Full opinion text
OPINION OF THE COURT GREENBERG, Circuit Judge. Petitioner Keith W. Zettlemoyer appeals to this court from an order of the United States District Court for the Middle District of Pennsylvania entered May 31, 1988, dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291. We will affirm the order of the district court dismissing Zettlemoyer’s petition. I. PROCEDURAL AND FACTUAL HISTORY Zettlemoyer murdered Charles DeVetsco on October 13, 1980, one week before De-Vetsco was to be a witness for the Commonwealth of Pennsylvania at a trial of several felony charges against Zettlemoyer. Two police officers arrested Zettlemoyer, who was heavily armed, after they heard the shots that killed DeVetsco at a railroad yard in Harrisburg in the early morning hours. The unmistakable inference from the evidence is that Zettlemoyer, who knew that DeVetsco was to be a witness at the ensuing trial, kidnapped and executed him so that he could not testify. At the murder trial in the Dauphin County Court of Common Pleas, Zettlemoyer did not contest that he had killed DeVetsco but presented a defense of “diminished capacity.” The jury returned a verdict of guilty of first degree murder and on the same day determined that a death sentence should be imposed under 42 Pa.Cons.Stat.Ann. § 9711 (Purdon 1982 & Supp.1990), the germane portions of which provide: (a) Procedure in jury trials.— (1) After a verdict of murder of the first degree is recorded and before the jury is discharged, the court shall conduct a separate sentencing hearing in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment. (2) In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d). (3) After the presentation of evidence, the court shall permit counsel to present argument for or against the sentence of death. The court shall then instruct the jury in accordance with subsection (c). (c)Instructions to the jury.— (1)Before the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters: (i) the aggravating circumstances specified in subsection (d) as to which there is some evidence. (ii) the mitigating circumstances specified in subsection (e) as to which there is some evidence. (iii) aggravating circumstances must be proved by the Commonwealth beyond a reasonable doubt; mitigating circumstances must be proved by the defendant by a preponderance of the evidence. (iv) the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases. (d) Aggravating circumstances. — Aggravating circumstances shall be limited to the following ... (5) The victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses. (e) Mitigating circumstances. — Mitigating circumstances shall include the following: (1) The defendant has no significant history of prior criminal convictions. (2) The defendant was under the influence of extreme mental or emotional disturbance. (3) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. (4) The age of the defendant at the time of the crime. (5) The defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution ... or acted under the substantial domination of another person. (6) The victim was a participant in the defendant’s homicidal conduct or consented to the homicidal acts. (7) The defendant’s participation in the homicidal act was relatively minor. (8) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense. 42 Pa.Cons.Stat.Ann. §§ 9711(a)-(e). After the Court of Common Pleas denied Zettlemoyer’s post-trial motions, he filed a direct appeal to the Supreme Court of Pennsylvania which affirmed his conviction and sentence. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Zettlemoyer then filed a petition seeking a new trial in the Court of Common Pleas under Pennsylvania’s Post-Conviction Hearing Act (“PCHA”), 42 Pa.Cons.Stat.Ann. §§ 9541-9551, but on August 26, 1985, that court denied the petition without a hearing. Commonwealth v. Zettlemoyer, 106 Dauphin County Repts. 215 (1985). Zettlemoyer appealed from the denial of the petition to the Superior Court which affirmed on July 2, 1986. Commonwealth v. Zettlemoyer, 359 Pa.Super. 631, 515 A.2d 620 (1986). He then sought leave of the Supreme Court of Pennsylvania to appeal, but that application was denied by order dated December 23, 1986. Commonwealth v. Zettlemoyer, 513 Pa. 34, 518 A.2d 807 (1986). Zettlemoyer then filed a petition for a writ of certiorari in the United States Supreme Court on February 13, 1987, but it, too, was denied on April 6, 1987. Zettlemoyer v. Pennsylvania, 481 U.S. 1007, 107 S.Ct. 1634, 95 L.Ed.2d 207 (1987). On July 17, 1987, Zettlemoyer filed his petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania challenging the constitutionality of the Pennsylvania death penalty statute, alleging errors by the trial court, and asserting that he had had ineffective assistance of trial counsel. In the petition Zettlemoyer set forth that he was arrested while heavily armed in the early morning hours of October 13, 1980, when the police officers heard the gun shots. Zettlemoyer admitted being acquainted with DeVetsco and acknowledged that De-Vetsco was scheduled to testify against him in criminal proceedings in Snyder County. Zettlemoyer made no claim in the petition that he had not murdered DeVet-sco. Zettlemoyer set forth that the Pennsylvania death penalty statute is unconstitutionally mandatory and vague, and unconstitutionally shifts the risk of nonpersuasion because defendants must prove mitigating circumstances by a preponderance of the evidence. He also urged that his trial counsel was ineffective in failing to present competent psychological testimony on the issue, central to his defense, of diminished capacity, and in failing to present psychological testimony at the sentencing phase. He asserted that the trial court improperly instructed the jury that it had no responsibility for imposition of the death penalty and thus violated the holding in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), that it is constitutionally impermissible to rest a death sentence on a determination made by a sen-teneer led to believe that responsibility for determining the appropriateness of the defendant’s death rests elsewhere. He further contended that the trial court erred by failing to instruct the jury that if it was unable to agree unanimously that the death penalty should be imposed, it was free to decide by less than a unanimous vote to impose a life sentence under 42 Pa.Cons. Stat.Ann. § 9711(c)(1). The district court dismissed the petition in a memorandum opinion and order. Zettlemoyer v. Fulcomer, No. 87-0993 (M.D.Pa. May 31, 1988). It explained that the Pennsylvania death penalty statute is not unconstitutionally mandatory because it “mandates a sentence of death only after a jury acting with channeled discretion finds that aggravating circumstances outweigh mitigating circumstances.” Id. at 20 (citing Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Commonwealth v. Cross, 508 Pa. 322, 496 A.2d 1144 (1985)). The court continued that the statute is not unconstitutionally vague because “[ujnder Pennsylvania law, the Commonwealth has the burden of proving beyond a reasonable doubt every element of the offense in the guilt phase of the trial, as well as proving the aggravating circumstances beyond a reasonable doubt.” Zett-lemoyer, slip op. at 21. It reasoned that the statute eliminates total arbitrariness and capriciousness and appropriately channels the sentencer’s discretion because it “focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.” Id. (quoting Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976)). The court also rejected Zettlemoyer’s challenge that the statute impermissibly shifts the risk of nonpersuasion to defendants, citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), for the holding that it was proper to place the burden of proving an affirmative defense on the defendant. Zettlemoyer, slip op. at 22. The court rejected Zettlemoyer’s argument that his trial counsel was ineffective for not identifying and retaining a psychiatrist or specially-qualified psychologist competent to offer an expert opinion on his ability to form the specific intent to commit first degree murder, as he did not demonstrate prejudice from this omission. Id. at 13 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984) (defendant must show counsel’s deficient performance prejudiced defense so that it deprived him or her of a fair judicial proceeding with reliable re-suit)). Likewise, the court found that counsel was not ineffective for failing to recall the psychologist who testified during trial at the sentencing phase because Zettlemoyer’s father testified at the sentencing hearing, thus reinforcing his diminished capacity defense in the minds of the jury. Zettlemoyer, slip op. at 30. Finally, the court found that the trial court’s charge, when taken in its entirety, “properly explained to the jury the role which they were to play in weighing the aggravating and mitigating circumstances.” Id. at 32. Additionally, the court found that the entire charge complied with the requirements of 42 Pa.Cons.Stat. Ann. § 9711(c)(1) because “the court informed the jury that the only possible way it could return a sentence of death would be if the Commonwealth proved beyond a reasonable doubt, and the jury unanimously agreed, that there was an aggravating circumstance and no mitigating circumstances, or that the aggravating circumstances outweighed any mitigating circumstances.” Zettlemoyer, slip op. at 32. The court, therefore, dismissed the petition, stating in its order that “any appeal from this order will be deemed frivolous, lacking in probable cause and not taken in good faith.” Id. at 35. Zettlemoyer then appealed to this court on June 29, 1988, and we subsequently issued a certificate of probable cause and scheduled oral argument for March 30, 1989. However, on March 27, 1989, the United States Supreme Court granted cer-tiorari in Blystone v. Pennsylvania, 489 U.S. 1096, 109 S.Ct. 1567, 103 L.Ed.2d 934 (1989), on the question of whether the Pennsylvania death penalty statute is unconstitutional because “it improperly limits the full discretion the sentencer must have in deciding the appropriate penalty for a particular defendant.” Accordingly, though we did hear oral argument on March 30, 1989, we deferred decision on the appeal pending disposition of Blystone. On February 28, 1990, the Supreme Court held that the Pennsylvania death penalty statute, notwithstanding its “mandatory” language, satisfies the requirement that a capital-sentencing jury be allowed to consider and to give effect to all relevant mitigating evidence and, therefore, does not violate the Eighth Amendment’s proscription against cruel and unusual punishment. Blystone v. Pennsylvania, — U.S.-, 110 S.Ct. 1078, 1082,108 L.Ed.2d 255 (1990). The Court found that the death penalty is not automatically imposed for certain types of murders; rather, “[i]t is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime by the particular defendant, or that there are no such mitigating circumstances.” Id. 110 S.Ct. at 1082-83. Following the decision in Blystone, we called for and received additional briefs and heard argument again. In his supplemental brief, Zettlemoyer argues that the Pennsylvania death penalty statute is unconstitutional as applied to him, attempting to distinguish Blystone on the basis that in Blystone the petitioner presented no mitigating circumstances whereas he had done so. Zettlemoyer argues that the mandatory result of the jury’s process of weighing aggravating and mitigating circumstances excluded it from making a “unique judgment” about him as a “specific defendant.” Additionally, he reiterates the ineffective assistance of counsel and improper jury instruction arguments made to the district court. II. DISCUSSION A. Scope of Review Our scope of review is limited as we sit not to retry state cases de novo but rather to examine the proceedings in the state court to determine if there has been a violation of federal constitutional standards. Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1 (1972). Accordingly, we do not exercise the supervisory power that we might possess on an appeal from a conviction in the district court. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). Where, as here, a district court has denied a petition for habe-as corpus without holding an evidentiary hearing, our review consists of a two-step analysis. Smith v. Freeman, 892 F.2d 331, 338 (3d Cir.1989) (citing Toomey v. Clark, 876 F.2d 1433, 1435 (9th Cir.1989)). First, we must determine whether the petitioner has alleged facts that, if proved, would entitle him to relief. Smith, 892 F.2d at 338 (citing Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); Toomey, 876 F.2d at 1435). If so, we must then decide whether an evidentia-ry hearing is necessary to establish the truth of those allegations. Smith, 892 F.2d at 338 (citing Townsend, 372 U.S. at 312-19, 83 S.Ct. at 756-60; Toomey, 876 F.2d at 1435). We therefore consider the facts in this case in the light most favorable to Zettlemoyer. Smith, 892 F.2d at 338 (citing Keller v. Petsock, 853 F.2d 1122, 1128 (3d Cir.1988)). Of course, his contentions implicating the interpretation and application of legal precepts receive plenary review. Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3d Cir.1983) (citing Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98 (3d Cir.1981)). Furthermore, we freely review the district court’s conclusions regarding the competency of Zettlemoyer’s trial counsel. Lewis v. Mazurkiewicz, 915 F.2d 106, 110 (3d Cir.1990). B. The Blystone Ruling Zettlemoyer’s argument that the Pennsylvania death penalty statute is unconstitutional as applied to him centers on the instruction to the jury that it was required to impose the death penalty if the result of a weighing process tipped in favor of the aggravating circumstance. He contends that the jury’s discretion in applying the death penalty was thus unconstitutionally removed and he could not be individually judged. In Blystone, the Supreme Court held that, notwithstanding its “mandatory” language, the Pennsylvania death penalty statute is not unconstitutional on its face because it satisfies the requirement that a capital-sentencing jury be allowed to consider and to give effect to all relevant mitigating evidence and because the death penalty is not automatically imposed for certain types of murders. The Court explained that father “[i]t is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime by the particular defendant, or that there are no such mitigating circumstances.” Blystone v. Pennsylvania, 110 S.Ct. at 1082-83. Additionally, the Court held that the statute was not unconstitutional as applied to Blystone who was convicted of first-degree murder, robbery, criminal conspiracy to commit homicide, and criminal conspiracy to commit robbery. Id. at 1084. The jury which convicted Blystone returned a death penalty verdict after finding, pursuant to Pa.Cons.Stat.Ann. § 9711(d)(6), the aggravating circumstance that Bly-stone committed a killing while in the perpetration of a felony and further finding that there were no mitigating circumstances. 110 S.Ct. at 1081. The Court rejected Blystone’s argument that where a jury found there were no mitigating circumstances, mandatory imposition of death violated the Eighth Amendment requirement of individualized sentencing since the jury was precluded from considering whether the severity of the aggravating circumstance warranted the death penalty. Id. at 1083. The Court explained that “[t]he presence of aggravating circumstances serves the purpose of limiting the class of death-eligible defendants, and the Eighth Amendment does not require that these aggravating circumstances be further refined or weighed by a jury.... The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.” Id. (emphasis added) (citing Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988)). Finding that the trial court “specifically instructed the jury to consider, as mitigating evidence, any ‘matter concerning the character or record of the defendant, or the circumstances of his offense,’ ” the Court concluded that the statute, as applied, did not violate the Eighth Amendment. 110 S.Ct. at 1083-84. Moreover, the Court concluded that the trial court’s examples of mitigating circumstances did not preclude the jury’s considering any other mitigating factors. Id. at 1084. Blystone is dispositive on Zettlemoyer’s statutory constitutional issue. The trial court here instructed the jury on mitigating circumstances as follows: There are in the law — well, there’s an unlimited number. They list eight. They list seven and they say, any other evidence of mitigation concerning the character. Four of them may be applicable to this case, the others are not. They are one, that the defendant has no significant history of prior criminal convictions; two, he was under the influence of extreme mental or emotional distress; the third one, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; four, the age of the defendant at the time of the crime and then this eighth one; any other evidence of mitigation, which would be the fifth one to consider, any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense. All of the evidence from both sides that you have heard earlier, of course, during the trial in chief, all of that which has any bearing in your judgment upon aggravating or mitigating circumstances as I have mentioned them is important or proper for you to consider. App. at 203-04. The court, therefore, instructed the jury that several mitigating circumstances might apply to Zettlemoyer for this particular crime. The trial court instructed the jury to consider Zettlemoyer’s age, mental and emotional status at the time of the crime, and absence of a criminal record. These factors distinguished him from other defendants and provided the individualized consideration required by Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (individualized sentencing required by fundamental respect for humanity underlying Eighth Amendment). Additionally, because the jury retained discretion in assigning weight to these factors and in weighing them against any aggravating circumstances, the statutory plan did not “automatically” impose a sentence of death. See id. (statute that automatically imposes death sentence without particularized consideration of character and record of defendant struck down); Roberts v. Louisiana, 428 U.S. 325, 333-34, 96 S.Ct. 3001, 3006-07, 49 L.Ed.2d 974 (1976) (same). The Blystone Court held that a trial court’s specific instruction to the jury to consider, as mitigating evidence, any “matter concerning the character or record of the defendant, or the circumstances of his offense,” complied with the requirements of the Eighth Amendment. Blystone, 110 S.Ct. at 1083-84. See also Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) (jury must be able to consider and to give effect to any mitigating evidence relevant to defendant’s background, character, or circumstances of crime); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (plurality opinion) (sentencer must be allowed to consider any aspect of defendant’s character or record and any circumstances of the offense as mitigating factors). The trial court here gave this exact instruction. See App. at 203. Additionally, the court instructed the jury to consider all evidence presented from both sides during both the guilt and sentencing phases of trial “which has any bearing in your judgment upon aggravating and mitigating circumstances.” Id. at 203-04 (emphasis added). This broad instruction permitted the jury to consider mitigating factors in addition to the character, record, or offense evidence required by Blystone. This unrestricted consideration of mitigating circumstances clearly meets the Eighth Amendment’s requirements. See Blystone, 110 S.Ct. at 1083-84; Penry, 109 S.Ct. at 2947; Lockett, 438 U.S. at 604, 98 S.Ct. at 2964 (plurality opinion). We, therefore, reject Zettle-moyer’s argument that the statute is unconstitutional as applied to him. C. Competency of Counsel Zettlemoyer argues that his trial counsel was ineffective for not presenting competent psychological testimony on the issue of diminished capacity at the trial and not presenting psychological testimony or affirmative evidence at the sentencing hearing. We will address these contentions seriatim. 1. Guilt Phase During the guilt phase of the trial, Zett-lemoyer’s counsel presented Dr. Stanley Schneider to testify to his diagnosis of Zett-lemoyer’s mental condition. Dr. Schneider is a clinical psychologist licensed in Pennsylvania who had been Director of the Department of Psychology at the Harrisburg State Hospital. App. at 114. Dr. Schneider interviewed and tested Zettlemoyer on three separate occasions, interviewed his paternal grandparents, parents, and one sister, and reviewed Zettlemoyer’s school and police records. Id. at 126. During his meetings with Zettlemoyer, Dr. Schneider administered seven different psychological tests within three general categories; intellectual functioning, personality, and “projected tests” which gave Zettlemoyer the opportunity to project his own “unique thoughts, ideas, anxieties, needs, [and] conflicts” in response to certain relatively unstructured stimuli/ Id. at 128-30. The tests indicated that Zettlemoyer functioned in the average range of intelligence with some deficits in his common sense and practical judgment, particularly as it related to interpersonal relationships. Id. at 131. Zettlemoyer’s intelligence was also weak when compared to his age group and the personality test revealed that he apparently distorted his responses to exaggerate his symptoms. Id. at 131-32. Dr. Schneider did not find any evidence of organic or physical involvement or any suggestion of trauma to the brain or central nervous system. Id. at 133. Dr. Schneider testified that the projected tests revealed that Zett-lemoyer was not psychotic, but had limited ability to tolerate adversity, and that too much emotional stimulation caused a loss in his judgment. Id. at 134-35. Dr. Schneider concluded that Zettlemoyer was a paranoid personality with schizoid features and that Zettlemoyer had suffered this personality disorder for his entire life. Id. at 137-41. At one point, Dr. Schneider testified that he was: a pampered, doted upon, catered to, in simple terminology spoiled brat who figured out how to get what he wanted, either directly or by manipulating or controlling the situation to get what he wanted his entire life and I believe that faced with the number of stresses that he had to deal with that he' could not cope with, and he decompensated [and] ... engaged in a variety of unproductive behaviors. Id. at 143. Zettlemoyer’s counsel then asked Dr. Schneider: I specifically want to direct your attention to October the 13th of 1980, to the early morning hours, I want to ask you with a reasonable degree of medical certainty, was the Defendant’s mental illness of such an intensity at that time, at the time of the killing, that he was not mentally capable of fully forming the specific intent which is required for a willful deliberate and premeditated act? Id. at 148. The trial court sustained the district attorney’s objection to this question and refused to permit Dr. Schneider to answer, stating at sidebar that “assuming all these things are correct, [it] is no legal excuse for a crime.” Id. at 149. The court reasoned that, notwithstanding Dr. Schneider’s thorough examination of Zettlemoyer’s personality, Dr. Schneider could not testify whether, at the time of the killing, Zettlemoyer could form a specific intent to kill because the testimony did not lay a proper foundation for that conclusion. Id. at 151-52. Zettlemoyer does not contend that this ruling was incorrect, as he admits that Dr. Schneider was not “qualified” and “competent to offer the opinion testimony for which he was called as a witness by [his] trial counsel.” Brief at 13. Of course, the Supreme Court of Pennsylvania upheld the ruling under state law on the direct appeal. Commonwealth v. Zettlemoyer, 500 Pa. at 27, 454 A.2d at 943. Rather, Zettlemoyer claims that his counsel was ineffective because he did not identify or secure a witness who could have provided competent opinion testimony on the defense of diminished capacity at the guilt phase of the trial. He also contends that trial counsel was ineffective because Dr. Schneider’s key testimony was inadmissible and because the counsel produced negative personality testimony, without the ultimate conclusion that such factors reduced his culpability, thereby prejudicing his case. He also claims prejudice from the trial court’s instruction to the jury, in which he maintains the court “interjected its negative opinion of the core of [his] defense, suggesting that Dr. Schneider’s testimony should be disregarded.” Brief at 16. The Supreme Court set forth the criteria for determining whether relief may be granted on the ground of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A petitioner must show (1) that counsel made errors so serious that counsel’s representation fell below an objective standard of reasonableness, and (2) that such failure resulted in prejudice so as to deprive the petitioner of a fair trial, that is, a trial whose result is reliable. Id. at 688, 104 S.Ct. at 2064. However, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function ... is to make the adversarial testing process work in the particular ease. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066. In order to resolve the ineffectiveness claim, we must consider Zettlemoyer’s counsel’s conduct within the context of Pennsylvania law regarding the defense of diminished capacity. Pennsylvania recognizes the defense to show that a defendant did not have the capacity to possess the state of mind required by the legislature to commit a 'particular degree of the crime charged. Commonwealth v. Walzack, 468 Pa. 210, 220-21, 360 A.2d 914, 919-20 (1976). Defendants invoking the defense of diminished capacity, however, concede general criminal liability and Zettlemoyer has done this. Id. Evidence of diminished capacity is admissible at the guilt phase of trial and a jury finding diminished capacity may not find the defendant guilty of first degree murder, but it may find the defendant guilty of third degree murder. Pennsylvania case law now establishes that, to prove diminished capacity, only expert testimony on how the mental disorder affected the cognitive functions necessary to form the specific intent is relevant and admissible. Commonwealth v. Terry, 513 Pa. 381, 393, 521 A.2d 398, 404, cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987); Commonwealth v. Davis, 331 Pa.Super. 59, 64, 479 A.2d 1077, 1080 (1984) (personality disorders are irrelevant to show diminished capacity). But when Zettlemoyer was tried the law was slightly different, as a finding of diminished capacity depended on whether the defendant had a “conscious intent to kill.” Commonwealth v. Sourbeer, 492 Pa. 17, 31-32 n. 2, 422 A.2d 116, 123 n. 2 (1980); Commonwealth v. Brantner, 486 Pa. 518, 523, 406 A.2d 1011, 1014 (1979). Evidence of specific intent to kill may disprove the defense of diminished capacity. See Commonwealth v. Tempest, 496 Pa. 436, 442, 437 A.2d 952, 955 (1981). In Tempest, the Supreme Court of Pennsylvania held that evidence adduced at trial that showed the defendant planned the killing days in advance, considered various means to kill, persisted despite the victim’s pleas, and repeated at various times her motive for the killing, sufficed to enable the trier of fact to reject the diminished capacity defense. Id. The defendant presented evidence that she suffered from chronic schizophrenia, acute type. Id. at 439, 437 A.2d at 954. The trial court had initially determined that the defendant was incompetent to stand trial but less than two years later, she was adjudged competent. Id. at 439-40, 437 A.2d at 954. Notwithstanding this evidence, the Supreme Court affirmed her conviction of first degree murder, concluding that the Commonwealth had adduced ample evidence to reject the diminished capacity defense and to prove that she possessed the specific intent to kill. Id. at 442, 437 A.2d at 955. Likewise, in Commonwealth v. Davis, 331 Pa.Super. 59, 65, 479 A.2d 1077, 1080 (1984), the Superior Court upheld the trial court’s rejection of the defendant’s diminished capacity defense and affirmed his conviction of first degree murder. Id. The defendant had presented evidence that he had experienced a schizophrenic episode at the time of the murder. Id. The Superior Court noted that the trier of fact had evidence of specific intent to kill, including the defendant’s shooting the decedent twice at close range, his prior threats to kill her, his threat to cut her throat while holding a knife to her neck, his breaking into her apartment in the early hours possessing a deadly weapon, and his firing shots at her as she fled the apartment. Id. at 64, 479 A.2d at 1080. In light of this evidence, the court concluded that the record showed ample support for the trial court’s discrediting the psychological testimony of diminished capacity. Id. at 65, 479 A.2d at 1081. After considering Pennsylvania law and the record here, we conclude that Zettlemoyer is not entitled to relief on his claim that his counsel was ineffective for calling Dr. Schneider, even though his testimony was not admissible on the issue of diminished capacity. The colloquy at sidebar after the Commonwealth’s objection to Dr. Schneider’s testimony clearly shows that defense counsel was familiar with the diminished capacity defense and its requirements. See App. at 149-50. Counsel referred the court to three diminished capacity cases, Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980), Commonwealth v. Brantner, 486 Pa. 518, 406 A.2d 1011 (1979), and Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914, in his attempt to persuade the court to permit Dr. Schneider to give his opinion on Zettlemoyer’s mental capability to form specific intent to kill. App. at 149-50. It is obvious, therefore, that he had thoroughly researched the defense. The trial court rejected counsel’s arguments by distinguishing these precedents on their facts. Id. at 149, 151 (distinguishing Sourbeer, 492 Pa. at 25-26, 422 A.2d at 119-20 (psychiatrist testified that defendant had passive-aggressive personality with antisocial tendencies); Brantner, 486 Pa. at 523, 406 A.2d at 1014 (psychiatrist testified that defendant had schizoid personality and was paranoid); Walzack, 468 Pa. at 215, 360 A.2d at 916 (defendant had undergone lobotomy)). Counsel cannot be deemed' ineffective merely because he could not persuade the court to admit Dr. Schneider’s opinion. He fully developed Dr. Schneider’s testimony but it simply was not sufficient to lay a foundation for the opinion question. Yet there is nothing unusual in an attorney not being able to convince a court that evidence should be admitted. Clearly, Zettlemoyer did have significant personality problems and it was reasonable strategy for counsel to bring them out in an attempt to convince the court to allow Dr. Schneider’s testimony. A defense counsel cannot be deemed ineffective just because he is not successful. Finally, on this issue we point out that at the time of Zettlemoyer’s trial, Pennsylvania law was in a state of flux regarding diminished capacity and even the Supreme Court of Pennsylvania was having difficulty dealing with the defense. See Commonwealth v. Zettlemoyer, 500 Pa. at 27-31, 454 A.2d at 943-44. Thus, it is not surprising that a defense counsel did as well. In any event, the evidence that Zettlemoyer had the specific intent to kill was overwhelming. Zettlemoyer was very heavily armed when police discovered him at the scene of the murder. See Transcript of Trial, Vol. II, at 383-431. The police testified that they found on Zettlemoyer’s person forty-one rounds of .357 federal ammunition; twenty-four in strip packets with more deadly semi-jacketed hollow points, and seventeen loose, and that he was carrying a knife with a six-inch blade and sheath, wore a shoulder holster, two belt-keepers, and an ammunition pouch. Id. at 399, 406, 428, 429, 431. Zettlemoyer carried two handcuff keys and a canister of tear gas and was dressed in dark clothing and black gloves. Id. at 383, 406, 428-29. An inventory search of his van, parked near the site of the murder, revealed two sets of handcuffs; two spent .22 caliber casings; and a .22 caliber pistol with holster and clip. Id. at 452. Just outside the van, police found a .357 live round on the ground. Id. at 459. Zettlemoyer drove his van as far back as possible into the deserted area where the murder occurred, to a point where it could not be seen. Transcript of Trial; Vol. I, at 8, 9; Vol. II, at 388. Surely this irrefutable physical evidence demonstrated that he had extensively prepared for the crime and had a specific intent to kill.'' But there is more. The victim, DeVet-sco, lived and worked in Sunbury, Pennsylvania, approximately one hour’s drive from where his body was found. He carried no identification; his license, car, and car keys were at his- apartment in Sunbury, suggesting that he was not willingly travelling from Sunbury to the murder scene in Harrisburg. Transcript of Trial, Vol. II, at 513, 514. The jury heard testimony that Zettlemoyer dragged the handcuffed De-Vetsco, who already had been shot and was bleeding, from the van to the spot where Zettlemoyer shot him twice more. Transcript of Trial, Vol. I, at 22. In total, DeVetsco suffered two wounds in the back from a .22 caliber weapon and two wounds in the base of the neck, behind his left ear. Transcript of Trial, Vol. II, at 465-66. Zettlemoyer fired these last two shots from approximately two feet away while the victim lay on the ground. Id. at 472, 474. Discharging a deadly weapon aimed at a vital part of the body demonstrates specific intent to kill. See Commonwealth v. Davis, 331 Pa.Super. at 64, 479 A.2d at 1080. The testimony also showed that Zettle-moyer had a motive to commit the murder. One week before the murder, during the jury selection for a trial on the indictment against Zettlemoyer handed down by a Snyder County jury, the list of prospective witnesses which included DeVetsco was read in Zettlemoyer’s presence. Transcript of Trial, Vol. II, at 530-32. The trial was scheduled to begin one week after the murder. Id. at 532. There is no escaping the fact that this was a vicious, cold-blooded, premeditated execution-style murder. In light of this overwhelming evidence demonstrating Zettlemoyer’s specific intent to kill DeVetsco, we conclude that Zettle-moyer was not prejudiced by Dr. Schneider’s inability to testify to his cognitive functioning at the time of the murder. We cannot conceive that any expert opinion would have led the jury to disregard the compelling uncontroverted evidence of what actually happened and conclude that Zettlemoyer had a diminished capacity, predicated on a lack of a conscious or specific intent to kill. This crime was so carefully executed and reflective of specific planning that, it seems to us, a suggestion that Zettlemoyer had a diminished capacity, as that term is understood under Pennsylvania law, is nothing short of preposterous. Thus, even if counsel had been ineffective in failing to extract expert testimony to support a claim of diminished capacity, which he was not, Zettlemoyer is not entitled to habeas relief because the failure did not prejudice him by depriving him of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. Likewise, Dr. Schneider’s testimony regarding Zettlemoyer’s personality, which characterized him as, inter alia, a “spoiled brat,” paled in comparison to the overwhelming evidence of his specific intent to kill. The testimony, while portraying Zett-lemoyer in a less than flattering light, did not undermine the reliability of the result of the trial. There is no escape from the fact that the evidence in this case was overwhelming. We recognize that Zettlemoyer maintains that counsel failed to call some other witness who might have presented testimony crucial to his defense of diminished capacity; however, he neither alleges nor offers evidence that any such testimony was forthcoming or available upon reasonable investigation. A witness cannot be produced out of a hat. Zettlemoyer cannot meet his burden to show that counsel made errors so serious that his representation fell below an objective standard of reasonableness based on vague and conclusory allegations that some unspecified and speculative testimony might have established his defense. Rather, he must set forth facts to support his contention. See Mayberry v. Petsock, 821 F.2d 179, 187 (3d Cir.) (petitioner’s vague and general allegations and supporting materials fail to make sufficient showing to justify relief), cert. denied, 484 U.S. 946, 108 S.Ct. 336, 98 L.Ed.2d 362 (1987). Having failed to do so, he is not entitled to habeas relief on this claim. Furthermore, even if the counsel had produced a second expert witness, that witness would have been confronted with the uncontroverted evidence of Zettlemoyer’s actual conduct and would not have been able to explain it away. 2. Sentencing Phase The second aspect of Zettlemoyer’s attack on his trial counsel relates to the sentencing phase of the trial. He claims that his counsel was ineffective in that he did not recall Dr. Schneider to testify at that hearing and did not present affirmative evidence during this phase. Rather, counsel called only one witness, Zettlemoyer’s father, to testify about his son’s mental and emotional health at the time of the murder. We consider counsel’s failure to recall Dr. Schneider in the context of Pennsylvania law. In Pennsylvania, a defendant has the burden to show mitigating circumstances by a preponderance of the evidence at the sentencing hearing. 42 Pa.Cons. Stat.Ann. § 9711(c)(l)(iii). The Commonwealth stipulated to the existence of two mitigating factors: that Zettlemoyer had no prior criminal convictions under section 9711(e)(1) and that he was 25 years old, an arguably youthful age within section 9711(e)(4). App. at 180. Dr. Schneider was the last defense witness during the guilt phase; the jury heard his testimony less than 24 hours before the sentencing hearing. Transcript of Trial, Vol. II, at 690-745. The Commonwealth put on only a minimal rebuttal case. Id. at 747-70. In fact the trial was quite short as both the guilt and sentencing phases were completed within one week. Dr. Schneider testified that Zettlemoyer was “unable ... to deal with the normal pressures, demands, [and] responsibilities of daily living.” App. at 142. He stated that he believed that Zettlemoyer’s “reaction over this period of time resulted in, well, what I refer to as a pressure cooker syndrome, pressure mounting up. If you don’t have a release valve it will blow and that’s where I believe that the emotional disturbance, in addition to the personality disorder, may have resulted in the behavior.” Id. He continued that this “pressure cooker effect” worsened in the two weeks before the murder due to the publicity surrounding the robbery for which Zettlemoyer was charged. Id. at 145. This testimony goes to the two mitigating factors of the influence of extreme mental or emotional disturbance pursuant to section 9711(e)(2), and whether Zettlemoyer’s capacity to appreciate the criminality of his conduct and to conform his conduct with the law were substantially impaired pursuant to section 9711(e)(3). This testimony was reinforced at the sentencing phase by Zettlemoyer’s father who testified that he had spoken with his son in the two weeks before the murder and that he could see the stresses building up in him. App. at 184. He further testified that, based on his observations and conversations with his son at that time, Zettle-moyer’s capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law were substantially impaired. Id. at 185. He stated that, since his imprisonment, his son had “shown considerable remorse” and that he had “taken to religion to some extent which is something he never did before.” Id. at 184. In his closing argument, counsel specifically asked the jury to consider the testimony on diminished capacity. Id. at 192. Relevant portions of the closing argument include: [T]wo [mitigating circumstances] deal with the mental capacities of the defendant; extreme mental or emotional disturbance or the capacity of the defendant to appreciate the criminality of his conduct. Now, if you did not believe the defense of diminished capacity then I certainly hope that at least you would consider it in regards to life or death. The District Attorney has agreed to incorporate all that testimony that we presented to you at trial and I want you to consider it. Id. at 191-92. Additionally, the trial court instructed the jury to consider whether Zettlemoyer was under extreme mental or emotional distress and his capacity to appreciate the criminality of his conduct or to conform his conduct to the law, factors which may be mitigating circumstances under section 9711(e)(2) and (3). App. at 203-04. It likewise instructed the jury to consider all evidence presented by both sides during both the guilt and sentencing phases in determining the penalty. Id. at 203-04. See supra at 293. In the circumstances, we see no deficiency in counsel’s decision not to recall Dr. Schneider, as the choice plainly was well within the range of a professionally reasonable judgment. Counsel presented evidence to support the relevant mitigating circumstances during the guilt phase of the trial and both counsel and the court asked the jury to consider this evidence in its sentencing decision. We cannot hold that counsel’s action in not recalling Dr. Schneider to repeat his testimony at the sentencing phase of this short trial in which the testimony from the guilt phase was then still quite fresh satisfied the Strickland standard of ineffectiveness that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. There is not the slightest doubt that the jury had a very complete psychological picture of Zett-lemoyer as an individual. In view of the foregoing, we find the following statement in Zettlemoyer’s brief to be inexplicable: Indeed, the testimony of Dr. Schneider at the trial of Mr. Zettlemoyer’s guilt or innocence demonstrates that his opinion testimony at sentencing would have been admissible, relevant of Mr. Zettlemoyer’s intellectual capacity and emotional situation at the time of the murder, and thus of central importance to the jury’s consideration of mitigation. Brief at 18-19. The difficulty with this argument is that inasmuch as the guilt phase testimony was incorporated into the sentencing phase, Dr. Schneider’s testimony not only “would have been admissible” at the sentencing phase, it was admitted. Zettlemoyer then continues his argument stating that trial counsel’s affirmative case at the sentencing phase consisted only of the evidence of Zettlemoyer’s father and that “[n]o use was made of Dr. Schneider.” This statement is incomprehensible since the evidence from the guilt phase was incorporated into the sentencing phase. Indeed, in his closing argument at the sentencing phase, Zettlemoyer’s counsel told the jury that: “The District Attorney has agreed to incorporate all that testimony that we presented to you at trial and I want you to consider it.” Shortly thereafter he asked the jury to consider Zettlemoyer’s mental sickness. The attack on trial counsel for making only, in the word used in Zettle-moyer’s brief, a “perfunctory” case for Zettlemoyer’s life is completely unfounded. Our result is informed by a recent case in which a similar claim regarding the failure to recall a professional witness was rejected. The United States Court of Appeals for the Fourth Circuit recently held that counsel was not ineffective for not recalling, during the sentencing hearing, a psychiatrist who testified during the guilt phase of a trial. Clozza v. Murray, 913 F.2d 1092 (4th Cir.1990). The court explained that counsel had been able to introduce at the guilt phase all the mitigating evidence that could have introduced at the penalty phase. Id. at 1102. During a hearing in the state habeas corpus proceedings, the psychiatrist testified that his testimony at sentencing would not have been different than his testimony at the guilt phase. Id. Additionally, the court of appeals noted that the doctor’s testimony, which was based on the premise that the defendant was intoxicated at the time of the offense, was vulnerable to impeachment on cross-examination because defendant testified that he was sober at the time. Id. The court concluded that counsel’s decision not to recall the psychiatrist in light of the potential damage of his testimony was a reasonable tactical choice. Id. at 1102-03. We also find that Zettlemoyer’s claim that counsel was ineffective for failing to present other affirmative evidence during the sentencing phase is without merit. Counsel presented the stipulations, the testimony of Zettlemoyer’s father, and incorporated the earlier testimony into the sentencing hearing. At the guilt phase Zettlemoyer’s paternal grandmother and his mother described his conduct as a child and as a young man. In his brief, Zettlemoyer points to no evidence other than that of Dr. Schneider that might have been produced at the sentencing phase. Inasmuch as Dr. Schneider’s evidence was before the jury as incorporated by reference, it is thus clear that Zettlemoyer has made no showing that counsel was not competent. He cannot rest on a conclusory allegation that he should have done more. Furthermore, the jury had information in support of a conclusion that four of the mitigating factors enumerated in section 9711(e) were present in this case. We have not overlooked the fact that the district court did not order an evidentiary hearing on the claim of counsel’s ineffectiveness at the sentencing phase. Rather, we find on the record of this case that it would have been improper to have such a hearing. The law on the point is familiar. Where the facts are in dispute in a habeas case, a federal court ■must hold an evidentiary hearing if the petitioner did not receive a full and fair evidentiary hearing in state court, either at trial or in a collateral proceeding. Townsend v. Sain, 372 U.S. at 312, 83 S.Ct. at 756-57. A district court must hold a hearing if the petitioner has alleged facts that, if proved, would entitle him or her to relief and an evidentiary hearing is necessary to establish the truth of those allegations. Smith v. Freeman, 892 F.2d at 338. However, bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing. Mayberry v. Petsock, 821 F.2d at 185. See also Barry v. United States, 528 F.2d 1094, 1101-02 (7th Cir.) (insufficiently detailed affidavit that did not demonstrate that petitioners had actual proof of allegations is “patently insufficient” to require hearing under 28 U.S.C. § 2255), cert. denied, 429 U.S. 826, 97 S.Ct. 81, 50 L.Ed.2d 88 (1976). We, of course, must only determine “the reasonableness of counsel’s challenged conduct” and we judge this matter on the basis of an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 690, 104 S.Ct. at 2064, 2066. Here, it is perfectly clear that counsel’s conduct was reasonable, because counsel made a complete record in support of a plea for a life sentence by incorporating the record from the guilt phase into the sentencing phase of the case, and supplementing it with Zettlemoyer’s father’s testimony. We also reiterate that although Zettle-moyer complains that counsel did not produce affirmative evidence during the sentencing hearing, he has failed to specify any evidence that was available to counsel that he did not present during either the guilt phase or the sentencing phase of trial. At oral argument before us, appellate counsel maintained that trial counsel could have brought out the facts of petitioner’s childhood and his proclivity to use violence; however, these facts were presented during the guilt phase. Likewise, counsel presented evidence of petitioner’s mental and emotional instability during the guilt phase. We understand why an evidentiary hearing on the issue of counsel’s competency might be required in a case in which a petitioner could point to specific significant mitigating evidence, available to counsel at the time of the trial, that was not produced at a sentencing phase and was not before the jury from the guilt phase. In such a case, the court might not be able to judge the objective reasonableness of counsel’s conduct without the counsel’s explanation of the underlying trial strategy. But we do not have that situation, for Zettlemoyer’s assertion that other evidence should have been presented is merely a conclusory allegation. Mayberry v. Petsock, 821 F.2d at 185. He has not made a preliminary showing that mitigating facts available to counsel were not produced at the trial. Thus, there is no open factual matter requiring resolution at an evidentiary hearing. We will not require an evidentiary hearing absent identification of some facts that support a contention of ineffectiveness, because to do so will encourage meritless petitions burdening judicial resources. See Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066 (“The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense.”). Litigation even in a death case must some day come to a conclusion. We reiterate that a district court must hold a hearing if a petitioner has alleged facts that, if proved, would entitle him or her to relief and an evidentiary hearing is necessary to establish the truth of those allegations. Smith v. Freeman, 892 F.2d at 338. But Zettlemoyer did not allege facts to satisfy this test and thus is not entitled to an evidentiary hearing. We refuse to order an evidentiary hearing for the purpose of conducting an inquisition into how the case was tried. The only way on the record before us that we could require an evidentiary hearing on counsel’s effectiveness at the sentencing hearing would be to hold that the mere charge of ineffectiveness per se entitles a petitioner to a hearing. That is not the law and we will not so hold. In sum, we conclude that Zettlemoyer has failed to meet his burden to show that he is entitled to habeas relief based on ineffective assistance of counsel. While we have already explained why we will not order a hearing on the competency of counsel at the sentencing phase, in view of the interest at stake on this appeal it is especially appropriate to comment on the dissent from this aspect of our opinion. The dissent states that Dr. Schneider was testifying on the guilt phase on the diminished capacity defense and not to show mitigating circumstances, and that the jury did not hear his testimony from the perspective of whether Zettlemoyer’s life should be spared. But Dr. Schneider completely described Zettlemoyer’s mental condition and emotional state prior to the murder in the guilt phase, only hours before the sentencing phase and, though the purpose of that evidence somewhat changed between the phases, no one suggests that Dr. Schneider’s evaluation of Zettlemoyer’s mental condition and emotional state did. Furthermore, inasmuch as Dr. Schneider testified that Zettlemoyer’s “emotional disturbance, in addition to the personality disorder, may have resulted in the behavior,” he actually used the statutory term for a mitigating circumstance, “emotional disturbance,” in describing the cause of Zettle-moyer’s conduct. In the circumstances, it is clear why it was reasonable for counsel not to have the evidence repeated, even though it was originally presented on the diminished capacity defense. Of course, the petition for habeas corpus does not allege that Dr. Schneider withheld evidence at the guilt phase regarding Zettlemoyer's evaluation or his emotional state possibly helpful to Zettlemoyer in the sentencing phase. The dissent also contends that a hearing should have been held to determine why Zettlemoyer’s mother was not recalled at the sentencing phase and to explain why counsel would not have called Zettlemoyer’s friends, co-workers, or his former fiancee to support the claim of overwhelming emotional disturbance. It further contends that a hearing should be held so that trial counsel could explain his “complete failure” to present evidence of “catch-all” mitigating circumstances, though it acknowledges that Zettlemoyer points to no “specific significant mitigating evidence” which it agrees is “troubling.” But a decade has passed since this murder and Zettlemoyer has never alleged that he was deprived of the testimony which the dissent mentions, and we cannot by speculation supply a basis to remand a matter for a hearing to determine if counsel was incompetent in not producing this evidence when Zettlemoyer does not make a showing or even an allegation that it ever existed. Moreover, he does not assert that his mother should have been recalled. Except for Dr. Schneider, the petition for habeas corpus, which insofar as germane to the issue of competency of counsel at the sentencing phase we have set out in full, see note 14, supra, makes no reference to testimony of specific individuals who should have been presented at the sentencing phase and were not. D. The Jury Instructions Zettlemoyer contends that the trial court’s instructions to the jury were defective in several respects. First, he asserts that the trial court improperly instructed the jury that it had no responsibility for imposition of the death penalty, in violation of the holding in the Supreme Court’s subsequent decision in Caldwell v. Mississippi, 472 U.S. at 320, 105 S.Ct. at 2633. Second, he urges that the trial court’s instruction erroneously suggested that the jury’s finding on mitigating circumstances must be unanimous, a charge barred by Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Finally, he contends that the instructions were deficient because they did not include an instruction that, if the jury could not unanimously agree that the death penalty should be imposed, the court would impose a life sentence pursuant to section 9711(c)(1). 1. Teague v. Lane Initially on the instructions point we note that Zettlemoyer must overcome Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality) in order for Caldwell to apply retroactively in this case. In Teague, the Supreme Court held that a determination of whether a decision is to be applied retroactively to cases on collateral review is “properly treated as a threshold question.” Id. at 300, 109 S.Ct. at 1069. The Court held that new rules may be applied in habeas corpus proceedings only if they come within one of two narrow exceptions. Id. at 310, 109 S.Ct. at 1075. The first exception “applies to new rules that place an entire category of primary conduct beyond the reach of the criminal law, ... or new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense.” Sawyer v. Smith, — U.S. -, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193 (1990) (citations omitted). “The second Teague exception applies to new ‘watershed rules of criminal procedure’ that are necessary to the fundamental fairness of the criminal proceeding.” Id. 110 S.Ct. at 2831. In general, a case announces a new rule if it “breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague, 489 U.S. at 301, 109 S.Ct. at 1070. Put another way, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. at 301, 109 S.Ct. at 1070 (emphasis in original). That prior decisions “inform or even control or govern analysis of [the] claim’ ” is insufficient to require retroactive application of the rule. Sa