Miller v. Beard (214 F. Supp. 3d 304, 2016)

MEMORANDUM OPINION

Goldberg, District Judge

On October 1, 1997, following a bench trial in the Chester County Court of Common Pleas, Dennis Miller (hereinafter “Petitioner”) was convicted of raping and murdering his wife, and was subsequently sentenced to death. The Pennsylvania Supreme Court affirmed the conviction and sentence on direct appeal, and also affirmed the denial of Petitioner’s claims for post-conviction collateral relief. Petitioner has now filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254, seeking relief from his convictions and death sentence. He raises nine claims for relief, challenging the constitutionality of both his trial and sentencing hearing. For the reasons set forth below, I will deny the habeas petition as to the first degree murder conviction, but will grant habeas relief on the rape conviction and death sentence.

I. FACTUAL AND PROCEDURAL HISTORY

In its direct appeal opinion, the Pennsylvania Supreme Court set out the facts underlying Petitioner’s conviction as follows:

Miller resided with his wife, Sherry, and their two children, Barbara and Dennis, who at the time were twelve and four, at 301 Church Alley, Londongrove Township, Chester County. Miller’s marital relationship was, however, strained as a consequence of drug use, as well as jealousy and physical abuse directed toward his wife. Notably, in July of 1994, Miller pled guilty to harassment and disorderly conduct arising from an altercation with Sherry, and, in April of 1995, he pled guilty to aggravated assault in connection with an incident in which he held a gun to Sherry’s head. As a result of the later conviction, Miller was imprisoned for a term of nine to twenty-three months.

While in prison, Miller professed a desire to kill Sherry, and on the day of his release in September 1995, he told his cellmate, “I’ll be back for killing my wife.” Following his release from prison, Miller resumed living with his wife and children.

On November 18, 1995, Miller made arrangements with his mother, Agnes Miller, to supervise his children while he and Sherry visited a local tavern, Trib’s Waystation. At the bar, Miller and his wife drank beer and, at one point, ingested methamphetamine. Although Miller did not appear to be intoxicated, during the course of the evening he became angry whenever his wife either spoke to another man or used the telephone. [FN1: Sherry used the telephone at the bar to page Sean Smith, a man she dated during Miller’s incarceration. Smith then telephoned Sherry in response to the page.] At approximately 12:30 a.m. Miller and his wife left the bar.

On Sunday, November 19, Agnes Miller was surprised when Miller and his wife did not arrive during the breakfast hour as planned to retrieve their children. As the day progressed, she became increasingly concerned. Miller’s daughter, Barbara, repeatedly telephoned the family residence, but no one answered. In addition, Agnes Miller drove to Miller’s home on two or more occasions. On each occasion, she observed that the house was locked, no one answered the door, and Sherry’s vehicle was missing. Initially, Agnes Miller was concerned because Barbara was asthmatic and the medicine was located in Miller’s home. Indeed, later that day, Barbara was taken to the hospital for treatment of an asthmatic attack. Ultimately, on Monday, November 20, Agnes Miller contacted Sherry’s mother, Mary Folk, to determine whether she had heard from her daughter. As Ms. Folk had not, she filed a missing persons report with the Pennsylvania State Police.

In response to the report, the investigating trooper contacted the employers for Miller and his wife, checked with local prisons and hospitals, and interviewed family members. Both Agnes Miller and Ms. Folk related to the police that Miller and his wife had used illicit drugs and speculated that they might have traveled to Philadelphia to purchase drugs. The police also went to the Miller home, knocked on the door, and after receiving no response, checked the doors, finding them locked. When these efforts failed, the troopers asked Agnes Miller to meet them at the residence. Once there, Agnes Miller again expressed concern that something may have happened to her son and daughter-in-law because of their history of drug abuse. The troopers who met Agnes Miller were familiar with Miller’s drug problem and were aware of Miller’s history of spousal abuse. At Agnes Miller’s request, and after receiving assurance from her that she would be responsible for the property, the troopers agreed to forcibly enter the residence.

The troopers gained access through a basement window, checked the basement area, climbed a set of stairs to the kitchen, and briefly surveyed the kitchen. Upon hearing a fan on the second story, the troopers announced themselves and proceeded upstairs. In the master bedroom, the troopers observed the contents of a purse strewn about the floor, an open suitcase, and the naked, blood-spattered body of Sherry Miller lying on a bed with her legs spread, knees bent, and with a bloody pillow over her face. After confirming that Miller was not also in the bedroom, the troopers left, secured the house, and waited until investigators arrived with a search warrant.

An autopsy of Sherry Miller revealed that she died as a result of more than thirty stab wounds to her head, neck, chest, arms, and hands. The murder weapon, a knife, was found in a trash can; the tip had been broken off and was recovered from the shoulder of Sherry Miller. In addition to determining the cause of death, the forensic pathologist conducting the autopsy concluded that Sherry Miller had been subjected to forcible intercourse at the time of her death. This finding was premised, in part, upon the position in which her body was found, the defensive wounds on her hands and arms, the seminal material recovered from her vaginal vault, the absence of such material outside her vagina, and the absence of blood spatter in the area just above her vagina and between her legs.

From the crime scene, the police recovered Miller’s bloody handprints on the pillow that was used to cover Sherry Miller’s face. Furthermore, the police discovered a bloody footprint of Miller and a bandage with Miller’s bloody fingerprint in the bathroom area. In addition, the police obtained a partial thumbprint from the murder weapon. [FN2: Although the print contained several characteristics consistent with Miller’s right thumb, the partial print was insufficient for a positive identification.] The police noted that the box spring from the bed where Sherry Miller was found was broken, and the bed frame was bent. On the kitchen table, the police found a partially empty cup of coffee next to a vengeful note in Miller’s handwriting. [FN3: In his note, Miller stated:

Now I hope some of Sherry’s whore friends learn something from this. I didn’t want it to go this far, but you people don’t understand what she put me through. Some know, but they don’t want to say something about her. Everybody told her everything I did, but me, I had to find out for myself what she did. All of my so-called friends f— me one way or another. I had no friends. And I wish I had more time to get even with some of you assholes. I just want to say that you, Larry Brown, I would have killed you, and you, Sean Smith, I told Donny one time before to tell you to leave her alone. I don’t know if he did. And if he did, the next time somebody tells you something, you better do what they say. I would have got you too. I hope somebody in my family takes care of Barb, Dennis. I do love you all. I will see some of you in hell.]

The police continued to search for Miller, contacting his friends and family members in an effort to locate him. Although their efforts were unsuccessful, the police were able to trace Miller’s flight from the crime scene to Maryland from his use of his wife’s automated teller machine card, and the police found Sherry’s vehicle in Maryland; the vehicle contained a baseball cap belonging to Miller and a number of ATM receipts. Miller was ultimately apprehended six months later in Florida, after a tip following a description of the unsolved crime on the America’s Most Wanted television program.

Commonwealth v. Miller (Miller I), 555 Pa. 354, 724 A.2d 895, 897-98 (1999).

Trial commenced on September 29, 1997, following the denial of a motion to suppress and a waiver of Petitioner’s right to a jury trial. At the conclusion of the trial, the court found Petitioner guilty of first degree murder, rape, indecent assault, recklessly endangering another person, possessing an instrument of crime, and flight to avoid apprehension. After the penalty phase, the court, sitting as fact-finder, issued a sentence of death, which was formally imposed on October 27, 1997. The court considered the aggravating circumstance of committing the murder while perpetrating a felony, the rape, and the mitigating circumstance of the Defendant’s substantially impaired capacity to confirm his conduct to the requirements of law. The court found the aggravating circumstance to outweigh the mitigating eircum-stance and thus imposed the sentence of death.

Petitioner filed a direct appeal to the Pennsylvania Supreme Court, challenging his conviction and sentence. That court affirmed both the verdict and the death sentence. Miller I, 724 A.2d 895. Petitioner’s writ of certiorari to the Supreme Court of the United States was denied on October 4, 1999. Miller v. Pennsylvania, 528 U.S. 903, 120 S.Ct. 242, 145 L.Ed.2d 204 (1999).

On October 29, 1999 Petitioner filed a pro se petition under the Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-9546. An emergency stay of execution was entered pending the PCRA proceedings and counsel was appointed. On June 7, 2000, Petitioner filed an amended PCRA petition, and thereafter filed several supplemental petitions and requests for discovery. A hearing was held from October 27-29, 2003.

On June 30, 2007, the PCRA court issued an opinion and order denying relief. Petitioner appealed this ruling to the Pennsylvania Supreme Court, and on December 28, 2009, that court affirmed the PCRA court’s ruling, with Justice Thomas G. Saylor dissenting. Commonwealth v. Miller (Miller II), 605 Pa. 1, 987 A.2d 638 (2009).

On June 25, 2010, then Pennsylvania Governor Edward G. Rendell issued a death warrant, scheduling Petitioner’s execution for August 19, 2010. On July 15, 2010, I issued an Order' staying Petitioner’s execution; granting Petitioner in forma pauperis status; appointing the Federal Community Defender Office for the Eastern District of Pennsylvania, Capital Ha-beas Unit; and directing Petitioner to file his habeas petition within 120 days. Petitioner filed the federal habeas petition presently under consideration on December 2, 2010, raising nine claims for review.

Petitioner claims that (1) trial counsel was ineffective for failing to effectively investigate, prepare, and present evidence that he acted in the heat of passion; (2) trial counsel was ineffective for failing to effectively investigate, prepare, and present testimony to rebut the Commonwealth’s allegations that the victim was raped; (3) trial counsel was ineffective for failing to object to the testimony of Dr. Richard Callery about the occurrence of rape because this opinion fell below the required standard of proof, and for failing to raise this issue on appeal; (4) the Commonwealth withheld favorable and exculpatory ' evidence relating to Commonwealth witness Michael Torres in violation of Brady v. Maryland, and trial counsel was ineffective for failing to properly investigate, develop, and present evidence discrediting this witness; (5) counsel was ineffective at capital sentencing for failing to conduct a meaningful investigation for mitigation evidence; (6) Petitioner’s waiver of a jury at sentencing was invalid, and counsel was ineffective for failing to object to the waiver and for failing to raise this issue on appeal; (7) the prosecutor introduced inadmissible victim impact evidence in violation of Petitioner’s constitutional rights, and counsel was ineffective for failing to raise and litigate this claim; (8) Petitioner’s waiver of a jury trial and to testify in his own defense were invalid because they were the product of ineffective assistance of counsel; and (9) the cumulative effect of the errors in this case entitles Petitioner to habeas relief.

II. EXHAUSTION

A. Legal Standard for the Exhaustion of State Remedies and Procedural Default

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), a prerequisite to the issuance of a writ of habeas corpus on behalf of a person in state custody pursuant to a state court judgment is that the petitioner must have “exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). In order to satisfy this requirement, a petitioner must have “fairly presented” the merits of his federal claims during “one complete round of the established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A federal claim is fairly presented to the state courts where the petitioner has raised “the same factual and legal basis for the claim to the state courts.” Nara v. Frank, 488 F.3d 187, 198-99 (3d Cir. 2007).

If, however, a petitioner fairly presents a claim to the state courts, but it was denied on a state law ground that is “independent of the federal question and adequate to support the judgment,” the claim is proeedurally defaulted, and is not subject to federal review. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This includes instances where a state court refuses to hear the petitioner’s federal claim on the grounds that the petitioner violated a state procedural rule. Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Taylor, 504 F.3d at 427. In this regard, the state court must actually rely on the procedural rule as an independent basis for disposing of the claim. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Where the last state court’s decision “fairly appear[s] to rest primarily on federal law or to be interwoven with federal law,” no procedural bar will apply to the claim. Coleman, 501 U.S. at 735, 111 S.Ct. 2546; see also Campbell v. Burris, 515 F.3d 172, 177-78 (3d Cir. 2008); Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir. 2004).

Nevertheless, the violation of a state procedural rule does not automatically prevent federal review of the habeas claim. The state procedural rule must have been “firmly established and regularly followed” at the time for the claim to be defaulted. Taylor, 504 F.3d at 427 (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). Additionally, a federal habeas court is “not bound to enforce a state procedural rule when the state itself has not done so,” even if the procedural rule could have properly been applied. Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004) (quoting Smith v. Freeman, 892 F.2d 331, 337 (3d Cir. 1989)); see also Cone v. Bell, 556 U.S. 449, 468, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (finding that federal courts should not review a state court’s decision not to apply its own procedural bar).

In some instances, it may be difficult to determine whether the state court resolved a claim on the merits or pursuant to a procedural bar. See Coleman, 501 U.S. at 732, 111 S.Ct. 2546 (noting that state court decisions will often “discuss federal questions at length and mention a state law basis for decision only briefly”). To remedy this problem, the Supreme Court developed the “plain statement” test. Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Under the plain statement test, when the state court opinion appears to consider the application of a federal law, federal courts should assume that the case was determined on the merits absent a plain statement by the state court that its decisions relied on an independent and adequate state rule. Id.; see also Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (applying the plain statement rule to habeas review).

Where a claim is procedurally defaulted, it cannot provide a basis for federal habeas relief unless the petitioner shows “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546.

B. Have Any of Petitioner’s Claims Been Procedurally Defaulted?

Respondents assert that claims four, six, seven, and eight of Petitioner’s habeas petition have been procedurally defaulted because Petitioner did not raise them at trial or on direct appeal. (Resp. at 17-22.) I will discuss the issue of default regarding these claims in turn.

1. Claim IV: Did the Commonwealth Violate Brady v. Maryland by Failing to Turn Over Impeachment Evidence, and Was Counsel Ineffective for Failing to Discover and Present Evidence to Discredit This Witness?

Petitioner’s fourth claim is that the Commonwealth violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to turn over the criminal and medical records of his former cellmate, Michael Torres, who testified that Petitioner told him that he intended to kill his wife. These records allegedly contained evidence of mental illness and hallucinations, which, according to Petitioner, could have been used to discredit Torres’s testimony. (Br. at 45-49.) Petitioner relatedly claims that defense counsel was ineffective for failing to discover Torres’s criminal history and mental illness. (Br. at 56.)

On PCRA appeal, the Pennsylvania Supreme Court denied this ineffectiveness claim because defense counsel had “no reason to believe” that Torres suffered from mental health problems and because counsel “effectively undermined” Torres’s testimony at trial by presenting his own witness. Miller II, 987 A.2d at 654-55. The court further found that there was no prejudice because Petitioner would have been convicted even if trial counsel had acquired the information about Torres. Id. Additionally, the court found Petitioner’s Brady claim to be “meritless” because the government agency in control of the documents in question was not involved in Petitioner’s prosecution. Id. at 656.

The Pennsylvania Supreme Court’s opinion on this claim “rest[s] primarily on federal law” because it relied on the application of the Brady case and the ineffectiveness of counsel standard. Coleman, 501 U.S. at 735, 111 S.Ct. 2546. Moreover, the court made no mention of Petitioner’s failure to object at trial or raise this issue on direct appeal. See Miller II, 987 A.2d at 654-66 (discussing Petitioner’s Brady claim, but making no reference to a procedural bar). Since there is no “plain statement” that the state court resolved this claim on the basis of an independent procedural rule, there is no procedural bar, and consequently, I will consider this claim on the merits. Harris, 489 U.S. at 262-63,109 S.Ct. 1038.

2. Claim VI: Was Petitioner’s Waiver of a Jury for Sentencing Invalid, and Was Counsel Ineffective for Failing to Object to the Trial Court’s Colloquy and to Raise This Issue on Appeal?

Petitioner’s sixth claim is that his waiver of the right to a jury at sentencing was invalid because the oral and written colloquies failed to inform him of the relevant burdens of proof for aggravating and mitigating factors or about the role of a jury in a capital sentencing. Petitioner relatedly argues that trial counsel was ineffective for failing to object to the colloquy and raise this issue on appeal. (Br. at 92-93.)

On PCRA appeal, the Pennsylvania Supreme Court considered the ineffectiveness of counsel claim on the merits, finding that Petitioner made no showing that he would not have waived his right to a jury at sentencing “but for counsel’s ineffectiveness.” Miller II, 987 A.2d at 661. This determination “rest[s] primarily on federal law” because it relied on the actual application of the ineffectiveness of counsel standard. Coleman, 501 U.S. at 735, 111 S.Ct. 2546. Because there is no “plain statement” that the state court resolved this claim on the basis of an independent procedural rule, there is no procedural bar to addressing this claim on the merits. Harris, 489 U.S. at 262-63, 109 S.Ct. 1038.

The Pennsylvania Supreme Court did, however, apply a procedural bar in dismissing the underlying constitutional claim that the jury waiver colloquy was deficient. The court stated that “[n]o objection was made as to the inadequacy of the colloquies at any time nor was the issue raised on appeal.” The court thus determined that the claim was “waived” because it could have been previously raised. Miller II, 987 A.2d at 661. By explicitly stating that the substantive constitutional claim was waived, the court made a “plain statement” that this claim was procedurally barred. Harris, 489. U.S. at 262-63, 109 S.Ct. 1038.

As noted above, a disposition pursuant to a state procedural rule prevents federal review only where the procedural rule - in question is “firmly established, readily ascertainable, and regularly followed.” Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir. 2001); see also Ford v. Georgia, 498 U.S. 411, 424-25, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (finding a rule not announced at the time of the default is not firmly established). The procedural rule must be firmly established and regularly followed “as of the date the default occurred, not the date the state court relied on it, because a petitioner is entitled to notice of how to present a claim in state court.” Fahy v. Horn, 516 F.3d 169, 188 (3d Cir. 2008) (citing Taylor, 504 F.3d at 428).

Historically, Pennsylvania applied a “relaxed waiver rule” which allowed petitioners in capital cases to bring claims on the merits which were not raised in the lower courts. See Commonwealth v. McKenna, 476 Pa. 428, 439, 383 A.2d 174 (1978); Fahy, 516 F.3d at 188; Taylor, 504 F.3d at 428. Citing concerns of judicial efficiency and finality, the Pennsylvania Supreme Court stopped applying the relaxed waiver rule to capital cases in 1998. Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699-701 (1998). As a result, Respondents contend that the relaxed waiver rule does not apply to Petitioner’s claim that the jury waiver colloquy was defective. (Resp. at 17-21.) Petitioner counters that his direct appeal went before the Pennsylvania Supreme Court on November 18, 1998, five days before the court announced its rejection of the relaxed waiver rule in Albrecht, and, accordingly, the change in waiver rule was not firmly established and regularly followed at the time of the supposed waiver. (Reply at 5-6.)

Federal courts on habeas review have encountered Pennsylvania’s change in waiver rules before, and have consistently found that claims argued before the Al-brecht decision are not procedurally barred by the change in waiver rules. See, e.g., Morris v. Beard, 633 F.3d 185, 190-91, 195-96 (3d Cir. 2011) (applying the relaxed waiver rule to statute of limitations for PCRA appeals because the default occurred in 1996); Laird v. Horn, 414 F.3d 419, 425 (3d Cir. 2005) (affirming the district court’s decision that the petitioner’s failure to raise his claim on direct appeal did not procedurally bar his federal claim because Pennsylvania used the relaxed waiver rule at the time he filed the appeal); Bronshtein v. Horn, 404 F.3d 700, 709 (3d Cir. 2005) (holding that the relaxed waiver rule applied to procedural default occurring October 20, 1998); Jermyn v. Horn, 266 F.3d 257, 279 (3d Cir. 2001) (finding no procedural default despite the state court finding that the claim was waived because, at the time of default, the Pennsylvania Supreme Court routinely reached the merits on such claims in capital cases). Here, the procedural default occurred when trial counsel failed to object to the jury waiver colloquy on October 2, 1997, and when he failed to raise the issue on direct appeal on August 7, 1998. See Fahy, 516 F.3d at 188. Because these events occurred before Pennsylvania’s waiver rule was firmly established and regularly followed, the application of the waiver rule is not an adequate ground to prevent federal review. Laird, 414 F.3d at 425. Consequently, Petitioner’s claim that his sentencing colloquy was constitutionally deficient is not procedurally defaulted, and I will examine this claim on the merits. Id.

3. Claim VII: Did the Prosecutor Improperly Offer Victim Impact Evidence at Sentencing, and Was Counsel Ineffective for Failing to Object and Raise This Issue on Ap- . peal?

Petitioner’s seventh claim is that the prosecutor committed misconduct in offering inadmissible victim impact testimony during the penalty phase. There, Petitioner’s daughter, Barbara Miller, held up a picture of her deceased mother and testified how her life had gone “downhill” after her death. The prosecutor urged the court to consider the effect of Petitioner’s crime on the victim’s family after having stated that other members of the victim’s family declined to testify because it would be “too emotional.” In the same claim, Petitioner relatedly asserts that counsel was ineffective for not objecting at the time or raising the issue on direct appeal. (Br. at 101-02.)

On PCRA appeal, the Pennsylvania Supreme Court dismissed the ineffectiveness claim because Petitioner failed to show prejudice because the prosecutor’s comments were “innocuous” and the PCRA court had found that the victim impact evidence had no effect on the verdict ultimately rendered. Miller II, 987 A.2d at 669-70. This determination “rests primarily on federal law” because the court performed an ineffectiveness analysis. Coleman, 501 U.S. at 735, 111 S.Ct. 2546. Since there is no counteracting “plain statement” that the state court resolved this claim on the basis of an independent procedural rule, there is no procedural bar. Harris, 489 U.S. at 262-63, 109 S.Ct. 1038; see Miller II, 987 A.2d at 669-70 (discussing petitioner’s victim impact claim, but making no reference to a procedural bar).

While the Pennsylvania Supreme Court clearly reached the merits of this ineffectiveness of counsel claim, Respondents argue that the underlying substantive claim of prosecutorial misconduct is proeedurally defaulted because Petitioner failed to raise it on direct appeal. (Resp. at 62.) Respondents are correct that the Pennsylvania Supreme Court did not address the underlying claim of prosecutorial misconduct. See Miller II, 987 A.2d at 669-70 (determining only that counsel’s failure to object did not prejudice Petitioner). This stands in contrast to the court’s handling of claim six, where it explicitly noted a distinction between counsel’s allegedly ineffective failure to object to a waiver colloquy and the underlying claim that the colloquy was deficient. See id. at 661 (finding that “for purposes of the PCRA, the claim was waived because it could have been raised previously” and “[consequently, in order to obtain relief on this claim Appellant was obliged to establish that trial counsel was ineffective”).

The Pennsylvania Supreme Court’s failure to address the substance of claim seven does not render it proeedurally defaulted. Indeed, “[i]t is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner’s brief in the state court.” Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (quoting Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978)). Petitioner’s claims need only be “presented to the state courts; they need not have been considered or discussed by those courts.” Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984) (emphasis in original).

Additionally, mere silence on this issue cannot imply a procedural bar. Ylst, 501 U.S. at 805, 111 S.Ct. 2590. Where the highest court is silent on whether the disposition of an issue rests on the merits or an independent procedural rule, courts “look through” the highest court’s ruling to the decision of the lower court. Id. Where the upper court fails to address an issue, the “look through” doctrine assumes agreement with the lower court’s disposition of the claim. Id. at 804, 111 S.Ct. 2590.

Here, the PCRA trial court clearly ruled on the substantive claim of prosecutorial misconduct. Commonwealth v. Miller, No. 61-96, 2007 WL 7299000, at *36-38 (Pa. Ct. Com. PL July 2, 2007) (finding that “there was nothing improper about” asking the witness to show a picture to the court, and comments made during closing arguments “were neither improper nor prejudicial”). In fact, the lower court never once mentioned ineffective assistance of counsel when discussing the alleged misconduct during sentencing.

Nonetheless, there is some ambiguity as to whether Petitioner presented the substantive prosecutorial misconduct claim to the Pennsylvania Supreme Court on PCRA appeal. (Pet’r’s Supreme Court Br. at 90-92.) On one hand, Petitioner’s brief dedicates two pages to discussing the ways in which the prosecution’s victim impact evidence violated applicable law, and a mere two sentences to addressing defense counsel’s alleged failures. (Id.) On the other hand, Petitioner stated, in reference to Commonwealth v. McNeil, 679 A.2d 1253, 1259-60, that “[t]here, as here, the issue was whether counsel was ineffective for failing to object to the victim impact evidence.” (Pet’r’s Supreme Court Br. at 92 (emphasis added.)) Ordinarily, issues are not fairly presented if the court must read beyond Petitioner’s brief, petition, or similar submission to discover a federal claim. Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004).

Ultimately, I will treat the claim of prosecutorial misconduct as presented because the Pennsylvania Supreme Court effectively resolved this substantive issue on the merits through their analysis of the ineffectiveness claim. Prosecutorial misconduct claims require a showing that the prosecution “so infeet[s] the trial with unfairness as to make the resulting conviction a denial of due process.” Moore v. Morton, 255 F.3d 95, 105 (3d Cir. 2001). Much like an ineffectiveness claim, courts must consider the extent to which the prosecution’s conduct prejudiced Petitioner. Id. at 107. In considering the ineffectiveness claim, the Pennsylvania Supreme Court determined there was no prejudice resulting from the prosecutor’s actions because the prosecutor’s comments were “innocuous,” and because the lower PCRA court did not consider the victim impact evidence in reaching its verdict. Miller II, 987 A.2d at 669-70. In its finding of no prejudice, the court effectively determined the prosecutorial misconduct claim as well. Moore, 255 F.3d at 105. Because the underlying purpose of the procedural default doctrine is to allow state courts the opportunity to address alleged violations of federal law, the basic purpose of the procedural default doctrine is not undermined by federal review of this claim. Coleman, 501 U.S. at 731-32, 111 S.Ct. 2546.

4. Claim VIII: Were Petitioner’s Waivers of Both the Right to a Jury Trial and to Testify in His Defense at the Guilt Phase Invalid Because They Were the Result of Unreasonable Advice from Counsel?

Petitioner’s eighth claim is that defense counsel’s failure to investigate and develop his case made Petitioner’s waiver of the right to a jury trial and to testify in his own defense the product of ineffective assistance of counsel. (Br. at 109.) The Pennsylvania Supreme Court denied this ineffectiveness claim for two reasons. First, the court found that trial counsel’s investigation and preparation were adequate. Miller II, 987 A.2d at 660. Second, the court concluded that Petitioner failed to show prejudice because he made no showing that he would not have waived these rights “but for counsel’s alleged ineffectiveness.” Id. This effectiveness determination “rests primarily on federal law” because the court applied the ineffectiveness standard and found two separate flaws with Petitioner’s claim. Coleman, 501 U.S. at 735, 111 S.Ct. 2546. Since there is no “plain statement” that the state court resolved this claim on the basis of an independent procedural rule, there is no procedural bar. Harris, 489 U.S. at 262-63, 109 S.Ct. 1038; see Miller II, 987 A.2d at 659-61 (discussing Petitioner’s waivers at trial, but making no reference to a procedural bar to these claims).

Respondents do not appear to dispute that there is no procedural bar to this claim of ineffectiveness, but argue that “the substantive issue of whether Miller lawfully waived his right to a jury trial and his right to testify is proeedurally defaulted.” (Resp. at 65.) In his reply, Petitioner clarifies that this claim is “only raised as an ineffective assistance of counsel claim,” and he did not intend to bring the substantive claim of whether the waivers were constitutionally defective. (Reply at 48.) Thus, Respondents’ argument as to the procedural default of the underlying substantive claim is irrelevant, and I will address only the ineffectiveness claim on the merits.

III. THE MERITS OF PETITIONER’S CLAIMS

I now turn to the merits of Petitioner’s claims. I will first set out the legal standard for the issuance of the writ of habeas corpus, and the Strickland standard, which applies to Petitioner’s various claims of counsel’s ineffectiveness.

A. Legal Standard for Issuance of the Writ of Habeas Corpus

Where the federal court reviews a claim that has been adjudicated on the merits by the state court, § 2254(d) permits the granting of a petition for habeas corpus only if (1) the state court’s adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;” or (2) the adjudication “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)(1) — (2); see Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 2151-53, 183 L.Ed.2d 32 (2012) (reiterating that the standard under § 2254(d)(1) is highly deferential to state court decisions and overturning the Sixth Circuit’s decision granting habeas relief because the state courts decision denying relief was not objectively unreasonable). Factual determinations made by the state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010) (citing 28 U.S.C. § 2254(e)(1)); Simmons v. Beard, 590 F.3d 223, 231 (3d.Cir. 2009) (same).

Interpreting this statutory language, the Supreme Court has explained that “[u]nder the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to “the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Cf. at 413, 120 S.Ct. 1495. The “unreasonable application” inquiry thus requires the habeas court to “ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. As the United States Court of Appeals for the Third Circuit stressed, “[A]n unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court’s incorrect or erroneous application of clearly established federal law was also unreasonable.” Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing Williams, 529 U.S. at 411, 120 S.Ct. 1495).

Where the state court decision does not constitute an “adjudication on the merits,” but the petitioner’s claim is ripe for habeas review, § 2254 does not apply and instead the federal court applies the pre-AEDPA standard, reviewing pure legal questions and mixed question of law and fact de novo. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). The state court’s factual determinations, however, are still presumed correct pursuant to § 2254(e)(1).

B. The Strickland Standard

Several of Petitioner’s claims implicate alleged ineffective assistance of counsel as a basis for a claim of relief under the Sixth Amendment. My discussion of these claims is thus guided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). According to Strickland, counsel is presumed to have acted effectively unless the petitioner can demonstrate both that (1) “counsel’s representation fell below an objective standard of reasonableness” and (2) there was “a reasonable probability that, but for counsel’s unprofessional-errors, the result of the proceeding would have been different.” Id. at 686-88, 693-94, 104 S.Ct. 2052. In assessing whether counsel performed deficiently, the court must “ ‘reconstruct the circumstances of counsel’s challenged conduct’ and ‘evaluate the conduct from counsel’s perspective at the time.’ ” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 779, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Nonetheless, because the “ultimate focus of the inquiry [is] on the fundamental fairness of the proceeding whose result is being challenged ... a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 696-97, 104 S.Ct. 2052. In fact, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which [the Supreme Court] expect[s] will often be so, that course should be followed.” W. at 697, 104 S.Ct. 2052.

C. Petitioner’s Claims

1. Claim I: Was Petitioner’s Counsel Ineffective for Failing to Effectively Investigate, Prepare, and Present Evidence that the Petitioner Acted in the Heat of Passion?

The heat of passion defense reduces a homicide from first-degree murder to voluntary manslaughter when, “at the time of the killing, [the defendant] is acting under a sudden and intense passion resulting from serious provocation by.. .the individual killed.” 18 Pa. C.S. § 2503(a). While trial counsel relied on this defense at trial, Petitioner contends that- counsel was ineffective for failing to investigate, prepare, and present additional evidence that he acted in the heat of passion. Petitioner faults counsel for failing to call Dr. Gerald Cooke, a psychologist, who testified at the PCRA hearing that he would have opined that “Petitioner killed his wife ‘consistent with explosive rage.’ ” Petitioner further faults counsel for failing “to obtain records showing that two days before the victim was killed, Petitioner was served with an Order of child support, even though they were living together,” and for failing to interview family members who had information that was helpful to this defense. (Br. at 7-27.)

a. Trial Evidence

In his closing argument, Petitioner’s trial counsel argued “that this was a crime of rage[,] that there was no malice in Dennis Miller towards Sherry Miller [and that] [t]he killing was done as a result of an uncontrollable act.” Counsel urged the judge to “look to the subtle testimony here a little bit and the testimony that came out about their relationship, the testimony that came out about what occurred at Trib’s Waystation [the bar where Petitioner and the victim were] that night and how one witness told you that Dennis seemed to snap into a rage and then he was able to calm himself down.” (N.T. 10/01/97 at 267-68.)

The testimony referred to above about Petitioner’s relationship with the victim came from Agnes Miller, Petitioner’s mother. She testified that her son’s relationship with the victim was rocky and riddled with substance abuse, and that while they “ha[d] a good marriage [] at the start,” the marriage deteriorated because “both of them had a problem with drugs... and drinking.” (N.T. 09/29/97 at 30.) Additionally, one of the state troopers who investigated the missing person’s report, and ultimately found the victim’s body, testified that he was familiar with Petitioner’s history of drug use and that during the missing person’s investigation, the victim’s mother and Petitioner’s sister had expressed concerns to him about the couple’s drug use. (Id. at 43-44.)

The witness who discussed how Petitioner snapped into a rage at the bar on the night of the murder was the bartender, Lisa Folk. Ms. Folk testified that at around 11 p.m., when another man at the bar was talking to the victim, “[Petitioner] just got a real angry, evil look on his face [ ]. Yelled across the bar, I don’t need this shit.. .He was like in a rage.” She continued, stating that Petitioner then went over to talk to the victim, “they like worked it out,” and Petitioner calmed down. Later in the night, at around midnight, the victim asked Ms. Folk to beep Sean Smith (who was mentioned in the note that Petitioner left at the scene), and the victim then spoke to Smith when he called the bar back. Shortly thereafter, the victim asked Ms. Folk if she could go into the bathroom with Petitioner so that they could do a “line” of methamphetamine together. Ms. Folk saw them go into the bathroom, and then she saw them leave the bar sometime after 12:30 a.m. (N.T. 09/30/97 at 213-19.)

b. The PCRA Hearing

i. Expert Testimony

At the PCRA hearing, Petitioner presented the testimony of Dr. Gerald Cooke, a clinical and forensic psychologist who evaluated Petitioner before trial and testified at the penalty phase hearing, and Dr. Julia Kessel, a psychiatrist who examined Petitioner before the PCRA hearing. At the penalty phase hearing, Dr. Cooke testified that Petitioner told him that, on the night of the murder, after he and the victim had sex, “he went into a rage and grabbed a knife that was by the side of the bed” after the victim told him “that she wanted him to move out the next day and was moving her boyfriend Sean in.” Although Dr. Cooke had been aware of Petitioner’s drug use, and further testified at the penalty phase hearing that Petitioner “is an angry man” who “can go into rages particularly when he’s disinhibited by alcohol and drugs,” trial counsel did not call him to testify in support of the heat of passion defense during the guilt phase of the trial. (N.T. 10/02/97 at 293-302.)

At the PCRA hearing, Dr. Cooke testified about additional evidence and information that he had learned after trial and sentencing. Dr. Cooke relayed that he learned the victim had a support order issued against Petitioner two days before the murder, and that Barbara Miller, the daughter of Petitioner and the victim, believed that a knife was kept in the night stand in the room where the homicide occurred. Dr. Cooke also testified that he had not been aware that, under Pennsylvania law, a series of cumulative events would be relevant to whether there was sufficient provocation. With the benefit of this additional information, Dr. Cooke stated that, “[i]n [his] opinion, [Petitioner] was in an explosive rage... [and] would have met the heat of passion defense.” (N.T. 10/23/03 at 445.) Dr. Cooke elaborated as follows:

There are a number of factors. It starts with the diagnosis itself. And that is, we have somebody who is, by virtue of his personality makeup, can be easily provoked to become angry, to see himself as being slighted, mistreated, rejected and to react with an intent to rage to that kind of perception.

Secondly, assuming that there is substantial evidence of drug and alcohol use during the period prior to that, that the drugs and alcohol would have contributed by disinhibiting him, as I explained before. Thirdly, I now know about the child support order, which I was not aware of before. Fourth, would have 'been Sherry Miller’s affair with Sean Smith and the telephone calls to him that night, and I was aware of those. Fifth would have been her demand to move out and Sean move in as they lay there in bed, and I was aware of that. But, finally, Barbara Miller’s statement that her mother kept a knife in the bedroom where she was stabbed, and I was not aware of that piece of information and now that plays a factor as well.

(Id. at 445-46.) At the PCRA hearing, Dr. Kessel testified similarly to Dr. Cooke, stating:

My opinion is that at the time that [Petitioner stabbed the victim], he had experienced a sequential number of stressors in their relationship that were provocative. And on the evening that this occurred, he experienced, in response to discussion and a series of events, a sudden and intense rage that cause him to lose control of his behavior, to put it simply, on that evening.

(Id. at 544.) Dr. Kessel explained that she based this opinion on a variety of factors. She testified that between 1991 and 1995, the victim was involved with two other men, which “caused [Petitioner] to feel very betrayed and hurt, and yet also did not interrupt the cycle that had become their pattern, which was to break up, get back together, break up, get back together, and become violent in between.” She testified that Petitioner “became increasingly violent[,]... spen[ding] 10 months in jail for violating a protection from abuse order,” and that after he got out of jail (two months before the murder) the couple’s drug use escalated. Though there was still a protection from abuse order, the couple lived together, and on the week prior to the murder Petitioner learned that the electric and phone bill in their home was in another man’s name, which only escalated his “sense of betrayal, his anger, his feeling of hurt.” (Id. at 544 — 46.)

Dr. Kessel testified that on the morning of the murder, Petitioner “had been served with [child support] papers suggesting that [the victim] actually was going to ask him to leave.” At the bar, on the evening of the murder, the victim talked on the phone and in person with other men, which made Petitioner “very angry, suspicious, and jealous.” After the couple went home, according to the account which Petitioner gave to Dr. Kessel, he and the victim “danced and had sex, but as they went upstairs to go to bed [ ] he began to accuse her of who was this man that she was talking to at the bar, and was she having a relationship with him, and who was on the phone.” Dr. Kessel continued that “they began to argue about the sincerity of her wanting to come back to him, and his feeling distrustful of her. And in the escalation of that discussion she acknowledged that she had been on the phone with this man.” Dr. Kessel concluded that “those are some of the events that precipitated this sudden and intense rage.” (Id. at 546^17.)

ii. Family Testimony

Petitioner presented the testimony of several family members at the PCRA hearing, including his mother, Agnes Miller (who also testified during trial), one of his sisters, Brenda Miller, the victim’s sister, Helen Pennington, and his daughter, Barbara Miller. Agnes Miller testified that her son and the victim used drugs, fought a lot, and broke up several times. After he was released from jail, about two months before the murder, Petitioner came to live with her. Petitioner then moved back in with the victim, but soon returned to his mother’s house. Petitioner’s mother further testified that, shortly before the murder, the victim came and begged Petitioner to come back with her. Petitioner then told his mother that he loved the victim and was getting back with her. (N.T. 10/28/03 at 364-66.)

Helen Pennington, the victim’s sister, testified that she took her sister to get an abortion. The victim told Ms. Pennington that Petitioner was not the father, but rather Larry Brown. (Id. at 513, 517.) (Larry Brown’s name was also mentioned in the note which Petitioner left at the scene of the crime.) In this regard, Petitioner’s sister, Brenda Miller, testified that in 1993 or 1994 Petitioner told her that the victim had an abortion of another man’s child, and that she could see, at the time, that Petitioner was upset by this. (N.T. 10/29/03 at 428.)

Barbara Miller, the couple’s daughter, testified that while her early childhood was a “normal, nice life,” her parents started having problems as she got older. She testified that they would fight about money and drugs, and that her parents broke up a few times. She stated that while her father was in jail before the murder, another man, Sean Smith, stayed at their house. In addition, Barbara testified that two knives were kept in the bedroom where her mother was killed, and that the bed was already broken before the murder. Barbara stated that she would have been willing to testify about this at trial. (N.T. 10/28/03 at 378-89.)

iii. The Pennsylvania Supreme Court Opinion

On PCRA appeal, the Pennsylvania Supreme Court addressed whether counsel was ineffective for failing to investigate, prepare, and present evidence that Petitioner acted in the heat of passion. In so doing, the court focused primarily on the prejudice prong of StricMand, beginning its analysis by laying out the legal framework for the heat of passion defense.

A person is guilty of “heat of passion” voluntary manslaughter “if at the time of the killing [he or she] reacted under a sudden and intense passion resulting from serious provocation by the victim.” Commonwealth v. Ragan, [ ] 560 Pa. 106, 743 A.2d 390, 396 (1999). “ ‘Heat of passion’ includes emotions such as anger, rage, sudden resentment or terror which renders the mind incapable of reason.” Commonwealth v. Mason, [ ] 559 Pa. 500, 741 A.2d 708, 713 (1999). An objective standard is applied to determine whether the provocation was sufficient to support the defense of “heat of passion” voluntary manslaughter. Commonwealth v. Laich, [ ] 566 Pa. 19, 777 A.2d 1057, 1066 (2001). “The ultimate test for adequate provocation remains whether a reasonable man, confronted with this series of events, became impassioned to the extent that his mind was incapable of cool reflection.” Commonwealth v. Thornton, [ ] 494 Pa. 260, 431 A.2d 248, 252 (1981).

Miller II, 987 A.2d at 649-50.

The court then noted that the PCRA court had stressed that “the refusal of Appellant to testify handicapped trial counsel because he was unable, without Appellant’s testimony, to establish Appellant’s state of mind at the time of the killing.” Id. at 650. The Supreme Court concurred with the assessment of the PCRA court, stating that, without Appellant’s testimony, “the additional evidence fails to establish that the killing resulted from a sudden and intense passion resulting from serious provocation caused by the victim contemporaneously with the killing.” Id. The court elaborated on this point:

[W]ere we to consider the additional evidence and testimony Appellant claims trial counsel was ineffective for not presenting at trial, which concerns his wife’s alleged infidelity and their stormy relationship, it is clear that the evidence still was insufficient to conclude that the killing was committed in the heat of passion as the record is devoid of evidence that at the time the victim was murdered, Appellant was acting under a sudden or intense passion brought on by the victim. While Appellant claims that the victim’s apparent infidelity and flirtatiousness, when coupled with his own mental state, were sufficient to cause him to act with sudden and intense passion, we note Appellant was well aware of his wife’s proclivities prior to the day of the killing and trial counsel introduced evidence establishing this. Thus, the evidence Appellant claims should have been introduced on this issue was merely cumulative of evidence already presented at trial. Moreover, the evidence shows that although Appellant and his wife argued while together at the bar, he calmed down and appeared to be in control of his faculties following the argument. N.T. 9/30/97, 213, 220. Also the note Appellant left at the scene evinces that he had not acted in the “heat of passion” but rather in a calculating manner.

Id. at 650-51. In light of having concluded that there was an “absence of evidence about what precipitated the killing,” the court found “the testimony of the expert witnesses was irrelevant,” in that there must be evidence of provocation before inquiring into the defendant’s state of mind at the time of killing. Id. at 652 (citing Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972)).

c. Petitioner’s Arguments

Petitioner urges that his trial counsel was ineffective on the heat of passion issue and singles out three aspects of the Pennsylvania Supreme Court’s PCRA appeal opinion as being an unreasonable determination of the facts. First, he points to trial counsel’s alleged deficient investigation regarding heat of passion. He stresses that the court unreasonably ignored evidence that, on the evening of the homicide, the victim demanded that Petitioner move out since her boyfriend Sean Smith was moving in with her. (Br. at 20.)

As the Supreme Court noted, Petitioner did not testify at trial, nor did he testify at the PCRA hearing. Instead, evidence that the victim demanded on the night of the murder that Petitioner move out was presented at the PCRA hearing through the testimony of Dr. Cooke and Dr. Kessel, who testified that Petitioner told them of the victim’s demand in their out-of-court evaluations of him. This information was important to Dr. Cooke and Dr. Kessel because it informed their opinions that Petitioner killed the victim while in a “rage.” Nevertheless, in the absence of Petitioner’s testimony, it was entirely reasonable for the Pennsylvania Supreme Court to choose not to rely on the experts’ secondhand, and after-the-fact, account of what happened before the murder. This argument therefore fails.

Second, Petitioner contends that, because “hardly any evidence of provocation was presented” at trial, the “Supreme Court’s assertion that the post-conviction evidence was ‘cumulative’ of what was presented at trial was unreasonable.” (Br. at 21.) As noted above, Petitioner’s mother testified during the trial that the relationship between Petitioner and the victim was riddled with instability and substance abuse, and Lisa Folk, the bartender, testified about Petitioner’s “rage” and the couple’s drug use at the bar on the evening of the murder. At the PCRA hearing, Petitioner’s mother testified about the couple’s drug use and how they broke up and got back together prior to the murder. Petitioner’s daughter testified that another man was living at the house when Petitioner was in jail, and that two knives were kept in the bedroom where the victim was killed. Between the testimony of Petitioner’s sister and the victim’s sister there was evidence presented that the victim had an abortion in 1993 or 1994, that another man was the father, and that Petitioner knew about the pregnancy and was upset by it. The expert witnesses concluded that, in light of this and other information, Petitioner killed the victim while in an “explosive” or “sudden and intense rage.”

While I agree that the post-conviction evidence from the family members and Dr. Cooke and Dr. Kessel was more expansive than that which was presented at trial, I do not find the Pennsylvania Supreme Court’s characterization of this evidence as “cumulative” to be unreasonable. The post-conviction evidence simply elaborated upon the trial evidence of the couple’s unstable relationship and drug use, and did not shed any light on what occurred immediately before the murder. Significantly, the post-conviction evidence did not include Petitioner’s testimony, nor did it include the testimony of any witnesses who saw Petitioner and the victim after they left the bar. Because the Supreme Court’s determination of the facts here was reasonable, this argument also fails.

Petitioner’s third argument is closely related his second argument. He asserts that the court unreasonably concluded that “evidence showing a history of minor disputes and allegations of past infidelity has not been held to be sufficiently provocative.” Petitioner contends that the decisions the court cited to in support of this proposition “did not involve the level of provocation in Petitioner’s case.” (Br. at 21.) Respondents reply that although this is presented as an unreasonable factual determination, it is better understood as an “argument that the [court] did not follow state law, which is not a ground for federal habeas relief.” (Resp. at 27-28.)

I need not delve into this issue of whether this claim is cognizable. Rather, I view Petitioner’s argument here as going directly to the ultimate prejudice inquiry of Strickland, i.e., whether there was a reasonable probability that an objective fact-finder would have concluded, with the benefit of the additional evidence presented at the PCRA hearing, that Petitioner acted in the heat of passion. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The answer to this question is “no.” As explained above, Petitioner did not present any meaningful evidence at the PCRA hearing regarding what actually occurred in the time period immediately preceding the murder. Instead, and as the Supreme Court noted, the evidence at trial indicated that Petitioner and the victim argued while they were at the bar on the evening of the murder, and Petitioner calmed down before they left. Additionally, the note which Petitioner left at the scene recounted how he perceived the victim and others to have wronged him, and did not lend support to a heat of passion defense. Because Petitioner was not prejudiced by trial counsel’s failure to present the additional evidence pertaining to the heat of passion defense at trial — and the Pennsylvania Supreme Court’s conclusion in this regard was reasonable — Petitioner is due no relief on this claim.

2. Claim II: Was Petitioner’s Counsel Ineffective for Failing to Adequately Investigate, Prepare, and Present Testimony to Rebut the Commonwealth’s Allegations that the Victim Was Raped?

Petitioner next argues that trial counsel was ineffective within the meaning of Strickland for failing to adequately investigate, prepare or present testimony to rebut the Commonwealth’s rape allegation. He specifically takes issue with counsel’s failure to consult with an expert before trial regarding the Commonwealth’s rape evidence, which he describes as forensic and circumstantial. Petitioner urges that but for the ineffective assistance of counsel, there is a reasonable probability that he would not have been convicted of rape. Because the finding of rape during the commission of the homicide was the sole aggravating factor leading to the death sentence, Petitioner contends that he is entitled to habeas relief both with respect to his rape conviction and his death sentence. (Br. at 27-39.)

a. Dr. Callery’s Testimony and Expert Opinion

The testimony of Dr. Richard T. Callery,