Full opinion text
DEATH PENALTY CASE OPINION FARNAN, Chief Judge. Presently before the Court is a Petition For A Writ Of Habeas Corpus By A Person In State Custody (D.I.4) filed by Petitioner, David J. Lawrie. Pursuant to 28 U.S.C. § 2254, Petitioner requests that this Court vacate his convictions of May 21, 1993 and death sentence of July 8, 1993. For the reasons set forth below, the Petition will be dismissed and the Writ of Habeas Corpus denied. BACKGROUND In May of 1993, Petitioner was tried before a jury in Kent County Superior Court on four counts of Murder in the First Degree, three counts of Possession of a Deadly Weapon During the Commission of a Felony, one count of Arson in the First Degree, and one count of Burglary in the Second Degree. State v. Lawrie, Crim.A. Nos. K-92-08-0180 through 0182 (Del.Super.Ct.1993) (“Lawrie I”). These charges arose from an incident involving the August 6, 1992 deaths of Petitioner’s wife, Mrs. Michelle Lawrie, his daughters, Fawn and Tabitha, and a neighbor’s child, Charles Humbertson. According to the testimony offered at trial, Petitioner and Mrs. Lawrie separated in May, 1992 after approximately eight difficult years of marriage. Id. (Tr. at E191-92). Petitioner was living at his mother’s home in Dover with the couple’s son, Marcus, and Mrs. Lawrie was living in the same neighborhood at her step-father’s house with the couple’s daughters, Fawn, age 4, and Tabitha, age 2. Id. (Tr. at C27). In July 1992, Petitioner had threatened to kill Mrs. Lawrie. Id. (Tr. at E231-32). On August 5, 1992 he pled guilty to a charge of terroristic threatening filed by Mrs. Lawrie in Family Court. Id. (Tr. at E231-32). He was placed on probation and ordered to have no contact with his wife. Id. (Tr. at D171). On that same day, according to one witness, Petitioner told an acquaintance that he was going to stab his wife to death and then kill himself. Id. (Tr. at C57). On the morning of August 6, 1992, Petitioner went to the house where Mrs. Lawrie lived. Id. (Tr. at E171). Mrs. Lawrie was at home with the couple’s two daughters and two neighborhood children whom Mrs. Law-rie was babysitting; Lisa Humbertson, age 8, and Lisa’s brother, Charles Humbertson, age 4. According to Lisa, Petitioner first tried to enter the house through the front door, but when he was unable to do so, broke in through the door leading to the garage. Id. (Tr. at A132-33). When he entered the house, Petitioner was carrying a two-gallon gasoline can and a knife. Id. (Tr. at E175). Petitioner then began to pour gasoline on the living room carpet while Mrs. Lawrie and the children fled to the bedroom. Id. (Tr. at A134, E177). Lisa first tried to run out the front door, but Petitioner grabbed her and prevented her escape. Id. (Tr. at A135). Lisa then went into the bedroom with the others. Id. (Tr. at A136). Petitioner ignited the gasoline in the living room and broke into the bedroom, still carrying the knife and gasoline can. Id. (Tr. at A137). Petitioner then stabbed his wife as the children watched. Id. (Tr. at A138). He claimed that his intent was not to harm anyone but rather to “scare the hell out of [Mrs. Lawrie].” Id. (Tr. at E169, E176). The autopsy disclosed one puncture wound to the lung that was four inches deep, and four slash wounds, including a superficial slash wound to Mrs. Lawrie’s throat and three deeper slash wounds to her forearms and wrist that appeared to be defensive wounds. Id. (Tr. at C93, C100). The Medical Examiner opined that these wounds were caused by a serrated knife like the one carried by Petitioner, rather than by broken glass. Id. (Tr. at C95). The puncture wound to the lung caused massive hemorrhaging and contributed to Mrs. Lawrie’s death. Id. (Tr. at C100). At this point, smoke began to engulf the house, and Petitioner broke through a bedroom window and escaped from the fire. Id. (Tr. at A140, E181). Mrs. Lawrie helped Lisa through the bedroom window, and Petitioner assisted Lisa by placing a step ladder against the outside wall. Id. (Tr. at A141). According to Lisa, as she was running away, she turned to look back at the house and saw what appeared to be Petitioner pushing Mrs. Lawrie back into the burning house as she tried to climb out the window. Id. (Tr. at A141). Petitioner disputed this, claiming that he had called to his wife but did not receive any response. Id. (Tr. at E153). Instead of attempting to save the children inside, Petitioner ran to a nearby home, where he confessed to a neighbor that he had done something bad. Id. (Tr. at B176, E182). The neighbor called police and Petitioner surrendered. Id. (Tr. at B178). Petitioner made several subsequent confessions in which he admitted starting the fire. Id. (Tr. at A209). Although Petitioner told police that he had been awake all night smoking crack cocaine, none was found in his blood after the arrest. Id. (Tr. at E125, D167). The bodies of Mrs. Lawrie, Fawn, Tabitha and Charles Humbertson were found inside the home. Id. (Tr. at B55). On May 21, 1993, the jury found Petitioner guilty of one count of Murder in the Second Degree (a lesser included offense of Murder in the First degree) for the killing of his wife, three counts of Felony Murder in the First Degree for the killing of his two daughters and Charles Humbertson, one count of Arson in the First Degree, one count of Burglary in the Second Degree, and three counts of Possession of a Deadly Weapon During the Commission of a Felony. Id. (Tr. at H49-50). Following a capital penalty hearing, the jury recommended by a vote of 9 to 3 in favor of the death penalty. Id. (Tr. of Penalty Hrg. at C15-18). On July 8, 1993, the trial judge adopted the jury’s recommendation and ordered Petitioner’s execution. Id. (Tr. of Sentencing at 23). Both the convictions and the sentences were affirmed by the Delaware Supreme Court. Lawrie v. State, 643 A.2d 1336 (Del.1994) (“Lawrie II”). The United States Supreme Court subsequently refused to grant certiorari. Lawrie v. Delaware, 513 U.S. 1048, 115 S.Ct. 646, 130 L.Ed.2d 551 (1994). On November 17, 1994, pursuant to Delaware Superior Court Criminal Rule 61, Petitioner filed a pro se motion for post-conviction relief in the state trial court. The Superior Court granted a stay of execution and held an evidentiary hearing in June 1995 on Petitioner’s motion for post-conviction relief. State v. Lawrie, Nos. IK92-08-0180 to IK92-08-0182, 1995 WL 818511 (DeLSuper. Nov.28, 1995) (“Lawrie III”), aff'd, 682 A.2d 626 (Del.1996) (“Lawrie IV”). Prior to the hearing, counsel was appointed for Petitioner and counsel filed supplemental material in support of the motion. On November 28, 1995, the Superior Court denied Petitioner’s motion for post-conviction relief, which was affirmed by the Delaware Supreme Court on appeal. Id. The case was remanded for the purpose of scheduling an execution date, which was set for November 15, 1996. On September 20,1996, Petitioner filed the instant Petition For A Writ Of Habeas Corpus (D.I.4), and on October 24, 1996, the Court granted Petitioner’s Motion To Proceed In Forma Pauperis. (D.I.2, D.I.ll). Petitioner’s execution was stayed by this Court on October 25, 1996. (D.I.12). In his Petition, Petitioner raises seven grounds for relief: (1) the failure of Petitioner’s trial counsel to provide a defense to the three felony murder counts; (2) the inability of the jury to hear and understand Petitioner’s attorney at trial and sentencing; (3) trial counsel’s failure to object to the prosecutor’s improper argument to the jury during opening statements and closing arguments; (4) inadequate notice by the State of non-statutory aggravating circumstances that it intended to present during the penalty phase; (5) trial counsel’s failure to develop and present mitigating psychiatric testimony; (6) trial counsel's failure to interview and call a witness during the penalty phase who would have rebutted allegations of Petitioner’s violent conduct while incarcerated; and (7) the failure of the trial court to instruct the jury during the penalty phase on the respective burdens of proof regarding aggravating and mitigating factors. The Court will address each of these grounds separately below. Because grounds (1), (3), (5) and (6) all fall ■within the broader category of ineffective assistance of counsel, the Court will consider these four claims together. DISCUSSION A. Ineffective Assistance of Counsel As noted above, four of Petitioner’s claims can be categorized as ineffective assistance of counsel claims. These include Petitioner’s contentions that his trial counsel: (1) did not provide a defense to the three felony murder counts; (2) failed to object to the prosecutor’s purportedly improper argument to the jury; (3) failed to develop and present mitigating psychiatric testimony; and (4) failed to interview and call a witness during the penalty phase of the trial who would have rebutted allegations of Petitioner’s violent conduct while incarcerated. 1. Lack of Defense to Three Felony Murder Counts Petitioner first contends that his trial counsel “failed to provide any legal representation” regarding the three first degree felony murder counts of which Petitioner was found guilty. (D.I. 23 at 4). Petitioner asserts that his lack of consent to this approach indicates the inherent unreasonableness of his trial counsel’s decision to pursue the defense in the manner that he did. (D.I. 23 at 21). As further evidence of the unreasonableness of trial counsel’s actions, Petitioner argues that there was evidence in the record to support an argument that his state of mind with respect to the felony murder counts aligned more closely with “criminal negligence” than with “recklessness.” (D.I. 23 at 23). Petitioner argues that such a finding by the jury would have rendered him ineligible for the death penalty. (D.I. 23 at 23). According to Petitioner, for all of these reasons, counsel’s conduct failed to meet the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (D.I. 23 at 22). Respondent concedes that Petitioner exhausted state remedies on this claim, as required by Title 28, Section 2254 of the United States Code, by presenting it to the Superior Court in his motion for post-conviction relief. (D.I. 26 at 13); see 28 U.S.C. § 2254(b)(1)(A) (1997). Respondent argues, however, that Petitioner is not entitled to relief because the state court’s decision denying relief on this ground was reasonable both as to the determination of facts and the application of federal law. (D.I. 26 at 13, 14). Respondent argues that Petitioner did consent to counsel’s defense strategy. (D.I. 26 at 15-16). Alternatively, Respondent contends that an attorney is not required to obtain his client’s consent in formulating a defense strategy, and that the alleged failure to obtain such consent did not render counsel’s conduct unreasonable. (D.I. 26 at 16). Further, Respondent asserts that trial counsel’s approach to defending Petitioner on the three felony murder counts involved a global strategy aimed at presenting Petitioner’s overall state of mind as one of recklessness, in the hopes that in light of such facts, the jury would be less inclined to choose the death penalty. (D.I. 26 at 19). Respondent argues that these factors, in conjunction with the “overwhelming evidence” of Petitioner’s guilt, demonstrate that trial counsel’s conduct met the Strickland standard. (D.I. 26 at 20). a. Review of the Claim on the Merits Where a claim has been addressed on the merits by the state court, habeas relief under Title 28, Section 2254 of the United States Code is contingent upon a showing by the petitioner that the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal law ... 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) (1997); Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996) (citing the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1219 (1996), codified at 28 U.S.C. § 2254(d) (1996)). In addition, factual determinations made by a state court are presumed to be correct, and the petitioner carries the burden of rebutting such a presumption by clear and convincing evidence. 28 U.S.C. 2254(e)(1) (1996). Although the issue of ineffective assistance of counsel is considered to be a mixed question of law and fact and therefore subject to de novo review, the presumption of correctness still prevails for that portion of the state court’s determination which deals with historical facts. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Deputy v. Taylor, 19 F.3d 1485, 1494-95 (3d Cir.), cert. denied, 512 U.S. 1230, 114 S.Ct. 2730, 129 L.Ed.2d 853 (1994); Winkler v. Keane, 7 F.3d 304, 308 (2d Cir.1993), cert. denied, 511 U.S. 1022, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994). Thus, this Court must determine whether the decision of the Delaware Superior Court, as affirmed by the Delaware Supreme Court, reflected a reasonable application of Federal law and was based on a reasonable determination of the facts of this ease. In order to succeed on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-part test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). The first prong of the Strickland test requires a petitioner to show that his counsel’s errors were so egregious as to fall below an “objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. 2052. In determining whether counsel’s representation was objectively reasonable, “the court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. In turn, the petitioner must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). Under the second prong of Strickland, the petitioner must demonstrate that he was actually prejudiced by counsel’s errors, meaning that there is a reasonable probability that, but for counsel’s faulty performance, the outcome of the proceedings would have been different. Strickland, 466 U.S. at 692-94, 104 S.Ct. 2052; Deputy, 19 F.3d at 1493 (citations omitted); Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir.1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). Prejudice also includes a showing that counsel’s errors deprived Petitioner of a fair or reliable trial. Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). Thus, a purely outcome determinative perspective is inappropriate. Id.; Flamer v. State, 68 F.3d 710, 729 (3d Cir.1995), cert. denied, 516 U.S. 1088, 116 S.Ct. 807, 133 L.Ed.2d 754 (1996). The Delaware Superior Court applied the Strickland test to this claim and determined that Petitioner had failed to demonstrate that his trial counsel’s performance regarding the defense of the three felony murder charges was either objectively unreasonable or prejudicial. Lawrie III, 1995 WL 818511, at *10. Having independently reviewed the evidence, the Court agrees with the Superior Court’s findings of fact and legal analysis, and concludes that the resolution of this claim by the Delaware Superior Court, as affirmed by the Delaware Supreme Court, reflected a reasonable application of Federal law and was based on a reasonable determination of the facts of this ease. First, Petitioner has not demonstrated that his trial counsel’s tactics were objectively unreasonable. Counsel’s actions reflected a global trial strategy, rather than a lack of defense to certain claims. The evidence at trial included a detailed confession by Petitioner, Petitioner’s previous statement that he was going to kill his wife, the no-contact order entered in Family Court the previous day in conjunction with Petitioner’s plea of guilty to terroristic threatening, and the details of the crime itself. Id. at *8. The Court agrees with the Superior Court that trial counsel’s clear objective, when faced with the overwhelming evidence of Petitioner’s guilt, was to “convince the jury that [Petitioner] did not act intentionally and thereby, hopefully, be in a superior position to argue to the jury that his life should be spared because his actions were merely reckless.” Id. This was not an objectively unreasonable strategy on the part of trial counsel. In fact, the success of trial counsel in convincing the jury that Petitioner acted recklessly, rather than intentionally, in killing his wife demonstrates how reasonable the strategy was. Petitioner argues that instead of pursuing this strategy, trial counsel should have argued that Petitioner was only guilty of criminal negligence rather than recklessness, which, according to Petitioner, would have rendered him ineligible for the death penalty. (D.I. 23 at 23). In making such an assertion, Petitioner relies heavily on the testimony of Deputy Fire Marshall Montgomery, who testified at trial that most untrained individuals do not recognize the extent of gasoline’s dangerousness. Lawrie I, Crim.A. Nos. K-92-08-0180 to 0182 (Tr. at B104-105). Petitioner contends that his lack of appreciation for the risk involved is reflected both in his statement that he intended only to scare his wife and in the following testimony: I thought there would just be a little bit of smoke and a little bit of damage and maybe just a little fire, just enough to where I could get everybody out of the back of the house, like I said, because I knew there were sliding glass doors back there. I didn’t expect it to go up such as it did and as fast as it did. Id. (Tr. at E178). According to Petitioner, all of this evidence indicates a negligent state of mind rather than a reckless state of mind. (D.I. 23 at 23). The Court is unconvinced that Petitioner’s proposed strategy would have been viable. According to the Delaware Code, a person acts “recklessly” when he or she “is aware of and consciously disregards a substantial and unjustifiable risk that the element exists or will result from the conduct.” Del.Code Ann. tit. 11, § 231(c) (1997). In contrast, a person acts with “criminal negligence” when he or she “fails to perceive a risk that the element exits or will result from the conduct.” Del. Code Ann. tit. 11, § 231(d) (1997). In the Court’s view, the testimony highlighted by Petitioner indicates a reckless state of mind: Petitioner knew that there was a need “to get everybody out of the back of the house” with some measure of speed. Lawrie I, Crim.A. Nos. K-92-08-0180 through 0182 (Tr. at E178). The Court rejects the notion that a jury could have returned a verdict of criminally negligent felony murder based on the evidence before it. As stated by the Superior Court, “[Petitioner] admitted kicking in the door to the house, pouring gasoline around where young children were playing and fighting it. Such conduct is undeniably reckless.” Lawrie III, 1995 WL 818511, at *10. Further, the Court disagrees that a finding of negligence would have made Petitioner ineligible for the death penalty. First, according to Delaware law, recklessly causing the death of another while committing a felony is one category of murder in the first degree; causing the death of another with criminal negligence while committing arson in the first degree is another category of murder in the first degree. Del.Code Ann. tit. 11, §§ 636(a)(2), (6) (1997). The latter is not a lesser or included offense of the former, and, in fact, a defendant can be convicted under several subsections of Section 636. Chao v. State, 604 A.2d 1351, 1360-61 (Del.1992) (Delaware law permits multiple convictions for first degree murder arising from death of single person); cf. Flamer v. State, 490 A.2d 104, 117-18 (Del.), cert. denied, 464 U.S. 865, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983) (defendant can be convicted of both intentional killing and reckless killing in course of committing felony under subsections 636(a)(1) and 636(a)(2) respectively; section 636(2) is not lesser included offense of section 636(a)(1)) (citing Del.Code.Ann. tit 11, §§ 636(a)(1), (2)). Second, the Court disagrees with Petitioner’s reading of the United States Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona to support his theory that he would not have been sentenced to death if trial counsel had argued that his state of mind in killing his victims was criminal negligence. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127, reh’g denied, 482 U.S. 921, 107 S.Ct. 3201, 96 L.Ed.2d 688 (1987). In Enmund, the Supreme Court found that where a defendant had no intent to kill, sentencing him to death for a murder committed by an accomplice during the course of a felony constituted cruel and unusual punishment under the Eighth Amendment. Enmund, 458 U.S. at 788, 102 S.Ct. 3368. In Tison, the Court found that the death penalty may be imposed where an individual, though not the actual killer, substantially participated in the underlying felony with a reckless indifference to human life. Tison, 481 U.S. at 158, 107 S.Ct. 1676. Petitioner reads these two cases in combination to preclude the imposition of the death penalty when a killing results from the actor’s criminally negligent state of mind. (D.I. 23 at 23). The Court concludes that this analysis is incorrect. As distinguished from the defendants in Enmund and Tison, Petitioner acted alone and was the actual killer in the instant case, not as an accomplice. Thus, the Supreme Court’s conclusions in Tison and Enmund regarding the respective defendants’ death sentences are wholly inapplicable to Petitioner. This analysis is supported by the language of Tison itself, wherein the Supreme Court noted “the apparent consensus that substantial participation in a violent felony under circumstances likely to result in the loss of innocent human life may justify the death penalty even absent an ‘intent to kill.’ ” Tison, 481 U.S. at 154, 107 S.Ct. 1676 (emphasis added). In addition, the Court does not agree with Petitioner that prejudice should be presumed in this case. In support of this proposition, Petitioner cites United States v. Cronic, wherein the United States Supreme Court held that prejudice is to be presumed where there has been a “complete denial of counsel” or where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” 466 U.S. 648, 658-659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Court finds that trial counsel did put the prosecution’s case to meaningful adversarial testing and did attempt a global strategy aimed at capturing the emotions of the jury. The fact that the strategy was unsuccessful does not mean that it was not attempted, nor that it was unreasonable under the circumstances. Finally, given that prejudice cannot be presumed, Petitioner has not met his burden of proving prejudice under Strickland, in that he has not demonstrated a reasonable probability that the outcome of the proceedings would have been different if trial counsel had acted differently. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As discussed above, the Court is unconvinced that a jury could have found that Petitioner had a merely negligent state of mind in committing these crimes, and is unconvinced that such a finding would have altered the ultimate penalty. Thus, Petitioner has failed to show actual prejudice, and the state court’s consistent conclusion was reasonable both as to its factual determinations and the application of Federal law. b. Consent Issue and Request For Evidentiary Hearing As noted earlier, within his argument under the first prong of Strickland, Petitioner contends that his alleged lack of consent to the defense strategy used at trial demonstrates that trial counsel’s actions were objectively unreasonable, and therefore, Petitioner requests that the Court hold an evidentiary hearing on his purported lack of consent. (D.I. 23 at 29). Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts states that the court shall determine whether an evidentia-ry hearing is required. Rules Governing Section 2254 Cases in the United States District Courts, Rule 8 (1997). Rule 8 does not, however, set forth specific criteria for making such a determination. Id. Thus, an understanding of the applicable standard requires a historical review of habeas corpus law concerning when evidentiary hearings are warranted. A state prisoner’s right to an evidentiary hearing in a federal habeas corpus action was set forth in the United States Supreme Court case of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). In Townsend, the Court stated that where a petitioner has alleged facts that, if proved, would entitle him to relief, the district court has the discretion to hold an evidentiary hearing on disputed material facts. Id. at 312, 318, 83 S.Ct. 745. In addition, the Court held that an evidentiary hearing is required where the petitioner did not receive a full and fair hearing on the relevant facts in state court. Id. at 313, 83 S.Ct. 745. The Court expanded upon this notion by announcing six circumstances under which a district court must hold an evidentiary hearing: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Id. at 313, 83 S.Ct. 745. Townsend set the standard until 1992, when the Court altered the showing required under Townsend’s, fifth factor. Prior to the Court’s decision in Keeney v. Tamayo-Reyes, in situations where material facts were not adequately developed in the state court record due to the fault of petitioner or his attorney, the petitioner was required to show only that he did not deliberately bypass the opportunity to present facts to the state forum. Keeney v. Tamayo-Reyes, 504 U.S. 1, 5, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). In Keeney, the Court overruled Townsend to the extent that Townsend required the application of the “deliberate bypass” standard in such circumstances, and instead invoked a heightened standard, requiring a petitioner alleging inadequate development of material facts in the state court to show cause for his failure to develop an adequate factual record and prejudice resulting from that failure. Keeney, 504 U.S. 1, 10, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992); Johnson v. Rosemeyer, No. Civ. 91-2865, 1994 WL 702664, at *1-2 (E.D.Pa. Dec.14,1994). Four years after Keeney, Congress adopted the Antiterrorism and Effective Death Penalty Act, which adds to Section 2254 an evidentiary hearing provision. Anti-terrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996), codified at 28 U.S.C. § 2254(e)(2) (1996) (“the Act”). In so doing, Congress sought to “curb abuse of the statutory writ of habeas corpus, and to address the acute problems of unnecessary delay and abuse in capital eases.” H.Conf.Rep. No. 104-518, 104th Cong.2d Sess., 111 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 944; see also Porter v. Gramley, 112 F.3d 1308, 1317 (7th Cir.1997) (noting that new language of § 2254 further restricts availability of evidentiary hearings). Section 2254(e)(2) sets forth the standard for holding an evidentiary hearing in situations where “the applicant has failed to develop the factual basis of a claim in State court proceedings.” 28 U.S.C. § 2254(e)(2). Thus, in effect, the 1996 amendment supersedes Keeney, which superseded a portion of Townsend, namely, the fifth circumstance in which an evidentiary hearing is mandatory. The remainder of Townsend, however, appears to have been left intact, including the other five factors under which an evidentiary hearing is mandatory, as well as the court’s overriding ability to hold a hearing in its discretion. Bell v. Evatt, 72 F.3d 421, 426 n. 5 (4th Cir.1995), cert. denied sub nom Bell v. Moore, 518 U.S. 1009, 116 S.Ct. 2533, 135 L.Ed.2d 1056 (1996), reh’g denied, 518 U.S. 1047, 117 S.Ct. 24, 135 L.Ed.2d 1118 (1996) (post-Keeney decision setting forth six Townsend factors for mandatory evidentiary hearing); Pagan v. Keane, 984 F.2d 61, 64 (2d Cir.1993) {Keeney did not alter district court’s ability to hold discretionary hearings); James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure, 1997 Cumulative Supplement, 195-96 & n. 35 (2d ed.1994) (citing Douglas v. Calderon, No. CV 91-3055 RSWL (C.D.Cal. June 11, 1996) (Act not intended to overrule Townsend and other Townsend factors remain - in effect)). In view of this precedent, statutory evolution and legislative history, and after reviewing the relevant motions, briefs, and transcripts from the state court proceedings in the instant case, the Court concludes that an evidentiary hearing is neither mandated nor necessary in this case on the issue of consent. First, the Court is not mandated to hold an evidentiary hearing. The Court concludes that the first of Townsend’s six factors is the only factor potentially relevant to the consent issue, namely that the merits of the factual dispute may not have been resolved in the state court hearing, exclusively as regards the particular issue of consent. See Townsend, 372 U.S. at 313. This view is based not only on the record, but also on Petitioner’s own request for an evidentiary hearing, which makes no assertions regarding the conduct of the hearing that did occur, but rather is based entirely on the notion that the state court made no explicit finding on the issue of consent. (D.I. 23 at 29). While it is true that the state court did not make a specific finding on the issue of consent, the state court did hear evidence on the issue of consent and did make an explicit finding on the ineffective assistance claim as a whole. Lawrie III, 1995 WL 818511, at *10, (Tr. at B38-40, B165, B168, B179, B185, B194-97, C90-93, C98-104, C124, C127-28, C130-31). As stated in Townsend regarding the first of the six factors requiring an evidentiary hearing, If the state court has decided the merits of the claim but has made no express findings, it may still be possible for the District Court to reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia. Townsend, 372 U.S. at 314, 83 S.Ct. 745. Such a reconstruction is possible if the state court “applied correct constitutional standards in disposing of the claim.” Id. Here, the state court correctly applied the Strickland standard to the ineffective assistance of counsel claim, and concluded that there was no constitutional violation. Lawrie III, 1995 WL 818511, at *10. Such a conclusion indicates that the state court weighed the evidence and determined that Petitioner consented to the defense strategy, or that the state court determined that Petitioner’s consent was not required on this issue because it was a tactical question reserved for counsel rather than the client. There is adequate evidence in the record and adequate case law to support either result. Lawrie III, 1995 WL 818511 (Tr. at B38-40, B165, B168, B179, B185, B194-97, C90-93, C98-104, C124, C127-28, C130-31); Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1433 (3d Cir.), cert. denied, — U.S. --, 117 S.Ct. 538, 136 L.Ed.2d 423 (1996) (client should make fundamental decisions such as whether to plead guilty, waive jury trial, or testify on own behalf, but decisions regarding strategy and tactics are reserved for attorney) (citing Wainwright v. Sykes, 433 U.S. 72, 93, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring)); United States v. Teague, 953 F.2d 1525, 1531 (11th Cir.), cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992) (same); Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (it is defense counsel’s province to focus on key issues and winnow out weaker arguments). In either event, the state court came to the ultimate conclusion, via numerous particularized findings of fact, that Petitioner’s trial counsel was not constitutionally ineffective as regards the defense of the three felony murder charges. Lawrie III, 1995 WL 818511, at *8-10. In the Court’s view, this indicates an “implied” finding on the issue of consent. See Townsend, 372 U.S. at 314, 83 S.Ct. 745 (in considering whether merits of factual dispute were resolved in state court, district court must determine “whether the state court impliedly found material facts”) (emphasis added). Because the Court is able to reconstruct the findings of the state court based on the post-conviction transcript and the opinion of the Superior Court and is able to make a clear inference regarding the issue of consent, the Court concludes that disposition of the claim does not require an evidentiary hearing. Further, the Court is not persuaded that, under the circumstances presented here, it should use its discretionary powers to grant an evidentiary hearing. This is because the Court is convinced that Petitioner did receive a full and fair hearing on the issue of consent in the state court. This is evidenced by the testimony elicited at the post-conviction motion hearing and set forth in both Petitioner’s and Respondent’s briefs. (D.I. 23 at 28-29; D.I. 26 at 15-16); Lawrie III, 1995 WL 818511 (Tr. at B38-40, B165, B168, B179, B185, B194-97, C90-93, C98-104, C124, C127-28, C130-31). Thus, the facts needed to render a decision on the ineffective assistance claim are already before the Court, and it is not necessary to hold an additional evi-dentiary hearing. For all of these reasons, Petitioner’s request for an evidentiary hearing on the issue of consent will be denied. 2. Failure to Object to Prosecutor’s Improper Argument to Jury Petitioner next argues that trial counsel was ineffective for failing to object to allegedly inappropriate comments made by the prosecutor during the opening statement of the guilt phase and the closing argument of the penalty phase of Petitioner’s trial, and that appellate counsel was ineffective for faffing to raise this issue on appeal. (D.I. 23 at 42). Petitioner lists ten statements from the prosecutor’s opening statement at trial that Petitioner claims were argumentative and inflammatory. (D.I. 4 at 12-13 (“Ground Four”)). Petitioner also contends that the prosecutor improperly argued to the jury during the penalty phase “that (1) its role was to communicate a message to the public by way of its recommendation to the sentencing judge, (2) the fact of each victim’s separate death was an aggravating circumstance and (3) its recommendation should be based on its ‘sorrow for the dead.’ ” (D.I. 4 at 13-14 (“Ground Four”)). Petitioner argues that all thirteen of these statements were inappropriate, and therefore, that trial counsel’s failure to object and appellate counsel’s failure to raise these issues on appeal was objectively unreasonable under the first prong of Strickland.' (D.I. 23 at 49). Petitioner further asserts that these omissions by both trial and appellate counsel were prejudicial under Strickland’s second prong. (D.I. 23 at 50). An understanding of Respondent’s contentions regarding this claim requires an explanation of federal habeas law pertaining to the procedural bar mechanism. Federal review of a habeas claim is procedurally barred when the state court disposition of the claim rests on an independent and adequate state ground. Harris v. Reed, 489 U.S. 255, 260-62, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). This requires a plain statement by the' state court indicating its reliance on the state law ground. Harris, 489 U.S. at 263, 109 S.Ct. 1038 (citations omitted). In such circumstances, the Court will not review the merits of the claim unless the petitioner can demonstrate both cause and actual prejudice for the procedural default, or that a miscarriage of justice will result if the Court refuses to hear the claim. Coleman v. Thompson, 501 U.S. 722, 750-51, 111 S.Ct. 2546, 115 L.Ed.2d 640, reh’g denied, 501 U.S. 1277, 112 S.Ct. 27, 115 L.Ed.2d 1109 (1991). To establish cause for a procedural default, the petitioner “must show that ‘some objective factor external to the defense’ precluded his compliance with the state procedural rules.” Bailey v. Kearney, No. Civ. A. 95-279-SLR, 1997 WL 309449, at *3 (D.Del. Apr.3, 1997) (citing McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)). Preliminarily, Respondent contends that of the thirteen allegedly improper statements made by the prosecutor and listed in the Petition, six were presented to the Delaware Superior Court in Petitioner’s motion for post-conviction relief, but were not briefed on appeal. (D.I. 21 at 29). Apparently viewing each of the prosecutor’s comments as a separate claim, Respondent argues that although these six “claims” were exhausted as required by Title 28, Section 2254(b)(1)(A), they were also waived because they were not presented in the post-conviction appeal. (D.I. 21 at 29); see 28 U.S.C. § 2254(b)(1)(A) (exhaustion requirement). Respondent asserts that Petitioner must therefore show cause for failing to mention these comments in the post-conviction appeal and resulting prejudice, and views Petitioner’s contention of ineffective assistance as a futile attempt “to establish cause for his procedural default.” (D.I. 21 at 30). The Court disagrees with Respondent’s grouping of the statements made by the prosecutor as a means to establish a procedural bar. In his brief to the Delaware Supreme Court, Petitioner made both general and specific references to the opening and closing statements of the prosecutor, citing the trial transcript accordingly. (Appellant’s Opening Brief at 32-41). In any event, the Court will not adopt the piecemeal analysis suggested by Respondent, assessing the procedural disposition of this claim with each sentence uttered by the prosecutor. Instead, the Court will consider the prosecutor’s opening statement at trial and closing argument at sentencing in their entirety in order to determine whether this claim is procedurally barred. Thus, the Court turns to Respondent’s argument regarding the remainder of the prosecutor’s statements. Respondent’s contentions as to the rest of the thirteen statements stems from its perception that the claim before this Court is one of prosecutorial misconduct. (D.I. 21 at 28; D.I. 26 at 37). Respondent argues that the claim has been procedurally defaulted because the Superior Court ruled that it was barred by the independent and adequate state law ground of Delaware Superior Court Criminal Rule 61(i)(3). Lawrie III, 1995 WL 818511, at *10. The Superior Court did, in fact, view Petitioner’s claim in his post-conviction motion as one of prosecutorial misconduct, and held that it was barred under Rule 61(i)(3) because Petitioner failed to assert it on direct appeal. Lawrie III, 1995 WL 818511, at *10; Delaware Superior Court Criminal Rule 61(i)(3). The Superior Court interpreted the allegations of ineffective assistance of counsel as an attempt to show cause for procedural default of the prosecuto-rial misconduct claim. Lawrie III, 1995 WL 818511, at *10. The court then considered the ineffective assistance of counsel claim on its merits, and concluded that Petitioner had failed to show cause in that he did “not follow through with the required Strickland analysis.” Id. After reviewing the trial transcripts, the court applied Strickland to the ineffective assistance allegation and determined that neither trial counsel nor appellate counsel acted in an objectively unreasonable manner, and that Petitioner was not prejudiced by their omissions. Id. at *11. Thus, the court concluded that by failing to establish ineffective assistance of counsel, Petitioner did not show cause for the procedural default of his prosecutorial misconduct claim. In his Motion For Post-Conviction Relief before the Delaware Superior Court, Petitioner set forth two claims of prosecutorial misconduct; one pertaining to comments made during opening statements of the guilt phase and one pertaining to closing arguments in the penalty phase. Supplement to Motion For Post-Conviction Relief, Supplement, at “Ground Nine” and “Ground Eighteen,” Lawrie III, 1995 WL 818511. Petitioner also set forth a separate claim of ineffective assistance of counsel based on the alleged prosecutorial misconduct. Supplement to Motion For Post-Conviction Relief, Supplement, at “Ground Twenty,” parts B. and N., Lawrie III, 1995 WL 818511. Thus, the Superior Court naturally viewed the ineffective assistance claim as an attempt to show cause for failing to previously raise the prosecutorial misconduct claim. In contrast to the content of the motion presented to the Delaware Superior Court, Petitioner frames his claim in the instant Petition primarily as one of ineffective assistance of counsel. (D.I. 23 at 42). Were the Court to agree with Respondent and view Petitioner’s claim in the instant case as one of prosecutorial misconduct with an underlying argument of ineffective assistance of counsel as a means to show cause for procedural default, the claim would be procedurally barred, as Respondent suggests. However, the Court views the claim presently before it as a claim for ineffective assistance of counsel, with underlying facts relating to alleged prosecutorial misconduct. Based on this distinction, the Court does not agree that the claim is procedurally barred and will review the claim on its merits. In approaching this claim as one of ineffective assistance of counsel, the Court recognizes that resolution of the claim inherently requires the Court to consider the appropriateness of the comments made by the prosecutor at trial in order to determine whether counsels’ responses to those comments were objectively reasonable under Strickland. The Court need not, however, determine whether the prosecutor’s comments rose to the level of prosecutorial misconduct in order to resolve whether counsel was ineffective in faffing to object. See Johnston v. Love, 940 F.Supp. 738, 754 (E.D.Pa.1996), aff'd, 118 F.3d 1576 (3d Cir.), cert. denied, — U.S. -, 118 S.Ct. 425, 139 L.Ed.2d 326 (1997) (court analyzed failure to object to prosecutor’s comments under Strickland without considering standard of prosecutorial misconduct). As previously discussed, the Court may grant relief for a claim adjudicated on the merits in the state court only if the state court decision involved an unreasonable application of Federal law or was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Thus, the Court must essentially consider whether the state court correctly determined that trial and appellate counsels’ omissions did not rise to the level of ineffective assistance under Strickland. Because the reasonableness of appellate counsel’s conduct on this issue is dependent upon the reasonableness of trial counsel’s conduct, the Court will first consider trial counsel’s conduct. Under the first prong of Strickland, Petitioner is required to demonstrate that counsel’s errors fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686-94, 104 S.Ct. 2052. In order for the Court to determine whether trial counsel’s failure to object to the prosecutor’s statements was objectively reasonable, the Court must first examine the prosecutor’s statements to determine whether they warranted objections. In considering the propriety of the prosecutor’s comments, whether they were objectionable, and whether objections would have been sustained, the Court is aware of the standards in Delaware regarding how prosecutors are to conduct themselves at trial. The Delaware Supreme Court has adopted the Prosecution and Defense Functions from the American Bar Association Standards. Hughes v. Delaware, 437 A.2d 559, 566 (Del.1981) (quoting ABA Standards, the Prosecution and Defense Functions (Approved Draft, 1971)). These standards provide that the opening statement should be confined to the evidence which the prosecutor “ ‘intends to offer which he believes in good faith will be available and admissible and a brief statement of the issues in the ease.’ ” Id. at 567. As for closing arguments, the prosecutor “ ‘may argue all reasonable inferences from evidence in the record’” and ‘“should not use arguments calculated to inflame the passions or prejudices of the jury.’ ” Id. The Court has also considered another standard as a guideline in analyzing trial counsel’s reaction to the prosecutor’s comments. Although Petitioner is not directly claiming prosecutorial misconduct, the Court views the standards for a prosecutorial misconduct claim as helpful in establishing the parameters of reasonableness for a prosecutor’s comments and whether any objections to those comments would have been sustained. In considering remarks made by a prosecutor in the context of a prosecutorial misconduct claim, “[t]he relevant question is whether the prosecutor’s comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144, reh’g denied, 478 U.S. 1036, 107 S.Ct. 24, 92 L.Ed.2d 774 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). As previously stated by this Court, “the standard by which the court ... must review a prosecutor’s comments is whether, in the context of the trial as a whole, they were of such a nature as to render the trial fundamentally unfair.” United States ex rel. Hamilton v. Ellingsworth, 692 F.Supp. 356, 360 (D.Del.1988). Bearing these standards in mind, the Court will consider trial counsel’s failure to object to the prosecutor’s statements. For ease of analysis, comments made by the prosecutor can be divided into four categories. The first category consists of comments regarding the experience of the victims and describing the evidence. (D.I. 4, “Ground Four,” Supporting Facts A, B., E., F., G., and J.). The second category includes comments on what the jury would experience during the trial. (D.I. 4, “Ground Four,” Supporting Facts C. and D.). The third category consists of the prosecutor’s reference to the Grand Jury indictment. (D.I. 4, “Ground Four,” Supporting Fact H.). Finally, the fourth category consists of comments pertaining to how the jury should make its decision. (D.I. 4, “Ground Four,” Supporting Facts I. and (1), (2) and (3)). The Court first considers the prosecutor’s comments regarding the experience of the victims and describing the evidence. Having reviewed the opening statement in its entirety and viewing the comments at issue in context, the Court concludes that it was not objectively unreasonable for trial counsel to refrain from objecting to these statements. While the prosecutor may have selected words that were graphic in order to capture the attention of the jury, the Court is unconvinced that the terms used were so inflammatory as to mandate an objection. The United States Supreme Court’s decision in Darden v. Wainwright is informative on this point. 477 U.S. at 178-83, 106 S.Ct. 2464. In Darden, the prosecutor had stated in his closing argument at trial that the defendant was an “animal” who should not be let out of prison without a leash, and added, “I wish that I could see him sitting here with no face, blown away by a shotgun.” Id. at 180-81 n. 11 & 12, 106 S.Ct. 2464. Although the Court admitted that the “argument deserves ... condemnation,” it concluded that the comments did not deprive the defendant of a fair trial. Id. at 179-81, 106 S.Ct. 2464. The Court based this conclusion on several factors, including its view that “the prosecutor’s argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused.” Id. at 181-82, 106 S.Ct. 2464. Similar factors in the instant case lead the Court to the conclusion that, having heard the prosecutor’s comments, trial counsel’s conduct in failing to object did not fall below an objective standard of reasonableness under the first prong of Strickland. The comments were based on the evidence that the prosecutor intended to offer during the trial and were not misleading to the jury. Therefore, the Court concludes that Petitioner has not met his burden under the first prong of Strickland as to the first category of prosecutorial comments. The Court next considers the prosecutor’s comments on what the jury would experience during the trial. The Court disagrees that these comments violated the “golden rule” by encouraging the jury to put themselves in the place of the victims. See Sullivan v. State, 636 A.2d 931, 941 (Del.), cert. denied, 513 U.S. 833, 115 S.Ct. 110, 130 L.Ed.2d 57 (1994) (improper for prosecutor to ask jury to occupy shoes of victim) (citation omitted); Grayson v. Delaware, 524 A.2d 1, 2-3 (Del.1987) (same). Rather, viewed in context, these comments informed the jury that they would be exposed to evidence in their capacity as jurors that would have an emotional impact upon them. The Court concludes that, by making these comments, the prosecutor was not asking the jury to place themselves in the position of the homicide victims, and therefore, did not violate the “golden rule.” Therefore, it was not objectively unreasonable for trial counsel to refrain from objecting to these comments. Next, the Court turns to the prosecutor’s reference to the Grand Jury indictment. The Court agrees with Petitioner that it is improper to imply that an indictment is conclusive of guilt. Compare Hughes, 437 A.2d at 573 (language implying that guilt can be presumed from mere fact of defendant’s arrest is prejudicial). However, the context of this comment reveals that there was no such implication in the prosecutor’s statement. The prosecutor stated within the same discourse that “the indictment is not evidence in this case.” Lawrie I, Crim. A. Nos. K-92-08-0180 to 0182 (Tr. at A36). Given the way that the statement was phrased and the disquahfier that was immediately added, the Court concludes that trial counsel was reasonable in refraining from objecting to this comment. Finally, the Court considers the comments pertaining to how the jury should make its decision. Read in context, the Court again concludes that these comments were not objectionable. First, the Court does not find the prosecutor’s reference to the deterrent effect of the death sentence to be problematic. See Lawrie I, Crim. A. Nos. K-92-08-0180 to 0182 (Tr. at C52); compare Ward v. Whitley, 21 F.3d 1355, 1363, reh’g denied, 30 F.3d 1496 (5th Cir.1994), cert. denied, 513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995) (it is permissible argument to discuss need to impose death penalty as adequate punishment for crime committed). Second, as to Petitioner’s contention that the prosecutor argued that the death of each victim was an aggravating circumstance, the prosecutor actually said that the fact that Petitioner’s conduct resulted in the deaths of two or more persons as a probable consequence of his actions was a statutory aggravating circumstance. Lawrie I, Crim. A. Nos. K-92-08-0180 to 0182 (Tr. at C35). This is an accurate statement of Delaware law. Del.Code Ann., tit. 11, § 4209(e)(l)(k). Third, the prosecutor did not tell the jury to base its decision on sorrow for the dead, but rather listed all of the aggravating circumstances, both statutory and non-statutory, and stated, “Someone once said the sorrow for the dead is the only sorrow from which we refuse to be divorced.” Lawrie I, Crim. A. Nos. K-92-08-0180 to 0182 (Tr. at C43). Read in context, this was not offered as a basis upon which the jury should base its decision. Therefore, trial counsel did not act in an objectively unreasonable manner in failing to object to any of the comments regarding how the jury should make its decision. In summary, mindful of the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” the Court concludes, after reviewing all of the comments at issue, that it was not objectively unreasonable for trial counsel to refrain from objecting during both the opening statement of the guilt phase and the closing argument of the penalty phase of Petitioner’s trial. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As this court has previously stated, “[b]ecause many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements by the prosecutor, the failure to object during closing argument and opening statement is within the “wide range’ of permissible professional legal conduct, and thus does not constitute ineffective assistance of counsel.” United States v. Lively, 817 F.Supp. 453, 466 (D.Del.), aff'd, 14 F.3d 50 (3d Cir.1993) (citations omitted). Because the Court concludes that it was not objectively unreasonable for trial counsel to refrain from objecting to the prosecutor’s statements, it was also not objectively unreasonable for appellate counsel to refrain from raising this issue on appeal. Further, the Court concludes that Petitioner has not met his burden under the second prong of Strickland, in that Petitioner has failed to demonstrate actual prejudice, i.e., a reasonable probability that the outcome of the proceedings would have been different had counsel performed differently. The quantity and compelling nature of the evidence presented at trial were beyond sufficient to produce the result that occurred, even absent the prosecutor’s comments. The Court is unconvinced that Petitioner was prejudiced by counsel’s conduct, and agrees with the Delaware Superior Court that Petitioner’s claim that certain remarks “improperly persuaded the jury is clearly belied by the fact that the jury acquitted [Petitioner] of the intentional first degree murder of his wife.” Lawrie III, 1995 WL 818511, at *11 (citation omitted). Therefore, the Court concludes that the Delaware Superior Court’s determination that counsel was not constitutionally ineffective on this point was correct under Section 2254(d). 28 U.S.C. § 2254(d). 3. Failure to Present Mitigating Psychiatric Testimony In his next claim, Petitioner contends that although trial counsel retained two experts, Drs. Meehaniek and Weintraub, to “ ‘explore a possible mental defense,’” trial counsel failed to develop or present mitigating psychiatric testimony during the penalty phase of Petitioner’s trial. (D.I. 23 at 58). Referring to the post-conviction relief evidentiary hearing, Petitioner contends that if Dr. Me-chanick had been called during the penalty hearing, he would have testified, inter alia, that Petitioner was not of a violent nature but rather suffered from adjustment disorder with mood disturbance at the time of the killings, and that Petitioner lacked a role model, had subconscious feelings about his own parents divorce, had low self-esteem which his wife’s taunting exacerbated, and was affected by cocaine on the day of the killings, all of which contributed to his mental state when he committed the crimes. (D.I. 23 at 61). Dr. Meehaniek would have also offered testimony regarding the violent nature of prison life as it related to Petitioner, and the possibility of post-traumatic stress disorder as an explanation for Petitioner’s apparent lack of remorse. (D.I. 23 at 61). According to Petitioner, this would all have constituted probative evidence that mitigated against the death penalty, had it been offered by trial counsel. (D.I. 23 at 61). Petitioner argues that the state court’s finding that counsel was not ineffective in this area is incorrect. (D.I. 23 at 61). Respondent, on the other hand, contends that trial counsel acted in an objectively reasonable manner and that Petitioner was not prejudiced by counsel’s actions under the test set forth in Strickland. (D.I. 21 at 59). According to Respondent, Dr. Meehaniek believed Petitioner to be an angry man with little depression or remorse. (D.I. 21 at 61). Further, Respondent asserts that Dr. Me-chanick assessed the value of his own testimony as only three or four out of a possible ten. (D.I. 21 at 61); Lawrie III, 1995 WL 818511 (Tr. at B76). Respondent contends that in light of the possibility that expert testimony could create more problems than it solved, trial counsel made an objectively reasonable, strategic decision not to present the testimony. (D.I. 21 at 62). Further, because Dr. Meehaniek stated that his views were based solely on his discussions with Petitioner and that he needed additional information to formulate a final diagnosis, Respondent argues that Dr. Meehanick’s opinions were too equivocal to have been reasonably likely to change the jury’s decision regarding the death penalty, and therefore, that Petitioner was not prejudiced under Strickland. (D.I. 21 at 62). Petitioner has exhausted this claim by presenting it to the state court as required by Section 2254(b)(1)(A). Motion For Post-Conviction Relief at Item 12, Ground Two, Lawrie III, 1995 WL 818511; Appellant’s Opening Brief at 56, Lawrie IV, 682 A.2d 626; see 28 U.S.C. § 2254(b)(1)(A). Although the Superior Court considered the possibility of a procedural bar to this claim, it opted instead to consider the claim on the merits, and this Court will do the same. Lamie III, 1995 WL 818511, at *4, n. 4. As previously discussed, the Court cannot grant a petition on a claim that has been adjudicated on the merits by the state court unless it was contrary to Federal law or based on an unreasonable determination of the facts. Although state court determinations on the issue of ineffective assistance of counsel are not binding on this Court because they are considered to be mixed questions of law and fact, the underlying factual findings are entitled to deference. Having reviewed the transcripts of Dr. Mechanick’s testimony at the post-conviction evidentiary hearing and other relevant documents, the Court concludes that the state court’s determination that counsel was not ineffective on this point was correct. See 28 U.S.C. § 2254(d); Lawrie III, 1995 WL 818511, at *16-17. Although, as Petitioner points out, the “failure to conduct any pretrial investigation generally constitutes a clear instance of ineffectiveness,” there was no such failure in the instant ease. United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989) (emphasis added). Counsel had Petitioner examined by two mental health experts, a psychologist (Dr. Weintraub) and a psychiatrist (Dr. Meehaniek). Lawrie III, 1995 WL 818511, at *15. Counsel stated at the evidentiary hearing on the motion for post-conviction relief that he selected Drs. Weintraub and Meehaniek because they were both reliable and asked them for their opinions regarding any mental health issues that could be h