Full opinion text
OPINION MOTZ, District Judge. More than twelve years ago, the body of seventy-seven year old Florence Lacs was found in the bathtub of her garden apartment. The medical examiner determined the manner of death was homicide caused by drowning. Her car and credit cards were missing but later recovered in the possession of Kevin Wiggins. Now before this Court is a petition for writ of habeas corpus brought under 28 U.S.C. § 2254 by Wiggins, who was sentenced to death by a jury after having been found guilty of the murder of Mrs. Lacs by the Honorable J. William Hinkle in a non-jury trial. Wiggins asserts, inter alia, that the evidence was constitutionally insufficient to sustain his conviction and that his trial counsel was constitutionally ineffective in failing to present mitigation evidence during his sentencing proceeding. Both claims have been exhausted, and both are meritorious. Therefore, Wiggins’s petition will be granted. I. History of the Case On October 20,1988, Wiggins was indicted in the Circuit Court for Baltimore County on charges of first degree murder, robbery, theft and burglary. (See Paper No. 3, Exhibit 2 at 1). On December 8, 1998, the State filed notice of intention to seek the death penalty. (Id., Exhibit 1 at 2). Wiggins, who opted to be tried before a judge, was represented at trial and sentencing by Michelle Nethercott and Carl Schlaich. On August 4, 1989, Judge Hink-el found Wiggins guilty of first degree murder, robbery, and two counts of theft. (Id., Exhibit 1 at 7-9 and Exhibit 6 at 135-140). Wiggins elected to be sentenced by a jury. (Id., Exhibit 1 at 12-13 and Exhibit 7 at 142-59). After four days of proceedings, a jury determined that he was a principal in the first degree murder of Mrs. Lacs, and that the appropriate penalty was death. (Id., Exhibit 1 at 1 and 13 and Exhibit 12 at 66-69). Accordingly, on October 18, 1989, Judge Hinkel noted the jury’s verdict and also imposed a ten year term of incarceration for robbery and concurrent eighteen month sentences for the two theft convictions. (Id., Exhibit 1 at 9 and 13 and Exhibit 12 at 71-72). Those sentences have now been fully served. A motion for new trial was subsequently heard and denied. (Id., Exhibit 1 at 14 and Exhibit 13). Wiggins, through counsel, argued on direct appeal to the Maryland Court of Appeals that (1) the evidence presented at trial was insufficient to establish that he perpetrated the crimes; (2) the trial court erred in denying his motion for new trial; (3) the evidence presented at sentencing was insufficient to support a finding that he was a principal in the first degree; (4) the trial court erred in excluding mitigating evidence that the State had made a plea offer of a life sentence; (5) the trial court erred in excluding other mitigating evidence at sentencing; (6) the trial court erred in denying petitioner’s right of allocution; (7) the trial court erred in denying his motion for a bifurcated sentencing hearing; (8) the trial court erred in admitting irrelevant evidence relating to the victim’s TV Guide magazines; (9) the trial court erred in admitting victim impact evidence at sentencing; (10) the death sentence was excessive and disproportionate to the sentences imposed in similar cases, considering the nature of the crime and the defendant; (11) the Maryland death penalty statute is unconstitutional; and (12) the trial court erred in imposing-separate sentences for the two theft convictions. (Id., Exhibit 15 at 2-3). In a reported opinion dated November 8, 1991, the appellate court affirmed all but the theft-related counts of the judgment against him. (Id., Exhibit 26); see also Wiggins v. State, 324 Md. 551, 597 A.2d 1359 (Md.1991). Wiggins sought certiorari as to one issue, to wit “[wjhether the exclusion of relevant mitigating evidence at petitioner’s capital sentencing proceeding that the state had offered a life sentence in exchange for a plea of guilty and that the death penalty is imposed infrequently in Maryland in like cases violated the Eighth and Fourteenth Amendments.” (Id., Exhibit 27 at iii). On April 27, 1992 the United States Supreme Court denied review. (Id., Exhibit 29); see also Wiggins v. State, 503 U.S. 1007, 112 S.Ct. 1765, 118 L.Ed.2d 427 (1992). In January, 1993, Wiggins sought post conviction relief in the Baltimore County Circuit Court, raising 38 claims embodying 52 issues. After a hearing, the Honorable John F. Fader II denied relief on all grounds in a 257-page decision filed on October 22, 1997. (Id., Exhibit 1 at 19 and Exhibit 40). In his petition for leave to appeal filed before the Court of Appeals, Wiggins alleged that: (1) trial counsel provided ineffective assistance at sentencing by failing to investigate and introduce mitigating evidence concerning his traumatic background and mental problems; (2) trial counsel provided ineffective assistance at the guilt/innocence phase of trial by failing to adduce evidence of the medical examiner’s prior inconsistent opinion regarding time of death; (3) trial counsel provided ineffective assistance by failing to secure a forensic expert for trial, thus handing him the choice of going to trial without a jury or proceeding before a jury without an expert; (4) trial counsel failed to investigate and develop evidence regarding jury selection procedures in Baltimore County; (5) the prosecutor failed to disclose an agreement with one of its witnesses regarding lenient treatment in exchange for testimony; and (6) the evidence was insufficient to find him guilty of first degree murder and to establish that he was a first degree principal in the murder. (See Paper No. 3, Exhibits 44-46). Wiggins’s request for leave to appeal was denied on February 10, 1999 in a reported opinion. Wiggins v. State, 352 Md. 580, 724 A.2d 1 (Md.1999). (See Paper No. 3, Exhibit 50). On certiorari, petitioner sought review as to whether: (1) trial counsel in a capital case are under a Sixth Amendment duty to investigate mitigating evidence about a defendant’s background and character in advance of making a “tactical” decision not to present such evidence at sentencing, and are likewise under a Sixth Amendment duty to present such mitigating evidence at sentencing if the evidence is in no respect inconsistent with counsel’s “tactics” at sentencing; (2) the Sixth Amendment right to effective assistance of counsel is denied when trial counsel fail to impeach a key state witness at trial with a prior inconsistent statement that reveals the State’s theory of the case to be scientifically impossible; and (3) the Sixth Amendment right to effective assistance of counsel is denied where trial counsel, after objecting to the composition of the sentencing jury, fail to introduce any evidence to support the objection, and in particulate fail to introduce evidence that would have shown that six out of ten African Americans residing in the jurisdiction were excluded from the jury pool. (See Paper No. 3, Exhibit 51 at i). Certiorari was denied. See Wiggins v. Maryland, 528 U.S. 832, 120 S.Ct. 90, 145 L.Ed.2d 76 (1999). In the instant petition, his first in federal court, Wiggins asserts that: A. he did not knowingly and voluntarily waive his right to a jury trial; B. the evidence was not sufficient to sustain his murder conviction; C. the trial court erred in denying his motion for new trial; D. the prosecution failed to disclose exculpatory evidence; E. counsel at the guilt/innocence phase of trial rendered ineffective assistance; F. unreliable identification evidence was improperly admitted at trial; G. the grand jury and sentencing jury were selected in a manner that violated the Sixth Amendment’s fair cross-section guarantee and the Fourteenth Amendment’s equal protection clause; H. voir dire of the jurors was inadequate; I. the trial court wrongly excused prospective jurors; J. the evidence was insufficient to support the sentencing jury’s finding of the aggravating factor of murder committed in the course of a robbery; K. the evidence was insufficient to support the sentencing jury’s finding that he was a principal in the first degree; L. the court at sentencing erred in several of its evidentiary rulings; M. the court erred in instructing the jury; N. counsel at sentencing rendered ineffective assistance; O. it is unconstitutional to impose capital punishment on a mentally retarded individual; P. application of the death penalty in Maryland is arbitrary; Q. the death penalty is excessive punishment in all cases; and R. counsel on direct appeal rendered ineffective assistance. (See Paper No. 1 at 11-37). II. Threshold Considerations Statute of Limitations Respondents do not contend — and the Court does not find — that the petition is time-barred pursuant to 28 U.S.C. § 2244(d). Exhaustion of State Remedies and Procedural Default Before a petitioner may seek habeas relief in federal court, he must exhaust each claim presented to the federal court by pursuing remedies available in state court. See Rose v. Lundy, 455 U.S. 509, 521, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). This exhaustion requirement is satisfied by seeking review of the claim in the highest state court with jurisdiction to consider the claim. O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); 28 U.S.C. § 2254(b) and (c). In Maryland, this may be accomplished by raising certain claims on direct appeal and with other claims by way of a post conviction proceedings. Exhaustion is not required if at the time a federal habeas corpus petition is filed the petitioner has no available state remedy. Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir.1990). Where a petitioner has failed to present a claim to the highest state court with jurisdiction to hear it, whether it be by failing to raise the claim in post conviction proceedings or on direct appeal or by failing to timely note an appeal, the procedural default doctrine applies. Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), reh’g denied 501 U.S. 1277, 112 S.Ct. 27, 115 L.Ed.2d 1109 (failure to note timely appeal); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)(failure to raise claim on direct appeal); Murch v. Mottram, 409 U.S. 41, 46, 93 S.Ct. 71, 34 L.Ed.2d 194 (1972)(failure to raise claim during post conviction); Bradley v. Davis, 551 F.Supp. 479, 481 (D.Md.1982) (failure to seek leave to appeal denial of post conviction relief). Procedural default also may occur where a state court declines “to consider the merits [of a claim] on the basis of an adequate and independent state procedural rule.” Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir.), cert. denied, 526 U.S. 1095, 119 S.Ct. 1517, 143 L.Ed.2d 668 (1999). Maryland’s requirement that certain claims be presented on direct appeal, see Md. Ann.Code Art. 27, § 645A(c), constitutes an adequate and independent state procedural rule. Johnson v. Smith, 981 F.Supp. 944, 948 (D.Md.1997). The procedural default doctrine bar, however, is not absolute. Where a petitioner shows cause and prejudice for such default, or demonstrates actual innocence, federal habeas corpus review may be appropriate, notwithstanding default. Murray, 477 U.S. at 495, 106 S.Ct. 2639; Wainwright v. Sykes, 433 U.S. 72, 86, 97 5.Ct. 2497, 53 L.Ed.2d 594 (1977). Cause for procedural default must be more than mistake or ignorance. Under some circumstances, ineffective assistance of counsel as determined under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) may be cause. Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Otherwise, “in order to demonstrate ‘cause’ for the default [petitioner] must establish that ‘some objective factor external to the defense impeded counsel’s [or petitioner’s] efforts’ to raise the claim in state court at the appropriate .time.” Breard v. Pruett, 134 F.3d 615, 620 (4th Cir.1998) (quoting Murray, 477 U.S. at 488, 106 S.Ct. 2639). Ignorance of the availability of an appeal in a collateral proceeding, even when based on erroneous legal advice, is not cause for failing to file a timely appeal. Tower v. Phillips, 7 F.3d 206, 211 (11th Cir.1993). In addition to showing cause, a petitioner must establish prejudice, i.e., that the errors alleged worked to his actual and substantial disadvantage and were of constitutional magnitude. Carrier, 477 U.S. at 492, 106 S.Ct. 2639; Felton v. Barnett, 912 F.2d 92 (4th Cir.1990); Waye v. Townley, 871 F.2d 18 (4th Cir.1989). Even where a petitioner fails to show cause and prejudice for a procedural default, a court must still consider whether it should reach the merits of the petitioner’s claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); see also Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). The miscarriage of justice standard is directly linked to innocence. Id. at 320, 115 S.Ct. 851. Innocence is not an independent claim; rather, it is the “gateway” through which a petitioner must pass before a court may consider constitutional claims which are defaulted. Id. at 315, 115 S.Ct. 851. The miscarriage of justice exception applies where a petitioner shows that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. 2639. In capital cases, this showing requires a petitioner to show by clear and convincing evidence that but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Here, respondents contend that twelve of the eighteen claims raised .in the petition are procedurally defaulted, in whole or in part. (See Paper No. 3 at 43-46; 47-49; 52-56; 65-67; 67-69; 70-71; 75-76; 120-121; 144; 145; 146 and 147). Inasmuch as this Court has determined that the evidence was constitutionally insufficient to sustain petitioner’s murder conviction and that trial counsel was ineffective in failing to present mitigation evidence at sentencing, the case law cited above mandates federal habeas corpus review of most of the twelve otherwise-defaulted claims, as further elucidated herein. Murray, 477 U.S. at 496, 106 S.Ct. 2639. III. Standard of Review Effective April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 amended 28 U.S.C. § 2254(d) to provide that: [a]n 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 adjudicated on the merits in State court proceedings unless the adjudication of the claim: (1) resulted in a decision contrary to, or involved an unreasonable application of, clearly established, federal law as determined by the Supreme Court; or (2) resulted in a decision based on an unreasonable determination of the facts, in light of the evidence presented in the State court proceedings. Under the AEDPA, federal courts no longer can correct error in state court proceedings, but must instead exercise a more limited review, set forth in 28 U.S.C. Section 2254(d)(1) and (2)(as amended). The statute provides a new analytical framework for determining whether the state court’s findings concerning a claim raised on federal habeas corpus review is correct. Section 2254(d) now provides that: [a]n 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. In Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court characterized Section 2254(d) as a “new, highly deferential standard for evaluating state court rulings.” In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Justice O’Connor, speaking for the majority, further elucidated that standard, stating that: Section 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under Section 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 materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas 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. Id. at 412, 120 S.Ct. 1495. Justice O’Con-nor indicated that “the phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States’ .. .refers to the holdings, as opposed to the dicta, of th[e] Court’s decisions as of the time of the relevant state-court decision.” Id. Furthermore, she indicated that: [ujnder Section 2254(d)(1)’s “unreasonable application clause... a federal habe-as 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. In other words, “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. A decision is contrary to clearly established federal law if a state court applies a rule that contradicts Supreme Court precedent or if a state court “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different] result.” Id. at 405-06, 120 S.Ct. 1495. “A state court decision that correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular ... case ... [qualifies] as a decision ‘involving an unreasonable application ... of clearly established Federal law.’” Id. at 407-08, 120 S.Ct. 1495. Also, “a state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled.” Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000). Thus, in reviewing Wiggins’s attack on his state court conviction, this Court must presume that factual determinations made by the state court are correct. Wiggins then bears the burden of rebutting this presumption of correctness by clear and convincing evidence. See 28 U.S.C. Section 2254(e)(1). IV. Analysis of Issues Presented for Review Sufficiency of the Evidence (Claim B) A. Ms. Lacs, an elderly woman, was found drowned in the bathtub of her apartment at approximately 3:50 on the afternoon of Saturday, September 17, 1988. Testimony at trial placed Wiggins near Lacs’s apartment (perhaps in conversation with her) at approximately 5:00 on the afternoon of Thursday, September 15, 1988, when Ms. Lacs was last seen alive. Later that evening, Wiggins and his girlfriend, Geraldine Armstrong, used Lacs’s credit cards and drove her car. They did so again on Friday, and on Saturday they pawned a ring belonging to Ms. Lacs. Upon his arrest several days later, Wiggins falsely stated to the police that he had found Ms. Lacs’s car with the credit cards and ring in it on the morning of Friday, September 16. On its face this evidence appears compelling, and, particularly given the high degree of deference that must be given in federal habeas proceedings to the findings and rulings made by state courts, see 28 U.S.C. § 2254(d), it may seem surprising that I should find, as a matter of constitutional due process, that the evidence is not sufficient to sustain Wiggins’s murder conviction. The governing standard of review aside, I have great respect for my state court colleagues and do not pretend to have greater acumen than they. Nevertheless, I am convinced that, when the record is carefully analyzed, no rational finder of fact could have found Wiggins guilty of murder beyond a reasonable doubt, and that to do so involved an unreasonable application of clearly established federal law. See Williams, 529 U.S. at 407-408, 120 S.Ct. 1495. I start my analysis with the evidence I have just summarized. The fact that Wiggins was observed to be near Ms. Lacs’s apartment and perhaps speaking with her outside the apartment the last time she was seen alive does not itself establish that he was her murderer. Nor does the fact that Wiggins made a false exculpatory statement to the police about when he came into possession of Ms. Lacs’s car, credit cards, and ring prove his involvement in the murder. Wiggins would have had equal incentive to lie about when and how he came to use Ms. Lacs’s property if he had merely stolen the property without murdering Ms. Lacs. Therefore, the only piece of evidence that arguably can be said to give rise to an inference that Wiggins murdered Ms. Lacs is that he possessed the property stolen from her shortly after she was last seen alive. Wiggins’s conviction cannot be sustained on the basis of that inference, however, for a very simple reason. Judge Hinkel expressly stated in his oral opinion finding Wiggins guilty that “my decision is not based on any presumption, arising from the recent possession of stolen property, but my belief and fact finding and decision is based upon all the evidence that I have weighed in this case and not by any presumption.” An inference not drawn, or a presumption not relied upon, by the fact-finder is not a fact. Accordingly, it is necessary to consider if there was other evidence upon which a rational finder of fact could have found Wiggins guilty beyond a reasonable doubt. Proof that Ms. Lacs had died between 5:00 p.m. on Thursday, September 15, and 7:45 that evening — when, according to trial testimony, Wiggins was first observed driving her car — would certainly have sufficed. No witness, however, was able to testify on the basis of personal knowledge when Ms. Lacs died, and the medical testimony, viewed most favorably to the State, was at best inconclusive on the point. The death certificate, completed by Dr. Margarita Korell who performed the autopsy, estimated Ms. Lacs’s time of death as Friday Evening, September 16, more than twenty-four hours after Wiggins is alleged to have murdered her. Dr. Gregory Kauf-mann, an expert pathologist called by Wiggins at the guilt/innocence phase of trial, testified that Ms. Lacs had been dead a maximum of eighteen hours when her body was photographed at 9:00 p.m. on Saturday, September 17. At the trial, Dr. Korell testified that “what the maximum period was” between the time of Ms. Lacs’ death and the autopsy could not be stated “with any degree of medical certainty or probability.” In his oral opinion denying Wiggins’s motion for a new trial, Judge Hinkel characterized Dr. Korell’s testimony as being of “little value.” (See Paper No. 3, Exhibit 13 at 30). He also discounted Dr. Kaufmann’s testimony, finding that “there’s nothing certain about medical testimony of this sort” and that “all the other evidence in this case was sufficient for me.” (Id, Exhibit 13 at 33-34). B. In short, according to his own words, Judge Hinkel relied neither upon any presumption arising from Wiggins’s possession of recently stolen property nor upon any medical testimony in finding Wiggins guilty. What other evidence was there to support that verdict? Judge Hinkel recited only five other factual findings when rendering his oral opinion finding Wiggins guilty: (1) Wiggins was “there [in the area of Ms. Lacs’s apartment] at a relevant time;” (2) he gave a false exculpatory statement to the police concerning when he came into possession of Ms. Lacs’s stolen property; (3) he knew Ms. Lacs; (4) Mary Elgert, one of Ms. Lacs’s friends, testified that Ms. Lacs, who was wearing a blue skirt when her body was discovered on Saturday, had also been wearing a blue skirt at a luncheon on Thursday afternoon; and (5) Ms. Lacs’s apartment had been ransacked. As stated above, neither of the first of these findings establishes that Wiggins murdered Ms. Lacs. Likewise, the fact that Wiggins knew Ms. Lacs obviously does not prove that he killed her. The fourth fact recited by Judge Hinkel proves little or nothing. Assuming that Ms. Lacs was wearing a blue skirt on Thursday, this does not prove that she was murdered between 5:00 p.m. and 7:45 p.m. that day. Her killer may have come into her apartment after 7:45, or she may have put the same skirt on Friday or Saturday before being murdered. Moreover, in finding that Ms. Lacs was wearing a blue skirt on Thursday, Judge Hinkel had to discount other testimony. Elizabeth Lane, another of Ms. Lacs’s friends who had been with her at the Thursday luncheon, was the one who reported her missing. In her report she told the police that Ms. Lacs had been wearing a red dress at the luncheon. Similarly, Chianti Thomas, an eleven-year-old girl who prior to trial had selected Wiggins’s photograph as the man she had observed conversing with Ms. Lacs outside her apartment at approximately 5:00 on Thursday afternoon, testified that Ms. Lacs had been wearing a red skirt at the time. Of course, it is within the province of the fact-finder to determine what witnesses to credit and what witnesses to discredit. However, due process does not permit the fact-finder to reason backward from the conclusion that the defendant committed the crime, and to discredit or ignore every piece of evidence contrary to that hypothesis. As the Fourth Circuit has explained, “[t]o start with the assumption that the crime was committed and then to show that each piece of circumstantial evidence can be explained in a consistent manner is fundamentally different from examining each piece of evidence and finally concluding beyond a reasonable doubt that the defendant was guilty.” Evans-Smith v. Taylor, 19 F.3d 899, 910 (4th Cir.1994). Judge Hinkel’s unexplained selection of the testimony of Ms. Elgert over the testimony of Ms. Lane and Ms. Thomas on the question of the color of the dress or skirt Ms. Lacs was wearing on Thursday afternoon suggests that he fell into the trap cautioned against by the Fourth Circuit. Judge Hinkel’s discrediting of the testimony of Edith Vassar, another one of Ms. Lacs’s friends, provides further evidence on the same point. Ms. Vassar, who also attended the Thursday luncheon, testified that she spoke with Ms. Lacs at 10:00 a.m. on the morning of Friday, September 16, to discuss their mutual plans for the day. This asserted conversation occurred after, under the State’s theory of the case accepted by Judge Hinkel, Ms. Lacs had been murdered. Ms. Vassar stuck to her testimony despite the fact that on the eve of trial she received a telephone call from an unidentified caller who tried to persuade her that she and Ms. Lacs spoke on Thursday, not Friday. It may be that Ms. Vassar was incorrect in her recollection. In finding that her memory was faulty, however, Judge Hinkel gave no reason other than to say that “all of the other evidence in this case is so overwhelming that it [what Ms. Vassar testified to] is not so.” As I have discussed, it is only if one starts from the premise that Wiggins was guilty that the other evidence of his guilt appears overwhelming. C. Let me now turn to the issue of the ransacking of Ms. Lacs’s apartment — the fifth factual finding Judge Hinkel alluded to in his oral opinion finding Wiggins guilty. To say that this fact proves that Wiggins was guilty begs the question. In order to reach that conclusion, one would have to find that Wiggins was the person who did the ransacking. There was, however, no evidence that he did so, other than an inference to be drawn from the fact that he possessed Ms. Lacs’s stolen property — the inference that Judge Hinkel expressly stated he chose not to draw. Further, there was also evidence that Judge Hinkel did not address tending to show that Wiggins had not ransacked the apartment and, indeed, had not been involved in a struggle with Ms. Lacs. First, Wiggins’s fingerprints were not found in the apartment, and unidentified fingerprints were found. Second, a Ryder baseball cap was recovered from the apartment, and no evidence was presented tying the cap to Wiggins. For example, neither Chianti Thomas nor Robert Weinberg, a contractor for whom Wiggins was working at the apartment complex where Ms. Lacs resided, testified that they had seen Wiggins wearing a baseball cap. Third, Wiggins had been painting all day on Thursday, September 15, and there was testimony from a witness for the State that he had to wash paint off when he arrived at his girlfriend’s house that evening. No paint was found in Ms. Lacs’s apartment. Fourth, Mr. Weinberg, upon whose testimony the State relied to establish that Wiggins was near Ms. Lacs’s apartment at approximately 5:00 p.m. in the afternoon on September 15, testified that Wiggins returned approximately twenty minutes after having been released from work to say that he had moved some sheetrock. Weinberg further testified that Wiggins in fact had moved the sheetrock and that although this would have taken him only a few minutes, it was an approximately five minutes’ walk each way from Weinberg’s office to the place near Ms. Lacs’s apartment where the sheetrock was located. This time sequence would not realistically have given Wiggins time to struggle with Ms. Lacs, run water in her bathtub and murder her, and ransack her apartment. Moreover, Weinberg did not testify that Wiggins was in any unusual emotion state when he returned to the office, as would have been likely if he had just committed a murder. Ineffective Assistance of Counsel at Sentencing (Claim N) The other claim I find meritorious is that Wiggins’s trial counsel was ineffective during the sentencing proceeding in failing to develop a mitigation case. The Maryland courts’ decisions that counsel was not ineffective involved an unreasonable application of clearly established federal law. Indeed, it is almost directly contrary to the Supreme Court’s recent decision in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). There, the Court held that a defendant has “a right — -indeed, a constitutionally protected right — to provide the jury with.. .mitigating evidence” and that defense counsel’s failure to present such evidence fell short of prevailing professional standards. Id. at 393-96, 120 S.Ct. 1495. The Court also found that under the facts of the case the “prejudice” prong of the test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) was met. 529 U.S. at 396-98, 120 S.Ct. 1495. Wiggins’s mitigation evidence was much stronger, and the State’s evidence favoring imposition of the death penalty was far weaker, than the comparable evidence in Williams. Therefore, it follows a fortiori that Wiggins was prejudiced by his counsels’ unprofessional errors. The State seeks to justify trial counsels’ decision as a tactical one. That contention, which was accepted by the Maryland courts, is based upon the testimony of trial counsel during the post-conviction hearing that they made the decision to “retry guilt” before the sentencing jury and that they did not want to dilute the effectiveness of their argument by presenting a mitigation case as well. {See Paper No. 3, Exhibit 35 at 27, 54-56). In fact, it appears that defense counsels’ “tactical decision” was forced upon them by inattention and lack of preparation. Before the trial, lead counsel had taken a new full-time job in another county, spent only “a day a week or so” attending to his former responsibilities, and left it to his có-counsel to do “most of the work.” {Id., Exhibit 35 at 12-16, 40, 100). See, e.g., Rose v. State, 675 So.2d 567, 572 (Fla.1996)(fmding a failure to investigate where, inter alia, counsel had been pressed for time because he had gotten married and gone on a ten-day honeymoon during the period prior to sentencing). Here, the attorney left in charge had previously worked on only one or two felony jury trials, had never before worked on a capital trial, and was “frankly overwhelmed” as the trial date approached. (See Paper No. 3, Exhibit 35 at 81-84, 100). Each of the defense attorneys testified that the other was responsible for preparing the mitigation case. (Id., Exhibit 35 at 27, 40, 112-113). See Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir.1998)(where failure to develop mitigating evidence resulted from counsel’s “role confusion,” that failure “can only be characterized as a deficiency in trial preparation, not a strategic decision”); Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.1989)(hold-ing that failure to investigate was due to “neglect” where “[e]ach lawyer testified that he believed that the other was responsible for preparing the penalty phase.... ”). In any event, in order for a tactical decision to be reasonable, it must be based upon information the attorney has made after conducting a reasonable investigation. See, e.g., Stouffer v. Reynolds, 168 F.3d 1155, 1167 (10th Cir.1999)(“In a capital case the attorney’s duty to investigate all possible lines of defense is strictly observed”) (citations omitted); Jackson v. Herring, 42 F.3d 1350, 1367-68 (11th Cir.1995)(decision to forego a mitigation presentation cannot be reasonable if it is supported by insufficient investigation). Wiggins’s trial counsel conducted no such investigation. It is true that when making their decision solely to “retry guilt,” counsel were aware of some mitigating information about Wiggins’s unfortunate upbringing. (See Paper No. 3, Exhibit 35 at 33-34). However, their very possession of that information triggered them obligation to conduct a more complete investigation. See, e.g., Lockett v. Anderson, 230 F.3d 695, 712-14 (5th Cir.2000)(finding a failure to investigate where counsel had notice of the defendant’s possible psychological problems but failed to conduct further inquiry); Hill v. Lockhart, 28 F.3d 832, 845 (8th Cir.1994); cf. Williams, 529 U.S. at 396, 120 S.Ct. 1495 (noting that counsel failed to return a phone call of an accountant who offered to testify as to the defendant’s positive experience in a prison ministry program). It did not excuse them of their duty at least to make a fully informed and deliberate decision on the question of whether to present a mitigation case. Trial counsel were aware that it was a routine practice in the Maryland Public Defender’s Office to retain an expert forensic worker to prepare a social history of capital defendants and that funds were available for that purpose. (See Paper No. 3, Exhibit 35 at 29-30, 32-33; Exhibit 36 at 33-34). If they had caused such a history to be prepared, they would have learned information that was far more extensive and detailed than the information they possessed when they made their tactical decision not to present a mitigation case. Post-conviction counsel did have a social history prepared and, as a result, learned many crucial facts, including the following: • As an infant, Wiggins and his siblings were routinely left alone and unfed for days at a time. (See Social History of Kevin Eugene Wiggins, Ex. Mem. Supp. Pt. for Habeas Corpus at 2-4). • As a toddler, Wiggins witnessed one of his sisters routinely being sexually abused by an adult male friend of his mother. Id. at 6-7. • At age 6, Wiggins was intentionally burned by his own mother on a hot stove as punishment for playing with matches. Id. at 5-6. • Wiggins was physically abused by his first foster family and, from the age of 8 on, was sexually abused for many years by his second foster father. Id. at 9-12. • Wiggins was raped by the teenaged sons of his fourth foster family. Id. at 20-21. • At age 16, Wiggins was molested by his Job Corp Supervisor. Id. at 22-23. Clearly, this information “might well have influenced the jury’s appraisal of... [Wiggins’s] moral culpability.” Williams, 529 U.S. at 398, 120 S.Ct. 1495. Thus, particularly since Wiggins had no prior criminal record, a tactical decision made by trial counsel in possession of this information not to present a mitigation case would have been virtually inexplicable. In any event, Wiggins’s trial counsel were under a duty to obtain the information necessary to make a reasoned decision and their failure to do so deprived him of effective assistance of counsel. Involuntary Waiver of Right to Trial by Jury (Claim A) The Sixth Amendment protection that provides that the accused may elect the right to trial by an impartial jury is made applicable to the states by the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145, 154-55, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). In arguing that he invalidly waived his Sixth Amendment right, Wiggins also invokes the Fifth Amendment, contending that his waiver of a jury trial at the guilt/innocence stage of the proceedings was not knowing and voluntary because, at the time such election was required to be made, counsel had not arranged for an expert witness to be present at trial. Wiggins claims that the expert witness, who would testify concerning the victim’s time of death, could not be present at the time set for trial, thus prompting counsel to pressure him to forego his right to proceed before a jury of his peers. (See Paper No. 1 at 11). Respondents contend that with one exception, Wiggins is procedurally defaulted from presenting all aspects of the waiver issue for federal habeas corpus review. (See Paper No. 3 at 42-43). They further contend that the undefaulted portion of his claim is without merit. (Id. at 46 — 47). The issue of invalid waiver of the right to trial by jury first surfaced on post conviction. In that petition, Wiggins complained that (a) his waiver of a jury trial was coerced; and (b) counsel rendered ineffective assistance by pressuring him to waive trial by jury. (See Paper No. 3, Exhibit 30 at 10-11 and 17 and Exhibit 33 at 12-13 and 18). The post conviction court found, based on the record and testimony, that “coercion” did not occur: instead, Wiggins had “... listened to his trial counsel and their analysis of the situation of whether to take a judge or jury trial. Race, the heinous nature of the crime, and in the words of [Wiggins], his belief prejudice may have had an effect at the guilt/innocence phase, all played a part in making the decision to be tried by a judge. It was a decision made on the practicalities of the situation at the time.” (Id., Exhibit 40 at 34). The post conviction court also found that “[m]any factors were involved in that decision, one of which was the possibility that an expert witness might not be available at trial to give testimony on the all important topic of time of death.” (Id.). Noting that Wiggins stated his reasons for electing to waive a jury at the guih/innocence phase, the post conviction court found no evidence that coercion by counsel led to Wiggins’s decision to forego trial by jury at the first stage of trial. The post conviction court also found, based on testimony by trial counsel, that while the forensic pathologist enlisted by the defense might not have been available on certain dates, the pathologist would have been available to testify, and in fact did testify at trial. (Id., Exhibit 35 at 24). The post conviction court accordingly rejected both aspects of Wiggins’s involuntary waiver claim. (Id., Exhibit 40 at 28-35 and 48-74). On appeal from the denial of post conviction relief, Wiggins abandoned his “coercion” claim. Although it is not clear from the parties’ appellate briefs, the Maryland Court of Appeals found that petitioner did preserve an “offshoot” of the waiver claim, by contending that the choice to forego trial by jury, even if voluntarily made, was forced on him through the incompetence of counsel. (Id., Exhibit 50, Wiggins v. State, 352 Md. at 606, 724 A.2d 1). As noted by the Court of Appeals, the allegation ... seems to rest on this statement from [Wiggins’s post conviction] expert, Mr. Fisher: “If indeed what was the reason for waiving was simply this whole problem with getting their experts available and being able to go forward, that I think falls below the standards of adequate professional conduct. .. .But they had alternatives to that. They could have sought a continuance; they could have done a number of things that would have taken the dilemma which had been created and set it aside. But they didn’t do that. So if that was the motivating factor or the primary motivating factor in their decision to go judge versus jury then I think that that falls below the standards of competent assistance of counsel.” It does not appear that Mr. Fisher, or anyone else, has faulted counsel for the decision of Dr. Breitenecker not to testify, or for their decision to retain Dr. Kauffman, who gave very favorable testimony for appellant. As Fisher did not specify what other “number of things” counsel could have done, it seems that his criticism lies in their failure to seek a postponement of trial rather than recommend that appellant proceed with a court trial. As [the post conviction court] noted, however, appellant made clear, when questioned about his choice to proceed non-jury, that it was not based on the availability of Dr. Kauff-man or anyone else, but rather on his concern that a jury might be “more likely to go with the State.” Other than post-conviction after-thought, there is nothing in the record to support the claim that counsel were deficient in their selection of experts or to require a conclusion that they improperly induced appellant into waiving a jury trial. (Id., Exhibit 50, 352 Md. at 605-607, 724 A.2d 1). Given this record, it appears that Wiggins has defaulted on that portion of his jury waiver claim alleging coercion, and that in any event, coercion was not employed to induce his waiver. The remaining aspect of the jury waiver claim — ’that trial counsel acted unprofessionally and rendered ineffective assistance by recommending waiver rather than seek a postponement due to the unavailability of an expert witness' — was found by the post conviction court and the Maryland Court of Appeals to be without merit, based on the record and on controlling legal precedent. An ineffective assistance of counsel claim is a mixed question of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. 2052. Under the amendment to 28 U.S.C. Section 2254(d), this Court cannot grant relief on this ground as long as the state court denied the ineffective assistance of counsel claim based upon a reasonable application of the Strickland standard to the facts presented during the state court proceedings. As set forth above, after careful review of the record, it appears that the post conviction court and the appellate court that reviewed the post conviction decision reasonably applied the facts of the case to the Strickland standard in reviewing the ineffective assistance of counsel aspect of petitioner’s jury waiver claim. The decisions reached by those courts do not reflect an unreasonable application of clearly established federal law, nor are they based on an unreasonable determination of the facts in light of evidence presented in those State court proceedings. Accordingly, petitioner is not entitled to relief on his claim of improper waiver of his right to trial by jury, pursuant to 28 U.S.C. § 2254(d). Trial Court EiTor in Denying Motion for Neiu Trial (Claim C) Wiggins asserts that his Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated when the trial court denied his motion for a new trial on the basis of the state medical examiner’s change in testimony during sentencing proceedings. (See Paper No. 1 at 16). Assuming, without deciding, that the denial of a new trial impinges upon a fundamental right, I find meritorious respondents’ contention that this claim is procedurally defaulted and thus barred from federal habeas review. Inasmuch as Judge Hinkel did not rely upon the medical examiner’s testimony in reaching his conclusions (see Paper No. 3, Exhibit 13 at 30, 33-34), it is unlikely that Wiggins was prejudiced as a result of Judge Hinkel’s failure to grant a new trial. Relief will not be granted on this claim. Prosecutor’s Failure to Disclose Exculpatory Evidence (Claim D) Wiggins next contends that the State failed to disclose exculpatory evidence in violation of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. (See Paper No. 1 at 17-18). To support his claim, Wiggins points to the fact that identical charges against Geraldine Armstrong (arrested with Wiggins in Mrs. Lacs’s car several days after the murder) were dropped, and Armstrong testified against him at trial. From this fact, he proffers, based “on information and belief,” that one of Armstrong’s brothers lived in an apartment directly beneath the victim at the time of the murder, and that another of Armstrong’s brothers visited with his brother at the brother’s apartment the evening of the murder. He then asks this Court to accept additional proffers, again based “on information and belief,” that Geraldine Armstrong received favorable treatment from the state in exchange for her testimony against him at trial; that the role of Armstrong’s brothers in the murder was not investigated or pursued by the State as a result of Armstrong’s agreement to testify; that the State did not disclose to petitioner prior to trial that Armstrong had been given such favorable treatment; and that the State did not disclose the possibility that Armstrong or her brothers might be responsible for the murder. {See Petition at 18). As found by the post conviction court and noted in this Court’s March 9, 2001 Memorandum and Order, Wiggins has been unable to provide factual support for any of these suppositions. Accordingly, the state court findings must be upheld, pursuant to 2254(d). Ineffective Assistance of Counsel at Trial (Claim E) Wiggins alleges that counsel was ineffective at the guilt/innocence stage of trial, based on counsel’s failure to (1) introduce evidence that Medical Examiner Korell changed her opinion respecting the victim’s time of death; and (2) ensure that as of the time Wiggins had to elect whether to be tried by a judge or a jury, a defense expert would be available to testify concerning time of death. (See Paper No. 1 at 19-21). As previously noted, in order' to prevail on a Sixth Amendment claim of ineffective assistance, Wiggins must show that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the results of the trial would have been different. Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052. The Court of Appeals found ... neither a Constitutional deficiency nor Constitutional prejudice in counsel’s failure to cross-examine Dr. Korell (at trial or at the sentencing proceeding) or in the decision not to have Ms. Nether-cott testify with regard to her conversation with Dr. Korell. Taking the second matter first, there is absolutely nothing in this record suggesting any need for Ms. Nethercott to have testified. There is no indication whatever that, had Dr. Korell been asked about the two conversations with Ms. Nethercott, or about her conversation with Dr. Dixon, she would have denied either the fact or the content of those conversations. Ms. Nethercott’s concern in that regard has utterly no foundation and should never have been a factor in deciding whether to question Dr. Korell about the matter. The question of whether Dr. Korell should have been cross-examined about her initial view and her change of opinion must be examined in context. Several considerations are relevant. Viewing the matter at the time of trial, it is clear that Judge Hinkel was fully aware of what had occurred. Without contradiction by the prosecutor, Mr. Schlaich had informed the judge at the hearing on the pre-trial motion to dismiss or narrow the indictment of the various conversations with Dr. Korell, and Ms. Nethercott reminded Judge Hinkel of that situation in her opening statement at trial. When Dr. Korell testified at trial, she gave a range of from 24 to 48 hours, but said that it was all guesswork and that a time of death could not be pinpointed. In Ms. Nethercott’s uncon-tradicted view, Dr. Korell was not an effective witness; she did not make a good presentation. More significant, perhaps, is the fact that Dr. KorelPs trial testimony, giving a guesswork range of 24 to 48 hours, still put the earliest time of death at 9:00 Thursday evening — at least two hours after appellant was in possession of the victim’s car, credit cards, and ring. Although that testimony was neither as firm nor as favorable to appellant as Dr. Korell’s initial view, it still was more exculpatory than inculpatory. Both at the time of trial and at the time of the sentencing proceeding (1989), the law in Maryland was that a prior inconsistent statement by a witness, other than a party, was admissible only to impeach the witness’s credibility, and not as substantive evidence. [Citations omitted]. Not until Nance v. State, 331 Md. 549, 629 A.2d 633 (1993) was that rule relaxed to permit an inconsistent statement to be admitted as substantive evidence if the statement was reduced to writing and either signed or otherwise adopted by the witness. Thus, Dr. Ko-rell’s initial view, expressed orally to Ms. Nethercott, that Ms. Lacs had died no earlier than late afternoon on Friday could not have been used as substantive evidence as to time of death but only to impeach the credibility of her testimony that (1) death could have occurred 24 hours earlier, but (2) there was no sure way to tell. To have attempted to impeach that testimony by cross-examining her about her initial view would have permitted Dr. Korell to describe her conversation with Dr. Dixon, to have acknowledged that she was wrong in her initial view, and to have explained why she was wrong. It would have placed before Judge Hinkel no information of which he was not already aware, but may have allowed Dr. Korell to strengthen her resolve about the 48 hours, which would have created an even more dramatic conflict with Dr. Kauff-man’s opinion. In announcing his verdict and in denying the motion for new trial, Judge Hinkel said that he placed no weight on the medical testimony as to time of death. We cannot imagine what additional benefit, as a practical matter, would have accrued to appellant from further impeachment of Dr. Korell. Failure to press the point already known to Judge Hinkel does not, in our view, overcome the presumption of sound trial strategy; nor can we conclude that, as a result of the omission, “the result of the proceeding was fundamentally unfair or unreliable.” (See Paper No. 3, Exhibit 50; 352 Md. at 603-05, 724 A.2d at 12-14). I agree with the appellate court’s determination that counsel’s performance was not unconstitutionally deficient with regard to the cross-examination of the medical examiner, and that prejudice did not result, since in any event, Judge Hinkel did not rely upon either expert’s testimony concerning time of death in rendering his decision as to Wiggins’s guilt. Neither prong of Strickland has been satisfied, and thus the appellate court’s findings must be upheld as a reasonable application of law and fact. The issue concerning whether a defense expert was available to testify concerning time of death has been fully examined in Claim A above, and will not be reexamined here. Use of Unreliable Identification Evidence at Trial (Claim F) Petitioner next claims that twelve-year-old Chianti Thomas’s pretrial identification of him was violative of Fifth, Sixth, Eighth and Fourteen Amendments, because it was obtained through the use of impermissibly suggestive police procedures that created a substantial risk of erroneous identification. (See Paper No. 1 at 22). The Due Process Clause protects suspects against identification procedures which are impermissibly suggestive and conducive to irreparably mistaken identifications. See Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). To succeed on a due process claim, petitioner must first prove that the identification procedure was impermissibly suggestive. If impermissible suggestiveness is shown, the court must then analyze whether the identification nevertheless was reliable under the totality of the circumstances. Manson, 432 U.S. at 114-117, 97 S.Ct. 2243; United States v. Dorta, 783 F.2d 1179, 1183 (4th Cir.)(identification reliable even if pretrial photo display impermissibly suggestive where witness had several previous encounters with suspect). This standard is used whether the identification is based on a “show up” or, as here, based on photographs. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Harker v. Maryland, 800 F.2d 437, 444 (4th Cir.1986). Although the subject of a pretrial motion, Chianti Thomas’s allegedly tainted pretrial identification of Wiggins was not raised on direct appeal. (See Paper No. 3, Exhibits 15, 16 and 26). The post conviction court held that the claim was waived, but nonetheless reviewed it on the merits, finding no due process violation under state case law. (Id., Exhibit 40 at 44-48). Petitioner then abandoned his claim, failing to raise it in his appellate attack on the post conviction court’s decision. (Id., Exhibits 44-46 and 50). This failure to present the pretrial identification claim to the Court of Appeals when challenging the denial of post conviction relief precludes this Court from further consideration of the claim, based upon the procedural default doctrine discussed above. Impropriety in Selecting the Grand Jury and Sentencing Jury (Claim G) Wiggins asserts that at sentencing he was denied his right to trial by an impartial jury of his peers. He claims that the grand jury that indicted him and the petit jury that sentenced him were selected in a manner that violated the Fourteenth Amendment’s Equal Protection Clause, thereby depriving him of a jury representing a fair cross-section of the community due to the systematic exclusion of racial minorities and other distinct groups of persons. (See Paper No. 1 at 22). Respondents argue that this claim is proeedurally defaulted and otherwise without merit. (See Paper No. 3 at 67-69). Under state law, Wiggins was entitled to a jury at his capital sentencing proceedings. Prior to jury selection, Wiggins through counsel challenged the array of prospective jurors, noting that of the 104 venire persons, only three were African American. (See Paper No. 3, Exhibit 8 at 11-12) Counsel did not present any evidence to support his contention that the percentage was due to systematic exclusion of African Americans from the panel, and the challenge to the array was denied. (Id.). No claim concerning the composition of the array was presented on direct appeal. On post conviction, Wiggins argued that the manner in which Baltimore County selects grand jurors and petit jurors — to wit, through the use of voter registration lists — was improper. He further contended that trial counsel was ineffective in failing to develop evidence to support a challenge to the array of jurors. (Id., Exhibit 30 at 17-19 and 35-36 and Exhibit 33 at 22-23). The post conviction court heard evidence concerning the process for juror selection in Baltimore County and trial counsel’s allegedly deficient performance with regard to the jury challenge, and rejected both claims. (Id., Exhibit 40 at 102-137). In appealing that decision, Wiggins abandoned his claim that the County’s jury selection process systematically excluded African Americans, and pursued only the ineffective assistance portion of the jury composition claim. (Id., Exhibit 44 at 46-48 and Exhibit 50, 352 Md. at 607-08, 724 A.2d at 15). Wiggins has defaulted on the portion of the juror array issue presented here. He has failed to show cause for the default, and prejudice cannot be inferred, inasmuch as the use of voter registration lists for selection of juror pools passes constitutional muster. See Truesdale v. Moore, 142 F.3d 749, 755-56 (4th Cir.), cert. denied, 525 U.S. 951, 119 S.Ct. 380, 142 L.Ed.2d 314 (1998). Inadequate Voir Dire of Prospective Jurors (Claim H) Similarly, Wiggins has defaulted on his claim that he was denied his right to adequate voir dire in order to delve into the racial attitudes of prospective jurors, as well as ascertain the prospect of bias resulting from their status as prior victims of crime; their possible bias in favor of law enforcement personnel; and their ability to evaluate and respond to mitigating evidence. (See Paper No. 1 at 24). Wiggins’s contention of inadequate voir dire of prospective jurors was not raised on direct appeal, but instead was presented unsuccessfully at post conviction. (See Paper No. 3, Exhibit 30 at 20-24 and Exhibit 40 at 137-66). Wiggins did not seek to appeal the post conviction court’s determination of the voir dire issues. (Id., Exhibits 44, 46 and 50). Neither cause for abandoning these issues, nor prejudice resulting therefrom, has been demonstrated, and accordingly review of the process by which prospective jurors were screened is barred under the procedural default doctrine. Trial Court Error in Excusing Prospective Jurors (Claim I) Wiggins’s next claim concerns prospective jurors whose excusal he claims violated his Constitutional rights. Again citing the Fifth, Sixth, Eighth and Fourteenth Amendments, Wiggins contends that these jurors should not have been excused, because they “did not sufficiently express during voir dire that their personal feelings against the death penalty were sufficiently strong to prevent them from following the law and performing then-duty” if chosen for the jury. (See Paper No. 1 at 25). As noted by respondents, this claim also is barred from consideration under the procedural default doctrine. Wiggins did not present this claim on direct appeal. The post conviction court denied relief (see Paper No. 3, Exhibit 40 at 166-78), and petitioner did not pursue the claim on appeal from that decision. (Id., Exhibits 44-46 and 50). Petitioner has not shown cause and prejudice sufficient to overcome his default with regard to t