Full opinion text
MEMORANDUM AND ORDER JOYNER, District Judge. This case has been brought before this Court by Petition of Joseph J. Kindler for Writ of Habeas Corpus. For the reasons which follow, the petition shall be partially granted and leave given to the Commonwealth to conduct a new sentencing hearing. History of the Case This petition seeks relief on behalf of the petitioner from the sentence of death which was formally imposed upon him on October 2, 1991. That sentence was the result of Petitioner’s November 15, 1983 conviction by a Philadelphia County Court of Common Pleas jury of the first degree murder, kidnapping and criminal conspiracy to murder 22-year-old David Bernstein on July 25,1982. Although Petitioner filed post-verdict motions, he escaped from custody on September 19, 1984, before those motions had been decided. The Commonwealth of Pennsylvania filed a petition to dismiss the post-verdict motions because Mr. Kindler was a fugitive from justice and that petition was granted, after hearing, on the grounds that Mr. Kindler’s voluntary removal of himself from the court’s jurisdiction operated as a waiver of whatever rights he may have had to have his post-verdict motions considered. Petitioner remained a fugitive until April 26, 1985 when he was arrested in Quebec, Canada on criminal and immigration charges. Extradition was requested and granted by the Canadian Minister of Justice on January 17, 1986 but Petitioner sought to have that decision reviewed in the Canadian Courts. While that review was pending, Petitioner again escaped from the prison in Montreal, Canada where he was being held and remained at large for nearly another two years until he was again spotted and arrested in St. John, New Brunswick, following the broadcast of information about him on the television show, “America’s Most Wanted.” The Supreme Court of Canada thereafter affirmed the decision of the Minister of Justice on September 26, 1991 and Petitioner was finally returned to Philadelphia later that day. As noted, Petitioner’s formal sentencing took place on October 2, 1991, at which time he was sentenced to death on the murder conviction in addition to a consecutive ten to twenty years’ imprisonment on the kidnaping conviction and a concurrent five to ten year sentence for criminal conspiracy. Petitioner then appealed to the Pennsylvania Supreme Court, which found: (1) that the trial court did not abuse its discretion in dismissing his post-trial motions and allegations of ineffective assistance of counsel as a response to his escape from custody and flight; (2) that sufficient evidence had been presented at trial to support the first-degree murder conviction and a finding of at least one aggravating circumstance; (3) that the death sentence was not the product of passion, prejudice or any other arbitrary factor; and (4) that the sentence was not excessive or disproportionate to those imposed in similar cases. Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1 (1994). Although Mr. Kindler subsequently filed a petition for a writ of certiorari to the United States Supreme Court, that petition was likewise denied on October 11, 1994. On January 11, 1996, Petitioner sought relief by filing a petition under the Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq. (“PCRA”). In that petition, Mr. Kin-dler raised several issues including those previously raised on direct appeal to the Pennsylvania Supreme Court as well as several claims which essentially challenged the effectiveness of both his trial and his post-trial counsel. The Philadelphia County Court of Common Pleas again found that Petitioner had waived his right to raise these arguments when he escaped and fled the jurisdiction. It therefore denied and dismissed the PCRA application without a hearing on August 15, 1996 and Petitioner appealed to the Pennsylvania Supreme Court, which subsequently affirmed the decision of the Court of Common Pleas on December 11,1998. By way of the petition for writ of habeas corpus which he has filed in this Court, Petitioner asks that this Court vacate his death sentence on the following grounds: 1. That he was sentenced by a jury that believed it could not return a verdict at the penalty phase without agreeing unanimously both as to individual mitigating circumstances and as to the proper ultimate penalty in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. 2. That the “proportionality review” performed by the Pennsylvania Supreme Court did not provide him with the meaningful appellate review mandated by the Eighth and Fourteenth Amendments to the U.S. Constitution and 42 Pa.C.S. § 9711(H)(3)(III). 3. That his counsel at the penalty phase of his trial was ineffective in that he failed to develop and present available mitigating evidence on his behalf in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution. 4. That he was deprived of the individualized sentencing determination to which he was entitled under the Eighth and Fourteenth Amendments to the U.S. Constitution given that his penalty phase proceedings were conducted jointly with his co-defendant, Scott Shaw. 5. That prosecutorial misconduct during the guilt and penalty phase of the trial violated his rights to Due Process of Law. 6. That the jury failed to give effect to clear and uncontroverted evidence of mitigation in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution. 7. That the trial court gave a defective preponderance of the evidence instruction in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution. 8. That the sentencing jury was never instructed that if sentenced to life imprisonment, he would be statutorily ineligible for parole, in violation of his rights under the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution. In addition, the Petition for Writ of Habe-as Corpus seeks to have Mr. Kindler’s conviction overturned because the notes of testimony from the severance hearing and from two days of the jury’s voir dire were never transcribed and because of the cumulative prejudicial effect of all of the errors in this case. As a result of these failures, Petitioner contends that he was denied his right to meaningful appeal of his convictions and death sentence. Underscoring all of Petitioner’s arguments is the assertion that to the extent that they failed to raise these arguments earlier, trial counsel and prior appellate counsel were ineffective. Respondents at the outset assert that the petition for habeas relief must be dismissed as untimely filed and because Petitioner failed to first fairly present the claims which he seeks to raise here to the state courts. Accordingly, Respondents contend, Mr. Kindler has failed to procedurally exhaust his federal claims or they are procedurally defaulted and now unre-viewable. Alternatively, Respondents submit that all of Petitioner’s claims are mer-itless. We shall first consider whether this petition has been timely filed. Discussion A. Timeliness of Filing of Petition for Writ of Habeas Corpus. In this case, the petitioner filed his ha-beas petition on March 13, 2000, following this court’s granting of his motion for appointment of counsel, stay of execution and motion to proceed in forma pauperis on February 9,1999. Insofar as the Pennsylvania Supreme Court denied Mr. Kindler’s PCRA petition on December 11, 1998, Respondents aver that the petition for habeas corpus must be stricken as out-of-time. The provisions governing federal habeas corpus proceedings were extensively overhauled on April 24,1996, when the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”) took effect. Under § 101 of that Act, 28 U.S.C. § 2244(d): (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly-filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. Although the Act did not specifically state as much, the Third Circuit has implied from the statute a one-year grace period for those petitioners whose convictions became final before the effective date of AEDPA such that those state prisoners had until April 23, 1997 to file habeas corpus petitions in the district courts. Nara v. Frank, 264 F.3d 310, 314-315 (3d Cir.2001); Burns v. Morton, 134 F.3d 109, 111 (3d Cir.1998). Here, the Pennsylvania Supreme Court affirmed the petitioner’s judgment of sentence on February 9, 1994 and denied his motion for re-argument on April 8, 1994. The U.S. Supreme Court denied certiorari on October 11, 1994. It is thus clear that Petitioner’s conviction became final before AEDPA took effect. Thereafter on January 11, 1996, Petitioner filed a petition for relief under Pennsylvania’s Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq. The Philadelphia County Court of Common Pleas dismissed this petition without a hearing on April 15, 1996 and Petitioner then appealed to the Pennsylvania Supreme Court, which affirmed on December 11, 1998. Petitioner moved for reargument, which was denied on March 15, 1999. It thus appears that Mr. Kindler’s PCRA petition was pending when AEDPA took effect on April 24, 1996 and that the one-year statute of limitations was tolled at least until December 11, 1998. The issue with which we are faced here is whether this statutory period was further tolled while the petitioner’s motion for reargument was pending before the Pennsylvania Supreme Court. As noted under § 2254(d)(2), ordinarily “the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation..” An application is considered to be “properly filed” when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 (2000). To properly apply this statute as a matter of fed eral law, we must look to state law governing when a petition for collateral relief is properly filed and the AEDPA requires that state law be interpreted as it would be in a diversity case by deferring to the state’s highest court when it rules on an issue. Fahy v. Horn, 240 F.3d 239, 243-244 (3d Cir.2001). This is because § 2244(d)(2)’s “tolling rule is designed to protect the principles of comity, finality and federalism by promoting the exhaustion of state remedies while respecting the interest in the finality of state court judgments.” Brown v. Shannon, 322 F.3d 768, 776 (3d Cir.2003), quoting Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 2139, 153 L.Ed.2d 260 (2002). Permitting petitions not recognized under state law and improperly filed as a matter of state law to toll the limitations period would not seem to promote exhaustion in the manner contemplated by the AEDPA. Id. The Third Circuit has further noted that a flexible approach is to be employed in determining whether a motion is properly filed under § 2244(d)(2), given that this section covers various forms of state review, including motions that do not fall directly under the PCRA but are nonetheless related to collateral review. Nara v. Frank, 264 F.3d 310, 315 (3d Cir.2001); Jones v. Morton, 195 F.3d 153, 159 (3d Cir.1999); Douglas v. Beard, Civ. A. No. 00-4935, 2002 WL 550474, *1, 2002 U.S. Dist. LEXIS 6406, *8 (E.D.Pa. April 12, 2002). Of threshold importance is that the application be for a state remedy; indeed, the law is now clear that the limitations period will not be tolled during the pendency of a state prisoner’s petition for writ of certiorari to the U.S. Supreme Court or the pendency of a petition for writ of habeas corpus in the federal courts. See, Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); Miller v. Dragovich, 311 F.3d 574 (3d Cir.2002); Stokes v. The District Attorney of Philadelphia County, 247 F.3d 539 (3d Cir.2001). It will be tolled, however, during the time for seeking discretionary review in the state court system, so long as timely and properly filed. See: Carey v. Saffold, supra; Phillips v. Vaughn, 55 Fed.Appx. 100, 101 (3d Cir.2003); Swartz v. Meyers, 204 F.3d 417, 431-422 (3d Cir.2000); Baker v. Horn, 210 F.Supp.2d 592, 620 (E.D.Pa.2002). In this case, the record reflects that the Pennsylvania Supreme Court affirmed the dismissal of Petitioner’s PCRA application on December 11, 1998 and that Petitioner then moved for reargument. While not a matter of right, applications for reargument are clearly permitted under the Pennsylvania Rules of Appellate Procedure, and must be filed within fourteen days after entry of the judgment or order involved and in conformity with the other requirements of Pa.R.A.P. Nos. 2541-2544. The parties here do not dispute that Mr. Kindler’s application for reargument was timely and properly filed and it remained pending until the Pennsylvania Supreme Court denied it on March 15, 1999. We thus conclude that while discretionary, the petitioner’s application for reargument did toll the statutory period for the filing of his habeas corpus petition in this court. Accordingly, Petitioner had until March 14, 2000 to file his habeas corpus petition under the AEDPA and his March 13, 2000 filing was therefore timely. B. Exhaustion and/or Procedural Default of Petitioner’s Claims. Respondents next assert that the claims which Petitioner now advances are not reviewable by this Court as he failed, by escaping from custody and fleeing the Commonwealth of Pennsylvania, to give the state courts the opportunity to address and possibly correct the alleged constitutional errors in his conviction and sentencing. Consequently, those claims have been procedurally defaulted. Petitioner rejoins that all of his claims have been exhausted in that they or their substantial equivalents were presented to the Pennsylvania state courts for adjudication and by virtue of the requirement that the Pennsylvania Supreme Court review the entire record in death penalty cases to ensure that the penalty of death was not imposed as the result of passion, prejudice or any other arbitrary factor. In addition, petitioner contends, the procedural default rules applied by the Pennsylvania state courts were not adequate to bar federal habeas merits review as of 1984, when he escaped from the Philadelphia Detention Center. It has, of course, long been the settled rule that before a federal court may reach the merits of a claim in a timely filed § 2254 petition, each claim must first have been exhausted in state court. See, 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640 (1991); Baker v. Horn, 210 F.Supp.2d 592, 625 (E.D.Pa.2002). The exhaustion requirement en sures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights. Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.1992), cert. denied, 504 U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992), citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). To satisfy the exhaustion requirement, a petitioner must demonstrate that he “fairly presented” every claim in the federal petition to each level of the state courts, including the highest state court in which the petitioner was entitled to review. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir.2002); Baker, 210 F.Supp.2d at 625, citing O’Sullivan v. Boerckel, 526 U.S. 838, 845-848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). To “fairly present” a claim, a 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. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.1999). The state courts, however, need not reach the merits of a claim for it to be properly exhausted; exhaustion requires only that a federal habeas petitioner afford the state courts the opportunity to consider a claim on its merits. Lambert v. Blackwell, Civ. A. No. 01-CV-2511, 2003 WL 1718511 at *23 (E.D.Pa. April 1, 2003) and Baker v. Horn, supra, both citing Castille v. Peoples, 489 U.S. 346, 350-51, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). However, if a state’s procedural rules bar a petitioner from seeking further relief in the state courts, the exhaustion requirement is satisfied because there is an absence of available State corrective process. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir.2000), citing McCandless, 172 F.3d at 260. 28 U.S.C. § 2254(b)(1)(B)(i). This is otherwise known as “procedural default” and it is said to occur when a prisoner’s federal claim is barred from consideration in the state courts by an “independent and adequate” state procedural rule. Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir.2002). Even so, this does not mean that a federal court may, without more, proceed to the merits. Instead, claims deemed exhausted because of a state procedural bar may not be considered by the federal courts unless the petitioner establishes “cause and prejudice” or a “fundamental miscarriage of justice” to excuse the procedural default. Id. “Cause” sufficient to excuse procedural default requires a showing that some objective factor, external to the defense, prevented compliance with state procedural rules. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). “Actual prejudice” occurs only if an error caused the “actual and substantial disadvantage” of the petitioner. Riley v. Myers, Civ. A. No. 01-6958, 2002 WL 31845865, *6, 2002 U.S. Dist. LEXIS 24404, *20 (E.D.Pa. Dec.18, 2002), quoting U.S. v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L,Ed.2d 816 (1982). The burden of proof is on the petitioner to establish both cause for the default and resulting prejudice. Id., citing Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Alternatively, if the petitioner establishes that the state procedural rule was not independent or adequate, the federal court may proceed to consider the merits of his claim. See Generally: Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 2080, 135 L.Ed.2d 457 (1996); Harris v. Reed, 489 U.S. 255, 262-263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). A state rule provides an independent and adequate basis for precluding federal review of a state prisoner’s habeas claims only if: (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner’s claims on the merits; and (3) the state courts’ refusal in this instance is consistent with other decisions. Doctor v. Walters, 96 F.3d 675, 683-684 (3d Cir.1996); Jones v. Lavan, Civ. A. No. 02-2359, 2002 WL 31761423, *1, 2002 U.S. Dist. LEXIS 23715, *5 (E.D.Pa. Dec.9, 2002). A state procedural ground is not “adequate” unless the procedural rule is “strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988); Doctor v. Walters, supra. See Also: Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). Nevertheless, the Supreme Court has held that if a state supreme court faithfully has applied a procedural rule in “the vast majority” of cases, its willingness in a few cases to overlook the rule and address a claim on the merits does not mean that it does not apply the procedural rule regularly or consistently. Banks v. Horn, 126 F.3d 206, 211 (3d Cir.1997), citing Dugger v. Adams, 489 U.S. 401, 410, n. 6, 109 S.Ct. 1211, 1217, n. 6, 103 L.Ed.2d 435 (1989). Accordingly, an occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate to procedurally bar advancing a habeas corpus claim in a district court. Id. See Also: Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir.1999). Federal courts should generally determine questions of procedural default according to the habeas waiver law in effect at the time of the asserted waiver. Doctor v. Walters, 96 F.3d at 684, citing Reynolds v. Ellingsworth, 843 F.2d 712, 722 (3d Cir.1988). See Also: Jermyn v. Horn, 266 F.3d 257, 278 (3d Cir.2001); Banks v. Horn, 126 F.3d at 212-213; Peterkin v. Horn, 176 F.Supp.2d 342, 353-354 (E.D.Pa.2001). In this case, the record reflects that the trial court dismissed Mr. Kindler’s post-trial motions by reason of his escape from custody and his then-current status as a fugitive from justice. Although it is not absolutely clear from the record, it appears that the trial judge based this decision on the “fugitive forfeiture rule” as articulated in Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). The Pennsylvania Supreme Court affirmed the trial court decision, concluding “that the action taken in dismissing the post-verdict motions was a reasonable response to Appellant’s ‘flouting’ of the authority of the court...” Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1, 3 (1994). In so holding, the Pennsylvania Supreme Court noted that it was charged with deciding whether the fugitive forfeiture rule, which was generally applicable to defendants who fled from justice during the appellate process, should likewise be applied to the petitioner, who fled while his post-trial motions were pending. Subsequent to the Pennsylvania Supreme Court’s decision affirming his conviction and sentence and the denial of his application for writ of certiorari to the U.S. Supreme Court, Mr. Kindler filed a petition under the Pennsylvania Post-Conviction Relief Act, 42 Pa.C.S. § 9541, et seq., but the Philadelphia County Court of Common Pleas dismissed the petition for the same reason that it dismissed his post-verdict motions. The Pennsylvania Supreme Court affirmed this decision as well, noting that to be eligible for relief under the PCRA, the issues raised in the petition could not have been previously litigated. Reasoning that since Mr. Kindler had previously challenged the trial court’s dismissal of his post-verdict motions because of his flight, the Supreme Court concluded that he could not obtain relief on this basis under the PCRA. In considering the question of whether, as of September 20, 1984, the fugitive forfeiture rule was one which the Pennsylvania courts have strictly and regularly followed and therefore whether it is independent and adequate, we are guided by the holding of the U.S. Court of Appeals for the Third Circuit in Doctor v. Walters, 96 F.3d 675 (3d Cir.1996). In that case, the defendant escaped from custody during the luncheon recess of his criminal bench trial for aggravated assault and remained at large for five years. He was found guilty in absentia and, upon his return to custody, sought to appeal his conviction and sentence. The Pennsylvania Superior Court quashed the appeal pursuant to the fugitive forfeiture rule as articulated in Pa.R.A.P.1972(6), the Pennsylvania Supreme Court affirmed and the U.S. Supreme Court denied certiorari. In evaluating whether the fugitive forfeiture rule was firmly established and regularly applied at the time that Doctor escaped in 1986, the Third Circuit conducted an exhaustive analysis of Pennsylvania Superior and Supreme Court cases applying the rule and found that as of that time, “Pennsylvania’s fugitive forfeiture rule can be described as follows: if the defendant is returned to custody while his appeal is pending, an appellate court has the discretion to hear the appeal, but if the defendant is returned to custody after the appeal is dismissed, an appellate court lacks the discretion to reinstate and hear the appeal .... (citations and parenthetical references omitted). It is clear from these decisions, which reflect the state of the law at the time of petitioner’s escape, that Pennsylvania law afforded appellate courts different degrees of discretion depending on the posture of the appeal upon a former fugitive’s return to custody. Pennsylvania law had never confronted the situation that arises in the instant case where petitioner’s flight had ended and custody had been restored before the appellate process was ever initiated. Thus, it was not ‘firmly established’ that Pennsylvania courts lacked the discretion to hear an appeal first filed after custody had been restored. Under the [Commonwealth v.] Galloway[, 333 A.2d 741, 460 Pa. 309 (1975)] rationale, a court would have the discretion to hear an appeal filed by such a defendant because the defendant would be in custody during the entire pendency of his appeal and subject to the enforcement of any order entered as a result thereof. Furthermore, as the Superior Court noted in Jones, 564 A.2d at 985-86, it was unclear, until the Pennsylvania Supreme Court’s decision in Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988), whether the Passaro forfeiture analysis even applied to a defendant who escaped and returned to custody during the pendency of his appeal. Therefore, the state courts in this case did not rely on an ‘adequate’ procedural rule to deny petitioner a review of his appeal on the merits.” Doctor, 96 F.3d at 685-686. See Also: Clark v. Commonwealth of Pennsylvania, 892 F.2d 1142, 1149 (3d Cir.1989). Given that Mr. Kindler also escaped and was returned to custody prior to the initiation of the appellate process (albeit during the pendency of his post-trial motions), we can find no reason to depart from the analysis of the Doctor court. Accordingly, we find that the fugitive forfeiture rule as applied in the instant case does not provide an independent and adequate basis to preclude federal review of Petitioner’s habeas claims and we shall therefore consider these claims. C. Applicable Standards to Habeas Corpus Petitions. The principles for determining whether or not to grant a petition for a writ of habeas corpus to a state prisoner are stated at 28 U.S.C. § 2254(d): (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to a 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. Furthermore, “[i]n 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.” 28 U.S.C. § 2254(e)(1). The Supreme Court has noted that “clearly established Federal law” under § 2254(d)(1) is the governing legal principle or principles set forth by it (the Supreme Court) at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003), citing Williams v. Taylor, 529 U.S. 362, 405, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court’s decision is “contrary to clearly established precedent” if the state court applies a rule that contradicts the governing law set forth in the Supreme Court’s cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the Court and nevertheless arrives at a result different from that precedent. Lockyer, 123 S.Ct. at 1173; Williams, 529 U.S. at 405-406, 120 S.Ct. at 1523. Avoiding these pitfalls does not require citation of Supreme Court precedent; indeed, it does not even require awareness of it, so long as neither the reasoning nor the result of the state court decision contradicts it. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002). In this manner, an unreasonable application of federal law is different from an incorrect application of federal law. Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2002), quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495. Thus, to commence analysis under the “contrary to” provision, the applicable Supreme Court precedent must first be identified and evaluated to determine whether it resolves the petitioner’s claim. Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir.2000). Second, under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from Supreme Court decisions but unreasonably applies that principle to the facts of the prisoner’s case. Lockyer, 123 S.Ct. at 1174, citing Williams, 529 U.S. at 413, 120 S.Ct. 1495. It is not enough that a federal habeas court, in its independent review of the legal question is left with a firm conviction that the state court was erroneous. Id., 123 S.Ct. at 1175. “Under § 2254(d)(1)’s unreasonable application clause, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly.” Id., quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495. Rather, that application must be objectively unreasonable. Id. See Also: Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Although the Supreme Court has yet to address the precise scope of Section 2254(d)(2), in at least two other cases in the Eastern District of Pennsylvania, that section has been interpreted to require a review of the record to determine whether, “in light of the evidence presented,” the state court unreasonably determined the facts. Lambert v. Blackwell, Civ. A. No. 01-CV-02511, 2003 WL 1718511 at *15, 2003 WL 1718511 at *28 (E.D.Pa. April 1, 2003); Abu-Jamal v. Horn, 2001 WL 1609690 at *12 (E.D.Pa.2001). D. Petitioner’s Claims. 1. Failure to Transcribe or Preserve the Notes of Testimony from the Severance Hearing and Two Days of Voir Dire. Petitioner alleges that he was denied his right to a meaningful appeal of his convictions and death sentence as a result of the failure of his prior counsel and the Commonwealth to ensure that all of the notes of testimony relative to his trial were transcribed. In his case, Petitioner avers, not all of the notes of testimony from the severance hearing and the voir dire were transcribed. It has long been held that in cases where a defendant is represented by a different attorney on appeal than at trial, he may be entitled to the entire transcript of the trial proceedings. See, e.g., Hardy v. United States, 375 U.S. 277, 279, 84 S.Ct. 424, 426, 11 L.Ed.2d 331 (1964). When a transcript is less than complete, the court must determine whether the alleged omissions or deficiencies justify a new trial. United States v. Huggins, 191 F.3d 532, 536 (4th Cir.1999). In Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971), the Supreme Court held that “in all cases, the duty of the State is to provide the indigent [defendant] with as adequate and effective an appellate review as that given appellants with funds .... (citations omitted). In terms of a trial record, this means that the State must afford the indigent a record of sufficient completeness to permit proper consideration of his claims, [but][a] record of sufficient completeness does not automatically translate into a complete verbatim transcript.” 404 U.S. at 193-194, 92 S.Ct. at 414. See Also: Simmons v. Beyer, 44 F.3d 1160, 1168 (3d Cir.1995). The Mayer Court went on to hold that a criminal defendant must first show a “colorable need” for a complete transcript, at which time the burden shifts to the state to show that something less will suffice. Mayer, 92 S.Ct. at 415. See Also: Karabin v. Petsock, 758 F.2d 966, 969 (3d Cir.1985); Sulecki v. Zimmerman, Civ. A. No. 87-2663, 1988 WL 71398, 1988 U.S. Dist. LEXIS 6421 (E.D.Pa. June 30, 1988); Boss v. Fulcomer, Civ. A. No. 84-5774, 1986 WL 1091, *2-*3, 1986 U.S. Dist. LEXIS 30245, *6-*7 (E.D.Pa. Jan. 21, 1986). To warrant reversal, the defendant must further make a specific, showing of prejudice as a result of the failure to produce the entire transcript. United States v. Brand, 80 F.3d 560, 563 (1st Cir.1996); United States v. Sierra, 981 F.2d 123, 125 (3d Cir.1992). In this case, Petitioner argues only that he is entitled to have his capital habeas case reviewed upon a full record and that because there are no transcripts from two of the six days of voir dire of the jury and from one day’s pre-trial proceedings on the defense’s motion for severance, he has been denied the opportunity to raise possible errors in the jury selection process and to raise claims challenging the fact that his capital sentencing proceedings were conducted with his co-defendant, Scott Shaw. We do not find Petitioner’s bald arguments to demonstrate either a colorable need for the missing transcripts or prejudice justifying reversal of his conviction. Indeed, in reviewing the transcripts from the four days of voir dire which were transcribed, we find no evidence whatsoever of any impropriety in those proceedings, nor does Petitioner cite us to any. Petitioner does not argue that the proceedings on the two non-transcribed days were conducted any differently, and this Court has no reason to believe that the trial court did anything differently. Similarly, there is a transcript from one day of the hearing on the severance motion, which includes the arguments of counsel and the ruling of the trial judge. A summary of the evidence produced with respect to the severance issue is contained therein, as are the reasons behind the trial judge’s decision to deny the defense request to sever. Any error from these proceedings and from the judge’s ruling may easily be gleaned from the existing transcript. Accordingly, we find that the record in this matter is sufficiently complete to permit proper consideration of the petitioner’s claims in this case. For these reasons, Mr. Kindler’s request that his conviction be overturned on this basis is denied. 2. Propriety of Jury Instructions on Aggravating and Mitigating Circumstances. Petitioner next avers that the instructions given to the jury in the sentencing portion of his trial by the trial judge violated the Eighth and Fourteenth Amendments to the U.S. Constitution in that they led the jury to believe that it had to be unanimous in finding any mitigating circumstances. In advancing this argument, Petitioner relies upon Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), in which the Supreme Court held that the Constitution prohibits a state from requiring jurors unanimously to agree that a particular mitigating circumstance exists before they may be permitted to consider that circumstance in their sentencing determination. In Mills, the petitioner argued that Maryland’s capital sentencing scheme, as explained to the jury by the court’s instruction and as implemented by the verdict form, was unconstitutional because it conveyed to the jury the false impression that unanimity was required if any given mitigating circumstance was to be found to exist and thus considered by the jury panel in its sentencing determination. See, e.g., 486 U.S. at 375-376, 108 S.Ct. at 1865-1866; Abu-Jamal v. Horn, 2001 WL 1609690 at *117. After examining the instructions and verdict form in that case, the Supreme Court agreed with Mills that 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 they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance. Under our cases, the sentencer must be permitted to consider all mitigating evidence. The possibility that a single juror could block such consideration and consequently require the jury to impose the death penalty, is one we dare not risk.” 108 S.Ct. at 1870. Mills was decided in 1988, more than four years after Mr. Kindler was convicted of first degree murder, but some three years before he was returned to custody and formally sentenced to death. Not surprisingly, Respondents here argue that because Mills was not decided until long after Petitioner’s jury conducted its penalty-phase deliberations, the trial judge could not have violated the unanimity preclusion principle established in that case during the trial in November, 1983. Respondents further point out that it would be both ironic and repugnant to apply Mills here in that it would effectively be a reward to Petitioner for his escapes from custody and having the Pennsylvania state courts summarily dismiss his post-verdict motions. While we would certainly agree that Respondents’ latter argument would seem to have some merit on its face, we are bound by the decision of the U.S. Court of Appeals for the Third Circuit in Banks v. Horn, 271 F.3d 527 (3d Cir.2001), rev’d in part, 536 U.S. 266, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002), reaffirmed on reconsideration, 316 F.3d 228 (3d Cir.2003) that Mills did not announce a new legal rule, despite the fact that it was decided after Petitioner’s conviction and the dismissal of his post-trial motions and hence is properly retroactively applied. In that case, the petitioner had been convicted of having committed thirteen murders in Luzerne County, Pennsylvania in September, 1982 and was sentenced to death. His conviction and death sentence were upheld on direct appeal and on appeal for state post-conviction relief and Banks thereafter petitioned for a writ of habeas corpus in the U.S. District Court for the Middle District of Pennsylvania. This was denied and he appealed to the U.S. Court of Appeals for the Third Circuit, which reversed the District Court and granted the petitioner a provisional writ of habeas corpus. In so doing, the Third Circuit found merit to Banks’ argument that the Pennsylvania state courts had unreasonably applied the holding in Mills v. Maryland in reviewing the jury instructions in his case and that his death sentence was unconstitutional. Although the Third Circuit initially did not deem it necessary to analyze whether Mills should have been retroactively applied because the Pennsylvania Supreme Court had applied it, the U.S. Supreme Court disagreed and remanded the case to the Circuit Court to conduct a retroactivity analysis under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See, e.g., Horn v. Banks, 122 S.Ct. at 2148. On remand, the Third Circuit: (1) found that Mills did not announce a new rule of constitutional law for retroac-tivity purposes and thus was applicable on habeas review of final state court decisions; and (2) re-affirmed its earlier finding that the jury instructions and verdict form utilized in George Banks’ death penalty trial were violative of Mills. See, Banks v. Horn, 316 F.3d at 229-230, 241-242. Given that Mr. Kindler’s judgment of death was handed down only five months after Mr. Banks’, we find that the principles articulated in the Mills case must likewise be applied to evaluate the jury instructions and verdict sheet used here. Indeed, “proper application of Mills requires at the outset that the reviewing court examine the entire jury instructions, posing the ‘critical question’ whether a reasonable jury could have concluded from the instruction that unanimity was required to find a mitigating circumstance.” Banks, 271 F.3d at 546. Thus, the court need not determine whether the jury did in fact understand the charge to require unanimity in consideration of mitigating evidence-only whether it was reasonably likely. Banks, 271 F.3d at 547, citing Boyde, 494 U.S. at 380, 110 S.Ct. at 1197-98 and Mills, 486 U.S. at 384, 108 S.Ct. at 1870. In this case, the trial court issued the following instructions: Now, before the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters: 1, the aggravating circumstances specified in subsection “D” as to which there is some evidence and you have them there. Then the mitigating circumstances specified in subsection “E” as to which there is some evidence. Now, the aggravating circumstances must be proved by the Commonwealth beyond a reasonable doubt. Mitigating circumstances must be proved by the defendant by a preponderance of the evidence. A preponderance of the evidence is somewhat less proof than is required for a reasonable doubt. Now, the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in that list, subsection “D” 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 eases. The court may in its discretion discharge the jury if it is of the opinion that further deliberation will not result in a unanimous agreement as to the sentence, in which case the court shall sentence the defendant to life imprisonment. The court shall instruct the jury on any other matters that may be just and proper under the circumstances .... (N.T. 11/16/83, 29-30, 152-153). A comparison of Mr. Kindler’s instructions with those given to Mr. Bank’s jury is instructive. In Banks, the instructions were as follows: Members of the jury, you must 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 wall depend on your findings concerning aggravating and mitigating circumstances. The Crimes 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. In all other eases, your verdict would be life imprisonment. Once again, the Commonwealth has the burden of proving aggravating circumstances beyond a reasonable doubt. The defendant has the burden of proving mitigating circumstances by a preponderance of the evidence. If, after conscientious and thorough deliberations, you are unable to agree on your findings and your verdict, you should report that to me. See, 271 F.3d at 546-547. Following the procedure utilized in Frey, the Third Circuit examined the relevant portion, “you unanimously find at least one aggravating circumstance and no mitigating circumstance, or if you unanimously find at least one aggravating circumstance which then outweigh any mitigating circumstances...,” and concluded that the instructions were in themselves ambiguous, allowing for a jury to infer that the requirement of unanimity applied both to aggravating and mitigating circumstances. Banks, 271 F.3d at 548. Further, reasoned the Court, the likelihood of confusion was heightened when the judge attempted to clarify the difference between aggravating and mitigating circumstances by explaining that the defendant had the burden of proving mitigating circumstances by a preponderance of the evidence but failed to mention that unanimity was not required for finding a mitigating circumstance. Id. In the case at bar, while the instructions as a whole do not precisely mirror those given in Frey and Banks, the relevant portions do. Indeed, as in both Banks and Frey, the trial court instructed the sentencing jury that: “[T]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in that list, subsection ‘D’ 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.” and “the aggravating circumstances must be proved by the Commonwealth beyond a reasonable doubt. Mitigating circumstances must be proved by the defendant by a preponderance of the evidence. A preponderance of the evidence is somewhat less proof than is required for a reasonable doubt.” Again, the importance of a unanimous finding was discussed within very close proximity to the mitigating circumstances clause and there was no mention that unanimity was not required for a mitigating circumstance to be found. Hence, considering the instructions given here as a whole, we find that there is a “reasonable likelihood that the jury applied them in a manner that prevented the consideration of constitutionally relevant evidence.” Banks, 271 F.3d at 549, quoting Boyde, 494 U.S. at 380, 110 S.Ct. 1190. Moreover, we find that this error was lized in this case. Specifically, the verdict only compounded by the verdict slip uti- slip read as follows: We, the jury empaneled in the above entitled case, having heretofore determined that the defendant, is guilty of murder of the first degree, do hereby find: AGGRAVATING CIRCUMSTANCE(S) The victim was a fireman, peace officer, or public servant concerned in official detention who was killed in the performance of his duties ( ) The defendant paid or was paid by another person or had contracted to pay or be paid by another person or has conspired to pay or be paid by another person for the killing of the victim ( ) The victim was being held by the defendant for ransom or reward, or as a shield or hostage ( ) The death of the victim occurred while defendant was engaged in the hijacking of an aircraft ( ) The victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses ( ) The defendant committed a killing while in the perpetration of a felony ( ) In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense ( ) The offense was committed by means of torture ( ) The defendant has a significant history of felony convictions involving the use or threat of violence to the person ( ) The defendant has been convicted of another F’ederal or State offense, committed either before or at the time of the offense at issue for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense ( ) MITIGATING CIRCUMSTANCE(S) The defendant has no significant history of prior criminal convictions ( ) The defendant was under the influence of extreme mental or emotional disturbance ( ) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired ( ) The age of the defendant at the time of the crime ( ) The defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution under Section 309 (relating to duress), or acted under the substantial domination of another person ( ) The victim was a participant in the defendant’s homicidal conduct or consented to the homicidal acts ( ) The defendant’s participation in the homicidal act was relatively minor ( ) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense_( ) The aggravating eireumstance(s) outweigh the mitigating circumstance(s) YES ( ) NO ( ) We the jury render the following sentencing verdict: DEATH ( ) LIFE IMPRISONMENT ( ) The jury found two aggravating circumstances to exist-that the victim was a prosecution witness to a felony committed by the defendant who was killed for the purpose of preventing his testimony and that the killing occurred while the defendant was perpetrating a felony. No mitigating circumstances were found. In reviewing the verdict slip, we note that nowhere does it make any distinction between either the different burdens of proof attendant to finding aggravating and mitigating circumstances or the different requirements for unanimity. We find that these omissions, when coupled with the instructions given, only enhance the likelihood that the jury undertook to consider the mitigating circumstances in this case using the same procedures by which it considered the ag-gravators. It is for this reason that we are compelled to grant the writ of habeas corpus and direct that petitioner either be given a new sentencing hearing or sentenced to life imprisonment. 3. Sufficiency of the “Proportionality Review” of Petitioner’s Death Sentence Petitioner also seeks the vacation of his death sentence on the grounds that the “proportionality review” performed by the Pennsylvania Supreme Court did not provide him with the meaningful appellate review required by 42 Pa.C.S. § 9711 and the Eighth and Fourteenth Amendments. Contrary to Petitioner’s assertion, the Eighth Amendment does not require that a comparative proportionality review be conducted in death penalty cases, even where a death-sentenced defendant requests one. See, Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Although some courts have held that due process standards apply where state law provides for a proportionality review, it is unclear whether a state proportionality review statute creates any cognizable liberty interest for due process purposes under Third Circuit law. See, Riley v. Taylor, 277 F.3d 261, 311 (3d Cir.2001); Foster v. Delo, 39 F.3d 873, 882 (8th Cir.1994); Sullivan v. Delaware, Civ. A. No. 96-281-SLR, 1998 WL 231264, 1998 U.S. Dist. LEXIS 6471 (D.Del. April 30, 1998); Banks v. Horn, 939 F.Supp. 1165, 1175 (M.D.Pa.1996). In evaluating a claim that a state court erred in conducting its proportionality review, a federal court may only inquire into whether the state court “undertook its proportionality review in good faith and found that the defendant’s sentence was proportional to the sentences imposed in cases similar to his.” Riley, supra, quoting Walton v. Arizona, 497 U.S. 639, 656, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), rev’d, on other grounds, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). At the time of Petitioner’s sentencing in 1991, 42 Pa.C.S. § 9711(h)(3)(iii) read: The Supreme Court shall affirm the sentence of death unless it determines that: (iii) “the sentence, of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.” Here, the Pennsylvania Supreme Court did conduct its mandated review of the record in Mr. Kindler’s case to ascertain whether sufficient evidence was presented at trial to support his first degree murder conviction and the finding of at least one aggravating circumstance and whether the death sentence was the product of passion, prejudice or any other arbitrary factor or was excessive or disproportionate to the penalty imposed in similar cases. See Generally: Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1, 4 (1994). In addition to finding that there was indeed sufficient evidence to support the jury’s findings of guilt and aggravating circumstances to justify imposition of the death penalty, the Supreme Court concluded: We have studied this record and conclude that the sentence of death, being mandated, is neither excessive nor disproportionate to the penalty imposed in similar cases. See, Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984) (and Appendix attached thereto). Finally, after our review of this record, we conclude that the sentence of death was a product of the evidence and not a product of “passion, prejudice or any other arbitrary factor.” 42 Pa.C.S. § 9711(h)(3). Kindler, 639 A.2d at 7. Petitioner contends that in conducting the proportionality review in his ease, the Pennsylvania Supreme Court presumably relied upon the database compiled and maintained by the Administrative Office of the Pennsylvania Courts of all cases in which a first degree murder conviction is obtained. However, Petitioner asserts, the database is flawed in that it has no means by which to include information about those cases where a defendant has pled guilty, where the jury is hung, or cases where a prosecutor chooses not to go forward with a first degree murder prosecution nor does it collect and compare information on aggravating circumstances found with mitigators found. According to Mr. Kindler, the database is impermissibly “skewed toward death” because it cannot perform any sort of qualitative analysis. While Petitioner may well be correct in his assertion that the AOPC database was flawed and that the system for conducting proportionality review in Pennsylvania was less than perfect, we nevertheless cannot find any requirement that such review be flawlessly conducted, even assuming that it gives rise to a liberty interest. Petitioner has offered no evidence or argument to suggest that the Supreme Court conducted its review in bad faith. Indeed, where the state law furnishes sufficient guidelines to the sentence^ there is a presumption that the death sentence was not wantonly and freakishly imposed and thus that the sentence is not disproportionate within any recognized meaning of the Eighth Amendment. Sullivan v. Delaware, and Banks v. Horn, both supra and quoting Walton v. Arizona, 497 U.S. at 655-56, 110 S.Ct. 3047 and McCleskey v. Kemp, 481 U.S. 279, 306, 308, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Because there is no federal constitutional right to proportionality review, if the federal court finds that the review was undertaken in good faith, it cannot look behind the state court’s conclusion of proportionality to consider whether the state court misapplied state proportionality law. Riley v. Taylor, 277 F.3d at 311-312. Thus, as proportionality review is not constitutionally required and Petitioner has not presented any evidence to suggest that the Pennsylvania Supreme Court did not conduct its review in good faith, we cannot grant Petitioner habeas relief on this basis. See Also: Laird v. Horn, 159 F.Supp.2d 58, 124-125 (E.D.Pa.2001). 4. Sufficiency of Petitioner’s Trial Counsel’s Performance at the Penalty Phase of Trial. Mr. Kindler next submits that his sentence should be vacated because his trial counsel was constitutionally ineffective in failing to investigate his family background and upbringing and failing to have his mental health evaluated. Petitioner avers that had his attorney done so, he would have uncovered mitigating evidence that could have been presented to the jury in the sentencing phase of his trial. The U.S. Supreme Court has long recognized that the right to counsel under the Sixth Amendment and the Due Process clauses is crucial to protect the fundamental constitutional guarantee of a fair trial. See: Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). A fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding and the right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution” to which they are entitled. Id., quoting Adams v. United States ex. rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942) and Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932). Of course, the right to counsel means the right to the effective assistance of counsel. United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984). It is now well-established that the standard governing the evaluation of ineffective assistance of counsel claims is that of reasonably effective assistance. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Thus, when a convicted defendant complains of the ineffectiveness of counsel’s assistance he must first show that counsel’s performance was deficient, i.e., that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000); Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir.1996). Second, the defendant must show that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to establish prejudice, a defendant need not demonstrate that the outcome of the proceeding would have been different, but only that there is a “reasonable probability” that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir.2002). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 359, 154 L.Ed.2d 279, 285 (2002); Lambert v. Blackwell, supra, 2003 WL 1718511 at *33. Finally, in evaluating counsel’s performance, reviewing courts must be “highly deferential” to counsel’s reasonable strategic decisions and guard against the temptation to engage in hindsight. Marshall, 307 F.3d at 85, quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065. There is a strong presumption that, under the circumstances, counsel’s challenged ac tions might be considered sound strategy. Buehl 166 F.3d at 169. Thus, the court is not engaging in a prophylactic exercise to guarantee each defendant a perfect trial with optimally proficient counsel, but rather to guarantee each defendant a fair trial, with constitutionally competent counsel. Marshall, 307 F.3d at 85. In order to assess an effectiveness claim properly, the court “must consider the totality