Steele v. Beard (830 F. Supp. 2d 49, 2011)

OPINION

ARTHUR J. SCHWAB, District Judge.

I. Introduction

In June of 1985, Roland Steele was charged with murdering Lucille Horner, age 88, Minnie Warrick, age 86, and Sarah Kuntz, age 85. The following year, in the Court of Common Pleas of Washington County, a jury convicted him of three counts of first-degree murder, two counts of robbery, and two counts of theft by unlawful taking. Following a penalty hearing, the jury sentenced him to death on each murder conviction.

Before this Court is Steele’s petition for a writ of habeas corpus, which he has filed pursuant to 28 U.S.C. § 2254. He raises 15 claims and numerous subclaims. He contends that he is entitled to a new trial or, at a minimum, a hew sentencing hearing. After careful consideration, I conclude that Steele is not entitled to relief on any of the claims in which he challenges his convictions. Therefore, I will deny his request for a new trial.

I must, however, grant him a conditional writ of habeas corpus with respect to his request for a new sentencing hearing because the U.S. Court of Appeals for the Third Circuit has held that the jury instructions and verdict form employed in Steele’s sentencing hearing violated the Eighth Amendment, pursuant to Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Under the terms of the writ, the Commonwealth may conduct a new sentencing hearing, at which a jury will once again decide whether Steele should be sentenced to death or to life imprisonment without the possibility of parole. If the Commonwealth does not conduct a new hearing, it must resentence Steele to a term of life imprisonment without the possibility of parole.

My disposition of the Mills claim and the conclusion that a writ of habeas corpus is issued with respect to Steele’s capital sentence renders it unnecessary to address his remaining sentencing-phase claims; any relief he could obtain on those claims would be cumulative.

Steele’s guilt-phase claims and his sentencing-phase Mills claim are:

Claim 3 He was denied a fair trial and due process when the Commonwealth introduced the false and unreliable testimony of F.B.I. Special Agent Andrew Podolak, who stated that hair samples taken from Steele’s clothing were Minnie Warrick’s hairs

Claim 4 His counsel was rendered ineffective due to the Commonwealth’s discovery violations regarding Agent Podolak’s testimony; and, were ineffective for failing to protect him from those discovery violations, for failing to adequately cross-examine, impeach, and rebut Agent Podolak’s testimony, and, for failing to retain a defense expert to conduct hair comparison analysis

Claim 5 He was denied due process, an impartial jury, reliable sentencing and the effective assistance of counsel because venire members were not subjected to adequate voir dire during jury selection regarding racial bias

Claim 6 He was denied due process, a meaningful appeal and post-conviction hearing, and the effective assistance of counsel because he did not receive a complete set of voir dire transcripts

Claim 7 He was denied due process and the effective assistance of counsel because the trial court failed to provide specific instructions regarding the identification testimony provided by Harry Crothers and on cross-racial identification, and counsel failed to object and offer specific points of charge

Claim 8 He was denied due process, a unanimous verdict, and the effective assistance of counsel because the trial court’s guilt-phase unanimity instruction improperly coerced a verdict and counsel failed to object to the erroneous instruction

Claim 9 He was denied due process and the effective assistance of counsel because the prosecutor engaged in prejudicial misconduct during closing arguments at the guilt phase of the trial without objection by counsel

Claim 10 He was denied due process and reliable sentencing because the trial court erroneously instructed the jury that it had to unanimously find a mitigating circumstance before giving it effect, in violation of Mills v. Maryland, 486 U.S. 367[, 108 S.Ct. 1860, 100 L.Ed.2d 384] (1988)

Claim 13 He was denied due process and an impartial jury because the jury deliberations were infected with racial bias, predisposed opinions regarding his guilt, and external influence, and because the jury engaged in deliberative discussions before hearing the evidence

Claim 14 Counsel were ineffective for failing to raise all of the claims alleged in the habeas petition

Claim 15 He was denied due process and the effective assistance of counsel as a result of the prejudicial effects of the cumulative errors in this case, which undermine confidence in the outcome of his trial

II.. Facts and Procedural History

On June 22,1985, shortly after 6:00 a.m., the badly beaten body of Lucille Horner was discovered amidst discarded tires and other debris in a secluded wooded location just off Papp Road in Cecil Township, Washington County. While processing the crime scene, a police officer discovered the bodies of Sarah Kuntz and Minnie Warrick under a pile of discarded tires in the same general area where Horner’s body was located. Steele had lived near the site when he was a youth and he was familiar with the area. Trial Tr. at 553-55, 1115-20,1198-99.

' The police quickly learned that the day before, on June 21, 1985, the victims had attended together a charitable luncheon at the Club Internationale, which is located in the Millcraft Center in the City of Washington, Pennsylvania. Lucille Horner drove them to the luncheon in her car, which was a beige-colored 1974 Dodge Dart. The luncheon began around 1:00 p.m. and ended around 2:30 p.m. As discussed below, the women were last seen alive with Steele, who was observed driving them, in Lucille Horner’s car, out of the Millcraft Center parking lot.

Dr. Earnest L. Abernathy, Chief Pathologist of Washington Hospital, performed the autopsies. His conclusions, coupled with the knowledge of when they were last seen alive, placed the victims’ deaths at some time after 2:30 p.m. on June 21,1985. Id: at 189-90. Dr. Abernathy testified at Steele’s subsequent trial that Lucille Horner’s injuries included significant bruising on her chin, chest, and back, damage to her heart, numerous fractures of her ribs, a fracture of her backbone, damage to her liver, and a torn larynx. He concluded that the cause of death was traumatic rupture of the heart. The autopsy of Sarah Kuntz revealed similar injuries, including bruises on her face, chest, and legs, lacerations to the scalp, fractured ribs, and damage to her heart and liver. Dr. Abernathy concluded that the cause of death was asphyxia due to a fracture, of the larynx. With regard to Minnie Warrick, Dr. Abernathy . testified that. she also sustained bruising to the face and chest, fractured ribs, and heart damage, as well as a partially collapsed lung and blowout of the stomach wall. The cause of death for Warrick was traumatic rupture of the heart, with numerous companion injuries.

Dr. Abernathy testified that the pattern of bruising on the victims was similar in all three cases, and was caused by substantial blunt force blows, which, in his opinion, were most likely delivered by human hands. The defense stipulated that Steele knew martial arts, and Commonwealth witnesses testified that he was a black belt in karate and had been employed as a martial arts instructor. Id. at 629-31, 637-38.

On June 23, 1985, the day after the victims’ bodies were discovered, the police arrested Steele and charged him with their murders and with robbing them. Public Defender John Liekar, Sr., Esquire, and Assistant Public Defender Paul Tershel, Esquire, represented him. Tershel was lead trial counsel. A jury was selected from a venire in Erie County, and Steele’s nine-day trial commenced on January 10, 1986. John C. Pettit, the District Attorney of Washington County, was the prosecutor.

At the trial, Steele did not dispute that he was in the vicinity of the Milleraft Center as late as 12:00 p.m. on the day the victims were murdered. Id. at 1201-02. See also id. at 754-57. Both Steele and William F. Henkel, Esquire, an attorney who was representing him in a civil lawsuit, testified that Steele visited Henkel at his office at approximately 11:15 a.m. on that date, and that Steele left there between around 11:45 a.m. and noon. Id. at 749-52, 1201. Henkel’s office was located approximately three blocks from the Mill-craft Center. Id. at 754-57.

Steele testified that he traveled to the City of Pittsburgh shortly after he left Henkel’s office around noon and did not return to Washington County that day. The Commonwealth presented witnesses that countered Steele’s testimony and placed him with the victims at the Milleraft Center after they had left their charity luncheon at around 2:30 p.m. It also introduced evidence to demonstrate that, as late as around 4:30 p.m., Steele was driving Lucille Horner’s Dodge Dart in Washington County near where the victims were murdered.

Robert Poland knew Steele. He testified that he saw Stéele the day of the murders at around 1:30 p.m. about 10 to 15 blocks from the Milleraft Center. Id. at 226. By the time the victims were leaving their charity luncheon around at 2:30 p.m., the Commonwealth’s witnesses placed Steele at the Milleraft Center. Mildred Stitler lived in the Bassettown Manor Apartments, which is located next to the shopping center. From the windows of her fourth floor apartment, she could see into the shopping center’s parking lot. She was looking out those windows on June 21, 1985 and saw Steele “wandering” around the parking lot. Id. at 245-46, 252. Stitler testified that she saw Steele approach Lucille Horner, who was sitting in the driver’s seat of her car. Stitler observed Steele talking to Horner and motioning to her in a manner that Stitler interpreted as “trying to show [Horner] that there was something wrong with [one of her car’s tires].” Id. at 246. Stitler stated that she saw Horner exit the driver’s seat and get into the front passenger’s seat. Steele got behind the wheel of Horner’s car and he drove over to where Minnie Warrick and Sarah Kuntz were standing. They got into the car and Steele drove the three victims out of the parking lot. Id. at 247-48.

Kimberly Oyler testified that she was in the Milleraft Center’s parking lot on the day of the murders at around 2:30 p.m. Her doctor’s office was located nearby and she had parked there and was walking towards the office. Id. at 258. As she was doing so, she saw Sarah Kuntz getting into Lucille Horner’s car. She testified that Steele was holding open one of the car’s back doors for Kuntz. Steele was between “ten and twelve feet” from Oyler and she testified that she had the opportunity to get a good look at him. Id. at 261-62.

Harry- Crothers is a locksmith who owned a shop across the street from the Milleraft Center. Id. at 274. On the day of the murders, he was returning to his shop around the same time that Stitler and Oyler had witnessed the events in question. Crothers testified that he saw a vehicle pull out in front of him from the alley behind the shopping center. Id. at 275. He knew Lucille Horner because she went to his church and was the mother-in-law of an acquaintance of his. He testified that “[t]he vehicle went to the stoplight, kind of undecided as to whether it was going to go straight ahead or make a left or right-hand turn and it straddled the two lanes of traffic. That’s what called it to my attention because I was late in going from one job to another and being indecisive they didn’t seem to know which way they were going.” Id. at 275-76. Crothers testified that Steele was driving the car and Lucille Horner was in the front passenger’s seat. He also observed two elderly women sitting in the backseat of the car. Crothers sat behind the car at a traffic light. He testified that he was able to see Steele’s face and that there was no question in his mind that Steele was the man he saw driving the car. Id. at 276-78.

Stitler, Crothers, and Oyler were the last people to see the victims alive. The victims left the Millcraft Center with Steele, who was driving them in Lucille Horner’s Dodge Dart. Several people would see Steele later that afternoon driving that same car, but Minnie Warrick, Sarah Kuntz, and Lucille Horner were not seen again until their bodies were found the next day.

At the time of the murders, Steele was living with his girlfriend, Joan Whitlock, at her home in McKees Rocks, a borough of Allegheny County, Pennsylvania. Her brother, Duane Jordan, testified that Steele visited him at night on the date of the murders. Jordan lived on Old Orchard Circle, which is in the Broadhead Manor housing project. Id. at 545-47. A few days after Steele had visited him, on or around June 25, 1985, a maintenance worker with the housing authority found a discarded white vinyl purse near Jordan’s home. Id. at 536-37. Inside that purse where items that belonged to the victims, including several of their credit and insurance cards. Id. at 539-40.

On the same day of the murders, the home of Dehla Woznicak was robbed. She lived near Hendersonville, which is less than two miles from where the victims’ bodies were found. The robbery occurred sometime between around 3:30 p.m. and 4:50 p.m., during which time Woznicak was out of her house visiting her daughter-in-law. Id. at 395-97. Woznicak returned to a home that had been ransacked and was missing several household items, including lamps, bowls, a scales of justice decorative statue, and a Hitachi television set. Id., at 398-406. The intruder had emptied drawers of clothing onto Woznicak’s bed, and when Woznicak was cleaning up she found an item of clothing that did not belong to her. The item was later identified as being the bottom portion of the purple dress that Minnie Warrick had been wearing that day. Id. at 407, 416.

Thus, the police soon realized that there was a connection between the Woznicak robbery and the crimes that had been committed against the victims.- After Steele was arrested and the police searched his girlfriend Joan Whitlock’s home, they found the Woznicak’s stolen property there. Steele admitted that it was he who had brought the stolen items into Whitlock’s home, and several of Whit-lock’s neighbors had seen him unloading the items from a car that matched the description of Lucille Horner’s Dodge Dart.

Elements Service Station is located about 3/10ths of a mile from the Woznicak residence and about 1/6 miles from the scene of the murders. Id. at 462. Through the testimony of its owner, Joseph Elements, his son Victor, and his wife Janice, -the Commonwealth presented evidence to demonstrate that Steele visited the service station twice in the afternoon on the date of the murders. Steele first came to the station between around 3:00-3:30 p.m. He was there for approximately five to ten minutes. The second time he was there was between around 4:00-4:30 p.m. Id. at 283-90, 353-55, 364. Both times he came to the station, Steele was driving Lucille Horner’s beige Dodge Dart. Id. at 287, 355-58.

Victor Elements had two good opportunities to view and speak with Steele. The first time Steele was at the station, he purchased two cans of soda and Victor waited on him. Steele told him he used to live in the area. Id. at 354. The second time Steele was there, he was having mechanical problems with the Dodge Dart and he coasted into the station. Victor Elements got into the car and was able to get it running in • about two minutes. Steele thanked him and got back into the car and drove away. Id. at 355-57.

Willie Scarfanski, age il, and Mark Hall, age 13, were at Elements Service Station the first time Steele was there. They both testified that Steele was the man they saw come into the service station that afternoon. Id. at 305, 347. Scarfanski stated that he saw Steele buy the two cans of soda. Then, as Steele was about to leave the station, he turned to Scarfanski, took a gold necklace from his pocket, and asked Scarfanski'if he wanted it. Scarfanski said yes and- Steele gave it to him. Id: at 306. Hall testified that after Steele left, Scarfanski showed him the necklace and told him that Steele had given it to him. Id. at 348-49.

Scarfanski gave the necklace to the police and it was entered as an exhibit at Steele’s trial. Joan' Lutz is Minnie War-rick’s daughter. She testified that the necklace belonged to her mother. Minnie Warrick had originally given it to her as a Christmas' gift. Lutz-stated that it sat on her dresser for a year and she looked at every day. Because she did not wear it, she gave it back to her mother. Lutz was sure that the necklace that Steele had given to Scarfanski was her mother’s necklace. Id. at 373-78. Gaye Warrick testified that she saw her mother-in-law, Minnie Warrick, about once a week and that she always wore the gold necklace. She also testified that she was sure that the necklace that Steele had given to Scarfanski'was the one that Minnie Warrick always wore. Id. at 383-85.

When Steele was arrested on June 23, 1985, the police searched his girlfriend Joan Whitlock’s home and found the items that had been stolen from the Woznicak’s residence. Whitlock told the police that Steele brought the items to her home. Id. at 441-50. Jacob Frazier, Whitlock’s neighbor, testified that in the evening of June 21, 1985, he saw Steele in Whitlock’s driveway taking items out of a beige-colored Dodge. Frazier stated that the items matched the description of the household items that had been stolen earlier that day from the Woznicak residence. Id. at 482-87. Cathyrn Slusser and Cynthia Williams also lived near Whitlock. They testified that they observed Steele at around 5:30 p.m. on the date of the murders as he was taking the stolen items into Whitlock’s home. Id. at 490-95, 499-02. Slusser positively identified Lucille Horner’s beige Dodge Dart as the car that Steele was using. Id. at 494. Another neighbor, Anna Frazier, testified that she saw Steele the next day and was driving “a cream-colored Dodge Dart.” Id. at 506-07.

The Commonwealth introduced testimony to demonstrate that the victims unfortunately had fallen victim to a tactic that Steele had tried unsuccessfully on at least one, and possibly two, other women that week. Sarah Hair testified that on June 18, 1985 (three days before the victims were murdered) she had gone grocery shopping in the Bridgeville area. Around 6:15 p.m., after she had placed her groceries into her car and had gotten into the driver’s seat, Steele approached her and told her that she had a flat tire. Hair got out of her car in order to look at her right rear tire. She told Steele that the tire did not look flat to her, but Steele insisted that it was, and told her that someone had “been fooling with” it and had put a nail in it. For several minutes Hair, who initially thought Steele was trying to help her, stood outside her car and discussed the matter with him as he tried to show her that there was a nail in her tire. When Steele finally told her that he could not dislodge the nail and that he should go with her to a service station, Hair became suspicious. She got back into her car with the intent to leave. Before she could go, Steele asked her to take another look at her tire because he wanted to “show her something.” When she did, there was a pair of sharp pointed scissors under her rear wheel, which had not been there before. Hair realized that Steele had just placed the scissors there and that she needed to get away from him. She immediately got into her car and drove straight to the police station to report the incident. Id. at 704-14.

After. Steele testified and denied that he had ever approached Hair or had been in the Bridgeville area on June 18, 1985, the trial court permitted the Commonwealth to call Rosalyn Fields as a rebuttal witness. She testified that on June 18, 1985, she was at the Great Southern Shopping Center, which also is located in Bridgeville. Fields stated that at around 7:50 p.m., Steele approached her when she was in her car. Although the trial court would not permit Fields to discuss the substance of their conversation, Fields did testify that she was so disturbed by the incident that she immediately went into a store and reported it to the management, who then called the police. Id. at 1377-81.

Finally, as will be detailed below in the discussion of Claims 3 and 4, the Commonwealth introduced expert testimony from F.B.I. Special Agent Andrew Podolak. He testified that he examined hairs found on two items of Steele’s clothing, which the police had obtained when they searched Whitlock’s home. Podolak conducted microscopic comparisons between those samples and samples taken from Minnie War-rick. He stated that in his opinion the hairs found on Steele’s clothing were Minnie Warrick’s. Id. at 583.

Although Steele now is highly critical of his counsel’s performance, Tershel did attempt on cross-examination of the Commonwealth’s witnesses to point out inconsistencies between their trial testimony and earlier statements that they had made, either to the police or at prior court proceedings. He also called as a defense witness Jean Jones, a neighbor of Dehla Woznicak. She testified that when she went outside to get her mail on June 21, 1985, she spoke briefly with a man who was outside of the Woznicak home. He was driving a car that looked like Lucille Horner’s car. . Jones stated that this individual had a full head of hair and was not Steele, who was bald. Id. at 731-44.

Tershel presented the testimony of Dr. Paul M. Bernstein as an expert in eyewitness identification. Dr. Bernstein discussed research that demonstrated the fallibility of eye-witness identification. Id. at 1018-21, 1027-30. He testified that studies have shown that “white people identify white people” twenty percent better “than they identify black people.” Id. at 1031.

Tershel also called as a defense expert forensic pathologist Dr. Cyril Wecht, who challenged Dr. - Abernathy’s certainty that the deadly blows to the victims had been inflicted by bare hands. Dr. Wecht testified that it was not possible to precisely identify the mechanism or instrumentality that produced the victims’ injuries. Id. at 867. He also disputed Agent Podolak’s testimony by explaining that hair comparison testing cannot yield the definitive conclusions such as that offered by Podolak. Id. at 858-60.

To further counter the Commonwealth’s theory that Steele killed the victims using his martial arts skills, Tershel introduced testimony from a police investigator who stated that Steele had no marks on his hands when he was arrested two days after the murders. Id. at 920. Tershel also called a martial arts instructor, who testified that Steele’s hands would have been bruised if he had committed the murders by striking blows with them. Id. at 925-30.

Steele chose to testify, thereby placing his own credibility before the jury. He denied murdering and robbing the victims. He then gave an explanation as to his whereabouts the day of the murders that likely did his defense no favors.

Steele testified that after he left Attorney Henkle’s office around noon on the day of the murders, he began walking toward the transit terminal so that he could catch a bus to Pittsburgh. As he was walking down the street, a man driving an Oldsmobile or Buick stopped him and called him over to his car. Steele did not know the man. He went by the nickname “PI,” and he never told Steele his real name. Id. at 1202-03.

According to Steele, PI drove him to Pittsburgh, and they arrived there around 12:45 p.m. They agreed to meet again at around 5:00 p.m. in downtown Pittsburgh at a bar called The Purgatory. Steele said that after he left PI, he walked around downtown. At some point in the afternoon, he met a man named Larry Wallace at the bus station (which was near The Purgatory) for about 30 minutes. After their meeting, he went to The Purgatory. PI eventually met him there. PI then took him to another location in town and showed him some cars. Id. at 1204-10.

Steele testified that PI gave him a light yellowish-colored car, and said that he could have it for a few days to see if he wanted to buy it. He and PI then drove to a bar located in the Hill District area of Pittsburgh. Steele stayed in the car and PI went inside. When PI came out, he was with a man who took Steele over to a black van. Inside the van were several items, including the items that had been stolen from the Woznicak house earlier that day. Steele stated that he bought all of the' items for $50, and that, he explained, was how he came into possession of the Woznicak’s stolen property. Around 6:00 p.m., Steele drove the car that PI had given to him to Whitlock’s house, and he took the stolen items inside. That, he explained, is why Whitlock’s neighbors saw him unloading the stolen items from a cream-colored car. Id. at 1207-15, 1239-46.

Steele did not present a single witness to corroborate his testimony. During cross-examination, he said that he had never been: at the Milleraft Center parking lot (which was where Stitler and Oyler said that they had seen him with the victims, and which was nearby where Crothers said that he had seen him with them); at the Woznicak house (even though the witnesses at Elements Service Station said that they had seen him in the area around the time the Woznicak home was robbed); at the Chartiers Valley Shopping Center (where Sarah Hair said he had approached her); at the Great Southern Shopping Center (where Rosalyn Fields said he had approached her); or, at Elements Service Station (where Joseph, Victor, and Janice Elements, and Willie Scarfanski and Mark Hall said that they had seen him). Id. at 1263-64, 1269. Steele could provide no explanation as to how the victims’ credit and insurance cards had ended up outside the house in Broadhead Manor that he had visited the night of June 21, 1985. Id. at 1282-83,1309.

On January 21, 1986, the jury convicted Steele of three counts of first-degree murder, two counts of robbery, and two counts of theft by unlawful taking. Following a separate penalty hearing that was conducted the next day, the jury fixed the punishment at death for each murder conviction.

Steele, through Liekar, filed post-trial motions, which the trial court denied in a 72-page Opinion issued on March 3, 1988. Commonwealth v. Steele, Nos. 686, 687 & 688 of 1985, slip op. (C.P.Wash. Mar. 3, 1988) (“Post-Trial Op.”). On June 5, 1989, the Pennsylvania Supreme Court affirmed. Commonwealth v. Steele, 522 Pa. 61, 559 A.2d 904 (1989) (“Steele I”).

In 1996, Steele filed in state court a pro se petition for collateral relief pursuant to Pennsylvania’s Post-Conviction Relief Act (“PCRA”). The court appointed him new counsel and on January 11, 2000, an Amended PCRA Petition was filed. Steele raised numerous claims for relief, including the claims that he now raises before this Court. He also filed exhibits and declarations to support the allegations made in the Amended PCRA Petition. See Petitioner’s Exhibits and Affidavits, submitted to the PCRA Court on Jan. 24, 2001.

On May 30, 2000, the PCRA Court held an evidentiary hearing during which it permitted the introduction of testimony from two witnesses: Attorney Tershel and Michael Reid, who was the defense investigator for Steele’s trial. Steele’s counsel sought to introduce the testimony of additional witnesses but the PCRA Court denied their request.

On September 26, 2001, the PCRA Court issued a decision in which it denied the Amended PCRA Petition. Commonwealth v. Steele, Nos. 686, 687, and 688 of 1985, slip op. (C.P.Wash. Sept. 26, 2001) (“PCRA Court Op.”). The Pennsylvania Supreme Court affirmed on December 18, 2008. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786 (2008) (“Steele II”). It denied reargument on March 6, 2009.

On October 29, 2009, Steele filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [ECF No. 11]. I granted his unopposed motion for discovery. [ECF Nos. 17, 18]. After the completion of discovery, Steele filed a 192-page Memorandum of Law In Support Of Petition For Writ Of Habeas Corpus • [ECF No. 22], An evidentiary hearing was held on January 13, 2011, after which Steele filed supplemental memoranda [ECF Nos. 47-49], The Commonwealth has filed its Answer [ECF Nos. 25, 49] and Steele has filed a Reply [ECF No. 50],

III. Standard Of Review

Steele’s petition is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”). Under this statute, habeas relief is only available on the grounds that Steele’s convictions or sentences of death were obtained in violation of his federal constitutional rights. 28 U.S.C. § 2254(a). Errors of state law are not cognizable. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir.2004) (“Federal courts reviewing habeas claims cannot ‘reexamine state court determinations on state-law questions.’ ”) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). See also Real v. Shannon, 600 F.3d 302, 309-10 (3d Cir.2010).

In describing the role of federal habeas proceedings, the U.S. Supreme Court, in Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct.. 3383, 77 L.Ed.2d 1090 (1983), noted:

[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence.... The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.

Several years after the Court made this observation, Congress enacted AEDPA, which “modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). It “requires federal courts collaterally reviewing state proceedings to afford considerable deference to state courts’ legal and factual determinations.” Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir.2004).

As codified at 28 U.S.C. § 2254(d), AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was, adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly estab lished 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.

(Emphasis added).

Thus, AEDPA circumscribes a federal court’s review of a state prisoner’s federal constitutional claim when the state court has adjudicated that claim on the merits. Importantly, review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, — U.S. —, 131 S.Ct. 1388, 1398-1401, 179 L.Ed.2d 557 (2011). See also Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir.2011).

“[F]or the purposes of [§ ]2254(d), a claim has been ‘adjudicated on the merits in State court proceedings’ when a state court has made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground.” Thomas v. Horn, 570 F.3d 105, 117 (3d Cir.2009). When the state court has not adjudicated a claim on the merits, AEDPA’s standard of review at § 2254(d) does not apply and the federal habeas court’s review is de novo. Id. at 124.

Steele contends that, although he presented Claims 3, 6, 7, 8, 9,10, and 14 to the Pennsylvania Supreme Court, that court did not adjudicate them on the merits and therefore AEDPA’s standard of review at § 2254(d) does not apply to my review of those claims. Because the Commonwealth does not challenge Steele’s contention in this regard, I will review all of those claims de novo. Steele acknowledges that the Pennsylvania Supreme Court adjudicated on the merits Claims 4, 5,13, and 15 and therefore my review of each of those claims is governed by AEDPA’s deferential standard of review at § 2254(d).

IV. Guilt-Phase Claims

A. Agent Podolak’s Testimony (Claims 3 & 4)

(1) Background

Prior to the trial, the Commonwealth disclosed to the defense a report that had been prepared by the F.B.I. and that contained the results of Agent Podolak’s analysis. In relevant part, it was explained in the report that hair samples had been taken from two items of clothing that belonged to Steele, which the police had obtained when they searched his girlfriend Joan Whitlock’s home. The items of clothing received the F.B.I. Lab designations of Q117 (a suit coat) and Q 121 (pants). The hairs recovered from Q 117 and Q 121 were compared against control sample hairs from Minnie Warrick, which were designated as K9. Agent Podolak stated the following in the report:

Brown head hairs of Caucasian origin were found on Q 117 and Q 121. Thesel hairs exhibit the same microscopic characteristics as the hairs found in K9 and, according, are consistent with having originated from MINNIE H. WAR-RICK.

It is noted that hair comparisons do not constitute a basis for absolute personal identification.

Ex. 6 of Petitioner’s Exhibits and Affidavits, submitted to the PCRA Court on Jan. 24, 2001 (emphasis added).

The defense filed a motion in limine, in which it requested that the Commonwealth be precluded from introducing Agent Podolak’s testimony because it was inconclusive. Defense Motion In Limine, ¶ 3. The court presided over argument on the motion in chambers on January 10, 1986, just prior to the commencement of the trial. The prosecutor indicated, apparently for the first time, that if Agent Podolak testified, the opinion he would give would be more definitive than the one contained in the report:

Pettit: [Agent Podolak has] made comparisons and in his statement to me, in preparing for this, he has indicated that if perhaps, there were two hundred people in the courtroom and he were to take a hair from each one of those individuals, he could say which hair came from each of the two hundred people. He' said that just by the naked eye, if you are to be in a group of people and look at each person’s hair without the benefit of a microscope, from years of training and expertise, you can, by just looking at each person in a group, in and of yourself, make certain distinguishments from it and so it’s our opinion that it becomes a question of credibility of this witness.

Court: Let me ask you, he said that he can ... Is there anyone that can take a hair and match it with a hair from a known person? Is there any expert that can say that is definitely that person’s hair ... [I]s it like fingerprints where if you say you get eight or nine characteristics on a fingerprint, then you can say that that is the fingerprint and in all probability of “X” or how is it? Is his testimony any more definite than anyones [sic] could be?

... [I]f the answer is no, there are no experts who can come in and say definitely that the separated hair that is found comparing with a known hair, they cannot say with any definiteness that that is the hair, correct?

Liekar: Yes.

Court: And in this case, this expert so says?

Pettit: He so says, yes.

Court: Okay ... I’m going to deny [the motion in limine ]. It certainly is relevant and it will be a matter of what weight the jury would want to give it.

Tershel: On that same line, I would interject, if the expert cannot say much more than anyone can say, with a naked eye, then I think he’s delving into the jury’s fact finding process and I don’t think it’s proper expert testimony, as an expert witness saying that he in fact says that the characteristics are the same and that is going to be giving more weight than someone else and I think that it is also a reason to keep this out.

Court: I understand what you are saying. You’re saying that the naked eye, but this guy took it one step further and did make microscopic examinations and found certain characteristics. Is it like fingerprints? We know in fingerprints, that for the testimony to be admissible there has to be a minimum standard; seven, eight or nine characteristics....

Pettit: Your Honor, there is a scientific approach that he uses and I am not at this point, and he will testify to the approach that he does use. I don’t have all of that ready. He’s been in Alaska for the last week and we had to get him back from going to Guam to be available.

Court: Well, I made my ruling and the defense can cross examine on those matters and that will be up for the jury to determine and of course, you may argue those factors.

Trial Tr. at 4-9.

A day or so before Agent Podolak testified, the matter came up again:

Tershel: As Mr. Pettit said, as far as hair analysis, it says inconclusive here [in the report], but [Agent Podolak is] going to be able to say and [Mr. Pet-tit] told us at the pre-trial that out of 200 people you could pick the one in the courtroom who has that hair.

Court: This business about hair and about a hundred people who may have the same hair, was that given in the report or was that given in conversation?

Pettit: That was given in conversation over the telephone in my trying to educate myself as to the manner of testimony.

Id. at 331-32.

The Commonwealth called Agent Podolak to testify on January 15, 1986. He testified that he had been employed by the F.B.I. for nine years, that he has a Masters of Science degree in microbiology, and that the nature of his work is to examine, identify, and compare hairs and textile fibers. Id. at 564-65. He provided a lengthy explanation regarding what characteristics he looks for in hairs in conducting his comparisons. Id. at 569-73. He explained: “It’s the association of all these characteristics in association with one another that gives a uniqueness to the hair and allows me to make an association to a particular individual.” Id. at 573.

Agent Podolak stated that he compared the hairs taken from Q 117 and Q121 with control samples from the victims. The prosecutor asked him if the hairs found on Steele’s clothing came from one of the victims. Tershel immediately objected, arguing that because Podolak in his report had stated that hair comparisons do not constitute a basis for absolute personal identification, he could not state definitively that the recovered hairs matched any of the victims. At most, Tershel asserted, Podolak could only opine that the recovered hairs “were consistent with” hairs from a victim. Id. at 578-82. The trial court overruled this objection and instructed: “On cross examination, you can bring that out but he’s certainly qualified to testify as to comparisons and he went through the whole routine of the methodology he uses to do that and we have heard that.” Id. at 582.

Agent Podolak then answered the prosecutor’s question as follows:

Podolak: I found brown, Caucasian head hairs on two items of clothing, the sportscoat [Q117] and a pair of slacks [Q121] that were reported to me as belonging to Mr. Steele. Now, these hairs matched in every observable microscopic characteristic to that known hair sample of Minnie Warrick and consistent with having originated from her. In my opinion, based on my experience in the laboratory and having .done 16,000. hair .examinations, my opinion is that those hairs caipe from Minnie Warrick.

Id. at 583.

' It was undisputed that Steele had not been wearing Q117 and Q121 during any of the events in question. Id. at 605-07. This required Agent Podolak to explain that those items of clothing may have been placed near the clothes that Steele had been wearing when he committed the crimes, and that is how the. hair samples in question had been deposited on Q117 and Q121. Id. at 609-10.

On cross-examination, Agent- Podolak admitted that he could not- tell the sex or the age'of the person whose hairs were found on Q117 and Q121, ■ and that no follicular tissue samples were supplied for analysis, which would have aided the comparison testing. Id. at 583A, 584. He also acknowledged that he made his determination by putting the hair samples under a microscope and looking with his naked eye, and that there is no mathematical way to determine whether there is a match. Id. at 585. 1

Tershel inquired into whether Agent Podolak had received hair samples from the police officers that had collected Q 117 arid Q 121 in order to ensure that the hairs found on those items had not come from one of the officers. Podolak replied that he had not received samples from those officers and that, because “anything is possible,” he could not say that the' hairs recovered ■ from Q117 and Q121- were not from one of the officers. Id. at 585-86. Podolak also stated that it was possible that the police officers who had contact with the victims could have transferred the hairs onto Q117 and Q121 when they subsequently came into contact with those items. Id. at 612.

Tershel questioned Agent Podolak about his ultimate conclusion regarding the hair comparisons:

Tershel: When you were given a head hair sample, ... you can’t tell us whether or not it absolutely came from that person, isn’t it true?

Podolak: ... [I]f it matches in every observable characteristic, microscopic characteristic, I say it’s consistent with or having originated from that individual and I say that because I can’t look at everybody’s hair in the world to say that there is no-one [sic] else out there that has a hair like this. It’s just completely impractical, but in my experience I have found that it is very rare that I have two hairs from individuals that I can’t distinguish between them.

Tershel: And again, that’s your judgment call, isn’t it?

Podolak: That’s mine and that of the F.B.I. and the Canadian—... the Canadian Mounted Police Lab and Scotland Yard lab.

Tershel: Do all of these labs look at these hairs?

Podolak: Not in this case, ... In this case I was the only individual involved in looking at the hairs.

Tershel: And in your judgment they matched?

Podolak: That’s correct.

Tershel: It didn’t mean they absolutely matched, like fingerprints match?

Podolak: No, unless you give me another known sample I can’t say.

Tershel: Dealing with what you have, sir?

Podolak: Dealing with what I have, those hairs match in every observable microscopic characteristic.

Tershel: You can’t say for sure that they match?

Podolak: I can say that they match.

Id. at 590-92.

On re-cross examination, Tershel specifically asked Podolak about the “caveat statement,” which he had included in his report:

Tershel: In looking at your report, sir, would you agree with this? I believe that you wrote ... “It is noted that hair comparisons do not constitute a basis for absolute personal identification.”

Podolak: That’s correct, that’s what we call a caveat statement which we add to the conclusions.

Tershel: And you agree with this statement?

Podolak: Yes, I do.

Id. at 595. Although Podolak stated it was his “personal opinion” that the hairs found on Q117 and Q121 came from Minnie War-rick, he explained that the “consensus” of the F.B.I., the Canadian Mounted Police, and the Scotland Yard lab was consistent with the “caveat” statement that hair samples do not constitute a basis for absolute personal identification. Id. at 611-12.

During the defense case, Tershel call Dr. Wecht. Over the Commonwealth’s objection, the court permitted Dr. Wecht to testify as an expert in forensic pathology regarding hair comparison testing. Id. at 829-58. Dr. Wecht testified:

Wecht: In my opinion, it is universal, accepted forensic scientific knowledge, that hair identification, gross and microscopic physical characteristics is not exclusive to the rest of the world. It is not fingerprint identification, in other words.

Tershel: And to what degree can you tell that? Is there something of class or something of that nature?

Wecht: Different words are used such as consistent with or compatible to or other words. There are a variety of ways in which you can express it. You can talk about classes and subclasses and Caucasian and Negro or Mongoloid or pubic hairs versus head hairs or certain colors. You can talk about a lot of things, please understand that, but then, you’re talking ultimately ... If I understand you correctly, about whether or not you can say as a fingerprint-person can analyze that it is this individual to the exclusion of any other individual in the world and the answer is no, you cannot do that by the gross and microscopic characteristics of hair. You can make a lot of conclusions and you can make a lot of statements, but you can’t say that it is this individual and cannot be anybody else in the world.

Id. at 859.

Liekar prepared Steele’s post-trial motion. In it, he asserted that the court had erred in denying the defense’s motion in limine to exclude Podolak’s testimony. He also argued that the court should have granted the defense’s trial objection to the testimony, since Podolak’s opinion that the hairs found on Q117 and Q121 were Minnie Warrick’s was more absolute than what he had indicated in the F.B.I. report. Defendant’s Brief in Commonwealth v. Steele, Nos. 686, 687, 688 of 1985 (C.P. Wash. June 2,1987).

In addressing this claim in its March 3, 1988 Opinion, the trial court held:

[Wjhile [Podolak] testified that an exact positive match of hair samples can never be made, it was Podolak’s expert opinion that the hair he matched from the defendant’s clothing was that of the victim.

Defense counsel fully cross-examined Mr. Podolak on the contents and accuracy of his findings and conclusions in reference to the subject hair samples. Further, Mr. Podolak conceded that his findings were not conclusive .... [quoting from Trial Tr. at 595].

The law is clear that expert opinion testimony is permitted where the .knowledge supporting the testimony is not within the scope of knowledge of the average person. Commonwealth v. Gallagher, 353 Pa.Super. [426], 510 A.2d 735 (1986). At the trial Mr. Podolak testified that he had specialized training in the field of chemical hair analysis and then gave his opinion that the hairs he examined from the victim and the defendant’s clothing matched. The defendant called Dr. Cyril H. Wecht, a practicing physician and pathologist, to testify as to the origin of the subject hair sample, and much of his testimony contradicted that of Mr. Podolak. The question then initially is whether the opinion of evidence is admissible; however, once the trial court finds such evidence admissible, see Commonwealth v. Graves, 310 Pa.Super. [184], 456 A2A- 561 (1983), it becomes, as with any witness, a matter of what credibility and weight the jury will, in the course of their deliberations, assign to that individual’s testimony. See Commonwealth v. Bolden, 486 Pa. 383, 406 A.2d 333 (1979) and Commonwealth v. Davis, 331 Pa.Super. 59, 479 A.2d 1077 (1984).

Post-Trial Op., at 19-20.

Liekar continued to represent Steele in his direct appeal to the Pennsylvania Supreme Court. He did not raise the issue in that appeal.

In the' PCRA proceeding, Steele argued, as he does in this habeas case in Claim 3, that Agent Podolak’s testimony was “false,” “misleading,” and without scientific basis, and that by introducing it the prosecution violated his right to a fair trial and to due process as set forth in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and their progeny. In support of this claim, Steele submitted to the state court a declaration from criminalist Dr. Peter R. DeForest, dated May 23, 2000. Dr. DeForest stated that Agent Podolak’s trial testimony was not supported by scientific literature and is contrary to the consensus within the community of hair examiners. Ex. 12 of Petitioner’s Exhibits and Affidavits, submitted to the PCRA Court on Jan. 24, 2001. Steele further argued, as he does here in Claim 4, that the Commonwealth committed discovery violations when it purportedly failed to disclose pre-trial the true nature of what Podolak’s trial testimony would be,' and that this violation rendered Tershel and Liekar ineffective in arguing the motion in limine. Steele also contended, as he does here, that Tershel and Liekar were ineffective in failing to make the proper objections to Podolak’s trial testimony; for failing to adequately cross-examine him; and, for failing to retain a defense expert to conduct hair comparison testing. He argued that if they would have retained a defense expert, that expert could have presented powerful testimony to rebut Podolak’s testimony, similar to that contained in Dr. DeForest’s declaration.

The Pennsylvania Supreme Court determined that Steele’s Napue/Giglio false testimony claim was waived because Steele’s direct appeal counsel (Liekar) had not raised it in that appeal. Steele II, 961 A.2d at 799. It further held that to the extent that Steele alleges that Liekar was ineffective for failing to do so, Steele was not prejudiced because the outcome of the appeal would have been the same. Id. (“[W]e do not agree with Appellant that if counsel had raised this claim on direct appeal, the outcome of that appeal would have been different given the overwhelming nature of the evidence against Appellant.”).

In disposing of Steele’s claim that the prosecution’s alleged discovery violation rendered his counsel ineffective at the pretrial argument on the defense’s motion in limine, the Pennsylvania Supreme Court held, inter alia:

[W]e fail to see how counsel can be considered ineffective at the motion in limine hearing. Based on the information contained in [the F.B.I.] report, trial counsel argued that Mr. Podolak’s testimony should be excluded because the opinion described in the report was not generally accepted in the scientific community. It is not apparent what more counsel could have done, and the fact that the agent subsequently testified conclusively does not render counsel’s performance ineffective at the motion in limine hearing.

Id.

In rejecting Steele’s remaining contentions that Tershel and Liekar were ineffective for failing to object to Podolak’s trial testimony and for failing to adequately cross-examine, impeach, and rebut his testimony (with scientific literature and with testimony from a defense expert, similar to that which Dr. DeForest included in his declaration), the Pennsylvania Supreme Court held:

[Appellant contends] that he was prejudiced by trial counsel’s failures because the hair evidence was the only direct' evidence linking him to the crime. As such, adequate preparation and cross-examination, according to Appellant, would have likely led to a different result. We disagree.

Appellant cannot demonstrate that he was prejudiced by trial counsel’s actions. Even if we assume that trial counsel’s preparation and cross-examination were inadequate, which we need not take a position on here, we cannot agree with Appellant that the outcome of the proceeding would likely have been different. See [Commonwealth v. Rios, 591 Pa. 588, 920 A.2d 790 (Pa.2007) ]. Even if the jury disregarded the hair evidence, the evidence at. trial overwhelmingly demonstrated Appellant’s guilt. Three different eyewitnesses saw Appellant with the victims at, or near, the Millcraft Shopping Center. The first witness observed Appellant approach one of the victims and point to the car’s tire. The same witness watched as Appellant got into the drivers’ [sic] seat of the car. The second witness saw Appellant holding the door open for the other two victims as they entered the vehicle. A third witness identified Appellant driving the car around the time in question while his friend’s mother-in-law, Ms. Horner, was in the passenger seat. Appellant was then .seen driving the victim’s car later that day at the Elements Service Station.

Testimony was also introduced regarding a burglary that occurred shortly after the murders at the home of Ms. Woznicak, which was a short distance from the Elements Service Station. Appellant was later observed by three wit- ' nesses unloading the stolen items from Ms. Warrick’s [sic] vehicle into his girlfriend’s home. Ms. Woznicak found a strip of cloth that was later determined to be from the dress worn by Ms. War-rick the day she was murdered. Moreover, the bodies of the victims were found approximately 600-800 yards from Appellant’s childhood home. The Commonwealth introduced testimony that Appellant was a black-belt in karate, which was important because the coroner found that the victims were likely killed by blunt trauma by a human hand. Finally, Ms. Hair testified that just three days before the murder, Appellant tried to gain access to her and her vehicle by fabricating a -problem with the vehicle’s tire, going so far as to feign seeing a nail in the tire and a pair of scissors under the tire. All of, this evidence is sufficient to establish Appellant’s' guilt, even if the jury disregarded the hair comparison evidence. Thus, Appellant’s claim must fail as he cannot demonstrate prejudice.

Id. at 801.

In this proceeding, I granted Steele’s unopposed motion for discovery in which he requested access to the hair samples taken from Q117, Q121, and the victims. [ECF' Nos. 17, 18]. Dr. DeForest examined that evidence and prepared a report, dated April 19, 2011. He concluded:

There were.some similarities and significant differences between the E9 hairs from the victim and the Q 117 and Q121 hairs from two of the items of clothing in the closest of [Steele].

I was unable to find any hairs in either the Q117 of Q121 samples obtained from garments in Mr. Steele’s wardrobe that were sufficiently similar to the E9 samples to support a conclusion that the Q117 or the Q121 samples contained hairs that had originated from the same source as the E9 sample.

[ECF No. 48-1 at 4, April 19, 2011 Report of Dr. DeForest].

(2) Legal Analysis

(a) Ineffective Assistance Claims

Because the Pennsylvania Supreme Court denied on the merits the ineffective assistance of counsel claims at issue here, my analysis of those claims is governed AEDPA’s standard of review. Thus, it is not for me to decide whether the Pennsylvania Supreme Court’s decision was right or wrong. Rather, I have the authority to issue the writ of habeas corpus only if its adjudication “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 “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The U.S. Supreme Court recently stressed the “highly deferential” review that I must accord the state court’s decision:

We have explained that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410,120 S.Ct. 1495,146 L.Ed.2d 389 (2000). Indeed, “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., at 411, 120 S.Ct. 1495. Rather, that application must be “objectively unreasonable.” Id., at 409, 120 S.Ct. 1495. This distinction creates “a substantially higher threshold” for obtaining relief than de novo review. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA thus imposes a “highly deferential standard for evaluating state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and “demands that state-court decisions be given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).

Renico v. Lett, — U.S. —, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010). The Court also has recently elaborated:

If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fair-minded jurists could disagree that the state court’s decision conflicts with this Court’s precedents. It goes no farther. Section 2254(d) reflects the view thgt habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a. state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Harrington v. Richter, — U.S.—, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011).. See also Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (it is not enough for a petitioner to show that the state court’s adjudication of any of his claims was an “incorrect or erroneous” application of U.S. Supreme Court precedent); Waddington v. Sarausad, 555 U.S. 179, 190, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009) (where it is the state court’s application of governing federal law that is challenged, “the state court’s decision must be shown to be not only erroneous, but" objectively unreasonable.”) (internal citations and quotations omitted); Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (“The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable—a substantially higher threshold”).

The “clearly established Federal law” for AEDPA purposes in which to analyze Steele’s claim of ineffective assistance is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, Steele must show that his counsel’s representation fell below an objective standard of-reasonableness. 466 U.S. at 688, 104 S.Ct. 2052. The law presumes that counsel was effective. Id. at 689, 104 S.Ct. 2052. Strickland also requires Steele to demonstrate that he was prejudiced by his counsel’s ■ alleged deficient performance. This requires him to “show that there'is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

The Pennsylvania Supreme Court’s adjudication was not “contrary to” Strickland. In Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 976-77 (1987), it held that Pennsylvania law for judging ineffectiveness corresponds with the Strickland standard. See also Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999); Jacobs v. Horn, 395 F.3d 92, 106 (3d Cir.2005) (“We have previously ruled that Pennsylvania’s test for assessing ineffective assistance of counsel claims is not contrary to Strickland.”) (citing Werts