Full opinion text
OPINION PETER J. MESSITTE, District Judge. After finding Dustin Higgs guilty of the kidnapping and murder of Tamika Black, Mishann Chinn, and Tanji Jackson, a jury determined that he should receive the death penalty. The Court thereafter entered judgment on the verdict and Higgs appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed the conviction and sentence. See United States v. Higgs, 353 F.3d 281 (4th Cir.2003) (“Higgs I ”). The Supreme Court denied Higgs’ petition for writ of certiorari. Higgs v. United States, 543 U.S. 999, 125 S.Ct. 627, 160 L.Ed.2d 456 (2004). During the pendency of his appeal, Higgs filed a Motion for a New Trial, which this Court denied, a decision which the Fourth Circuit also affirmed. See United States v. Higgs, 95 Fed.Appx. 37 (4th Cir.2004), cert. denied, Higgs v. United States, 543 U.S. 1004, 125 S.Ct. 608, 160 L.Ed.2d 465 (2004) (“Higgs II”). Higgs has now filed a Motion for Relief Pursuant to 28 U.S.C. § 2255 or in the Alternative Pursuant to 28 U.S.C. § 2241, asserting twenty-five claims of error. This filing is accompanied by a motion seeking additional discovery as to certain issues. The Court considers the pending motions. I. Background The relevant facts, as set forth by the Fourth Circuit in Higgs I, are as follows: A. The Murders On Friday evening, January 26, 1996, Higgs, Willis Mark Haynes and Victor Gloria drove from Higgs’s apartment at 13801 Briarwood Drive in Laurel, Maryland, to Washington D.C. to pick up Tanji Jackson, Tamika Black, and Mishann Chinn. Higgs knew Jackson and they had arranged dates for Haynes and Gloria with Black and Chinn. They were traveling in Higgs’s blue Mazda MPV van. After stopping at a liquor store, the three couples returned to Higgs’s apartment to drink alcohol and listen to music. While there, the men also smoked marijuana. At some point during the early morning hours of January 27, Higgs and Jackson began to argue. Jackson retrieved a knife from the kitchen and Haynes, who had been in the bedroom with Black, heard the commotion and came out to break up the fight. Haynes talked to Jackson and got the knife away from her. However, Jackson was still angry and the three women left the apartment. According to Gloria, as Jackson was walking out, “she stopped at the door and said something like I am going to get you all f — ed up or robbed” or made “some kind of threat.” J.A. 473. In response, Higgs commented to the other two men that Jackson “do know a lot of n — s.” J.A. 474. As Higgs was watching the women leave, he saw Jackson stop and appear to write down the license plate number of his van. This angered Higgs, who commented to Haynes and Gloria that Jackson was “writing down [his] sh — .” J.A. 474. Gloria interpreted Higgs’s comments as concern that Jackson intended to retaliate against Higgs. At that point, “Higgs said f that, and grabbed his coat and said come on.” J.A. 474. He also retrieved a silver .38 caliber firearm from the end table drawer and put it in his pocket. The three men got into Higgs’s van, with Higgs driving, Haynes in the front passenger seat, and Gloria sitting behind Higgs. Higgs drove the van to where the three women were walking on the side of the road and told Haynes to get them in the vehicle. After Haynes spoke to them, the three women got into the back seat of the vehicle and Higgs started driving towards Washington, D.C. Neighbors in the area heard and saw the three girls laughing and talking around 3: 30 that morning. According to Gloria, while en route to Washington, D. C., Higgs and Haynes leaned towards each other and engaged in a quiet conversation that Gloria could not hear. The women were whispering in the back of the van and apparently believed they were being taken home. Higgs, however, drove past the Baltimore-Washington Parkway exit, which would have taken them directly into Washington, D. C., and instead drove the van into the Patuxent National Wildlife Refuge, a federal property within the jurisdiction of the United States Park Police. Eventually, Higgs pulled over at a secluded location. One of the girls asked if they were trying to “make [them] walk from there,” and Higgs responded, “something like that.” J.A. 482. After the women got out of the van, Higgs pulled out the pistol and handed it to Haynes, who put it behind his back and also exited the van. Within moments, Gloria heard a gunshot and wiped the mist off the back window in time to see Haynes shoot one of the women in the chest. Gloria turned to ask Higgs what he was doing, but saw Higgs holding the steering wheel and watching the shootings from the rear-view mirror. Gloria put his head down, heard more shots, and heard a woman screaming. After firing a few more shots, Haynes got into the van and closed the door. According to Gloria, either Higgs or Haynes then commented that they had to “get rid of the gun,” J.A. 485, and Higgs drove to the Anacostia River where, according to Gloria, either Higgs or Haynes got out and threw the gun into the water. Higgs then drove back to his apartment where the three men began to clean up. Among other things, they wiped down the patio doors and “everything else, the bathroom, the doorknobs, the stereo,” and threw away any items the women might have touched, such as liquor bottles, CDs, and rented videotapes. J.A. 487. The men then left the apartment and dropped the trash by a dumpster. Higgs and Haynes dropped Gloria off at a fast food restaurant, where he was told by Higgs to “keep [his] mouth shut.” J.A. 489. At about 4: 30 a.m., a motorist found the bodies of the three women strewn about the roadway and contacted the Park Police. Jackson’s day planner was found at the scene with Higgs’s nickname — “Bones”—and telephone number recorded in it. On another page was written “13801 ‘MAZDA’ 769GRY”— Higgs’s address number on Briarwood Drive and the tag number for his Mazda van. A .38 caliber wadcutter bullet was also found there. According to the medical examiner, Jackson and Black had each been shot once in the chest and once in the back. Chinn had been shot once in the back of the head. B. The Investigation Although Higgs was almost immediately a suspect, the investigation into the murders continued for nearly three years before an arrest was made. On March 21, 1996, Park Police officers first interviewed Higgs at his apartment. At that time, Higgs acknowledged that he knew Jackson and that he may have talked to her the night before she died, but he denied that she had ever been in his apartment. Higgs told the officers that he first heard about the murders while watching the ten o’clock news on Saturday, January 27, while attending a party at the home of Phyllis Smith, who was his girlfriend at the time. Higgs also told the officers that he had immediately commented to a party guest that he thought he knew “that Tanji girl.” J.A. 672. According to the chief investigator, however, the names and photographs of the three victims were not released to the media until January 28. After the interview of Higgs was concluded, the officers executed an arrest and search warrant arising from Higgs’s suspected involvement in unrelated bank fraud violations. In addition to a variety of documents and cash bundles, the officers seized crack cocaine, a .380 semiautomatic firearm, and boxes of ammunition for .380, .45 and .38 caliber weapons. Higgs was arrested on federal drug charges and, on May 12, 1997, pled guilty to possession with intent to distribute cocaine base. He was ultimately sentenced to seventeen years imprisonment for the charge. Higgs has remained in the custody of either state or federal law enforcement officials since that arrest. After Higgs was interviewed and arrested, the Park Police turned their attention to Phyllis Smith. Smith initially provided a false alibi for Higgs on the night of the murders. She claimed that Higgs had been with her and her family members the entire night of January 26, helping her clean her home in preparation for the party that was to be held the following night. She also instructed her family members to confirm the alibi. In April 1996, however, Smith testified before the grand jury that Higgs was only with her at 5 a.m. on January 27. Ultimately, Smith recanted both accounts. She testified that Higgs called her when he was arrested in March 1996 and asked her to tell officials that he had been with her the entire night of January 26. She did as she was instructed, but believed at the time that she was being interviewed in connection with the drug charges that had been filed against Higgs. When Smith later learned that the questions pertained to the triple murder investigation, Higgs told her that he did not know the murdered women, but that Haynes had known them. When Smith was called before the grand jury in late 1998, she admitted her earlier lies about Higgs’s whereabouts that night. Although she and several of her family members had been cleaning her home on the evening of January 26, Higgs was not with them. Nor was Higgs at her house in the early morning hours of January 27. At trial, Smith again testified that Higgs had not helped her prepare for the party that night and was not with her when she went to bed at 1: 30 a.m. on January 27. Nor was he in her home when she awoke, as she routinely did, at 5 a.m. to care for her disabled son. Smith returned to bed shortly thereafter and awoke at 10: 00 a.m., when she first found Higgs and Haynes present in her home. Thus, Higgs must have arrived at Smith’s home sometime between 5 a.m. and 10 a.m. on the morning of January 27. Smith did confirm that Higgs and Haynes were at her house that night for the party and that the television was on during the party. Officers also interviewed Enidsia Darby, a former girlfriend of Higgs and the mother of his son, Daquon. Darby testified that Higgs contacted her by telephone after his March 1996 arrest and told her that he had been arrested for drugs. Darby, however, had seen news reports of Higgs’s arrest that contained photographs of the three murdered women and she asked Higgs about them. In response, Higgs asked Darby if she remembered that he had been with her at the hospital on the night of the murders, which was not true. When Darby visited Higgs in jail, Higgs admitted that he had been present when Haynes shot the women. He told Darby that Jackson had been invited over to his house to smoke and drink because she had been “snitching on one of them.” J.A. 759. He told her that he did not know the other two girls; “they were just for his friends.” J.A. 761. In addition to her testimony regarding Higgs’s drug activities, Darby offered testimony regarding a bank fraud scheme and credit card scheme that she and Higgs had conducted in the fall of 1995. Higgs deposited checks into accounts that had been opened by Darby and Andrea Waters, one of Darby’s friends. The women, in turn, would withdraw the cash and give it to Higgs. Waters was paid a portion of the money withdrawn from her account, but when the checks deposited in her account bounced and Higgs refused to return the money, she threatened to go to the police. Higgs responded with a threat to kill her. Darby also testified that, while employed in the electronics department of a retail department store, she charged merchandise for Higgs to a credit card number Higgs had given her. Months later, when Darby was contacted by the police about the matter, Higgs threatened to kill her if she identified him from the surveillance photographs. The investigation into Higgs’s possible involvement in the murders also uncovered his participation in two prior shooting incidents involving a .38 caliber weapon. The incidents were significant because the same caliber weapon had been used to murder the three women. The first incident occurred on November 20, 1995, approximately two months before the murders. Higgs got into an argument outside the Chaconia Nightclub in Washington, D. C., and shot out the windows of a vehicle in a drive-by shooting. After Higgs’s arrest on the federal drug charges and while the murder investigation was still underway, the vehicle was searched and the police recovered a .38 caliber bullet. Wondwossen Kabtamu, who was with Higgs at the time of the Chaconia shooting, testified that he drove Higgs’s Mazda MPV van while Higgs did the shooting. Kabtamu threw the gun out the window after the shooting, but they returned to get it at Higgs’s insistence. Higgs was ultimately charged with the Chaconia shooting in the D.C. Superior Court. In late 1998, while housed at a D.C. jail, Higgs had a number of discussions about the Chaconia charges with Domenick Williams, a fellow inmate and “jailhouse lawyer.” Higgs never admitted involvement in the Chaconia shooting to Williams, but he did tell Williams “that he didn’t want to plead guilty because they would try to use the gun in another ease.” J.A. 975. After Williams learned through a press report that Higgs was being indicted for the murders of the three women, Higgs commented to Williams, “you see why I can’t plead guilty to that charge?” J.A. 979. Higgs also advised Williams that he had rebuffed the authorities’ attempts to strike a deal with him to cooperate against his codefendant Haynes. When Williams advised Higgs that the authorities would likely offer Haynes a deal to cooperate if Higgs refused, Higgs told Williams “that his youngan would hold up,” J.A. 984, and “that the government wouldn’t offer a deal to the trigger man,” J.A. 985. Williams also testified that Higgs asked him what the chances would be “if the witness after the fact wasn’t there,” J.A. 982, referring to Gloria. Williams told him that “his chances would be good.” J.A. 983. Higgs later “explained to [Williams] that he wasn’t worrying about the [murder] case because Mel and T would be out there.” J.A. 987. Melvin Grayson and “T” were former inmates at the jail where Williams and Higgs were incarcerated. Higgs told Williams “that Mel would be out there to handle anything that he needed and that he could rely on him.” J.A. 992. Williams later notified the authorities of his conversations with Higgs and produced letters that Higgs had written to him in which Higgs reported that the Chaconia case had been dismissed, that Higgs had not heard from “T”, but that “Mel has been in my corner.” J.A. 1011. Through visitation records, authorities learned that Melvin Grayson had visited Higgs In the D.C. jail in February 1999 and again in March 1999. The Chaconia charges against Higgs were dismissed in D.C. Superior Court in May 1999. The second shooting incident occurred on December 10, 1995, approximately a month after the Chaconia nightclub shooting. Haynes went to the home of Rodney Simms on Cherry Lane in Laurel, Maryland, and argued with Simms about a woman. During the argument, Haynes took out a 9mm handgun and began shooting. Higgs came out from a nearby shed and also began firing shots. Haynes and Higgs were charged in Maryland state court for the shooting. Police recovered 9mm and .38 caliber bullets and bullet casings from the Cherry Lane crime scene. Forensic evidence revealed that the .38 caliber bullets fired from the weapons at the Cherry Lane and Chaconia sites had five “lands and grooves,” with a right twist. Although forensics could not definitively conclude that the bullets had been fired from the same weapon, the .38 caliber bullets recovered from the Patuxent murder scene and the murder victims were also .38 caliber bullets shot from a gun with five lands and grooves with a right twist. In April 1997, Higgs pled guilty to the Cherry Lane shooting and was sentenced to 18 months imprisonment. During the plea hearing, the prosecutor stated that Haynes had fired the 9mm handgun and that Higgs had fired the .38 caliber handgun. Higgs offered no contest to the facts underlying the Cherry Lane shooting, with the single exception of gratuitously asserting that he “didn’t have a .38. It was the other way around.” J.A. 1104. C. The Indictment On December 21, 1998, Higgs and Haynes were indicted for three counts each of first-degree premeditated murder, see 18 U.S.C.A. § 1111(a), first-degree murder committed in the perpetration or attempted perpetration of a kidnapping, see id, kidnapping resulting in death, see 18 U.S.C.A. § 1201(a), and using a firearm in the commission of a crime of violence, see 18 U.S.C. § 924(c). On October 22, 1999, the government filed the statutorily-required notice of its intent to seek a death sentence for the murder and kidnapping charges. See 18 U.S.C.A. § 3593(a). On December 20, 1999, the grand jury returned a second superseding indictment, and the government filed an amended death notice on February 8, 2000. The cases were severed for trial. Haynes was tried first and convicted of first-degree murder, kidnapping, and use of a firearm during a crime of violence. During the penalty phase of Haynes’s trial for the murder and kidnapping counts, however, the jury was unable to reach a unanimous verdict on the death sentence. Accordingly, on August 24, 2000, the district court sentenced Haynes to concurrent life terms for the first-degree murder and kidnapping counts and to a forty-five year consecutive sentence for the firearm offenses. His convictions and sentences were affirmed on appeal. See United States v. Haynes, 26 Fed.Appx. 123 (4th Cir.2001), cert. denied, 535 U.S. 979, 122 S.Ct. 1455, 152 L.Ed.2d 396 (2002). D. The Trial Jury selection in Higgs’s trial began on September 5, 2000, and the jury returned guilty verdicts on all charges on October 11, 2000. The case then proceeded to the penalty phase. On October 26, 2000, after hearing evidence on aggravating and mitigating factors, the jury returned a sentence of death for each of the murder and kidnapping counts. In order to impose a sentence of death under the FDPA, a jury is required to find at least one “intent” factor enumerated by Congress, see 18 U.S.C.A. § 3591(a)(2), and at least one statutory “aggravating” factor, see 18 U.S.C.A. § 3592(c). Once the jury finds the requisite intent and statutory aggravating factors, the crime is death-eligible. The jury must then determine the existence of any nonstatutory aggravating factors submitted to it for consideration, provided the government has given the appropriate notice of its intent to submit such additional factors, see 18 U.S.C.A. § 3592(c), as well as any mitigating factors, see 18 U.S.C.A. § 3592(a), and “consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death,” 18 U.S.C.A. § 3593(e). As to all victims and offenses, the jury in Higgs’s case determined that the government had proven two intent factors beyond a reasonable doubt: (1) that Higgs had “intentionally participated in ... acts, contemplating that the [lives] of [the victims] would be taken or intending that lethal force would be used in connection with [the victims]”; and (2) that Higgs had “intentionally and specifically engaged in ... acts of violence, knowing that the acts created a grave risk of death to the [victims].” See 18 U.S.C.A. § 3591(a)(2)(C) & (D). The jury also found that the government had proven beyond a reasonable doubt four statutory aggravating factors: (1) that the deaths occurred during the commission of another crime (kidnapping), for the first-degree murder counts only, see 18 U.S.C.A. § 3592(c)(1); (2) that Higgs had a previous conviction of a violent felony involving a firearm, based on Higgs’s guilty plea to assault and reckless endangerment for his participation in the Cherry Lane shooting, see 18 U.S.C.A. § 3592(c)(2); (3) that Higgs had a previous conviction for a serious federal drug offense, based on Higgs’s March 1996 arrest and subsequent conviction for possession with intent to distribute cocaine base, see 18 U.S.C.A. § 3592(c)(12); and (4) that the crime for which he was on trial involved multiple killings in a single criminal episode, see 18 U.S.C.A. § 3592(c)(16). The jury found that the government had also proven two nonstatutory aggravating factors beyond a reasonable doubt: (1) that Higgs had caused harm and loss to each victim and their families, based on the effect of the offense on the victims, their personal characteristics as individual human beings, and the impact of the death upon the victims and their families (“victim impact”); and (2) that Higgs obstructed the investigation into the kidnappings and murders by tampering or attempting to tamper with evidence and witnesses (“obstruction of justice”). Members of the jury also found three mitigating factors by a preponderance of the evidence: (1) that Higgs was not the sole proximate cause of the victims’ deaths (12 jurors); (2) that Higgs was impaired by alcohol and marijuana at the time of the murders (2 jurors); and (3) that a sentence of death would have an adverse impact on Higgs’s son (4 jurors). See 18 U.S.C.A. § 3592(a). However, the jury unanimously rejected three additional mitigating factors: (1) that Haynes was an equally culpable defendant who had not been sentenced to death for the murders; (2) that Higgs’s family history, including the abandonment by his father and the death of his mother at a young age, influenced the direction his life had taken; and (3) that other factors in Higgs’s background, record, or character or other circumstances of the offense mitigated against imposition of the death sentence. Ultimately, the jury recommended that Higgs be sentenced to death for each death-eligible conviction and, on January 3, 2001, the district court imposed nine death sentences. The district court also imposed sentences of five years, twenty years, and twenty years for the three § 924(c) convictions, respectively, directing that the sentences be served consecutively. Additionally, the court imposed a three-year term of supervised release and directed Higgs to pay restitution of $ 13,687. United States v. Higgs, 353 F.3d 281, 289-295 (4th Cir.2003). II. Claim 1: Comparative Bullet Lead Analysis One item of evidence not discussed in the Fourth Circuit’s recitation of the facts in Higgs I was the Comparative Bullet Lead Analysis (CBLA) which the Government offered at trial to suggest that bullets found at the crime scene and at Higgs’s home could be linked to bullets Higgs fired during the Cherry Lane and Chaconia Nightclub shootings. Higgs claims that he is entitled to a new trial or sentencing because the CBLA was a discredited scientific analysis which, -since the trial, the FBI has in fact abandoned. CBLA is a process that measures the elemental composition of the lead found in one bullet and compares it to that of the lead found in another bullet. See Edward J. Imwinkelried & William A. Tobin, Comparative Bullet Lead Analysis (CBLA) Evidence: Valid Inference or Ipse Dixit?, 28 Okla. City U.L.Rev. 43, 44-45 (2003). Pursuant to CBLA, two bullets with statistically significant similarities in their elemental composition may be declared “analytically indistinguishable,” the implication being that they were manufactured during a single process by a single manufacturer and thereafter found their way into the same box of bullets purchased by a person who, inferentially, fired both. See Imwinkelried & Tobin, supra, at 47; see also Ragland v. Commonwealth, 191 S.W.3d 569, 576 (Ky.2006). At Higgs’ trial, Kathleen Lundy of the FBI Laboratory’s Elemental Analysis Group testified that a bullet recovered from Mishann Chinn’s head and a bullet recovered from the Cherry Lane shooting scene were “analytically indistinguishable.” TT. Oct. 6, 2000 at 32. She also testified that a bullet recovered from the Chaconia nightclub shooting was indistinguishable from 18 bullets found at Higgs’ Briarwood apartment. Id. at 33. More than three years after the trial in this case, the National Research Council of the National Academy of Sciences released the results of a study criticizing the reliability of CBLA. Committee on Scientific Assessment of Bullet Lead, National Research Council, Forensic Analysis: Weighing Bullet Lead Evidence (2004). The study, which had been commissioned by the FBI in 2002, led to the FBI’s September 1, 2005, announcement that it had discontinued the use of CBLA. See FBI, Press Release (Sept. 1, 2005), http:// www.fbi.gov/pressrel/pressrel05/bullet_ lead_analysis.htm. In its September 1, 2005, announcement, the FBI admitted that “neither scientists nor bullet manufacturers are able to definitively attest to the significance of an association made between bullets in the course of a bullet lead examination.” Id. Citing the FBI’s decision to abandon CBLA as well as other scholarly papers challenging the reliability of the analysis, Higgs argues that CBLA was “inadmissible [as] junk science.” This proposition is the launching point for three arguments that his constitutional rights were violated: (A) the Government’s failure to disclose evidence of CBLA’s unreliability violated the Due Process Clause of the Fifth Amendment; (B) defense counsel’s failure to challenge the CBLA evidence amounted to Sixth Amendment ineffective assistance of counsel; and (C) recent revelations about CBLA’s unreliability amount to new evidence entitling Higgs to relief under 28 U.S.C. § 2255 or 28 U.S.C. § 2241. The Court addresses these arguments in turn. A. Brady v. Maryland Higgs’ first CBLA argument is that the prosecution violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) when it failed to apprise him of two studies available to the FBI but not to the public that could have been used to impeach Lundy’s CBLA testimony — one study conducted by the FBI in 1991 (“FBI Study”), and a second conducted by Iowa State University researchers at the request of the FBI in 2000 (“Iowa State Study”). The Court will discuss the findings of these studies presently, but the threshold question is whether an internal law enforcement study of the general reliability of a forensic tool (in contrast to the tool’s reliability vel non in a particular defendant’s case) can ever be deemed Brady material. The Court concludes that it can. Under Brady, the suppression by the prosecution of evidence favorable to the accused “violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. The duty of disclosure applies not only to evidence actually known to the trial prosecutor, but also evidence known to those acting on the Government’s behalf. See Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (holding that the “individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police”); see also United States v. Munson, No. 03-1153, 2004 WL 1672880, at *2, 2004 U.S. Dist. LEXIS 15465, at *7-*8 (N.D.Ill. Aug. 5, 2004) (“As a general rule, the government’s Brady obligation extends to all members of the prosecution’s team, which may include the DEA, police, or other agencies, such as the FDA or Postal Service.”), accord United States v. Pelullo, 399 F.3d 197, 218 (3d Cir.2005) and United States v. Chalmers, 410 F.Supp.2d 278, 290 (S.D.N.Y.2006). However, “the mere possibility that an item of undisclosed information might have helped the defense ... does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The prosecution’s failure to disclose gives rise to a due process violation only where “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435,115 S.Ct. 1555. Moreover, where the defendant could have obtained the same information through the exercise of reasonable diligence, the prosecution’s failure to disclose does not violate due process. See Bloke v. Netherland, 92 F.3d 1350, 1356 (4th Cir.1996) (citing United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.1989) (“[t]o establish a Brady violation a defendant must prove ... that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence.... ”)). The Court accepts that certain internal studies and reports generally relevant to the reliability of evidence introduced against an accused may be material to guilt or innocence. For example, in United States v. Wood, the Ninth Circuit determined that Investigational New Drug applications (“INDs”) released by the Federal Drug Administration (“FDA”) “were Brady material, which the government had a duty to disclose....” 57 F.3d 733, 737 (9th Cir.1995). In that case, Wood had been convicted of distributing gamma hydroxybutrate and gamma hydroxybutyric acid sodium salt (collectively “GHB”) in violation of 18 U.S.C. § 371— defrauding the FDA by obstructing its function of ensuring that prescription drugs are safe and effective and dispensed pursuant to a prescription from a practitioner licensed by law to administer such drugs. Id. at 735. At trial, controversy arose over whether GHB could be considered a prescription drug, a point that turned on whether it could be deemed dangerous to humans. Subsequent to trial, Wood learned that INDs had been filed with the FDA that included “a fair amount of ... material ... [showing] ... that GHB, if properly taken by humans, was not dangerous to them.” Id. The appellate court concluded that those INDs would have been useful in impeaching the Government’s expert’s testimony on GHB’s dangerousness, and accordingly remanded the case to the district court to determine whether the INDs were “material” under Brady. Id. at 738-39. The district court’s determination that the INDs were not material was later overturned in an unpublished Ninth Circuit opinion. See United States v. Wood, 1997 WL 207973, 1997 U.S. App. LEXIS 9077 (9th Cir. Apr. 25, 1997). Wood thus stands for the proposition that studies or reports available to an agency involved in a prosecution and useful to a defendant may be Brady material. That said, such information is not always Brady material. For example, in United States v. Bhutani, 175 F.3d 572 (7th Cir.1999), the Seventh Circuit rejected the materiality of data numerous drug manufacturing companies had submitted to the FDA. There, husband and wife defendants, the Bhutanis, manufactured a generic form of Lactulose, a prescription drug used to combat advanced liver disease. The court described the relevant attributes of Lactulose as follows. One way of testing the stability of Lactulose is to measure its pH level. The pH scale measures the acidity or baseness of a chemical on a scale of 0 to 14. A chemical with a pH below 7 is an acid, while one with a pH above 7 is a base. At the time of the trial, the accepted pH range in which Lactulose was considered most effective, as set forth by the U.S. Pharmacopeia (“U.S.P.”), also known as the “bible” of the pharmaceutical industry, was 3.0 to 7.0. The U.S.P. based this determination on stability data provided by various drug manufacturers to the FDA. As Lactulose ages and begins to degrade, it becomes more acidic, i.e. its pH drops. Thus, the older Lactulose gets, the lower its pH reading will become. If the pH level becomes too low, the drug will no longer be effective to fight the liver disease. Id. at 575. The jury found that the Bhutanis were “spiking” their Lactulose “with the foreign substance sodium hydroxide in order to conceal [its] age. Sodium hydroxide is a base, and, when combined with a more acidic substance, will raise its pH level.” Id. Following their conviction, the Bhutanis filed a motion for a new trial based on the following alleged Brady violation: They claimed that the government, at the time of the trial, had in its possession stability data from numerous drug manufacturing companies that showed that the effective range for Lactulose was not in fact 3.0 to 7.0, and that Lactulose was still perfectly effective with a pH level as low as 2.5. Furthermore, they asserted that the U.S.P. released a proposal [following the trial] to change the effective pH range for Lactulose from 3.0 to 7.0 to 2.5 to 6.5. Id. at 575-76. This drug company data, the Bhutanis argued, could have been used at trial to show that they had no reason to spike the Lactulose because the drug was effective at its pH level prior to the alleged spike (4.6). Id. at 576. The court concluded that the data in the FDA’s possession was not material under Brady, reasoning that the FDA did not know that the U.S. Pharmacopeia would alter the effective range for Lactulose. The real evidence that the defendants rely on in their motion is the eventual publication of the U.S.P.’s proposal to lower the effective range of Lactulose. This was not published until well after the trial had ended. Simply because the FDA had stability data from other pharmaceutical companies does not mean that they had any knowledge that the U.S.P. was going to recommend the proposed change in Lactulose’s effective pH range. The government cannot be held responsible for failing to disclose merely speculative evidence. Id. at 577. In short, the Seventh Circuit found that the data in the Government’s possession was too speculative to be deemed material. As Bhutani suggests, not every shred of general scientific information available to the prosecution constitutes Brady evidence. Indeed, the Court is mindful that a rule requiring the disclosure of all studies, reports, data, or communications in any way related, no matter how tangentially, to the reliability of forensic procedure would be overly burdensome, if not totally impractical. Instead, the Court must remain focused on scientific evidence that is truly material, and therefore capable of undermining confidence in the verdict. Determining materiality will often require evaluating the reliability and level of scientific refinement of the evidence as well as the strength of other evidence offered at trial, among other considerations. A stray remark by a government scientist, for exam-pie, will presumably carry less weight than the printed results of a study or a marked change in agency policy. Similarly, raw data such as that in Bhutani is less likely to potentially undermine the government’s case than the studies available to the prosecution in Wood. Against this background, the Court turns to Higgs’ case. Higgs’ Brady claim derives from the prosecution’s failure to divulge the FBI study and the Iowa State study, which he claims contained information that would have helped him impeach the Government’s expert testimony with respect to CBLA. While the Court accepts that these studies raise questions as to the validity of CBLA, it concludes that they were not required to be disclosed. The Court reasons thus: (1) the studies’ strongest critiques of CBLA were available in at least one published study which was publicly available at the time of Higgs’ trial, strongly suggesting that, through the exercise of reasonable diligence, Higgs could have obtained identical or nearly identical information; (2) the studies’ remaining critiques do not consist of strong, definitive conclusions, but at most suggest areas for possible additional study; (3) by his own admission, Higgs could have called live witnesses capable of offering conclusions nearly identical to those offered in the Government’s studies; and (4) other evidence presented at trial provided a firm link between Higgs and the bullets found at the murder scene. 1. The availability of CBLA critiques offered by the FBI and Iowa State studies. A review of both Government studies reveals that their critiques of CBLA fall into two general categories: (1) challenges based upon bullet manufacturing and distribution processes, suggesting the possibility that bullets from the same lead source could make their way into separate boxes and ultimately into the possession of different individuals; and (2) challenges to the validity of the chemical and statistical analyses used to determine if two bullets— e.g., a bullet found at a crime scene and a bullet found in a suspect’s possession- — are “analytically indistinguishable.” The Court finds that the critiques based upon the bullet manufacturing and distribution processes, i.e. those in the first category, were accessible in at least one published study available at the time of Higgs’ trial, strongly suggesting that, through the exercise of reasonable diligence, Higgs could have obtained identical or nearly identical information. As the FBI Study and the Iowa State Study both note, bullets from a single source of lead can — -while being sorted, packaged, and distributed downstream to parties in the supply chain — end up in separate boxes and, quite possibly, the possession of different buyers. See Peele et al. at 57; Carriquiry et al. at 30. As a result, per that study, even where a bullet from a crime scene is analytically indistinguishable from another bullet found in the possession of a suspect, one may not be able to conclude that the suspect ever possessed, let alone fired, the bullet involved in the crime. Nevertheless, this finding does not constitute an automatic Brady violation. The Court, based on its own search, was able to locate at least one publicly available study — published in September 1999, well before Higgs’ trial — that offered essentially the same conclusion: “The extent of each particular source (i.e., the number of identical boxes by each manufacturer) and the bullets available in a particular geographic area at a particular time are all unknown factors. As a result, bullet lead analysis ... does not generate individualizing information.” R.O. Keto, Analysis and Comparison of Bullet Leads by Inductively Coupled Plasma Mass Spectrometry, 44 J. FORENSIC SCI. 1020, 1026 (1999) (emphasis added). Given the availability of a critique such as this, the Court finds that the nonproduction of the FBI and Iowa State studies did not amount to a Brady violation. See Hoke v. Netherland, 92 F.3d 1350, 1356 (4th Cir.1996); United States v. Orzechowski, 547 F.2d 978, 985 (7th Cir.1976) (no Brady violation where information in unproduced DEA studies on what tests should be performed to determine if a substance is a cocaine isomer was available to defense in other forms and used during cross-examination of government expert). 2. Uncertainty of studies with respect to chemical and statistical analysis per CBLA. The Court further finds that the critiques which fall into the second category — challenges to the validity of the chemical and statistical processes that comprise the essence of comparative bullet lead analysis — involve no strong, material conclusions but at best suggest areas for possible additional study. The 1991 FBI Study, for example, actually did more to confirm the validity of CBLA processes than to discredit them, finding that “[a]c-curate, reproducible elemental concentration determinations in bullet leads can be obtained using both [Neutron Activation Analysis] and [Inductively Coupled Plasma-Atomic Emission Spectrometry] methods.” Peele et al. at 65. At the same time, the Iowa State study never actually concluded that CBLA’s chemical or statistical processes were invalid, finding instead that the two methods the researchers employed to assess the quality of bullet lead evidence produced indeterminate results, in large part because of limited data availability. See Carriquiry et al. at 30. These less than ringing conclusions do not suffice to undermine confidence in the outcome of Higgs’ trial. They appear instead to be comparable to the speculative information available in Bhutani, supra. The Court concludes that the two Studies’ findings did not constitute favorable evidence that “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. 3. Availability of expert witnesses. It is also noteworthy that Higgs, by his own admission, could have called witnesses capable of stating conclusions nearly identical to those he characterizes as present in the Government’s studies. His petition, for instance, notes that, “[a]s early as 1970, metallurgists began writing about the techniques the FBI was using to compare the elemental composition of bullets. Analysis of these techniques began to appear in published case law well before Petitioner’s trial in 2000.” Indeed, such critiques were also making their way into court proceedings as early as 1981. Higgs himself cites a 1981 dissent by Justice Hunter of the Indiana Supreme Court arguing that a CBLA technique similar to the technique relied upon in Higgs’ case was unreliable and inadmissible. See Jones v. State, 425 N.E.2d 128, 134-37 (Ind.1981) (Hunter, J., dissenting). Ultimately, then, Higgs concedes that “any competent metallurgist in 2000 could have made many of the points made by [William A.] Tobin,” the former employee of the FBI Laboratory whose affidavit Higgs has filed with the Court, who characterizes Government witness Lundy’s conclusions as “unsupported by scientific foundation” and “not reliable.” In light of these concessions, the Court finds unpersuasive Higgs’ claim that the Government studies contained information not reasonably available elsewhere. 4. Other bullet-related evidence. Finally, the Court notes that the FBI’s CBLA analysis was not the only evidence that served to establish a link between Higgs and the .38 caliber bullets retrieved from the crime scene. In addition to the CBLA analysis, the Government presented: (1) eyewitness testimony linking Higgs to the firing of a .38 caliber weapon outside the Chaconia Nightclub in 1995; (2) ballistics evidence showing forensic similarities between a bullet recovered from the Chaconia Nightclub shooting and bullets recovered from the bodies of the murder victims in the present ease; (3) statements by Higgs implying that he owned the .38 caliber weapon used in the Chaconia shooting; (4) the .38 caliber bullets found in Higgs’s apartment upon execution of a search warrant; (5) evidence showing that a .38 caliber weapon was used in the Cherry Lane shooting, a crime to which Higgs pleaded guilty; and (6) the eyewitness testimony of Victor Gloria, who testified that Higgs owned a .38 caliber handgun which Higgs retrieved from a drawer on the night of the murders and later handed to Haynes, who used it to kill the three victims. In light of this substantial evidence linking Higgs and a .38 caliber weapon, the Court concludes that the largely inconclusive information relative to CBLA offered in the Government studies, whether or not otherwise reasonably available at the time of the trial, did not comprise evidence that “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. B. Newly Discovered Evidence Higgs’s Brady argument is but the first of three arising from admission of the CBLA evidence at trial. The second is that the discovery of “new evidence” about the reliability of CBLA, including the National Research Counsel study that led to the FBI’s abandonment of the practice, entitles him to a new trial. The Court disagrees. Newly discovered evidence may open the door to habeas corpus relief if it can form the basis of an actual innocence claim. Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (“ ‘Actual innocence’ is ... a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”); Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); see also Buckner v. Polk, 453 F.3d 195, 199-200 (4th Cir. 2006). While it is not entirely clear whether Higgs’ actual innocence claim is brought as a means to reach a procedurally barred constitutional claim under Schlup, or whether he intends it as a “free-standing” claim of innocence which purportedly entitles him to relief under Herrera, it appears that he is alleging his actual innocence, in and of itself, as the basis for collateral relief. That is to say, he would like the Court to overturn his conviction because he submits he is actually innocent, on the grounds that pivotal evidence adduced against him at trial was unreliable. The Supreme Court has never squarely held that actual innocence is a viable independent collateral claim. See Herrera, 506 U.S. at 417, 113 S.Ct. 853 (“We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of “actual innocence” made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.”). But if such a claim exists, the Court has said, the threshold showing would “necessarily be extraordinarily high.” Id,. Higgs’ showing in this case falls far short of such a high threshold. The evidence adduced against him at trial was extensive and strong. First and foremost, Victor Gloria provided a detailed account of the murders and Higgs’ role in them, testimony which in large part was corroborated by the testimony of several other witnesses as well as physical evidence. In addition to Gloria’s testimony, highly damaging evidence included: 1. Enidsia Darby’s statement that Higgs told her that the victims were killed because Tanji Jackson was “snitching on one of them [Higgs or Haynes].” TT. Sept. 29, 2000 [Paper No. 355], at 33-35; 2. Higgs’ attempt to manufacture alibis for himself by urging Phyllis Smith and Enidsia Darby to he to investigators as to his whereabouts at the time of the murder, Id. at 31; TT. Sept. 29, 2000 [Paper No. 426], at 31-37; 3. Higgs’ statement to Dominick Williams that he could not plead guilty to the Chaconia Nightclub shooting because he feared that the bullets found at that crime scene could be linked to those used to kill Black, Chinn, and Jackson— a statement tantamount to a confession, TT. Oct. 4, 2000, at 34; 4. Higgs’ admission to Williams that the women were killed because they were “tripping,” TT. Oct. 4, 2000, at 44-46; 5. Higgs’s suggestion to Williams that his friends would stop Gloria from testifying, presumably by intimidating or killing him, Id. at 44, 49; and 6. Testimony from various witnesses that Higgs owned and had previously fired a .38 caliber gun, the same caliber used in the murders. This evidence, the Court finds, effectively demolishes Higgs’ claim of actual innocence. In light of this evidence, Higgs also fails to meet what appears to be the less restrictive standard for actual innocence suggested in Schlup, 513 U.S. at 327-28, 115 S.Ct. 851 (holding that in order to demonstrate actual innocence, a movant must establish that based on the evidence, “it is more likely than not that no reasonable juror would have convicted him”) (emphasis added). C. Ineffective Assistance of Counsel Higgs’ third CBLA argument is that defense counsel was ineffective for failing to offer available studies or experts critical of CBLA. Claims of ineffective assistance of counsel are governed by the two-part test outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing (1) “that counsel’s performance was deficient,” and; (2) “that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. Representation is deficient if it “falls below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. A showing of prejudice requires “that counsel’s errors were so serious as to deprive the defendant of a fair trial ... whose result is reliable,” id. at 687, 104 S.Ct. 2052, and that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Put differently, “[t]he benchmark of an ineffective assistance claim must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052. See also, Roach v. Martin, 757 F.2d 1463 (4th Cir.1985) (adopting the Strickland test for the Fourth Circuit). Passing the question of deficiency vel non of counsel’s performance, the Court concludes that there was no reasonable probability that, absent counsel’s alleged errors, the result of the proceeding would have been different. The multiplicity and the strength of the evidence previously catalogued establish that proposition beyond peradventure. D. Motion for Discovery For the same reason, the Court finds Higgs’ discovery request for any FBI reports, studies, and scientific data related to the validity of CBLA or the FBI’s decision to discontinue its use on September 1, 2005 without merit. Discovery in connection with a habeas petition may be given only upon a showing of “good cause.” See Rules GoveRning Section 2255 Prooeed-INGS FOR THE UNITED STATES DISTRICT COURTS 6(a). “Good cause” exists when there is “reason to believe that [the defendant] may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). As discussed, there is no reason to believe that such additional facts as Higgs might hope to mine during discovery would demonstrate his entitlement to relief at this juncture. III. Claim 2: Peremptory Challenges In his second claim, Higgs argues his entitlement to a new trial because of the allegedly discriminatory manner in which the prosecution exercised its peremptory strikes against women. This, he says, violated the Equal Protection Clause of the Fifth Amendment. He cites Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in which the Supreme Court held that litigants may not use peremptory challenges “solely on account of race,” a holding extended to gender-based challenges in J.E.B. v. Alabama, 511 U.S. 127, 128-29, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). As evidence of gender discrimination, Higgs submits that, despite the fact that over one-third of the jury pool was comprised of women, the final jury contained only men. He further submits that the actions of the prosecutors in this case were part of a pattern of discriminatory behavior, as evidenced by their elimination of a disproportionate number of women in another death penalty case heard by this Court following Higgs’ trial. Because of this jurisdiction’s practice of “blind striking” the jury, Higgs says he has been unable to ascertain the exact number of strikes the Government exercised against potential female jurors. He therefore argues that evidence relating to the Government’s gender discrimination justifies discovery and an evidentiary hearing. He further complains that he was deprived of effective assistance when counsel failed to object to the prosecution’s supposed gender bias in exercising its peremptory challenges. The Government argues that Higgs’ claim is procedurally defaulted, but submits that even on the merits, he is unable to establish aprima facie case of discrimination or rebut the Government’s legitimate, non-discriminatory reasons for its strikes. Because the underlying claim would have been futile, says the Government, the Sixth Amendment claim of ineffective assistance also fails. A. ? Court agrees that this claim is procedurally defaulted. Before now, Higgs has never argued that the prosecution exercised its peremptory strikes in violation of the Equal Protection Clause. Though a procedural default will be excused upon a demonstration of cause and prejudice, see Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), and while it may be assumed arguendo that Higgs has shown “cause,” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (noting that ineffective assistance of counsel is “cause” for a procedural default), he has not shown “prejudice.” The Court explains. B. A Batson-J.E.B. challenge requires a three-step inquiry: (1) the court first determines whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of—in this case—gender, (2) the prosecutor must then present a gender-neutral explanation for striking the juror in question, and (3) the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). 1. Batson provides that a defendant may satisfy his initial burden of demonstrating a prima facie case of discrimination by showing that: (1) the defendant was a member of a cognizable group, (2) the prosecution exercised peremptory challenges to remove from the venire members of defendant’s gender, and (3) other relevant facts and circumstances give rise to an inference of discrimination. Batson, 476 U.S. at 96, 106 S.Ct. 1712; 511 U.S. at 144-45, 114 S.Ct. 1419 (suggesting that analysis of gender-based discrimination claims should follow the approach outlined in Batson). While Batson — J.E.B. challenges were originally limited to discrimination claims regarding one’s own race or gender, this has since been expanded to allow defendants who are of a different cognizable group than the stricken jurors to establish a prima facie case. See Powers v. Ohio, 499 U.S. 400, 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (holding that racial identity between the objecting defendant and the excluded jurors does not constitute a relevant precondition for a Batson challenge). Because Higgs does not allege that members of his own gender, i.e. men, were improperly stricken from his jury, he must show that other relevant facts and circumstances give rise to an inference of discrimination involving women. United States v. Joe, 928 F.2d 99, 102 (4th Cir.1991) (citing Batson, 476 U.S. at 96, 106 S.Ct. 1712). He embarks upon a tortuous, ultimately unsuccessful course in his effort to do so. Higgs begins by presenting statistics which he believes evidence discrimination by the prosecution during jury selection. He argues, from the limited information available to him, that it “appears” that the prosecution exercised eleven of its fifteen peremptory strikes, or 73.3%, to eliminate prospective female jurors, whereas women made up only 36.5% of the venire. The Government submits that these statistics are speculative and cannot suffice to establish a prima facie case of discrimination. See United States v. Tipton, 90 F.3d 861, 881 & n. 11 (4th Cir.1996) (rejecting a gender-discrimination claim where the defendants produced no evidence to support their argument other than “raw figures” of two men versus eight women stricken). It notes that four female jurors who were not excluded by the Government would have been seated if they had not been stricken by Higgs’ own counsel. The Court is not prepared to say that statistics alone can never suffice to establish a prima facie Batson violation. See, e.g., Howard v. Moore, 131 F.3d 399, 407 (4th Cir.1997) (en banc) (concluding that “prosecutor’s striking of six out of the seven black prospective jurors” — without more — “constituted a prima facie case of discrimination”); see also Allen v. Lee, 366 F.3d 319, 359 (4th Cir.2004) (“When determining whether a prima facie case of discrimination has been shown, the district court may consider the proportion of black jurors stricken compared with the composition of the venire.”). On the other hand, neither is it necessarily suspect that the prosecution exercised 73.3% of its strikes against women, when women constituted 36.5% of the venire. But assuming without deciding that such numbers could form the basis for a prima facie case of discrimination, Higgs nonetheless has failed to rebut the Government’s proffered neutral, non-discriminatory reasons for its strikes. 2. The Supreme Court has made clear that the prosecution’s burden of establishing a legitimate reason for its strikes is not heavy. See Rice, 546 U.S. at 338, 126 S.Ct. 969 (“[ajlthough the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices”) (internal citations and quotations omitted). To satisfy this burden, the prosecutors may provide a variety of reasons for their strikes, including among others the prospective juror’s prior criminal jury service, the fact of the prospective juror having relatives who have served prison time, business concerns, and relationships between the prospective juror’s relatives and trial counsel. Given this lenient standard, the prosecution easily satisfies its burden in this case. See Rice, 546 U.S. at 338, 126 S.Ct. 969. Once a non-discriminatory reason is offered, step three of a Batson inquiry requires the trial court to determine whether the defendant has rebutted the stated rationales in order to prove intentional discrimination. Batson, 476 U.S. at 98, 106 S.Ct. 1712. A variety of circumstances may be considered in determining whether the prosecution discriminated in its jury selection. In Miller-El II, the Supreme Court was persuaded by six indicia of discrimination where prosecutors: (1) struck a high percentage of veniremen on the basis of their being part of a cognizable group; (2) proffered reasons for striking the members of the cognizable group that applied equally to veniremen who were not members of the cognizable group; (3) repeatedly “shuffled” potential jurors when confronted with eligible veniremen who were part of the cognizable group; (4) used different scripts depending on whether the veniremen were part of the cognizable group; (5) made written notes about the veniremen being part of the cognizable group; and (6) were part of an office with a systematic policy of discrimination. Miller-El II, 545 U.S. at 239-66, 125 S.Ct. 2317. The present case stands in marked contrast to Miller-El II. The percentage of strikes against women here, arguably high enough to make a prima facie case, ultimately does not persuade the Court that the prosecution engaged in intentional discrimination, particularly given that the lack of women on the jury was due at least in part to strikes made by the defense. Furthermore, unlike in Miller-El II, the “shuffling” of jurors and the asking of different questions of male and female jurors did not occur here. There is no indication that the prosecution in its voir dire treated potential male and female jurors differently. Still, Higgs argues that under Miller-El v. Cockrell, a petitioner claiming discrimination in jury selection may prove that the prosecutor has engaged in systematic discrimination against a particular group of venire members as part of a “culture” of discrimination. 537 U.S. 322, 347, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (Miller-El I); see also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (Miller-El II). A “culture” of discrimination can be established by a showing that the prosecutor discriminated “in case after case.” Swain v. Alabama, 380 U.S. 202, 224, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Higgs alleges such a culture was in place here because his prosecutors, five years after his trial, tried another capital case together, United States v. Eighty, PJM-03-00457 (D.Md.2006), in which they purportedly exercised 10 of their 12 identifiable peremptory strikes against women. Higgs also fails in his atte