practice to request testing to screen for brain damage or other impairments not readily seen upon a standard psychiatric evaluation. PetApp. 1, Affidavit/Declaration of Dr. Robert Davis, ¶ 6. No further collateral evidence was necessary to trigger such testing. Dr. Davis simply had to know that the prosecution was seeking the death penalty. He further opined that had he been' provided with the relevant background evidence and requested to conduct a mitigation evaluation he “would definitely have requested psychological testing. Even without this collateral information, had I been asked to conduct a mental health mitigation evaluation, I would have requested psychological testing.” (emphasis added). Id. at ¶ 8. Dr. Davis did not need information that was not within the attorney’s knowledge to conclude that further testing was needed. All he needed was to know that it was a capital case and/or a request to perform a mitigation evaluation. Therefore, we find that the .Pennsylvania Supreme Court erred in its analysis. Moreover, even if we were to accept the Pennsylvania Supreme Court’s reasoning that Dr. Davis needed more information to conclude that further testing was necessary, their opinion would still be flawed. The court found that trial counsel was not ineffective for failing to explore the mitigating evidence because he did not have the relevant background information on the petitioner that Dr. Davis would have needed to perform a mitigation evaluation. The court stated that “the record, however, fails to reveal that trial counsel was aware of the circumstances surrounding [Jacobs’] upbringing. Nor does [Jacobs] assert that counsel was aware of these matters.” Jacobs, 727 A.2d at 551. The court reasoned that because counsel did not possess the information, he was not ineffective in failing to have the mitigation evaluation performed. The Pennsylvania Supreme Court’s reasoning represents an unreasonable application of United States Supreme Court precedent. The important point is not that counsel did not have the information, but rather, we must examine why counsel did not have the information. Here, counsel did not have the information because he failed to investigate and obtain the relevant information. The fact that trial counsel did not have such information merely supports the conclusion that he did not fully investigate — it does not justify the failure to investigate and present evidence as the Pennsylvania Supreme Court held. United States Supreme Court precedent holds that “[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Moreover, the duty to investigate encompasses an investigation into mitigating circumstances including family background and mental health mitigating evidence. “To descend to the level of ineffective assistance of counsel, a lawyer’s performance must be poor indeed... [A]t the penalty phase of a capital case, a failure to investigate or to adequately prepare expert witnesses may sink to that level.” Wallace v. Stewart, 184 F.3d 1112, 1118 (9th Cir.1999) cert. denied 528 U.S. 1105, 120 S.Ct. 844, 145 L.Ed.2d 713 (2000). The United States Supreme Court has cited with approval the ABA Standards for Criminal Justice for the proposition that trial counsel has an obligation to conduct a thorough investigation of the defendant’s background for the sentencing phase of a trial. Williams, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Pursuant to the ABA Standards for Criminal Justice: The lawyer ... has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant. Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself. Investigation is essential to fulfillment of these functions.... 1 ABA Standards for Criminal Justice, 4-4.1, commentary, p. 4-55 (2d ed.1980). One of the underpinnings of this facet of the law is that under United States Supreme Court precedent, the major requirement of the penalty phase of a trial is that the sentence be individualized by focusing on the particularized characteristics of the defendant. See Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). In addition, the United States Supreme Court has recognized the principle that “punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” (internal quotation omitted) Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). It is not surprising then that many circuit courts of appeals cases from various circuits have found counsel ineffective for failing to investigate and present evidence of family history, character, background and mental deficiencies. See Glenn v. Tate, 71 F.3d 1204 (6th Cir.1995) cert. denied 519 U.S. 910, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996) (counsel ineffective for failing to present evidence of mental history and family background where evidence was submitted that the crime was not the product of mental retardation or organic brain disease); Brewer v. Aiken, 935 F.2d 850, 857-58 (7th Cir.1991) (defense counsel’s lack of investigation into mental and family history of a defendant with low intelligence was ineffective assistance of counsel); Antwine v. Delo, 54 F.3d 1357, 1367 (8th Cir.1995) cert. denied sub nom Bowersox v. Antwine, 516 U.S. 1067, 116 S.Ct. 753, 133 L.Ed.2d 700 (1996) (defense counsel has a duty to investigate possible mental health mitigation evidence); Wallace v. Stewart, 184 F.3d at 1115-18 (9th Cir.1999) (counsel has duty to investigate background information and bring it to the attention of experts); Armstrong v. Dugger, 833 F.2d 1430, 1433-34 (11th Cir.1987) (trial counsel ineffective for failure to discover available mitigating evidence regarding petitioner’s mental retardation and organic brain damage). Moreover, the Third Circuit Court of Appeals has held that “[w]hile counsel is entitled to substantial deference with respect to strategic judgment, an attorney must investigate a case, when he has cause to do so, in order to provide minimally competent professional representation.” United States v. Kauffman, 109 F.3d at 190. The Third Circuit Court of Appeals has likewise indicated that a failure to produce mitigating evidence can be ineffective assistance of counsel. The court held that counsel is not ineffective for holding back such information, if it is held back for a tactical reason. Deputy v. Taylor, 19 F.3d 1485, 1494 (3d Cir.1994) cert. denied 512 U.S. 1230, 114 S.Ct. 2730, 129 L.Ed.2d 853 (1994). In Deputy, defense counsel did not investigate -within the defendant’s family, the mitigating effect of his traumatic childhood and his alcohol dependence. Instead, he had decided to focus in the penalty phase on the fact that the defendant had been changed by a religious conversion. Id. at 1493-94. Because a tactical reason existed for the failure to present the mitigation evidence to the jury, trial counsel was deemed effective. Id. If it is effective assistance of counsel to fail to investigate and present such evidence when a tactical reason exists for such a failure, then by implication, it is ineffective assistance of counsel to fail to investigate and present such evidence when no tactical reason exists for such failure. Likewise in Riley v. Taylor, 237 F.3d 300, 2001 WL 43597, the Third Circuit Court of Appeals examined the issue of ineffective assistance of counsel and its application to background information and mental examinations. In that case, counsel was found to have acted within the bounds of effectiveness where he failed to introduce background information at the penalty phase. However, he had a strategic reason for doing so, and his client did not want his family background discussed at the penalty phase. Id. at 326-327. Moreover, a mental examination was not warranted because the attorney had no reason to think that one would be helpful. Id. at 327. In the instant case, an investigation into the petitioner’s background certainly would have indicated that further psychological/mental testing was appropriate. The instant ease is analogous to the case of Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) where the United States Supreme Court applied iStrickland and found deficient performance of counsel for failing to fulfill the obligation to conduct a thorough investigation of the defendant’s background. In Williams, counsel failed to investigate and present, inter alia, the following evidence in a capital sentencing phase: extensive records graphically describing the defendant’s nightmarish childhood; that defendant was borderline mentally retarded and did not advance beyond the sixth grade in school; prison records commending the defendant for helping to crack a prison drug ring and for returning a guard’s missing wallet; or testimony of prison officials who described the defendant as least likely to act in a violent, dangerous or provocative way. Id. at 396, 120 S.Ct. 1495. Accordingly, we find that the great weight of federal law requires defense counsel in a capital case to investigate a defendant’s background, cognitive status and mental health for mitigating evidence. The federal law that leads us to this conclusion has been dictated by the United States Supreme Court and the circuit courts of appeals including the Third Circuit Court of Appeals. In the instant case, trial counsel did not perform an adequate investigation and much relevant evidence was left undiscovered and not presented, to the jury. Consequently, we conclude that trial counsel’s performance was deficient. E. Strickland’s second prong — prejudice Secondly, under Strickland, we must determine whether the petitioner was prejudiced due to counsel’s deficient performance. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. To establish prejudice, the petitioner must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Williams, 529 U.S. at 391, 120 S.Ct. 1495. In the instant case, petitioner’s background history of abuse and/or the reality that he was mentally retarded and suffered from other cognitive and psychological problems might well have influenced the jury’s appraisal of his moral culpability. Id. at 398, 120 S.Ct. 1495. As summarized by the Sixth Circuit Court of Appeals many circuits have found prejudice in similar situations: Our sister circuits have had no difficulty in finding prejudice in sentencing proceedings where counsel failed to present pertinent evidence of mental history and mental capacity. ... [S]ee, e.g., Stephens v. Kemp, 846 F.2d 642, 652-55 (11th Cir.), cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988) (“the resulting prejudice is clear”); Blanco v. Singletary, 943 F.2d [1477, 1505 (11th Cir.), cert. denied, 504 U.S. 943, 112 S.Ct. 2282, 119 L.Ed.2d 207 (1992) ](prejudice requirement “clearly met” by counsel’s failure to present evidence of epileptic seizures and organic brain damage); Loyd v. Whitley, 977 F.2d 149, 159-60 (5th Cir.1992), cert. denied, 508 U.S. 911, 113 S.Ct. 2343, 124 L.Ed.2d 253 (1993) (failure to present mitigating evidence of substantial mental defects “undermines our confidence in the outcome”). We would be badly out of step with the other circuits were we to conclude, that there was no prejudice in the case at bar. Glenn v. Tate, 71 F.3d at 1211. In addition to these cases, the Sixth Circuit also cited Brewer, 935 F.2d at 858-59 in which the Seventh Circuit Court of Appeals found prejudice where counsel failed to provide the jury with evidence of the defendant’s “entire history — troubled childhood, low I.Q., deprived background, and myriad of other psychiatric problems”. In addition, the Eighth Circuit Court of Appeals has found prejudice where counsel was ineffective in failing to present evidence of the defendant’s mental impairment at the penalty phase. Antwine, 54 F.3d at 1371. In Antwine, as in the instant case, the jury was required to find unanimously that death was warranted. More mitigating circumstances would have upset the balance of mitigating and aggravating circumstances sufficiently to create a reasonable probability that death would not have been imposed. Id. Viewing the record as a whole, including the mitigating and aggravating factors addressed at the trial and those that were not addressed due to counsel’s failure to investigate, we find a reasonable probability that the result in the sentencing would have been different had competent counsel presented and explained the significance of all the available evidence. The Pennsylvania Supreme Court’s decision involved an unreasonable application of established federal law with regard to trial counsel’s failure to investigate. Accordingly, the petitioner’s constitutional right to effective assistance of counsel as defined in Strickland, supra, was violated, and the imposition of the death penalty would be unconstitutional under the Sixth and Fourteenth Amendments. In cases where deficient performance and prejudice is found, the courts conditionally grant the writ of habeas corpus pending re-sentencing by the state court. See Brewer, 935 F.2d at 859; Glenn, 71 F.3d at 1211; Antwine v. Delo, 54 F.3d at 1371; Kenley v. Armontrout, 937 F.2d 1298, 1309-10 (8th Cir.1991) cert. denied sub nom Delo v. Kenley, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991). Accordingly, we shall order likewise. 2. Voir dire and venue Petitioner’s next claim for relief is that he was denied his right to a fair trial where the trial court and trial counsel failed to ensure through voir dire that he would be tried by a fair and impartial jury, and where trial counsel failed to request a change of venue despite highly prejudicial pretrial publicity. As this claim includes two subjects, voir dire and venue, we shall address them separately. A. Voir dire With respect to voir dire, the petitioner raises two arguments. First, he claims it was an error of both his tr