Full opinion text
MEMORANDUM OPINION AND ORDER FORESTER, Chief Judge. This matter is before the Court on the petition of Thomas Clyde Bowling, Jr., by counsel, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent, by counsel, has filed an answer [Record No. 25], to which the petitioner has, with the permission of the Court, filed a traverse [Record No. 66]. FACTUAL BACKGROUND At approximately 7:00 a.m., on Monday, Apxil 9, 1990, in the parking lot in front of the Earley Bird Cleaners, in Lexington, Fayette County, Kentucky, Tina and Eddie Earley, a couple in their twenties, and their two-year-old son, Chris, were shot as they arrived to open the family dry cleaning business. Eddie was found lying on the pavement between the open passenger door of his car and the door to the business; he was bleeding from four bullet wounds. Tina, who was still sitting in the car, had been shot and wounded three times; and Chris, found on the ear floor under his mother, had a wound to his foot. The son would recover, but his parents were pronounced dead at the hospital minutes later that morning. Police arriving at the scene found damage to the driver’s side of the Earleys’ car; collected bullets from outside and inside the vehicle; and recovered debris consistent with a collision, including paint and broken pieces of headlight from another car. The gunshots had alerted a few witnesses, whose observations varied when they gave descriptions of the shooter to the police. In the early stages of the investigation, it was determined that the debris came from a light blue 1981 Chevrolet Malibu and a 1981 Malibu was registered in Fayette County to Thomas Clyde Bowling, Jr. The police pursued a broad ■search for the suspect’s car and considered several theories of what could have occasioned the young couple’s murder. On the following day, April, 10, 1990, police received a telephone call from the petitioner’s sister, Pat Gentry. She stated that she and her mother, Iva Lee Bowling, were worried because his mother had not seen them son/brother, “T.C.” Bowling, since he left the mother’s Lexington home at appimimately 6:00 a.m. the preceding day; she and her mother had just discovered his. damaged car on family property in rural Powell County, Kentucky; the car met the description of the vehicle they had heard was being sought in the Earley shootings; and they feared that these facts, together with Bowling’s recent depressed and unstable mental state, had caused Mm to take his life. Later in the day, the sister telephoned her Knoxville home and discovered that the petitioner had come to her home and was asleep on her couch. Lexington and Knoxville police departments immediately coordinated a SWAT team of officers who arrested the petitioner at the Gentry home without incident and took him to jail. There his clothing was taken and examined and no blood residue found. Meanwhile, at approximately midnight, the police recovered the petitioner’s car on the family’s Powell County property and towed it to Lexington. The broken pieces of headlight and other debris recovered from the crime scene and paint smears on the Earleys’ vehicle were later matched to the petitioner’s car. A search of the car interior yielded only an empty thermos bottle; there were no traces of blood. The following day, April 11, 1990, the police returned to Powell County. There they found a partially buried .357 magnum revolver and other items belonging to the petitioner which had been stashed in various places on the property. Police later found a man who reported that he had sold a .357 magnum to Mr. Bowling a few days prior to the shootings. According to the instant 197-page petition, signed by counsel, the petitioner has no memory of the day of the crime. While being held in the Lexington jail, he was interviewed by mental health experts, whom he told he had no recollection of that day; he also told them he had no previous history of blackouts. THE TRIAL On June 20, 1990, Bowling was indicted in Fayette Circuit Court on two counts of intentional murder and one count of assault. Although initially represented by a member of the Kentucky Department of Public Advocacy, at the time of his arraignment in the Fayette Circuit Court, Sixth Division, on June 22, he was represented by three retained counsel: Russell Baldani, William Summers, and Tucker Richardson. From the beginning, the Commonwealth announced that it would provide “open file” discovery to the defense and would seek the death penalty. After a number of pretrial motions by defense counsel and several pretrial conferences, the original trial date of October 15, 1990 was changed to December 10, 1990; Bowling underwent a neurological examination; his counsel obtained a court-ordered psychological evaluation; and the defense was granted extra peremptory challenges. On Monday, December 10, 1990, jury selection commenced. Jurors had filled out a special jury questionnaire, designed by agreement of counsel, as well as the standard one; and they were voir dired first generally as a group and then, with regard to the death penalty, individually in chambers. The court’s stated goal was to qualify from the 99-person jury pool 44 jurors, which would allow the defendant 18 peremptory challenges, the Commonwealth 12 peremptories, 12 people remaining to be jurors and 2 alternates. Two days later, stating that it was concerned that the original qualified juror pool would be too small, the court continued down the jury pool list and ended up qualifying 48 jurors. Just before trial, however, after striking a juror for cause, thus leaving 47 qualified, the court overruled the defense motion to grant it additional peremptories and, instead, struck the three extra jurors, numbers 45, 46, and 47. On the third day, December 12, the jury was seated, and the guilt phase of the trial commenced. After opening arguments, the Commonwealth began its presentation of evidence. A total of 25 witnesses was presented, including the testimony of three individuals who heard the shots and became the only eye witnesses. The first, Larry Turner, thought he heard backfires while he was walking to work approximately a block away; upon his approach to the scene, he saw the two bodies, heard the child crying, and continued on to work to call 911. Another man, David Boyd, testified that from where he sat in the driver’s seat of his car at the nearest stoplight, he looked back over his shoulder to see two cars on the cleaners’ parking lot and a man standing beside the dark car. He was holding a gun with both hands and shooting into the car. Record No. 57 at 1272. The shooter then moved as if to get into the other vehicle, but did not do so; he went back around to look at the scene before coming around again and driving off. Boyd described the assailant’s car as a light blue 1979 or 1980 Malibu and described the assailant as a white male, about six feet tall, medium build, wearing a black jacket and brimmed hat. The third eyewitness, Norman Pullins, who had seen events from the window of a nursing home across the street from the cleaners, could not be located by either the Commonwealth or by the defense. By agreement of the parties, the police officer who interviewed Pullins the morning of the shootings introduced the audiotape of that interview, which was played for the jury. Id. at 1286-92. Police testimony concerned the securing of the crime scene, immediate care of the victims, and the beginning of an investigation. The Commonwealth introduced numerous photographs of the scene, including the view from the K-Mart parking lot through a slatted fence to the Earley Bird Cleaners, close-up photographs of the evidence collected, and a videotape of the entire area. Record No. 57 at 1340, et seq. One detective described his towing the Earleys’ car later that day and going to the Bowlings’ Powell County property the next day to tow Bowling’s car; both were secured as evidence. Id. Officer Mark Merriman, of the Kentucky State Police, related his locating the Powell County property late on April 10. He found there the petitioner’s damaged Malibu, in the thickets; a shed containing an orange jacket, an orange Little Caesar’s t-shirt, and a black Rangers hat; and an unused outhouse into which had been thrown a “little beer case,” a four-pack of wine coolers, an empty wine cooler bottle, and the Malibu’s license plate. Record No. 58 at 1498-1510. Jim O’Brien, one of police officers searching the Powell County property, testified to his discovery of the .357 magnum, which was found under an upside down metal pan; the gun was wrapped in clothing and partially buried under leaves. Record No. 58 at 1494. Another officer stated that the gun was fully loaded and had been secured by him for evidence. Detective William Henderson, who was in charge of the investigation, related the events surrounding Bowling’s arrest in Knoxville; told of retrieving Bowling’s personal effects at that time: a black jacket, umbrella, and backpack containing an atlas, blanket, personal papers, and a homemade sign with “K-N-O-X” written on it; and described locating and interviewing several witnesses, including two who could place Bowling on the road in front of the Powell County lot on the evening of the murders, April 9. Record No. 59 at 1513. In addition to the officials involved in the investigation, the Commonwealth called experts from state agencies. Dr. John C. Hunsaker, III, forensic pathologist and the state medical examiner, testified that Eddie had four gunshot wounds and Tina three; both had been shot from behind; the wounds were to major organs such that neither victim had a chance of surviving them; and the cause of death of both was blood loss and shock. Record No. 58 at 1368-1406. An auto theft police expert told of matching the glass, plastic and chrome debris from the scene to the damage on Bowling’s car (Record No. 59 at 1546), and the State Police Crime Laboratory’s professional in Trace Evidence matched not only those pieces but also paint from Bowling’s vehicle to the Ear-leys’ and paint from the Earleys’ car which was left on Bowling’s (Id. at 1563). When the prosecutor asked, “[C]an you say that in fact Mr. Bowling’s vehicle is the one which rammed into the Earley vehicle?” she responded, “Yes, sir, in my opinion.” Id. at 1575. A state ballistics expert identified the recovered gun as a Smith and Wesson .357 and stated that bullets shot from it and those recovered from the victims and crime scene both ended up marked with five grooves of the same width, with a right twist and similar scratch marks; however, he could not positively swear that those used at the crime scene were shot by that particular gun. Id. at 1577-99. He also testified that gunpowder residue was found in the right front pocket of the petitioner’s black jacket. Id. Lay witnesses for the Commonwealth included Clay Brackett, an eighty-year-old man who traded in firearms at flea markets and who testified that the recovered gun looked like the one he sold to Mr. Bowling a few days before the killings. He identified the defendant as being the man to whom he sold it. Record No. 58 at 1481. Two witnesses testified to Bowling’s presence in Powell County on the evening of April 9. Jack Mullins had seen Bowling driving on the road along which his and the Bowlings’ property is located; had noticed the car abandoned in the bushes there later that night; and gave an in-court identification of the defendant as the man he saw. Jack Strange, another resident of the same road, testified that he had spoken to a man in a black jacket with umbrella and bag who was out for a walk on that road that evening. Additionally, he identified the man he saw on the road as Bowling when he saw his picture in the paper at the time of Bowling’s arrest, when he viewed a police photo line-up during the week before trial, and when he testified at trial, indicating the defendant in the courtroom. The Commonwealth also called some of the defendant’s family members. The first was his sister, Pat Gentry, who was visiting at her mother’s home, where the defendant had recently been living, during the weekend before the Monday shootings. She testified that Thursday or Friday was the last day he worked his usual job driving for Little Caesar’s Pizza deliveries; on Friday night he showed the family a gun he had bought; and he showed signs of depression all weekend. After she left on Sunday evening, their mother called her on Tuesday morning, the day after the shootings, very worried because “T.C.” had not returned to her home Monday evening; she didn’t know where he was; a news article about the shootings described his car; and during a drive with her on Sunday afternoon, he had talked about where he wanted to be buried and what to do with his possessions. Record No. 58 at 1413-20. Mrs. Gentry drove to Lexington and the two women drove to Powell County, where they found Bowling’s car but not Bowling. Upon their return to Lexington, they called the police and told them what they had found and why they were worried. The sister confirmed that her brother had several brimmed hats and at least one short black jacket. Record No. 58 at 1428. Also called was Bowling’s mother, Iva Lee Bowling, who further described her son’s activities that preceding weekend, including a three hour Sunday afternoon drive, when he purportedly continued the theme of death, telling her that his time had run out and if he was missing for three or four days to look for him on the Powell County property. Record No. 58 at 1436. The afternoon included their stopping for approximately thirty minutes in a K-Mart parking lot which was behind the nursing home property across from the Earley Bird cleaners; Bowling first parked behind a side yard fence with a slat missing, and then he moved to be directly behind the nursing home. On being recalled, Bowling’s sister, Pat Gentry, reported that her mother had relayed to her Bowling’s parting words before he left the house early that Monday morning: “Today is the day.” Record No. 58 at 1449. The defense presented no witnesses. After the prosecution rested, one of Bowling’s counsel asked for time to “again” tell his client of his right to testify. After-wards, they announced that the defendant would not testify and that the defense would rest. Defense counsel relied on their cross-examinations of witnesses and their arguments, which emphasized the lack of any eyewitness identification of their client as the shooter and the fact that the prosecution’s case was based on circumstantial evidence. Through both the state’s direct and defense counsel’s cross-examination of family members, they had brought out the defendant’s background, particularly his behavior during the weekend preceding the shootings. Clyde Brack-ett had been questioned about his trading in handguns without keeping records; also his memory and eyesight were admitted to be poor. Counsel had elicited from eyewitness David Boyd, who had described a white male matching Bowling’s description, admissions that he did not remember hair color or that he had told a police detective at the time that the attacker had long brown hair, dark complexion, and possibly a mustache, none of which describe Bowling. The two witnesses from Powell County, however, proved unshakable in their identifications of Bowling. In the cross-examination of the ballistics expert, defense counsel gained the admission that the .357 magnum was one of perhaps millions of weapons that could have fired the fatal shots. Record No. 59 at 1609. Through other of the Commonwealth’s witnesses, it was established that none of the defendant’s possessions, including his clothing, car, and other items recovered from him at his arrest or from the Powell property, had any blood evidence; no fingerprints of the defendant’s were found on the gun or at the scene; and the only lead residue which was found on any of Bowling’s belongings was inside a left pocket of his jacket and could have been from a gun or from bullets. Record No. 58 at 1536. Both sides argued for jury instructions which the court refused, the prosecution seeking one on transferred intent and the defense being unsuccessful in them requests for instructions on, inter alia, extreme emotional disturbance, manslaughter I and II, reckless homicide, and circumstantial evidence. Record No. 60 at 1654-1700. After the court’s jury instructions were read, at approximately 9:00 a.m. on Friday, December 14, 1990, counsel gave closing arguments and the case was submitted to the jury for a decision on guilt. The jury found the petitioner guilty of the two adult Earleys’ intentional murders and of fourth degree assault on the son. Record No. 60 at 1787. Because it was late in the day and the penalty phase of the trial would not commence until the following Monday morning, the defense moved to sequester the jury over the weekend, a request which was overruled. Id. at 1788. On Monday morning, December 17, 1990, at 8:30 a.m., Bowling, his defense counsel, and the prosecution were in chambers on the defendant’s pro se request to discharge his attorneys. Id. at 1799. Upon questioning from the court, Bowling contended that he wanted to discharge his attorneys, have a mistrial declared, and have new counsel appointed prior to the sentencing phase of the trial. As grounds, he stated that his attorneys did not spend enough time with him, even an hour total; he had no opportunity to tell them of witnesses; that at least one of his attorneys was short with him when he tried to talk; none discussed a defense with him; and he was unhappy with them because they failed to put on any defense at all. After the court questioned Bowling’s feelings, offered its opinion that the defense attorneys’ performance was “above average” and their strategy “was a good defense,” and considered alternatives to Bowling’s requests, the court overruled his motions. Id. at 1805-1831. The penalty phase of the trial began. The Commonwealth declined to give an opening statement. The defense spoke briefly and then presented six witnesses. These included three non-family members: a Little Caesar’s co-worker whom Bowling had befriended and helped over the last several years; a Fayette County jail employee who called the petitioner’s conduct since entry there seven months before “exemplary”; and a supervisor from the jail who reported no problems with Bowling at all. Mrs. Bowling was recalled to relate details of the defendant’s background, including her son’s childhood and being slow to walk and talk; his having only a ninth grade education and taking jobs that didn’t involve any thinking; his three marriages, the last breaking up just weeks before the shootings; their having mental illness run in the family; and details of her son’s increasingly strange behavior before the shootings, particularly the weekend preceding the April 9 shootings. Record No. 61 at 1857-85. She also quoted him on a visit at the jail as saying, “I pray for the Earleys every night, Mom, but I didn’t know those people.” Id. at 1894. His sister Pat was also recalled. She traced her brother’s mental/emotional deterioration further back, beginning in February with his being distressed over the failure of his last marriage, for which he had sought her and her mother’s support, help and/or intervention several times, the sister once having driven to Lexington in the middle of the night because of his call. Pat Gentry also detailed his drinking, inability to keep food down, depression, and strange behaviors during the weekend before the shootings. Id. at 1939. Finally, the defense called Jason Bowling, the defendant’s thirteen-year-old son by his second wife. He testified that the defendant was a good father and he pled with the jury not to hurt him. Id at 1940-42. Again the defendant did not testify and was questioned about that decision by the court on the record. Id at 1944-49. Again the court denied his counsel’s drafted jury instructions, including one listing for the jury the specific mitigating circumstances of mental illness, extreme emotional distress, intoxication, and model jail conduct. After the giving of the court’s instructions and counsel’s closing arguments, the jury was out until late in the evening. When the jurors returned, they had found one statutory aggravating factor, that of multiple intentional deaths, and they recommended two death sentences. Id at 2022. Sentencing was postponed once for Bowling to decide whether he wished the court to consider a psychological evaluation of him which the court had ordered before the trial, in case an insanity defense was introduced. Record No. 46. After he informed the court that he wished it considered, the sentencing hearing was held on January 4, 1991. Record No. 62. Again the defendant chose to make no statement, and it was his trial counsel who pled for his life. In accordance with the recommendations of the jury, the trial court sentenced the petitioner to death for each of the two murders and twelve months in jail for the child’s assault. His execution was set for January 6, 1992. PROCEDURAL HISTORY AFTER TRIAL Bowling’s convictions and sentences underwent mandatory review by the highest court in the state, pursuant to Kentucky Revised Statute (KRS) 532.075, with court-appointed attorneys from the Kentucky Department of Public Advocacy (DPA), as now, representing him. The Supreme Court of Kentucky addressed 22 legal issues and affirmed the convictions and sentences on September 30, 1993, two justices vigorously dissenting. Bowling v. Commonwealth, 873 S.W.2d 175 (1993), is the opinion, as modified on denial of rehearing, March 24, 1994 [hereinafter, this Court will refer to the state court’s final adjudication of Bowling’s claims on direct appeal as Bowling /]. On October 3, 1994, the Supreme Court of the United States denied Bowling’s petition for writ of certiorari. Bowling v. Kentucky, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994). Under Kentucky’s Rules of Criminal Procedure (RCr), the next step in the state courts is a post-conviction collateral attack, which is instituted with an RCr 11.42 motion to vacate, set aside or correct sentence, filed in the trial court. In the instant case, by this time, a different judge, Lewis G. Paisley, was presiding in Fayette Circuit Court’s Sixth Division. On February 28, 1995, with yet another Assistant Public Advocate representing him, the petitioner filed (1) a notice of intent to file an RCr 11.42 motion; (2) a motion for appointment of new counsel because Bowling was unhappy with appellate counsel Rid-dell’s representation; and (3) a motion for a status conference for scheduling matters related to an ineffective assistance of counsel claim. Trial Record [hereinafter “TR” followed by the Volume, “Vol.”, and then the page number] Vol. 4 at 486-91. Except for an April 24, 1995 status conference on the issue of appointing the petitioner new counsel, no further action was taken until January 3,1996, when the Governor of Kentucky set the petitioner’s execution for February 1, 1996. Two weeks later, on January 18, 1996, Bowling’s counsel moved for stay of execution in the trial court, but the motion was denied. The trial court ruled that because no RCr 11.42 motion had been filed, only an intent to file the motion, the court lacked jurisdiction to grant a stay. Upon the DPA’s January 26 emergency motion to the Supreme Court of Kentucky, temporary stays were issued to petitioner and three other prisoners, while the highest state court decided whether their filing of a notice of intent to file an RCr 11.42 motion may serve as a jurisdictional basis for the circuit court to issue a stay of execution. In Bowling v. Commonwealth, 926 5.W.2d 667 (1996), the Supreme Court of Kentucky held that filing a notice of intent to file an 11.42 motion is insufficient to serve as a basis for issuance of a stay; until the RCr 11.42 motion itself is filed in the circuit court, there is no procedure by which the court can issue a stay of the execution. 'Id. at 669. The court also held that once the 11.42 motion is filed, however, amendments thereto “shall be freely given when justice so requires.” Id. at 670 (quoting Kentucky’s Civil Rule 15.01, identical to the language in Fed.R.Civ.P. 15(a)). Accordingly, on January 26,1996, counsel Keys and another DPA attorney filed Bowling’s formal RCr 11.42 motion [TR Vol. 5 at 612], together with a request for additional time in which to either file an amended or supplemental motion. By order of February 8, 1996, the circuit court granted the request for more time, giving petitioner 120 days from the January 26 filing date in which to supplement the motion. On May 28, 1996, a supplemental RCr 11.42 motion was filed, but it was not verified, as required by the rule. On June 6, 1996, eight days later and clearly after the running of the 120-day deadline, the petitioner filed another supplemental motion, identical to that of May 28 but a verified version. On October 1, 1996, the circuit court ordered both versions of the supplemental motion stricken. After finding that Bowling “has engaged in a willful and systematic attempt to delay the proceedings in this case,” the court struck the May 28 supplemental motion on the ground that it was not signed and verified and struck the second, the June 6 version, because amendment or supplementation of an 11.42 motion requires leave of court and when the 120 days expired, his right to amend or supplement expired. TR Vol. 5 at 763-64. “While the Court is cognizant of its duty to freely allow amendment where justice so requires pursuant to CR 15.01, the Court finds that the Movant’s conduct and the lack of merit in the claims raised in the Supplemental 11.42 warrant a different conclusion.” Id. at 764. Additionally, the court denied discovery which the petitioner’s counsel had requested and denied all relief, both on state law grounds and also because it found that, of all the “allegations of error raised by the Movant ... [n]one merit discussion.” TR Vol. 5 at 765. Bowling moved the court for reconsideration, a motion which was denied on April 29, 1997, and, with new DPA counsel, he then appealed the state court’s ruling. On October 15, 1998, the actions of the trial court were unanimously affirmed. In Bowling v. Commonwealth, 981 S.W.2d 545 (1998) [hereinafter Bowling II], the Supreme Court of Kentucky quoted from the trial court’s opinion and found no error under Kentucky law in the trial court’s striking the supplemental RCr 11.42 motions, striking the other unauthorized pleadings, or its refusal to grant an eviden-tiary hearing. Id. at 549. The court then examined the claims in Bowling’s original RCr 11.42 motion and those additional claims presented in the stricken supplemental motion. Finding no merit in all of the claims, Kentucky’s highest court again affirmed the petitioner’s convictions and sentences. Id. at 553. After his motion for a rehearing was denied, Bowling filed another petition for writ of certiorari to the Supreme Court of the United States; it was denied on June 21, 1999. Bowling v. Commonwealth, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999). On the following day, June 22, 1999, the petitioner, by current DPA counsel, filed in this Court motions seeking to proceed herein in forma pauperis and to have themselves appointed as Bowling’s counsel to prepare a federal habeas corpus petition in his behalf. These motions were granted on June 28, 1999, with a deadline set for the filing of the petition [Record No. 3]. The instant petition [Record No. 17] was timely filed on August 12, 1999. The Court also granted the petitioner’s subsequent motions for a stay of execution and for preparation of a written transcript of the trial court record [Record Nos. 11,15]. The respondent filed his answer [Record No. 25] to the petition on September 30, 1999, together with a memorandum of law [Record No. 26], Thereafter, the Court ordered the continuation of the stay of execution [Record No. 27]; granted the petitioner’s motion for preservation of evidence [Record No. 32]; and granted his motion to permit the petitioner to file a traverse to the response and/or amendments to the original petition within thirty days after the filing of the state court transcripts in the record [Record No. 33]. On January 7, 2000, the state court transcript was filed herein [Record Nos. 43-62]; and on February 7, 2000, the petitioner filed his traverse [Record No. 66]. STANDARD OF REVIEW Petitioner’s filing of his application for a writ of habeas corpus on August 12, 1999 was more than three years after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, and the parties do not dispute the issue, the AEDPA amendments to habeas corpus law apply to the instant case. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Williams v. Coyle, 167 F.3d 1036 (6th Cir.1999). The AEDPA, inter alia, altered the standard of review that a federal court must employ when deciding whether to grant a writ of habeas corpus. It is revised § 2254(d) and (e) which govern the inquiry as to whether or not habeas corpus relief is appropriate in this case. 1. Claim Adjudicated in State Court The appropriate standard of review depends on whether a claim was decided on the merits in state court. If a claim was decided in state proceedings, 28 U.S.C. § 2254(d) (1997), as amended, now provides the applicable standard, as follows: (d) 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) (1997). Under the clear language of the statute, if a claim was decided on its merits by the state courts, a petitioner will be entitled to federal habeas relief only if he can establish that the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2). The Supreme Court of the United States has assisted the courts by clarifying the language of § 2254(d)(1) in [Terry] Williams v. Taylor, 529 U.S. 362,120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Justice O’Connor, writing for the majority, acknowledged that in the AEDPA, with its new § 2254 language, Congress has “placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners.” Id. at 399, 120 S.Ct. 1495. In Section II, she examined § 2254(d)(1) in detail and found that it defines two separate categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court. Agreeing with the Fourth Circuit as to these two categories, the high court first described what “contrary to ... clearly established Federal law” means. The Court stated that in order for the writ to issue, a state court decision must be “contrary to” Supreme Court precedent in the sense that the state court arrive[d] at a conclusion opposite to that reached by this Court on a question of law ... [or] the state court confronted] facts that are materially indistinguishable from a relevant Supreme Court precedent and arrive[d] at a opposite to ours. Id. at 405,120 S.Ct. 1495. As to the second alternative in subsection (d)(1), a state court decision rests on an “unreasonable application of’ clearly established federal law 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 ease.” Id. at 413, 120 S.Ct. 1495. If the federal habeas court finds such an “unreasonable application,” it may grant the writ. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495. The Court emphasized that reasonableness of the state court’s opinion is judged by an objective standard, rather than a subjective one. “Stated simply, a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. The Court noted that the term “unreasonable” is “no doubt difficult to define,” and did not try to define it, stating only that “it is a common term in the legal world, and, accordingly, federal judges are familiar with its meaning.” Id. at 410, 120 S.Ct. 1495. The Sixth Circuit has applied Williams, “interpreting it to mean that even if this court ‘believe[s] that a state court incorrectly applied federal law, [it] must refuse to issue the writ of habeas corpus if [it] finds that the state court’s decision was a reasonable one.’ Machacek v. Hofbauer, 213 F.3d 947, 953 (6th Cir.2000)....” Simpson v. Jones, 238 F.3d 399 (6th Cir.2000). Under the AEDPA, Congress has also limited the legal authority on which this Court may rely when addressing a habeas petition; the Court must look exclusively to Supreme Court case law. 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 412, 120 S.Ct. 1495. See Harris v. Stovall, 212 F.3d 940, 944 (6th Cir.2000) (citing Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir.1998)). If the issue is a mixed question of fact and law, then § 2254(d)(1) will apply. Harpster v. Ohio, 128 F.3d 322, 326-27 (6th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998). Therefore, for every claim adjudicated on the merits in state court, this Court must determine whether the state court’s decision was “contrary to, or involved an unreasonable application of,” Supreme Court jurisprudence. 28 U.S.C. § 2254(d)(1); see Coe v. Bell, 209 F.3d 815, 822-23 (6th Cir.), cert. denied, 529 U.S. 1084, 120 S.Ct. 1716, 146 L.Ed.2d 516 (2000). When a federal habeas petitioner challenges the findings of fact made by a state court, the standard is set forth in § 2254(d)(2). A federal court cannot issue a writ unless a petitioner establishes that the state’s adjudication on the merits “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.” Id. Additionally, for questions of fact, the petitioner faces § 2254(e)(1), which provides that the state court’s determination is entitled to the presumption of correctness and that the habeas applicant has the burden of rebutting that presumption by clear and. convincing evidence. Deference to factual determinations applies whether those determinations are made by a state trial court or a state appellate court. See Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Thus, for claims adjudicated in state court, this Court may grant the writ only if the petitioner can establish that the state court decision involving a question of law or a mixed question of law and fact (1) was “contrary to” federal law as determined by the Supreme Court, ie., arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or decided the case differently than the Supreme Court has on a set of materially indistinguishable facts or (2) involved an unreasonable application of federal law as determined by the Supreme Court, ie., unreasonably applied the governing legal principle from Supreme Court precedent to the facts of the prisoner’s case (28 U.S.C. § 2254(d)(1)); or, for a question of fact, the state decision (3) was based on “an unreasonable determination of the facts” in light of the evidence before it (28 U.S.C. § 2254(d)). See Williams v. Taylor, 529 U.S. at 402-13, 120 S.Ct. 1495. Stated differently, this Court must uphold the state’s decision unless this Court finds that the state decision is contrary to federal law as determined by the Supreme Court; or is an unreasonable application of federal law as determined by the Supreme Court; or is based on an unreasonable determination of the facts in light of the evidence presented. 2. Claims Not Adjudicated in State Court When a state court has not adjudicated a habeas petitioner’s constitutional claims on the merits, the AEDPA severely restricts the capacity of a federal habeas court to conduct a hearing to develop the evidence relating to the claim. Since 1996, 28 U.S.C. § 2254(e)(2) has provided as follows: (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e). Thus, after the AEDPA, the command is that the Court will not hold an evidentiary hearing on a claim which was not developed in the state court proceedings unless one of two exceptions applies to the claim: the claim relies on a new, previously unavailable rule of constitutional law made retroactive to cases on collateral review by the Supreme Court ((2)(A)(i)); or it relies on facts that could not have previously been discovered ((2)(A)(ii)). If one of the two exceptions under subsection (A) applies, then an additional requirement in order to obtain an evidentiary hearing is that the claimant show that the facts underlying the claim are sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder could have found the applicant guilty ((2)(B)). The latter requirement has been described as “the actual innocence” standard. See United States ex rel. Assenato v. Nelson, 1998 WL 704327 (N.D.Ill.1998). The first clause of the statute triggers these stringent requirements. They are called into play only “[i]f the applicant failed to develop the factual basis of a claim in State court proceedings.” § 2254(e)(2). This statutory language has been scrutinized by the Supreme Court in another recent case of the same name, Williams v. Taylor, this petitioner being Michael Williams and the citation being 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). A unanimous Court held that “failure to develop” a claim does not mean simply that the applicant “did not develop” the claim. Id. at 431, 120 S.Ct. 1479. “Under the opening clause of § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 432, 120 S.Ct. 1479. The Court noted the impact: [I]n requiring that prisoners who have not been diligent satisfy § 2254(e)(2)’s provisions rather than show cause and prejudice, and in eliminating a freestanding “miscarriage of justice” exception, Congress raised the bar Keeney imposed on prisoners who were not diligent in state-court proceedings.... ... [T]he opening clause of § 2254(e)(2) codifies Keeney’s threshold standard of diligence, so that prisoners who would have had to satisfy Keeney’s test for excusing the deficiency in the state-court record prior to AEDPA are now controlled by § 2254(e)(2). Id. at 434, 120 S.Ct. 1479 (citing Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992)). The Court instructed, “The question is not whether the facts could have been discovered but instead whether the prisoner was diligent in his efforts.” Id., 529 U.S. at 435, 120 S.Ct. 1479. Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend upon whether those efforts could have been successful. Id. Applying this inquiry, the Court found that petitioner Michael Williams’ failure to develop two of his issues, those of juror bias and prosecutor misconduct, was not due to a lack of diligence. Therefore, he was not barred from an evidentiary hearing on these issues by § 2254(e)(2), and the Court remanded the case for further proceedings to examine only these claims. “Our analysis should suffice to establish cause for any procedural default.... Questions regarding the standard for determining the prejudice the petitioner must establish to obtain relief on these claims can be addressed by the Court of Appeals or the District Court in the course of further proceedings.” Id. at 444, 120 S.Ct. 1479. 3. Claim Raised and Rejected but State Court Does Not Articulate Reasoning The Supreme Court has not addressed how to apply § 2254(d) when a claim is raised and denied but there is no state court decision articulating its reasons. However, several circuit courts have reasoned, “We owe deference to the state court’s result, even if its reasoning is not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.1999). Under this rationale, where the state court has not articulated its reasoning, federal courts are obligated to conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented. Id. at 1177-78 (“we must uphold the state court’s summary decision unless our independent review of the record and pertinent federal law persuades us that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented”); Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir.1999); Delgado v. Lewis, 181 F.3d 1087, 1091 n. 3 (9th Cir.1999), vacated on other grounds, 528 U.S. 1133, 120 S.Ct. 1002, - L.Ed.2d -(2000). One of these circuits is the Sixth, which examined the above-cited cases of other circuits and followed their lead in Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000). The court held that where a state court, although deciding a claim, does not offer some explanation of its decision, a federal court must conduct an independent review of the state court’s decision. Id. at 943. This independent review requires the federal court to “review the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented.” Id. The Sixth Circuit noted that the independent review, however, is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court’s result is not in keeping with the strictures of the AEDPA. That court directed that where a state court decides a constitutional issue by form order or without extended discussion, a ha-beas court should then focus on the result of the state court’s decision, applying the standards articulated above. Id. Applying the standards of the AEDPA, as defined in Williams, the appellate court in Harris noted that the district court first had to determine what was the “clearly established federal law as determined by the Supreme Court of the United States” [§ 2254(d)(1) ] at “the time of the relevant state court decision” [Williams, 529 U.S. at 412, 120 S.Ct. 1495]. Because the Supreme Court precedent existing when the petitioner raised the claim therein did not dictate or compel a different result, the state court’s affirmance of the conviction was not an unreasonable application of clearly established federal law as determined by the Supreme Court at that time. Id. at 944-45. Therefore, the dismissal of the § 2254 petition was affirmed by the Sixth Circuit. With these standards in mind, the Court begins its examination of Bowling’s petition for writ of habeas corpus. PRELIMINARY MATTERS A state petitioner for a federal writ of habeas corpus may obtain relief if he can demonstrate that he is in custody pursuant to the judgment of a state court in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254. Prerequisites for Federal Habeas Corpus Review Before addressing the merits of any claim in a proceeding pursuant to 28 U.S.C. § 2254, the Court must find that certain prerequisites for granting relief are present. Specifically, the Court must find that: (1) petitioner is in “custody”; (2) petitioner has exhausted the remedies available to him in state court; and (3) petitioner did not waive or forfeit the right to present a particular issue by failing to follow state court rules to ensure that the state courts would review that issue on appeal. The first of these is satisfied because the petitioner is in custody at the Kentucky State Penitentiary, under a sentence of death. The next two prerequisites call for some discussion. Federal review is barred if the petitioner either failed to exhaust his state remedies (see 28 U.S.C. § 2254(b)(1)(A)) or his conviction rests on an independent and adequate state procedural ground (see Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Principles of comity and federalism underlie both the Court’s long-standing exhaustion doctrine (see 28 U.S.C. § 2254(b) for its codification; Murray v. Camer, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)) and the doctrine of procedural default, with its cause and prejudice standard (Coleman v. Thompson, 501 U.S. at 730, 111 S.Ct. 2546). The Supreme Court has recognized the inseparability of the exhaustion rule and the procedural default doctrine in Coleman, 501 U.S. at 732, 111 S.Ct. 2546 (the independent and adequate state ground doctrine ensures that the state’s interest in correcting their own mistakes is respected in federal habeas eases), and O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (concluding that the procedural default doctrine was necessary to protect the integrity of the federal exhaustion rule). The requirement of giving state courts the first opportunity to cure a constitutional claim stems from the understanding that state courts are obliged to follow federal law and from the desire for comity between the state and federal court systems. Id. at 844-45, 119 S.Ct. 1728. Exhaustion 28 U.S.C. § 2254(b)(1) specifically bars habeas relief “unless it appears that ... the' applicant has exhausted the remedies available in the courts of the State.... ” Id. That subsection of the statute contains a few limited exceptions to the exhaustion requirement. Moreover, the state may expressly waive the exhaustion requirement. 28 U.S.C. § 2254(b)(3). Additionally, the habeas statute now provides for denial of an application for a writ of habe-as corpus on the merits, “notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). If a state court would find unexhausted claims procedurally barred from state review, they are deemed exhausted. See Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (“[A] federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state would hold the claim procedurally barred.”); Coleman v. Thompson, 501 U.S. at 735 n. 1, 111 S.Ct. 2546 (If the petitioner failed to exhaust and the state court would find the claims procedurally barred, “there is a procedural default for purposes of federal habeas review.”). In the instant case, under Kentucky law, Bowling has pursued both his direct appeal and one 11.42 collateral attack to the state Supreme Court. Under Kentucky’s Rule of Criminal Procedure (“RCr”) 11.42, the prisoner may file a motion to vacate, set aside, or correct a conviction or sentence, with the requirement that the “motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.” RCr 11.42(3). The movant cannot raise issues which were raised and decided on direct appeal. Stanford v. Commonwealth, 854 S.W.2d 742 (Ky.1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994). Nor is a prisoner permitted a successive 11.42 motion to raise issues which were or could have been raised in a first motion. McQueen v. Commonwealth, 949 S.W.2d 70, 71 (Ky.1997). All claims not brought on the direct appeal or in that collateral challenge are generally defaulted. See Gall v. Parker, 231 F.3d 265, 316 (6th Cir.2000). Although there are exceptions for situations for an error which was not known or discoverable, the instant petitioner has presented no claims which would fit under these exceptions. Therefore, Bowling has no further remedy “available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). In his Answer to the petition, respondent has admitted Bowling’s exhaustion of the issues herein “because of procedural default.” Record No. 25 at 10. Procedural Default The respondent has argued that several of the petitioner’s claims are procedurally defaulted because Bowling failed to bring them in either the direct review or collateral proceedings. Therefore, under the doctrine of procedural default, these claims are precluded from review in this Court. In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that when a habeas petitioner fails to obtain consideration of a claim by a state court because of his failure to comply with a state procedural rule, the claim is procedurally defaulted and may not be considered by the federal court on habeas review unless the petitioner shows cause for his failure and prejudice flowing therefrom. Id. at 80, 84-87, 97 S.Ct. 2497. The procedural default doctrine standard applies alike whether the default in question occurred at trial, on appeal, or on state collateral attack. See, e.g., id. (failure to object at trial); Murray v. Carrier, 477 U.S. 478, 490-492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (failure to raise claim on appeal); and see generally Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Later, in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Court discussed Sykes and its progeny, recognized the importance of honoring state procedural rules, and stated the doctrine of procedural default, as follows: We now make it explicit. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750, 111 S.Ct. 2546. Again, reasons of comity and federalism underlie the doctrine. “Like a prisoner who fails to exhaust state remedies, a habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Id. at 732, 111 S.Ct. 2546. Therefore, federal courts “will not review questions of federal law decided by a state court if the decision of that court rests upon a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman, 501 U.S. at 729, 111 S.Ct. 2546. If the state court judgment clearly and expressly states that the judgment was based on a state procedural rule, then the claim is procedurally defaulted. See Harris v. Reed, 489 U.S. at 263, 109 S.Ct. 1038 (1989). Even if there is no clear expression of the basis of the state’s decision, the Supreme Court in Coleman also provided a presumption to guide the Court’s analysis: [Federal courts] will presume that there is no independent and adequate state ground for a state court decision when the decision “fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Id. at 734-45, 111 S.Ct. 2546 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). Accordingly, when the last state court decision appears to rest primarily on federal law or was interwoven with federal law and does not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition. Coleman, 501 U.S. at 735, 111 S.Ct. 2546. However, if a state court reaches the merits of a federal claim, then “it removes any bar to federal court review that might otherwise have been available,” and the claim is properly before the federal habeas court. Wainwright v. Witt, 469 U.S. 412, 431 n. 11, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). If the last state court from which the petitioner sought review affirmed the conviction both on the merits, and, alternatively, on a procedural ground, the procedural default bar is invoked and the petitioner must establish cause and prejudice in order for the federal court to review the petition. See Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994); Simpson v. Jones, 238 F.3d 399 (6th Cir.2000). If the last state court judgment contains no reasoning, but simply affirms the conviction in a standard order, the federal habeas court must look to the last “reasoned state judgment” rejecting the federal claim and apply a presumption that later unexplained orders upholding the judgment or rejecting the same claim rested upon the same-ground. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Therefore, this Court begins any analysis of whether a claim is procedurally defaulted by looking to the last reasoned state court judgment on the petitioner’s claim and then applying the Coleman presumption. Cause and Prejudice Once a claim is determined to be defaulted procedurally, a habeas petitioner can overcome procedural default in two instances. The first is establishing “cause” and “prejudice.” The analysis is whether a petitioner has demonstrated (1) cause for the default and actual prejudice arising from the error or (2) that failure to consider the claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546. A showing of either is a burden which the petitioner must carry in order for the federal court to review the claim. Id. Satisfying the “cause” standard requires that the petitioner show that “some objective factor external to the defense impeded counsel’s efforts” to previously raise the claim in the state court. McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. at 488, 106 S.Ct. 2639). When a petitioner fails to establish “cause” to excuse a procedural default, a court does not need to address the issue of prejudice. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). If the petitioner has established cause, the Court must address whether he has established the prejudice prong of the inquiry. “Prejudice” requires a strong showing of actual harm. See United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The petitioner shoulders “the burden of showing, not merely that the errors at his 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 170,102 S.Ct. 1584. Accordingly, the prejudice component is not satisfied if there is strong evidence of petitioner’s guilt and a lack of evidence to support his claim. Id. at 172,102 SUt. 1584. The only alternative to the cause and prejudice requirement is the prisoner’s demonstrating that a “fundamental miscarriage of justice” will result from enforcing the procedural default; this exception is limited to those rare cases “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Such a claim must be supported by “new reliable evidence” that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Moreover, actual innocence means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). With this approach in mind, the Court now examines each of Thomas Clyde Bowling’s claims. I. INEFFECTIVE ASSISTANCE OF COUNSEL Applicable Standards The petitioner asserts that his retained counsel, Summers, Baldani and Richardson, rendered ineffective assistance at his trial. The Sixth Amendment right to the assistance of counsel is made obligatory upon the state by the Due Process Clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 342-44, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In reviewing the petitioner’s first habeas claim, the Court must initially ascertain whether the Supreme Court of the United States has announced “clearly established law” which sets forth the standard for determining claims of ineffective assistance of counsel. Last year, in Williams v. Taylor, 529 U.S. at 391, 120 S.Ct. 1495, the Supreme Court stated that the standard for habeas review of such claims was set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Supreme Court in Strickland described two components which the claimant must establish to prevail on this claim: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687, 104 S.Ct. 2052. To establish the deficient performance prong, a “defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. In the Court’s words, “[T]he proper standard for attorney performance is that of ‘reasonably effective assistance.’ ” Id. at 687, 104 S.Ct. 2052. The claimant must identify acts that were “outs