Full opinion text
MEMORANDUM ROBERT F. KELLY, Senior District Judge. Before this Court is the Petition for a Writ of Habeas Corpus filed by Petitioner Ernest Porter (“Petitioner”). Under 28 U.S.C. § 2254, Petitioner presents fourteen claims in support of his Petition for habeas corpus relief from his state murder conviction and subsequent death sentence. Petitioner’s fourteen claims assert constitutional error in both the guilt phase and sentencing phase of his trial. For the reasons set forth below, the Petition for a Writ of Habeas Corpus is granted in part and denied in part. I will grant the Petition with regard to Claim Y, asserting error in the penalty phase of Petitioner’s trial. As a result, Petitioner’s death sentence is vacated. Petitioner’s case is remanded to the Commonwealth of Pennsylvania to either sentence Petitioner to life imprisonment or to conduct such further proceedings as may be appropriate under state law. Even though I shall grant the Petition for a Writ of Habeas Corpus with respect to the penalty phase of trial, I will deny the Petition with respect to each claim challenging Petitioner’s conviction of first-degree murder. 1. FACTUAL BACKGROUND Raymond Fiss, owner of Mr. Fiss’s Beauty Shop, was shot to death in his shop on the morning of April 27, 1985. At approximately 7:30 a.m., Angelina Spera, a neighbor who lives directly across the street from the beauty shop, was looking out her window. Mrs. Spera saw a black man push Mr. Fiss into the shop as he was opening the shop door and heard Mr. Fiss cry out, “Get the hell out of here.” Mrs. Spera called the police and returned to the window in time to see Catherine Valente approaching the shop. Mrs. Valente was a customer of Mr. Fiss who had a hair appointment scheduled for that morning. As Mrs. Valente opened the shop door, she saw a man standing inside with a yellow bag in his hand. The man rushed past Mrs. Valente to exit the shop, saying “I’ll be back.” The man then got into Mr. Fiss’s car, which was parked at the curb outside of the shop, and drove off. Mrs. Valente found Mr. Fiss’s lifeless body laying in the bathroom of the shop. Mr. Fiss was killed by a single gunshot wound from a .38 caliber handgun. He had left that morning with approximately thirty to fifty dollars in cash, but was found without any money and with his left pants pocket turned inside-out. The killer did manage to escape, however, both Mrs. Spera and Mrs. Valente gave descriptions of the killer to the police. On April 30, 1985, three days after the shooting of Mr. Fiss, Petitioner and two other men robbed a Philadelphia jewelry store at gun point. Police arrived at the store while the crime was in progress because the store’s proprietor, Vincent Gentile, activated a silent alarm. A foot chase ensued between the police and Petitioner. As he was being chased, Petitioner discarded a .38 caliber Colt revolver under a parked car. According to ballistics tests later performed by the police, the discarded revolver had fired the fatal bullet that killed Mr. Fiss. Petitioner was apprehended and was subsequently charged and found guilty for the murder of Mr. Fiss. II. PROCEDURAL HISTORY Before the Honorable Albert F. Sabo, Petitioner was tried by a jury in the Philadelphia County Court of Common Pleas. Petitioner was represented by Michael G. Floyd, Esq. (“trial counsel”). On February 26,1986, Petitioner was found guilty of murder in the first degree, robbery and possessing an instrument of crime. On February 27,1986, after the penalty phase, the jury found that there was one aggravating circumstance, the killing was committed during the perpetration of a felony, and no mitigating circumstances. See 42 Pa.C.S. § 9711(d)(6). As a result, the jury returned a sentence of death. Following the penalty phase and prior to the formal imposition of sentence, the trial court deferred sentencing pending the outcome of a court ordered psychiatric examination of Petitioner and the disposal of Petitioner’s post-trial motions. After the result of Petitioner’s psychiatric examination and the court’s denial of Petitioner’s post-trial motions, the judgment of sentence was entered on June 26, 1986. In addition to the death sentence, the sentencing judge also sentenced Petitioner to a consecutive sentence of ten to twenty years on the robbery conviction and two and one-half to five years on the conviction for possession of an instrument of crime. 18 Pa.C.S. § 3701 — Robbery. 18 Pa.C.S. § 907 — Possessing an instrument of crime. Represented by new counsel, George H. Newman, Esq. (“appellate counsel”), Petitioner directly appealed the judgments of sentence to the Supreme Court of Pennsylvania. On February 8, 1990, the Pennsylvania Supreme Court affirmed the judgment of sentence. Porter I, 524 Pa. 162, 569 A.2d 942. The United States Supreme Court denied certiorari on October 15, 1990. Porter v. Pennsylvania, 498 U.S. 925, 111 S.Ct. 307, 112 L.Ed.2d 260 (1990). On September 7, 1994, Petitioner filed a pro se petition under the Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S. § 9541 et seq. A substituted petition was filed under the PCRA on March 23, 1995. Ronald J. Sharper, Esq. was appointed to represent and assist Petitioner. Pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), Mr. Sharper filed a “no merit” letter with the court, stating the issues raised in Petitioner’s PCRA petition were without merit and that his review of the case revealed no additional issues which could be raised in an amended petition. The PCRA court conducted a hearing and, subsequently, on May 25, 1995, the PCRA court permitted Mr. Sharper to withdraw as counsel and dismissed Petitioner’s petition. Represented by current counsel, Billy Ñolas, Esq., Petitioner filed an appeal to the Pennsylvania Supreme Court on June 22, 1995. On March 16, 1999, the Pennsylvania Supreme Court affirmed the PCRA court’s denial of PCRA relief. Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890 (1999)(“Porter II”). Subsequently, Petitioner filed a petition for reconsideration, which was denied on April 19,1999. On January 18, 2000, Petitioner filed the instant Petition for a Writ of Habeas Corpus with this Court. On May 22, 2000, Petitioner filed his memorandum of law regarding the Antiterrorism and Effective Death Penalty Act of 1996 (the “AED-PA”). In response, the Commonwealth filed its Memorandum of Law on October 30, 2000. On January 10, 2001, Petitioner filed his Reply Memorandum. The Court conducted a multi-part evidentiary hearing requiring numerous hearings which were intermittently conducted in July 2002, September 2002 and November 2002. The Court’s evidentiary hearing was limited solely to a few specific guilt phase claims. Petitioner filed a Post-Hearing Memorandum on January 22, 2003. On January 24, 2003, Respondents filed their Post-Hearing Brief. III. APPLICATION OF 28 U.S.C. § 2254 A. 28 U.S.C § 2254 1. Introduction to 28 U.S.C. § 2254 Petitioner brought his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Section 2254”). Section 2254 provides, in relevant part, that the court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a)(2000). Accordingly, “the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In 1996, Section 2254 was amended by the Antiterrorism and Effective Death Penalty Act of 1996. The “AEDPA amended the federal habeas statutes, codifying limitations on the conditions under which the federal courts may grant either a writ of habeas corpus or an evi-dentiary hearing on a petition for such a writ.” Henry v. Horn, 218 F.Supp.2d 671, 681 (E.D.Pa.2002) (citations omitted). Specifically, “[t]he AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts.” Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir.2000)(citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996)). 2. Threshold Requirements Under 28 U.S.C. § 2254 a. Exhaustion and Procedural Default Certain threshold requirements must be satisfied in order for a federal court to reach the merits of a Section 2254 petition. Henry, 218 F.Supp.2d at 681. “Two of these requirements, with respect to each claim in the petition, are that (1) petitioner has exhausted available state court remedies and (2) the claim has not been procedurally defaulted.” Id. (citing 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). 1.) Exhaustion of State Court Remedies “In the case of a person incarcerated from a judgment of a state court, a prerequisite to federal habeas review is that the petitioner have exhausted the remedies available to him in the state courts to the extent such remedies exist and are effective.” Werts, 228 F.3d at 192 (citing 28 U.S.C. § 2254(b)(1)). The exhaustion requirement is established on the principle of comity which ensures that state courts are allowed the first opportunity to review challenges to state convictions based upon federal constitutional grounds and upholds the role of state courts in the protection of federally guaranteed rights. Id. (citations omitted). Specifically, 28 U.S.C. § 2254(b) provides the following: (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. (2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. (3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(2000). In furtherance of the exhaustion requirement, 28 U.S.C. § 2254(c) provides that “[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c)(2000). In the habeas context, exhaustion “requires only that the same issues, or issues ‘substantially equivalent’ thereto, have been ‘fairly presented’ to the state courts.” Bronshtein v. Horn, No. 99-2186, 2001 WL 767593, at *3 (E.D.Pa. July 5, 2001)(citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997)). In order to satisfy the exhaustion requirement, “the petitioner must ‘afford each level of the state courts a fair opportunity to address the claim.’ ” Laird v. Horn, 159 F.Supp.2d 58, 69 (E.D.Pa.2001)(quoting Doctor v. Walters, 96 F.3d 675, 678 (3d Cir.1996); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999)). “More specifically, a habeas petitioner ‘must present a federal claim’s factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.’” Id. (quoting McCandless, 172 F.3d at 261). It is insufficient to make a “somewhat similar state-law claim.” Id. (citing McCandless, 172 F.3d at 261). The burden of establishing that a habeas claim was fairly presented to the state courts falls upon the petitioner. See Lines v. Larkins, 208 F.3d 153, 159 (3d Cir.2000). Generally, in the case where a petitioner has failed to exhaust all of the claims contained in his federal habeas petition, the federal court must dismiss the petition, allowing the petitioner to return to the state courts and exhaust any unex-hausted claims. Henry, 218 F.Supp.2d at 682 (citations omitted). “Under the ‘futility exception’ to the exhaustion requirement, if state procedural rules bar the applicant from seeking further relief on the unexhausted claims in the state courts, the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.’ ” Id. (citing 28 U.S.C. § 2254(b); Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Lines, 208 F.3d at 165-66). However, in the case where “the futility exception applies, the claim is considered to be procedurally defaulted and may only be reached by federal courts if petitioner makes the standard showing of ‘cause and prejudice’ or establishes a fundamental miscarriage of justice.” Id. (citing Lines, 208 F.3d at 166). 2.) Procedural Default As explained above, claims deemed exhausted because of a state procedural rule are considered “procedurally defaulted.” Peterkin v. Horn, 176 F.Supp.2d 342, 353 (E.D.Pa.2001) (citations omitted). Federal courts may not consider the merits of a procedurally defaulted claim “unless the petitioner demonstrates that (1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered.” Id. (citations omitted). a.) Independent and Adequate State Procedural Grounds “The doctrine of procedural default ... prevents a federal habeas court from addressing a question of federal law decided by a state court ‘if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.’ ” Jermyn v. Horn, 266 F.3d 257, 278 (3d Cir.2001)(quoting Coleman, 501 U.S. at 729, 111 S.Ct. 2546). A state procedural rule is “independent” “when resolution of the state procedural law question [does not] depend [ ] on a federal constitutional ruling.” Laird, 159 F.Supp.2d at 73 (quotation and internal quotation marks omitted). “[A] state procedural rule is ‘adequate’ only if the rule is ‘consistently or regularly applied.’ ” Jermyn, 266 F.3d at 278 (quoting Banks v. Horn, 126 F.3d 206, 211 (3d Cir.1997)) (citations omitted). In order for a state procedural rule to provide an adequate basis to bar federal habeas review, “[t]hese conditions must have existed at the time of the state court procedural default.” Id. (quotation and internal quotation marks omitted). b.) Cause and Prejudice Federal courts are precluded from considering the merits of a procedurally defaulted claim, “unless the petitioner ‘establishes ‘cause and prejudice’ or a ‘fundamental miscarriage of justice’ to excuse the default.’” Lines, 208 F.3d at 160 (quoting McCandless, 172 F.3d at 260) (citation omitted). In order to demonstrate “cause” sufficient to excuse a procedural fault and reach the merits of a petitioner’s claim, “the petitioner must ‘show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.’ ” Werts, 228 F.3d at 192-93 (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986))(stating some acceptable examples of “cause” for federal habeas review of a defaulted claim to be: a showing of a factual or legal basis for a claim that was not reasonably available to petitioner’s counsel; a showing that procedural compliance was impracticable because of interference by governmental officials; and a claim of ineffective assistance of counsel that has been presented to the state courts as an independent claim before being used to establish cause for a procedural default). Once “cause” has been successfully demonstrated, petitioner must then prove “prejudice.” In order to sufficiently demonstrate “prejudice” as a means of excusing a procedural default, “the habeas petitioner must prove ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” Id. at 193 (quoting Murray, 477 U.S. at 494, 106 S.Ct. 2639) (citation omitted). Basically, this standard mandates that a habeas petitioner establish that he was denied “fundamental fairness” at his trial. Id. (citing Murray, 477 U.S. at 494, 106 S.Ct. 2639). c.) Fundamental Miscarriage of Justice “If the petitioner fails to demonstrate cause and prejudice for the default, the federal habeas court may still review an otherwise procedurally defaulted claim upon a showing that failure to review the federal habeas claim will result in a ‘miscarriage of justice.’ ” Id. at 193. To demonstrate a “miscarriage of justice” sufficient to excuse a procedural default and reach the merits of a petitioner’s claim, “the petitioner must prove that it is more likely than not that no reasonable juror would have convicted him.” Id. (citing Schlup v. Delo, 513 U.S. 298, 326, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). This showing is made when “the petitioner presents a colorable claim of actual innocence of the crime for which he was convicted or the sentence imposed.” Terry v. Gillis, 93 F. Supp.2d 603, 611 (E.D.Pa.2000)(citing Schlup, 513 U.S. at 314-15, 115 S.Ct. 851). Consequently, this exception is generally narrow and applicable in extraordinary cases. Werts, 228 F.3d at 193 (citing Murray, 477 U.S. at 496, 106 S.Ct. 2639). 3. Review of Claims Under 28 U.S.C. § 2254 Once the threshold requirements of exhaustion and procedural default have been satisfied, a federal court may reach the merits of a Section 2254 petition. As mentioned earlier, Petitioner’s federal habeas petition seeks relief pursuant to 28 U.S.C. § 2254. With regard to the proper standard of review of Petitioner’s claims, Section 2254(d), as amended by the AEDPA, provides: 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)(2000). Thus, “Section 2254(d) states that applications for habeas corpus relief ‘shall not be granted’ unless one of the conditions set forth in subsections (d)(1) and (d)(2) is met.” Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 887 (3d Cir.1999)(erc banc)(citing 28 U.S.C. § 2254(d)). As a result, the conditions for granting habeas corpus relief under the AEDPA are twofold. Id. “[Fjirst, habeas corpus relief is warranted when the state adjudication resulted in a decision that was ‘contrary to’ or an ‘unreasonable application of clearly established federal law, as determined by the Supreme Court.” Id. (citing 28 U.S.C. § 2254(d)(1)). “[S]eeond, relief is warranted when the state adjudication resulted in a decision that was ‘based on an unreasonable determination of the facts in light of the evidence.’” Id. at 887-88 (citing 28 U.S.C. § 2254(d)(2)). a. Analysis of State Court Legal Determinations Under 28 U.S.C. § 2254(d)(1) According to 28 U.S.C. § 2254(d)(1), a habeas corpus writ may be issued only upon the clear satisfaction of one of the following two conditions, “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’ ” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “As an initial point, ‘[t]he threshold question under AEDPA is whether [petitioner] seeks to apply a rule of law that was clearly established at the time his state-court conviction became final.’” Brand v. Gillis, 210 F.Supp.2d 677, 682 (E.D.Pa.2002)(quoting Williams, 529 U.S. at 390, 120 S.Ct. 1495). Although the “contrary to” and the “unreasonable application of’ clauses are both part of 28 U.S.C. § 2254(d)(1), the clauses “should be accorded independent meaning.” Werts, 228 F.3d at 197 (citing Williams, 529 U.S. at 405, 120 S.Ct. 1495). Thus, the application of 28 U.S.C. § 2254(d)(1) calls for a two-step analysis. Matteo, 171 F.3d at 891. “First, the federal habeas court must determine whether the state court decision was ‘contrary to’ Supreme Court precedent that governs the petitioner’s claim.” Id. “Relief is appropriate only if the petitioner shows that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.” Id. (quotation and internal quotation marks omitted). If petitioner fails to make such a showing, “the federal habeas court must ask whether the state court decision represents an ‘unreasonable application of Supreme Court precedent: that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified.” Id. If petitioner is able to successfully make this showing, then the petition should be granted. Id. In relation to 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 [the Supreme] 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.” Brand, 210 F.Supp.2d at 682-83 (quoting Williams, 529 U.S. at 412-13, 120 S.Ct. 1495). Therefore, in order to receive ha-beas relief under the “contrary to” provision, “it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court’s; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome.” Matteo, 171 F.3d at 888. “This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent.” Id. If, after examination of the habeas claim under the “contrary to” clause, it appears that petitioner is not entitled to relief, the federal habeas court should proceed to the second step of the analysis, the “unreasonable application of’ clause. Id. at 889. “Under the ‘unreasonable application of clause, a federal writ may issue when the state court identifies the correct legal principle from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of a particular case.” Laird, 159 F.Supp.2d at 77 (citing Williams, 529 U.S. at 413, 120 S.Ct. 1495). Under this standard, the appropriate inquiry is “whether the state court’s application of clearly established federal law was objectively unreasonable.” Werts, 228 F.3d at 196 (quotation and internal quotation marks omitted). Habeas courts may consider the decisions of inferior federal courts when determining whether the state court’s application of the Supreme Court precedent is objectively reasonable. Matteo, 171 F.3d at 890. It is important to note that an unreasonable application of federal law differs from an incorrect application of that law. Werts, 228 F.3d at 196 (citation omitted). “[A] federal habeas court may not grant relief unless that court determines that a state court’s incorrect or erroneous application of clearly established federal law was also unreasonable.” Id. (citation omitted). b. Analysis of State Court Factual Determinations Under 28 U.S.C. § 2254(d)(2) According to 28 U.S.C. § 2254(d)(2), a federal habeas court may issue a writ based on a claim involving the factual findings of a state court when the decision of the state court “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). However, state court determinations of fact have a presumption of correctness which can only be refuted thorough a showing of clear and convincing evidence. 28 U.S.C. § 2254(e)(l)(2000). In order to grant relief under 28 U.S.C. § 2254(d)(2), “[t]he district court must conclude that the state court’s determination of the facts was objectively unreasonable in light of the evidence available to the state court.” Attica, 2001 WL 827455, at *3 (citations omitted). Similar to the “unreasonable application of’ clause found in 28 U.S.C. § 2254(d)(1), Section 2254(d)(2) requires federal habeas courts to objectively examine the decisions of the state courts for their reasonableness. “Mere disagreement with the state court’s determination, or even erroneous factfinding, is insufficient to grant relief if the court acted reasonably.” Id. (citation omitted). c. De Novo Review of State Court Determinations In some cases, courts may exercise plenary review of the merits of underlying claims. “[B]y its own terms § 2254(d) applies only to claims already ‘adjudicated on the merits in State court proceedings.’ ” Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001). According to the United States Court of Appeals for the Third Circuit (“Third Circuit”), in instances “when, although properly preserved by the defendant, the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA and explained in Williams do not apply.” Appel, 250 F.3d at 210 (citations omitted); see also, Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir.2000)(exercising pre-AEDPA independent judgment on a constitutional claim that the Delaware court did not address, even though it had the opportunity, reasoning that “under the AEDPA the limitation on the granting of an application for a writ of habeas corpus is only with respect to any claim that was adjudicated on the merits in state court proceedings.”). In such a case, “the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of AEDPA.” Id. (citing McCandless, 172 F.3d at 260). However, in these instances, “the state court’s factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence.” Id. (citing 28 U.S.C. § 2254(e)(1)). B. Granting an Evidentiary Hearing Under 28 U.S.C. § 2254 A federal evidentiary hearing is intended to ensure that a petitioner has a full and fair opportunity to have the factual basis of his claim considered. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). “The AEDPA has limited the availability of evidentiary hearings on federal habeas review.” Henry, 218 F.Supp.2d at 684 (citing Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir.2000)). As amended, Section 2254(e) provides as follows: (1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. (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)(2000). Under § 2254(e), the federal habeas court must initially ask “whether the factual basis was developed in the state court, which is ‘a question susceptible, in the normal course, of a simple yes or no answer.’ ” Henry, 218 F.Supp.2d at 684 (quoting Michael Williams, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000)). In the case where the factual basis was developed, “the federal habeas court must apply the presumption of correctness codified in § 2254(e)(1), which petitioner can only rebut with clear and convincing evidence.” Id. (citations omitted). “If the factual basis was not developed, then the federal habeas court must determine whether the petitioner failed to develop the factual basis of his claim.” Id. (citing 28 U.S.C § 2254(e)(2)). In order to determine whether petitioner failed to develop the state court record, “[t]he question is not whether the facts could have been discovered but instead whether the petitioner was diligent in his efforts ... Diligence for purposes of the opening clause [of § 2254(e)(2)] 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.” Id. at 684-85 (quotation and internal quotation marks omitted). “Diligence ... will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Pursell, 187 F.Supp.2d at 325 (quotation and internal quotation marks omitted). If the federal habeas court determines that petitioner failed to develop the state court record, an evidentiary hearing is barred unless petitioner is able to overcome the stringent standard set forth in Section 2254(e)(2)(A) and (B). Henry, 218 F.Supp.2d at 685. In the case where “the federal habeas court determines that petitioner did not ‘fail’ to develop the state court record, then the decision about whether to hold an evidentiary hearing is left to the discretion of the habeas court.” Id. (citing Campbell, 209 F.3d at 286-87). “In exercising its discretion, the court should ‘focus on whether a new evidentiary hearing would be meaningful, in that a new hearing would have the potential to advance the petitioner’s claim.’” Id. (quoting Campbell, 209 F.3d at 287). IV.DISCUSSION In his Petition, Petitioner bases his ha-beas relief on fourteen claims. Petitioner’s claims are as follows: I. Petitioner’s death sentence violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution because the jury was not permitted to consider and give effect to mitigating evidence that was presented. In addition, trial and appellate counsel provided ineffective assistance with respect to this issue, and relief is warranted under the Sixth and Fourteenth Amendments. II. Petitioner was denied effective assistance of counsel at capital sentencing, in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. III. Petitioner is entitled to relief from his conviction and sentence because trial counsel was ineffective at the guilt phase for failing to investigate, develop and present diminished capacity and guilty but mentally ill defenses based on Petitioner’s brain damage and long history of mental illness. IV. Petitioner was mentally ill and incompetent at the time of his trial proceedings and his conviction and death sentence therefore violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. V. Petitioner is entitled to relief from his sentence of death because the jury instructions and the sentencing-phase verdict slip indicated that the jury had to unanimously find any mitigating circumstances before it could give effect to that circumstance in its sentencing decision. VI. Petitioner is entitled to relief from his conviction and sentence because the Commonwealth used its peremptory strikes in a racially discriminatory manner, thus depriving Petitioner of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. VII. The trial court’s reasonable doubt instructions deprived Petitioner of due process of law. This erroneous instruction also resulted in the arbitrary imposition of the death penalty in violation of the Eighth and Fourteenth Amendments. VIII. Unreliable hearsay testimony was admitted against Petitioner in violation of Petitioner’s Sixth Amendment right to confrontation. The admission of this evidence resulted in an unreliable determination of guilt in violation of the Eighth and Fourteenth Amendments. Moreover, the admission of this evidence violated Petitioner’s right to due process and effective assistance of counsel. IX. The trial court’s failure to instruct the jury that a sentence of life imprisonment would result in Petitioner’s lifelong incarceration without possibility of parole violated Petitioner’s rights under the Sixth, Eighth and Fourteenth Amendments. X. Petitioner’s death sentence must be vacated because the Pennsylvania Supreme Court failed to provide him meaningful proportionality review in violation of 42 Pa.C.S. § 9711(h)(3)(iii) and federal constitutional law. XI. The trial court violated Petitioner’s rights to full and meaningful jury consideration of expert mental health mitigating evidence, in contravention of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. XII. Trial counsel rendered ineffective assistance by failing to properly investigate and present evidence that would have established a reasonable doubt about guilt. XIII. Relief is appropriate because Petitioner was not provided with effective assistance of counsel at trial and on direct appeal. XIV. Petitioner is entitled to relief from his conviction and death sentence because of the trial court’s improper statements about appellate review. {See Pet. Writ Habeas Corpus). The Court concludes that Petitioner’s fifth claim is meritorious. In his fifth claim, Petitioner contends that he is entitled to relief from his death sentence because the penalty phase jury instructions and verdict sheet, when taken together, created a barrier to the sentencer’s consideration of all mitigating evidence in violation of the Eighth and Fourteenth Amendments. In light of the Supreme Court’s holdings in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), and the decision of the Third Circuit in Banks v. Horn, 271 F.3d 527,1 find that the penalty phase jury instructions and verdict sheet created a “reasonable likelihood that the jury has applied the ... instructions in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380, 110 S.Ct. 1190. As a result, the Petition is granted with regard to Claim V and Petitioner’s death sentence shall be vacated. Claims I, II, IX, X and XI are based solely upon alleged constitutional error regarding the sentencing phase of Petitioner’s trial. Since I have vacated Petitioner’s death sentence premised upon Claim V, the aforementioned Claims I, II, IX, X and XI are rendered moot and will not be discussed. Petitioner’s remaining claims, Claims III, IV, VI, VII, VIII, XII, XIII and XIV, include a mixture of constitutional claims which are either based solely upon the guilt phase of trial or include a combination of allegations pertaining to both the guilt and penalty phases of Petitioner’s trial. I shall address each of Petitioner’s claims which allege error solely regarding the guilt phase of trial. As for Petitioner’s claims that include a combination of allegations pertaining to both the guilt and penalty phases of trial, I shall exclusively address these claims to the extent that they allege error at the guilt phase. A. Application of Exhaustion and Procedural Default Petitioner asserts that all of the claims in his Habeas Petition were exhausted in state post-conviction proceedings. Petitioner argues that some of his claims were raised, and thus exhausted, during the state court direct appeal, while all of his claims were presented in the state court post-conviction proceedings. Regarding Petitioner’s Claim XII, concerning trial counsel’s alleged ineffectiveness for failing to properly investigate and present alibi evidence, the Commonwealth concedes that it is exhausted because Petitioner raised this claim on direct appeal to the state supreme court. (Commw.’s Mem. Law at 65). Thus, there is no exhaustion issue pertaining to Petitioner’s Claim XII. However, the Commonwealth argues that Petitioner failed to exhaust most of his federal constitutional claims. The Commonwealth alleges that the claims raised in Petitioner’s PCRA appeal to the state supreme court were all claims of ineffective assistance of PCRA counsel, i.e., PCRA counsel should have claimed that direct appeal counsel was ineffective for failing to raise the numerous claims of trial counsel’s ineffectiveness or trial court error raised in the Habeas Petition. Consequently, the Commonwealth argues that Petitioner’s habeas claims are not exhausted. The Commonwealth alleges that Petitioner’s unexhausted habeas claims are procedurally defaulted because any attempt to raise them in a subsequent PCRA petition at this juncture would be time-barred. 42 Pa.C.S. § 9545. Thus, regarding Petitioner’s remaining claims, Claims III, IV, V, VI, VII, VIII, and XIII, the Commonwealth argues that they are not exhausted and, therefore, are procedurally defaulted. Petitioner has satisfied the exhaustion requirement in this case. The relevant claims in which exhaustion is at issue in this case, Claims III, IV, V, VI, VII and VIII, were presented, in almost verbatim fashion, to the state courts either on direct appeal, see Porter I, 524 Pa. 162, 569 A.2d 942, or during PCRA appeal. See Porter 11, 556 Pa. 801, 728 A.2d 890; Commw.’s Exs., Ex. C (Pet.’s PCRA Appeal Brief). Petitioner’s PCRA appeal presented his claims as involving federal constitutional error and, with respect to each individual claim, he discussed the factual and legal basis for those claims. (Commw.’s Exs., Ex. C (Pet.’s PCRA Appeal Brief)). Furthermore, the Commonwealth’s response to Petitioner’s PCRA appeal reveals that it recognized and responded to Petitioner’s claims as federal constitutional claims. (Pet.’s Reply Mem. Exs., Ex. A (Commw.’s PCRA Appeal Br.)). The Commonwealth did not treat Petitioner’s PCRA appeal as only involving claims of ineffective assistance of PCRA counsel, but responded by arguing that Petitioner’s claims were either meritless under federal constitutional law or waived because they had not been previously presented. (Id.). In further support that Petitioner’s claims are indeed exhausted, most of Petitioner’s federal constitutional claims were adjudicated on the merits by the Porter II court. See Porter II, 556 Pa. 301, 728 A.2d 890. As a result of the aforementioned, Petitioner has fairly presented his habeas claims to the state courts. Not only has Petitioner fairly presented his claims to the state courts, but the Porter II court addressed the claims, for the most part, on their merits. Since Petitioner has fairly presented Claims III, IV, V, VI, VII and VIII to the state courts, thereby allowing those courts the opportunity to decide and correct the alleged violations of constitutional rights, they are exhausted. Henderson v. Frank, 155 F.3d 159, 164 (3d Cir.1998); see also Pursell, 187 F.Supp.2d at 288-89 (stating “[ajlthough the Pennsylvania courts held that most of Pursell’s claims were waived or time-barred, these claims were exhausted simply because they were presented to the courts for review. ... [t]he exhaustion doctrine requires nothing more”). B. Evidentiary Hearing The Court granted Petitioner’s requests for an evidentiary hearing regarding Claims III, IV, XII and XIII. Upon review of these claims, I concluded that the factual basis of the claims had not been developed in the state court. Examination of the state court record revealed that Petitioner specifically requested an evidentiary hearing regarding Claims III, IV and XII. (See Commw.’s Exs., Ex. C (Pet.’s PCRA Appeal Brief)). As a result, Petitioner was diligent in his efforts to develop the factual bases of the pertinent claims in the state court. See Pursell, 187 F.Supp.2d at 325. That is, in light of the information available at the time, Petitioner made a reasonable attempt to investigate and pursue the claims in state court. Since Petitioner did not fail to develop the state court record, the decision about whether to hold an evidentiary hearing is left to the discretion of this Court. I concluded that an evidentiary hearing on Claims III, IV, XII and XIII would be meaningful because it would have the potential to advance Petitioner’s claims. As a result, the Court held a multi-part evi-dentiary hearing that intermittently took place in July 2002, September 2002 and November 2002. C. Analysis of Petitioner’s Claims 1. Petitioner’s Sentencing Phase Claim a. Claim V Petitioner is entitled to relief from his sentence of death because the jury instructions and the sentencing phase verdict slip indicated that the jury had to unanimously ftnd any mitigating circumstances before it could give effect to that circumstance in its sentencing decision. Petitioner asserts that “[i]t is indisputable that in a capital case the sentencer may not be precluded from considering and giving full effect to any mitigating aspect of the defendant’s character, background or record, or the circumstances of the offense.” (Pet. Writ Habeas Corpus, ¶ 100)(citing Mills v. Maryland, 486 U.S. at 374-75, 108 S.Ct. 1860). Relying on this basis, Petitioner argues that this fundamental principle of Eighth Amendment jurisprudence was violated in his case because “[t]he trial court failed to advise the jury that any juror who individually found a mitigating circumstance could weigh that circumstance against the aggravating circumstances unanimously found, even if there was not unanimity as to the existence of that mitigating circumstance.” (Id., ¶ 101). Petitioner further argues that the penalty phase jury instructions and verdict sheet instructions actually led the jury to wrongfully believe that it had to be unanimous in finding any mitigating circumstance before it could give effect to that circumstance in its sentencing determination. (Id.). Relying on Mills v. Maryland, 486 U.S. at 375, 108 S.Ct. 1860, Petitioner argues that “the penalty phase jury instructions and verdict sheet indicated that the jury had to unanimously find a mitigating circumstance before it could be given effect in the sentencing decision, and thus created a ‘barrier to the sentencer’s consideration of all mitigating evidence’, in violation of the Eighth and Fourteenth Amendments.” (Pet.’s AEDPA Mem. Law at 51)(citing Mills, 486 U.S. at 375, 108 S.Ct. 1860). Petitioner’s argument for habeas relief centers upon the contention that the Pennsylvania Supreme Court’s denial of relief on this claim “was contrary to, and an unreasonable application of, Mills.” (Id.). 1.) Mills v. Maryland The constitutional prohibition against cruel and unusual punishment mandated by the Eighth Amendment requires that “the sentencer in a death penalty case must be permitted to consider all relevant mitigating evidence that the defendant proffers as counseling less than a sentence of death.” Frey v. Fulcomer, 132 F.3d 916, 920 (3d Cir.1997)(citing Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)). Consequently, a sentencer cannot be prevented from considering any such mitigating evidence. Id. (citing Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings, 455 U.S. at 114, 102 S.Ct. 869). Thus, “Eighth Amendment jurisprudence requires that each sentencer be permitted to consider all mitigating circumstances.” Id. at 921 (emphasis added). Relying on the Eighth Amendment, the United States Supreme Court in Mills v. Maryland held that sentencing instructions that create a substantial likelihood that reasonable jurors may believe that they are precluded from considering any mitigating evidence in the absence of unanimity are constitutionally invalid. Mills, 486 U.S. at 384, 108 S.Ct. 1860. Based upon this premise, the Mills Court vacated a death sentence because there was “a substantial probability that reasonable jurors, upon receiving the judge’s instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought that they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.” Id. Although Mills originally outlined the legal standard for reviewing a challenge to jury instructions in which it is claimed that the instruction is ambiguous and open to an incorrect interpretation, the Supreme Court defined the present legal standard in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316. Frey, 132 F.3d at 921; see also, Abu-Jamal v. Horn, — F.Supp.2d—, —n. 80, 2001 WL 1609690, at *116 n. 80 (E.D.Pa.2001)(stating “[t]here is no dispute ... that the standard to be applied to Mills claims is that articulated in Boyde ”). In Boyde, the United States Supreme Court clarified the legal standard to be “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380, 110 S.Ct. 1190. When assessing the possible effect of a challenged jury instruction, it must be viewed in the context of the overall charge because a single instruction to a jury may not be judged in artificial isolation. Id. at 378, 110 S.Ct. 1190 (citations omitted). 2.) State Court Decision In Porter II, the Pennsylvania Supreme Court found Petitioner’s Mills claim to be meritless based upon the premise that the Porter penalty phase jury instructions and verdict form mirrored the Pennsylvania death penalty statute, 42 Pa.C.S. § 9711(c)(1)(iv). Porter II, 728 A.2d at 900. In support of its ruling, the Porter II court solely relied upon two state court opinions, Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 366 (1995), and Commonwealth v. Hackett, 534 Pa. 210, 627 A.2d 719 (1993). Id. Although the Porter II court acknowledged that Petitioner’s claim was based upon Mills, the opinion is completely devoid of any analysis under Mills or Boyde. Id. As a consequence of the state supreme court’s failure to properly analyze Petitioner’s claim in accordance with Mills and Boyde, the Court finds that the Porter II court’s decision regarding Petitioner’s claim was an objectively unreasonable application of Mills. See Banks, 271 F.3d at 545 n. 21. 3.) Analysis of State Court Decision a.) Jury Instructions Mirror Death Penalty Statute Relying upon 42 Pa.C.S. § 9711(c)(l)(iv), the state court’s first explanation for its denial of Petitioner’s Mills claim is based upon the holding that “the trial judge’s charge to the jury virtually mirrored 42 Pa.C.S. § 9711(c)(l)(iv).” Porter II, 728 A.2d at 900 (citation omitted). Specifically, the Pennsylvania Supreme Court reasoned that “an instruction that tracks the language of the statute, such as the one given here, cannot be in violation of the Mills standard.” Id. at 900. Thus, the Porter II court did not examine Petitioner’s jury instructions in the context of a lay jury’s interpretation, but examined the instructions in relation to their similarity with 42 Pa.C.S. § 9711(c)(l)(iv). Similar to the instant case, the Pennsylvania Supreme Court in Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467 (1995), held that the Mills claim asserted by Banks was without merit because the “[jury] instruction, which mirrors the language found in the death penalty statute of our Sentencing Code, has previously been reviewed by this court and determined not to violate Mills.” Commonwealth v. Banks, 656 A.2d at 470. Upon review of the state supreme court’s decision regarding the jury instruction, the Third Circuit in Banks v. Horn pointed out that the Pennsylvania Supreme Court “looked at one part of the instruction and found that it was acceptable because it tracked the permissible statutory provisions and did not ‘infer’ a requirement of unanimity.” Banks, 271 F.3d at 546. The Third Circuit also pointed out that the Pennsylvania Supreme Court’s “conclusion was based not on how a juror might interpret its content, but on its own previous statutory construction of the language at issue.” Id. The Banks Court concluded that the Pennsylvania Supreme Court ruling involved an unreasonable application of Mills because the court “ruled that there was no Mills violation without ever really applying the teachings of Mills, and by examining the statute, not the potential for confusion by jurors in what they were told to do.” Id. at 545; see also Hackett, 212 F.Supp.2d at 404 (stating that a court that focuses on whether the contested jury instructions mirror a statute “misconstrues the court’s task in examining for Mills error by focusing on the meaning of the statute rather than on the issue of jury confusion”). Like the Pennsylvania Supreme Court in Commonwealth v. Banks, the Porter II court incorrectly analyzed Petitioner’s Mills claim by examining how the jury instructions mimiced the Pennsylvania death penalty statute, not the potential for jury confusion. The Porter II court upheld the jury instructions because the language mirrored the statute, however, the court failed to examine the effect of the instructions on the minds of the jurors. In so doing, the Porter II court performed an incorrect analysis of Petitioner’s claim. In light of the flawed analysis performed by the Pennsylvania Supreme Court in Porter II, this Court concludes that the Porter II court did not analyze Petitioner’s Mills claim in accordance with the principles set forth by Mills and its progeny; thereby, the Pennsylvania Supreme Court ruling involved an unreasonable application of Mills. b.) State Court Precedent In Porter II, the Pennsylvania Supreme Court supported its denial of Petitioner’s Mills claim based upon its own precedent. In Banks, the Third Circuit noted that a habeas court’s task in conducting a habeas review “is to review state court proceedings not to ensure the consistency of the Pennsylvania Supreme Court’s application of its law.” Banks, 271 F.3d at 544. Therefore, while a habeas court is expected to respect and, at times, defer to state court precedent, the court’s true task is “to assure proper application of United States Supreme Court teachings.” Id. As a result, “[t]he Pennsylvania Supreme Court’s reliance on its own precedents ... is not sufficient to render its application of Mills objectively reasonable.” Henry, 218 F.Supp.2d at 687. By simply relying upon its own precedents, and failing to examine the effect of the jury instructions and verdict form upon the jury in Petitioner’s sentencing trial, the Pennsylvania Supreme Court failed to apply the teachings of Mills. Id. at 688. 4.) Examination of Penalty Phase Jury Instructions, Burden of Proof Instructions and Verdict Form A review of the Porter II court’s analysis of Petitioner’s sentencing phase jury instructions and verdict form demonstrates that the Pennsylvania Supreme Court unreasonably applied Mills to Petitioner’s case. The Court will examine Petitioner’s Mills claim in the following fashion: (1) the jury instructions; (2) the burden of proof instructions; and (3) the verdict form. a.) Penalty Phase Jury Instructions An examination of the Porter jury instructions in conjunction with the jury instructions found in Banks is instructive in this Court’s analysis of Petitioner’s Mills claim. In Banks, the Third Circuit analyzed virtually identical instructions and found them to be in violation of Mills. Banks, 271 F.3d at 549. Upon examination of the Banks instructions, the Third Circuit stated that “[t]he instructions are in themselves ambiguous, allowing for a jury to infer that the requirement of unanimity applies both to aggravating and mitigating circumstances.” Id. at 548. The Court then concluded its analysis of the jury instructions with the resounding statement that “[t]here is no way a juror would understand that a mitigating circumstance could be considered by less than all jurors.” Id. A side-by-side comparison of the Banks jury instructions with the Porter instructions reveals material similarities: Banks instruction: Members of the jury, you must now decide whether the defendant in this case is to be sentenced to death or to life imprisonment on each of the Informations upon which you have returned a verdict of guilty of murder in the first degree. The sentence you will impose will depend on your findings concerning aggravating and mitigating circumstances. The Crime Code in this Commonwealth provides that the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstance or circumstances. * * * Remember, under the law of this Commonwealth, your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstance, or if you unanimously find one or more aggravating circumstances which then outweigh any mitigating circumstances, Banks, 271 F.3d at 546 (emphasis added). Porter instruction: Ladies and gentlemen of the jury, you must now decide whether the defendant is to be sentenced to death or life imprisonment. The sentence will depend upon your findings concerning aggravating and mitigating circumstances. The sentencing statute provides that the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances, or, if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances, the verdict must be a sentence of life imprisonment in all other cases. Remember that your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstance. Or, if you unanimously find one or more aggravating cir-cumstanees which outweigh any mitigating circumstances. In all other indications your verdict must be a sentence of life imprisonment. Porter, N.T. 2/27/86, p. 68-70 (emphasis added). By comparing the pertinent parts of the jury charges side-by-side, the instructions are virtually identical. Specifically, the relevant portions of the instructions, the clauses stating “if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances ”, are identical. Regarding the relevant portion in the Banks instruction, the Third Circuit concluded that “read in its entirety, the relevant portion of the jury charge emphasizes the importance of a unanimous finding, using the phrase frequently and in close proximity to — within seven words of — the mitigating circumstances clause.” Banks, 271 F.3d at 547-48. Based upon this close proximity, the Banks court found that “the clause is, to the ear and to the mind, one sound bite — it is quite possible that a juror would, regardless of other qualifying language, believe that mitigating circumstances had to be found unanimously.” Id. at 548. Mirroring the Banks jury charge, the Porter jury instructions similarly contained the “sound bite” that the jury could have reasonably believed required that mitigating circumstances be found unanimously. The above comparison with the Banks jury instructions demonstrates how the “sound bite”, created by the close proximity of the phrase emphasizing the importance of unanimity with the mitigating circumstances clause, allowed for the Porter jury to infer that the requirement of unanimity applied both to aggravating and mitigating circumstances. Such an inference is not only incorrect, but constitutionally impermissible according to Mills. Bound by the precedent set forth by the Third Circuit in Banks, this Court adopts the Third Circuit’s finding that “[t]he instructions are in themselves ambiguous, allowing for a jury to infer that the requirement of unanimity applies both to aggravating and mitigating circumstances.” Banks, 271 F.3d at 548. As a result, “there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380, 110 S.Ct. 1190. b.) Penalty Phase Burden of Proof Instructions Following the auspices of Boyde, this Court will not judge the instructions at issue in artificial isolation, but will view them in the context of the overall charge. Boyde, 494 U.S. at 378, 110 S.Ct. 1190. Thus, I will now examine the burden of proof instructions employed in Petitioner’s ease. In its analysis, the Banks Court also examined the burden of proof instructions applied in that case. Banks, 271 F.3d at 548-49, In Banks, the Third Circuit concluded that the charge pertaining to the relevant burdens of proof relating to aggravating and mitigating circumstances increased jury confusion regarding unanimity. Id. Like the jury instructions regarding aggravating and mitigating circumstances, the Porter burden of proof instructions are also materially identical to the Banks instructions. By comparing the pertinent parts of the instructions side by side, the instructions are virtually identical. Banks burden of proof instruction: The defendant has the burden of proving mitigating circumstances by a preponderance of the evidence. The preponderance of the evidence is a lesser burden of proof than beyond a reasonable doubt. A preponderance of the evidence exists where one side is more believable than the other or, as has been explained to you, a preponderance exists whenever the scales tip ever so slightly. Banks, 271 F.3d at 548. Porter burden of proof instruction: The defendant has the burden of proving mitigating circumstances, but only by a preponderance of the evidence. This is a lesser burden of proof than beyond a reasonable doubt. A preponderance of the evidence exists where one side is more believable than the other side. Porter, N.T. 2/27/86, p. 69. In reference to the burden of proof instructions, the Banks Court stated that “[a] reasonable juror could readily infer from the fact that the distinctions between the burden of proof were explained, but no mention was made of a distinction between a requirement of unanimity for a finding of aggravating circumstances and the requirement for mitigating circumstances, the same requirement of unanimity applied.” Banks, 271 F.3d at 548. Upon a reading of all of the jury instructions, including the burden of proof instructions, the Third Circuit held that “[cjonsidered as a whole, the jury instructions leave no doubt that ‘there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’ ” Id. at 549 (quoting Boyde, 494 U.S. at 380, 110 S.Ct. 1190). Since the Porter burden of proof instructions are materially identical to the Banks instructions, both the analysis and holding found in Banks is applicable to the Porter instructions. Also, due to the analogous n