Tyrone WERTS, Appellant v. Donald T. VAUGHN; the District Attorney of the County of Philadelphia; the Attorney General of the State of Pennsylvania, 228 F.3d 178

OPINION OF THE COURT MANSMANN, Circuit Judge. In this appeal, we are asked to decide whether a habeas petitioner, who is presently serving a mandatory term of life imprisonment upon a conviction for second degree murder, was denied his constitutional right to a fair trial due to the prosecutor’s alleged misconduct during the opening and closing arguments of his state court trial. The petitioner also contends in the alternative that he was denied effective assistance of counsel to the extent trial counsel failed to preserve his due process claim.

With one exception, we find the petitioner’s due process claim is procedurally defaulted. As to the nonde-faulted due process issue, we find no merit to petitioner’s claim. Moreover, we find that the state appellate courts’ application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to petitioner’s ineffectiveness claims was not objectively unreasonable. Accordingly, we will affirm the judgment of the District Court. I. The facts of this case are not disputed.

On December 3,1975, following a jury trial in the Court of Common Pleas of Philadelphia County, petitioner, Tyrone Werts, was convicted of second degree murder, robbery, criminal conspiracy, and possession of an instrument of a crime. We set forth the facts leading to Werts’ arrest and conviction below. Atlee Moore, a co-defendant, testified that on the date of the crime, he was home drinking when his friend, William Jones, stopped by and suggested they rob someone or some place. Moore suggested they rob a speakeasy, Shirley’s, located on West Arizona Street in Philadelphia, Pennsylvania.

Jones agreed and the two men then joined forces with the other co-defendants, Levan Spann, Bruce Norris, and Werts. The five co-defendants drove off in Spann’s car towards Shirley’s, with Spann at the wheel and Werts seated in the front passenger seat. Jones, Moore and Norris were positioned in the back seat of Spann’s car. It was agreed that Spann and Norris would commit the robbery since both Moore and Jones were known and could subsequently be identified by the patrons at Shirley’s.

Spann and Norris exited the vehicle and retrieved a shotgun and a pistol from the trunk of Spann’s car which they hid in their clothing. They then proceeded into Shirley’s. While Spann and Norris entered the speakeasy, Jones stood on the steps outside and Moore walked to a nearby alley. Werts remained seated in the front passenger seat of the car. Suddenly, a shot rang out and shortly thereafter, Spann and Norris swiftly exited the speakeasy. Quick on their heels, Moore and Jones followed Spann and Morris back to the car. Moore asked Spann and Norris what happened and Spann replied that Norris had shot someone.

In fact, William Bridgeman had been shot and killed during the robbery which yielded a total sum of $35. Spann dropped off the co-defendants one-by-one after their quick get-away from Shirley’s. The next day, Moore turned himself in to the police upon learning that the police were looking for him in connection with the robbery and murder at Shirley’s. Moore negotiated a deal with the prosecutor — he agreed to testify against Werts and the other co-defendants.

In exchange, the prosecution agreed to charge Moore with a lesser offense, general murder, recommend that the sentencing court give serious consideration to leniency, arrange for Moore’s bail to be reduced from $120,000 eash to $60,000 ROR, and get a federal detainer lifted so he could be released. One month later, Werts was arrested in his home by a “phalanx” of police officers, armed with pistols and shotguns, who stormed the house and broke down the door with an axe. Werts was found hiding in a crawl space above a bedroom closet.

The search and arrest of Werts was led by Detective McMillan, who was alleged to have beaten and bullied Werts at the time of his arrest. The police searched Werts’ house for the murder weapon to no avail. Werts was then taken into custody where, without the benefit of counsel, he waived his Miranda rights and gave an incriminating statement to one of the homicide detectives. In essence, Werts stated that he was present when the other co-defendants decided to rob Shirley’s, refused to go inside the speakeasy, and later disposed of the weapons. Werts was tried separately from the other co-defendants.

He testified that on the evening of the robbery and murder, he had been drinking heavily at a birthday party with three men, none of whom was one of the co-defendants. Werts testified that he became very drunk and stepped outside where he encountered Bruce Norris. Werts offered Norris five dollars to drive him home because he was too drunk to drive himself. Werts climbed into the front passenger seat of Norris’ car and while waiting for Norris, fell into a deep sleep.

Werts testified that the next thing he remembered was being awakened by the other co-defendants as they scrambled back into the car after the robbery and heard one of them say that Norris had shot someone. Werts denied being involved in planning the robbery or disposing of the weapons thereafter. No one disputes the fact that Werts did not enter the speakeasy. The prosecution’s case against Werts boiled down to Moore’s testimony that Werts was present and to Werts’ confession to the police that he disposed of the weapons.

Consequently, the government’s case against Werts would succeed or fail based on the strength of the alleged confession and Werts’ credibility. Werts attacked the accuracy and volun-tariness of the alleged confession on the basis that he was suffering from increased back pain, brought on by police brutality which aggravated a prior back injury, and by heroin withdrawal at the time of the interrogation which seriously impaired his ability to give an accurate and voluntary statement. Werts presented the expert testimony of a psychiatrist, Dr.

Nelson, on this issue who was allowed to give his professional opinion regarding the impact of trauma sustained at the time of the arrest to Werts’ pre-existing lower back injury, a heroin addict’s craving for heroin if he had not had an injection for 48 hours, the amount of stress from an intense craving for heroin, and about Werts’ ability to resist his interrogators when he is under this mental stress. Dr.

Nelson was not permitted, however, to give his professional opinion as to what the effect of an intense craving for heroin would be on Werts’ ability to make a rational decision or as to Werts’ primary motivation during his interrogation. Werts also attempted to rebut the inference of guilt that flowed from Detective McMillan’s testimony that Werts had been found hiding in a crawl space. In this regard, Werts attempted to explain that he was hiding from the police because he was afraid of them due to a prior encounter in 1969 when he was shot in the spine by the police and suffered serious injuries.

The trial court, however, refused to allow Werts to explain why he was hiding. After the jury returned a verdict of guilty as to all charges, Werts filed post-trial motions in which he raised, inter alia, prosecutorial misconduct during the closing statement, specifically focusing on the prosecutor’s comment that Moore would be a “marked man” if sent back to prison. The trial court upheld its denial of Werts’ motion for a mistrial after the prosecutor completed his summation, finding that the prosecutor’s remarks were motivated in part by the conduct and statements of defense counsel in his closing statement.

Thus, the trial court concluded that the statements did not constitute reversible error. After denying his post-trial motions, the trial court sentenced Werts to a mandatory term of life imprisonment for second degree murder, a consecutive term of five to ten years for criminal conspiracy, and concurrent terms of five to ten years for robbery and two and one-half to five years for possession of an instrument of á crime. Through trial counsel, Colie B. Chap-pelle, Esquire, Werts appealed his sentence and conviction directly to the Pennsylvania Supreme Court.

In his direct appeal, Werts raised numerous claims of error in which he argued that he was denied a fair trial by the prejudicial and improper comments of the prosecutor including, but not limited to, the comment that Moore was a “marked man.” Werts specifically referenced several other allegedly improper comments made by the prosecutor, none of which are at issue in the federal habeas petition before us.

In his direct appeal, Werts further argued that the trial court’s denial of his motion for a mistrial based on prejudicial remarks by Detective McMillan regarding stolen clothing, the prosecutor’s inflammatory characterization of Werts as a dope addict and thief, and the prosecutor’s inflammatory remark that Moore was a “marked man” violated his right to a fair trial and due process and therefore constituted reversible error. The Pennsylvania Supreme Court affirmed the judgments of sentence and conviction in a published opinion. See Commonwealth v. Werts, 483 Pa. 222, 395 A.2d 1316 (1978).

In a footnote, the Pennsylvania Supreme Court noted that it considered, but dismissed for lack of merit, numerous assertions of error, including: ... 5) that the trial court erred in not declaring a mistrial on the grounds that the prosecutor made an allegedly prejudicial remark during his summation; 6) that the trial court erred in not declaring a mistrial on the grounds that Detective Lerough McMillan made an allegedly prejudicial remark during his testimony; ... 10) that the prosecutor acted improperly in misstating the evidence during summation; ... 483 Pa. at 226 n. 2, 395 A.2d at 1318 n. 2.

It is clear from Werts’ brief that the challenged remark at the heart of the fifth contention above is the prosecutor’s statement that Moore would be a “marked man” if he was returned to prison. At the base of the sixth “meritless” contention is Detective McMillan’s statement that during the search of Werts’ house, he found several articles of clothing that had been reported stolen.

Finally, the underlying comment at issue in contention ten'"is the prosecutor’s misstatement in his closing that Moore testified that Werts stated “I’m not going in there” during a conversation with Atlee Moore regarding the planning of the robbery. Thus, Werts did not raise, and the Pennsylvania Supreme Court did not consider, on direct appeal any due process challenges based on the prosecutor’s remarks to the effect that

(1) Detective McMillan thought Werts was a killer; (2) people in Werts’ neighborhood decide to commit robbery for no reason; and (3) he personally vouched for the credibility of homicide Detectives McMillan and Dougherty. On May 15, 1979, Werts filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Hearing Act (“PCHA”), 19 P.S. §§ 1180-1 et seq. (1966), as amended. New counsel, Louis Lip-schitz, Esquire, was appointed to represent Werts in the state collateral proceeding.

Counsel filed an amended petition in which he alleged Werts was deprived of his right to effective assistance of counsel at trial, in post-trial motions and on direct appeal. Essentially, Werts argued that Attorney Chappelle was ineffective for failing to raise objections during trial and closing "argument, failing to move for a mistrial on several occasions, and for failing to preserve certain issues in written post-trial motions or on direct appeal. The alleged errors of counsel which are pertinent to this appeal include:

(1) Chap-pelle’s failure to object to the prosecutor’s comment in his opening statement that Moore “is obviously going to put his life in his hands by testifying,” failure to request a mistrial, to raise the issue in post-trial motions and to raise and preserve the issue for appellate review; and

(2) Chap-pelle’s failure to object, to request timely cautionary instructions, to move for a mistrial and to preserve for appeal all of the following comments of the prosecutor in his closing argument: (

a) that Detective McMillan thought Werts was a killer; (

b) Moore was a “marked man”; (

c) that people in Werts’ neighborhood decide to commit robbery “out of the clear blue;” and, (

d) that Werts is a dope addict and thief and maybe the jury should not believe what he says. The PCHA court held an evidentiary hearing at which both Werts and trial counsel Chappelle testified and, on September 21, 1983, finding no merit to any of Werts’ contentions, denied his petition for post-conviction relief. Now represented by Samuel C. Stretton, Esquire, Werts appealed the PCHA court’s judgment to the Pennsylvania Superior Court. In this appeal, counsel raised for the first time a due process challenge.

Specifically, Werts argued that the prosecutor and Detective McMillan denied Werts his right to due process by making the following comments which were either not timely objected to or not preserved for appeal by trial counsel: (1) the prosecutor’s comment during closing argument that Detective McMillan thought Werts was a killer; (2) the prosecutor’s comment during closing argument that Moore was a “marked man;” (3) the prosecutor’s statement during closing argument that Werts is an addict and a thief and maybe the jury should not believe him; and (4) the prosecutor’s remark during closing argument that people in Werts’ neighborhood decide to commit robbery for no reason.

In addition, Werts also argued that PCHA counsel was ineffective for failing to raise some of these issues in his amended petition for collateral relief. The Superior Court rejected these claims in a memorandum opinion dated August 2, 1985. Commonwealth v. Werts, 349 Pa.Super. 622, 503 A.2d 52 (1985). In rejecting Werts’ arguments, the court failed to address the due process claims raised in Werts’ brief other than to say that Werts was provided a fair trial.

The Superior Court also failed to address Werts’ argument that PCHA counsel was ineffective for failing to raise some of the issues raised in his brief filed with the court. The Superior Court did consider whether trial counsel’s failure to raise a timely objection to certain prejudicial remarks made by the prosecutor violated Werts’ Sixth Amendment right to effective assistance of counsel. The Superior Court held that trial counsel’s failure to object to the improper statements did not amount to ineffective assistance of counsel.

The court found that trial counsel failed to object to the statements based on a tactical decision which had a reasonable basis designed to serve the defendant’s interests, ie., to refute the prosecutor’s statement with evidence and/or to keep from drawing attention to the comment by objecting to it. Thus, the court declined to find ineffectiveness under those circumstances. Werts subsequently filed a petition for allocator to the Pennsylvania Supreme Court, which was denied on February 3, 1986 without an opinion. Commonwealth v. Werts, No. 1016 (E.D. Allocator Docket 1985).

In his brief in support of the petition, Werts raised the same arguments as those presented in his brief to the superior court with regard to due process and ineffective assistance of counsel. Almost ten years later, on January 23, 1996, Werts filed a second petition for state collateral relief, this time pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”). This petition was summarily dismissed on May 9, 1996; no appeal was taken. On March 18, 1997, Werts filed a federal habeas corpus action in which he asserted four claims.

In his first claim, Werts argues that certain improper statements of the prosecutor denied him his due process right to a fair trial. To the extent that this issue was raised and/or considered on the merits on direct appeal to the Pennsylvania Supreme Court, Werts submits it was properly exhausted at that level and that the supreme court erred in rejecting the argument, for it is patently clear the prosecutor’s remarks deprived Werts of a fair trial.

To the extent that trial counsel either waived the issue at trial and/or failed to preserve it properly on appeal, Werts contends that this lapse constitutes ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. Werts asserts two other claims in his federal habeas petition, neither of which is presently before us. The District Court assigned this case to a Magistrate Judge for a report and recommendation.

With regard to Werts’ first claim, the Magistrate Judge neither addressed nor ruled on Werts’ allegation that the prosecutor’s improper and prejudicial remarks denied him due process and a fair trial. Instead, the Magistrate Judge concentrated solely on Werts’ alternative argument — that defense counsel’s failure to object timely and thus preserve the issue of denial of a fair trial resulting from the prosecutor’s prejudicial remarks constituted ineffective assistance of counsel in violation of the Sixth Amendment. In that regard, the Magistrate Judge held that a Strickland analysis applied.

Under that standard, ineffectiveness will not be found based on a tactical decision which had a reasonable basis designed to serve the defendant’s interests. Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Magistrate Judge found that the Pennsylvania Superior Court’s determination, that trial counsel’s performance was not deficient under Strickland and did not prejudice the defendant, was reasonable.

The superior court found, and the Magistrate Judge agreed, that defense counsel’s actions in failing to object to the improper comments at the time they were made and waiting until the prosecutor finished his summation before moving for a mistrial was a reasonable strategy employed by counsel. Defense counsel testified at the PCHA hearing that he did not seek curative instructions out of a concern of the impact of highlighting these statements.

The Magistrate Judge held that defense counsel’s reasonable strategy not to highlight these statements through a request for curative instructions will not be deemed ineffective in hindsight. Werts filed timely objections to the Magistrate Judge’s Report and Recommendation in which he specifically emphasized the fact that the Magistrate Judge failed to address his due process argument.

Nonetheless, the District Court approved and adopted the Report and Recommendation of the Magistrate Judge in an order and opinion filed on July 31, 1998, without addressing the due process argument raised by Werts in his first claim— that the improper statements of the prosecutor denied him a fair trial.

The District Court focused its analysis instead on Werts’ claim that trial counsel was ineffective for failing to object to the prosecutor’s improper comment in his opening statement that a co-defendant placed his life in danger when he agreed to testify against Werts, and failing to object to the improper comments of the prosecutor during his closing that

(1) Detective McMillan thought Werts was a killer,

(2) Werts was a dope addict and thief, and

(3) Werts “casually decided to participate in the robbery.” Werts v. Vaughn, No. 97-1977, at 5 (E.D.Pa. July 31, 1998). Agreeing with the superior court, the District Court found that counsel’s failure to object was motivated by his desire not to draw attention to these comments by objecting. Thus, the District Court concluded that this “tactical decision was not deficient and certainly did not prejudice the petitioner.” Id. at 4. Accordingly, the District Court concluded that defense counsel’s decision not to highlight the comments was reasonable and would not be deemed ineffective in hindsight. Id. at 5.

The District Court further held that Werts’ claims that counsel was ineffective for failing to object timely and failing to seek a curative instruction were defaulted. The District Court found that the superior court had rejected these claims because they were finally litigated and thus unre-viewable. Id. Since the highest state court has not ruled on the merits of these claims and would be precluded from doing so now for procedural reasons, the District Court held the claims were defaulted and cannot be reviewed absent a showing that a miscarriage of justice would occur. Id.

Viewing the challenged comments of the prosecutor against the weight of the evidence, the District Court found they did not constitute grave error and therefore were unreviewable. Id. The District Court further stated in its July 31, 1998 order that there was no probable cause for appeal. Werts filed a timely application for a certificate of appealability with us which we granted on June 14, 1999.

A panel of our court found that Werts had made a substantial showing that he was denied his right to a fair trial due to prosecutorial misconduct and that he was denied his Sixth Amendment right to effective assistance of counsel due to counsel’s failure to object in a timely fashion to the prosecutor’s comments. Thus, on appeal, our review of the District Court’s judgment denying Werts’ petition for a writ of habeas corpus is limited to these issues. We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253.

We exercise plenary review over the District Court’s legal conclusions in a habeas proceeding and apply a clearly erroneous standard to factual findings in dispute. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.2000); Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.1992) (citing Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir.1989)). II. Before turning to the merits of this appeal, we must first consider whether the due process claim and the claim of ineffective assistance of counsel for failing to raise or preserve the due process claim for appeal asserted by Werts in his federal habeas petition are properly before us.

In the case of a person incarcerated from a judgment of a state court, a prerequisite to federal habeas review is that the petitioner have exhausted the remedies available to him in the state courts to the extent such remedies exist and are effective. 28 U.S.C. § 2254(b)(1) (1997). If a petitioner has the right under state law to raise, by any available procedure, the question presented, then he will not be deemed to have exhausted his available state court remedies. 28 U.S.C. § 2254(c) (1997). See also Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997).

This exhaustion requirement is predicated on the principle of comity which ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights. Caswell, 953 F.2d at 857 (citations omitted). We previously explained the exhaustion requirement as follows: A petitioner who has raised an issue on direct appeal, however, is not required to raise it again in a state post-conviction proceeding.

Thus, the federal habeas claim must have been “fairly presented” to the state courts, ie., it must be the substantial equivalent of that presented to the state courts. In addition the state court must have available to it the same method of legal analysis as that to be employed in federal court. The habeas petitioner carries the burden of proving exhaustion of all available state remedies. Lambert, 134 F.3d at 513 (internal citations omitted).

We may excuse exhaustion, however, if requiring exhaustion would be futile, i.e., exhaustion is impossible due to procedural default and state law clearly forecloses review of the unexhausted claim. Id. at 518-19 (citations omitted); see also Lines v. Larkins, 208 F.3d 153, 159-60 (3d Cir.2000) (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999)) (if state procedural rules bar a petitioner from seeking further relief in the state courts, exhaustion will be deemed satisfied since an absence of an available state corrective process exists).

Although exhaustion may be excused, we may nonetheless be precluded from reviewing the merits of claims deemed exhausted. In Lines, we recently held: claims deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner “establishes ‘cause and prejudice’ or a ‘fundamental miscarriage of justice’ to excuse the default.” [McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999) ]. See also Coleman [v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ]. Lines, 208 F.3d at 160. See also, Caswell v.

Ryan, 953 F.2d 853, 857 (3d Cir.1992) (“if a state court has refused to consider a petitioner’s claims because of a violation of state procedural rules, a federal habeas court is barred by the procedural default from considering the claims, Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), unless the habeas petitioner can show ‘cause’ for the default and ‘prejudice’ attributable thereto,”) (additional citations omitted).

The Supreme Court has delineated what constitutes “cause” for the procedural default: the petitioner must “show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). By way of example, the Court opined that showing a factual or legal basis for a claim was not reasonably available to counsel or showing interference by government officials sufficient to make compliance impracticable, would constitute acceptable cause for federal habeas review of the defaulted claim. Id.

Moreover, ineffective assistance of counsel has been deemed by the Supreme Court to fall within this standard. Id. The Court noted, however, that the exhaustion doctrine generally requires that an ineffective assistance claim “be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.” Id. at 488-89, 106 S.Ct. 2639.

With regard to the prejudice requirement, the habeas petitioner must prove “ ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” Id. at 494, 106 S.Ct. 2639 (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). This standard essentially requires the petitioner to show he was denied “fundamental fairness” at trial. Id.

In the context of an ineffective assistance claim, we have stated that prejudice occurs where “there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.” Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir.1996).

In the alternative, if the petitioner fails to demonstrate cause and prejudice for the default, the federal habeas court may still review an otherwise procedurally defaulted claim upon a showing that failure to review the federal habeas claim will result in a “miscarriage of justice.” Generally, this exception will apply only in extraordinary cases, i.e., “where a constitutional violation has probably resulted in the conviction of one who is actually innocent....” Id. at 496, 106 S.Ct. 2639.

Thus, to establish a miscarriage of justice, the petitioner must prove that it is more likely than not that no reasonable juror would have convicted him. Schlup v. Delo, 513 U.S. 298, 326, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). III. With these principles in mind, we turn to the facts of this case. In his federal habeas petition, Werts claims his right to due process was violated by certain improper comments made by the prosecutor during opening and closing arguments. With regard to the vouching statements, this claim was not raised at trial, on direct appeal or in the state collateral review proceedings.

Werts raises it for the first time in his federal habeas petition. Thus, although Werts has failed to exhaust his state remedies as to the vouching statements, he would be without a state corrective process if he were required to bring this claim in state court now. Indeed, he would be procedurally barred from obtaining state relief as his claim would be deemed waived under the PCRA, 42 Pa. Cons.Stat. Ann. § 9544(

b) and/or barred by the one year statute of limitations under the PCRA, 42 Pa. Cons. Stat. Ann. § 9545(b). Under these circumstances, it would be futile to require exhaustion. Therefore, Werts is excused from the exhaustion requirement as to the vouching statements. Werts’ due process claim based on the prosecutor’s vouching statements, however, is not reviewable here, despite excusable exhaustion, because this claim is procedurally defaulted.

Thus, we may not consider the merits of Werts’ due process argument regarding the vouching statements unless he has established “cause and prejudice” or a “fundamental miscarriage of justice.” We find that not only has Werts not proven these elements, he has not even alleged their existence as a basis for relief. Accordingly, in this federal habeas case, we are precluded from reviewing Werts’ due process claim predicated upon the vouching statements.

Werts’s due process claim regarding the prosecutor’s remark during his opening statement that a co-defendant was putting his life in danger by testifying against Werts, and the prosecutor’s remarks in his dosing statement that people in Werts’ neighborhood commit crimes haphazardly and that Detective McMillan thought Werts was a killer, were not preserved for appeal because defense counsel faked to object timely at trial, failed to raise these claims in post-trial motions, and failed to raise these claims on direct appeal to the Pennsylvania Supreme Court or in Werts’ amended PCHA petition.

The first time Werts raised this due process argument was in his brief to the Pennsylvania Superior Court in his appeal from the trial court’s denial of his PCHA petition. Under Pennsylvania law, these claims are deemed waived for PCHA purposes because they could have been raised at an earlier stage in the proceedings and were not. 19 P.S. § 1180-4(b) (1966). Moreover, Pennsylvania law also provides that failure to preserve an issue for appeal results in the denial of review on appeal. Sistrunk v. Vaughn, 96 F.3d at 671 (citing Pa.R.App.P. 302(

a) and Commonwealth v. Labron, 543 Pa. 86, 669 A.2d 917, 919 (1995), rev’d on other grounds, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)). Indeed, the Superior Court refused to address Werts’ due process claims raised for the first time in his appellate brief on collateral review to that court. Thus, Werts’ due process claim as to these statements is procedurally defaulted. Moreover, because Werts has not alleged “cause and prejudice” or a “miscarriage of justice,” we may not review these proee-durally defaulted state claims.

Werts’ last due process argument centers on the prosecutor’s remark during his dosing argument that Moore would be a “marked man” were he returned to prison. Defense counsel waited to object to this statement until after the prosecutor concluded his closing. The trial court ruled his objection was untimely and denied counsel’s motion for a mistrial. Defense counsel raised this claim in post-trial motions and in his direct appeal to the Pennsylvania Supreme Court, which was subsequently denied as lacking in merit. This claim is not reviewable by the PCHA court because it was finally litigated on direct appeal.

See 19 P.S. § 1180-4(a)(3)(1966). Thus, Werts has exhausted his state remedies as to the due process claim regarding the “marked man” statement. Accordingly, this claim is reviewable by the federal habeas court.

Instead of arguing that cause and prejudice existed to excuse the procedural default or that a miscarriage of justice would result if the procedurally defaulted claims were not reviewed, Werts argued in his federal habeas petition that counsel’s failure to object to the improper comments at trial timely, to request a mistrial, to raise the issues in written post-trial motions, and to raise and preserve the due process issues for appeal constituted ineffective assistance of counsel in violation of the Sixth Amendment.

The District Court appears to have held that all of Werts’ claims of ineffective assistance of counsel arising out of the prosecutor’s improper remarks were procedurally defaulted and thus unreviewable absent a showing that a miscarriage of justice would occur. Having found that the prosecutor’s comments, when viewed against the weight of the evidence, did not constitute grave error, the District Court ruled that counsel’s alleged ineffectiveness for failing to object and preserve the due process claims for appeal was not reviewable by the federal habeas court.

After reviewing Werts’ briefs in support of his direct appeal to the Pennsylvania Supreme Court, and his amended PCHA petition and briefs to the superior and supreme courts on collateral review, as well as the opinions of the trial court denying post-trial motions and post-collateral relief, of the Pennsylvania Supreme Court on direct review, and of the superior court on collateral review, we find that the ineffectiveness claims based on counsel’s failure to object to the improper comments of the prosecutor or to preserve these claims for appeal are not procedurally defaulted with the exception of the prosecutor’s remark in his dosing argument that Moore would be a “marked man” if he would return to prison.

In the state collateral proceeding, the superior court refused to review the ineffectiveness claim for failing to object to the “marked man” comment because Werts’ due process challenge based on the “marked man” comment had been finally litigated on direct review by the Pennsylvania Supreme Court. The highest state court in Pennsylvania has never ruled on the merits of Werts’ ineffectiveness claim based on the “marked man” comment during closing argument and would not do so now for procedural reasons.

Thus, the ineffective assistance of counsel claim based on the “marked man” comment during dosing argument has been procedurally defaulted. PCHA counsel raised the ineffectiveness claim for trial counsel’s failure to object to the remaining improper remarks of the prosecutor at the earliest opportunity in his amended PCHA petition. These claims were considered on the merits and rejected by the PCHA trial court, as well as the superior court on collateral review.

Accordingly, the ineffectiveness claims based on the improper remarks of the prosecutor other than the “marked man” comment are reviewable in this federal habeas proceeding. We turn now to the merits of Werts’ appeal. IV. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which went into effect on April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254.

Since Werts filed his habeas petition on March 18, 1997, after the effective date of the AEDPA, we are required to apply the amended standards set forth in the AED-PA to his claim for federal habeas corpus relief. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under 28 U.S.C. § 2254(a) (1997), a federal court is required to consider only petitions filed on behalf of individuals in custody pursuant to a state court judgment which are grounded on a violation of the Constitution or the laws or treaties of the United States.

Moreover, the petitioner has to overcome the exhaustion hurdle described earlier, 28 U.S.C. § 2254(b) (1997). The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts. See Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996).

Federal habeas corpus relief is precluded as to any claim that was adjudicated on the merits in a state court proceeding unless such adjudication: (1) 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) 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) and (2) (1997).

Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (1997). On April 18, 2000, the Supreme Court issued a decision in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), in which the Court construed the new standard of review as set forth in amended

section 2254(d)(1). Justice O’Connor delivered the opinion of the Court wherein she provided the following

interpretation with respect to the standard of review: Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under 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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.

Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. 120 S.Ct. at 1523. The appropriate inquiry to be made under the “unreasonable application of’ standard, the Court stated, was “whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 1521.

In further delineating the “unreasonable application of’ component, the Supreme Court stressed that an 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. Id. at 1522. A little over one year before the Supreme Court’s decision in Williams, we also construed the new standard of review under

section 2254(d)(1) in Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir.1999), sitting en banc. There we held that

section 2254(d)(1) requires a federal habeas court to make two inquiries: First, the federal habeas court must determine whether the state court decision was “contrary to” Supreme Court preee-dent that governs the petitioner’s claim. Relief is appropriate only if the petitioner shows that “Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.” O’Brien [v. Dubois], 145 F.3d [16, 24-25 (1st Cir.1998)].

In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an “unreasonable application of’ Supreme Court precedent: that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted. Matteo, 171 F.3d at 891. We believe our opinion in Matteo is in accord with the Supreme Court’s decision in Williams.

Indeed, one of the focuses of Justice O’Connor’s opinion was the fact that the “contrary to” and “unreasonable application of’ clauses should be accorded independent meaning. Williams, 120 S.Ct. at 1519. Our opinion in Matteo also makes this distinction. To commence our analysis of the “contrary to” provision, we must first identify the applicable Supreme Court precedent and determine whether it resolves the petitioner’s claim. Matteo, 171 F.3d at 888. We explained that to prove entitlement to habeas relief under the “contrary to” provision: it is not sufficient for the petitioner to show merely that his

interpretation of Supreme Court precedent is more plausible than the state court’s; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome. This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court

interpretation of the applicable precedent. Id. If we determine that the state court decision is not “contrary to” the applicable Supreme Court precedent, then we are required to advance to the second step in the analysis — whether the state court decision was based on an “unreasonable application of’ Supreme Court precedent. Id. In analyzing the “unreasonable application of’ provision, we are not authorized to grant habeas corpus relief simply because we disagree with the state court’s decision or because we would have reached a different result if left to our own devices.

Id. (quoting O’Brien, 145 F.3d at 25) (other citations omitted). A contrary holding would amount to de novo review which we have held is proscribed by the AEDPA. Id. Thus, the appropriate inquiry at this juncture is whether the state court’s application of Supreme Court precedent was objectively unreasonable. Williams, 120 S.Ct. at 1521; Matteo, 171 F.3d at 889-90.

In other words, “[t]he federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent.” Matteo, 171 F.3d at 890. We will apply this standard of review to Werts’ due process and ineffective assistance of counsel claims seriatim. A.

In light of the AEDPA’s standard of review, we find that Werts is not entitled to federal habeas relief on the only reviewable due process claim, i.e., that the prosecutor’s reference to Moore as a “marked man” during closing argument so prejudiced the jury as to deny him a fair trial. In essence, Werts’ claim sounds of prosecutorial misconduct. The Supreme Court has held that federal habeas relief may be granted when the “prosecutorial misconduct may ‘so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Greer v.

Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The Court further opined that for due process to have been offended, “the prosecutorial misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ ” Id. (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (quoting United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976))). See also Ramseur v.

Beyer, 983 F.2d 1215, 1239 (3d Cir.1992) (our review of a prosecutor’s conduct in a state trial in a federal habeas proceeding is limited to determining whether the prosecutor’s conduct “ ‘so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process.’ ” (quoting Greer, 483 U.S. at 765, 107 S.Ct. 3102)). This determination will, at times, require us to draw a fine line — distinguishing between ordinary trial error on one hand, and “ ‘that sort of egregious misconduct which amounts to a denial of constitutional due process’” on the other hand.

Ramseur, 983 F.2d at 1239 (quoting United States ex rel. Perry v. Mulligan, 544 F.2d 674, 678 (3d Cir.1976)). In evaluating whether the remarks of the prosecutor rise to the level of a constitutional violation, we are required to examine those remarks in the context of the whole trial. Ramseur, 983 F.2d at 1239 (citing Greer, 483 U.S. at 766, 107 S.Ct. 3102). The remarks must be sufficiently prejudicial in the context of the entire trial to violate a petitioner’s due process rights. Greer, 483 U.S. at 766, 107 S.Ct. 3102 (citing Donnelly v. DeChristoforo, 416 U.S. at 639, 94 S.Ct. 1868).

We cannot say that the prosecutor’s “marked man” comments during closing argument were sufficiently prejudicial in the context of the entire trial to violate Werts’ due process rights. The trial court, in denying Werts’ post-trial motions, rejected Werts’ prosecutorial misconduct argument that the “marked man” comments prejudiced the jury’s view of him. While the trial court made clear that it did not condone the remarks of the prosecutor, it nonetheless found that those remarks were motivated, at least in part, by the conduct and statements of defense counsel in his closing statement to the jury.

Viewing the prosecutor’s remarks in this light, the trial court concluded that the statements did not constitute reversible error. Commonwealth v. Werts, Nos. 1859, 1860, 1862 and 1863, slip op. at *4 (Nov. 13, 1976) (Bonavitacola, J.). On direct review of Werts’ state conviction, the Pennsylvania Supreme Court found Werts’ due process claim to be without merit and not warranting any discussion. 483 Pa. at 224 & 226 n. 2, 395 A.2d at 1317 & 1318 n. 2.

The appellees argue that the prosecutor’s “marked man” remarks in his closing statement were made in direct response to the argument of defense counsel that Moore had implicated others involved in the crime and had indeed agreed to “frame” Werts in order to obtain his own release on bail. While the prosecutor and defense counsel share a responsibility to confine arguments to the jury within proper limits, occasionally, during the heat of argument, counsel make remarks that are not supported by the testimony and which are or may be prejudicial to the defendant. United States v.

Young, 470 U.S. 1, 8 & 10, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (citation omitted). Where, in a criminal trial, defense counsel argues improperly, thereby provoking the prosecutor to respond in kind, and the trial judge does not take any corrective action, a criminal conviction will not be “overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial.” Id. at 11, 105 S.Ct. 1038.

Thus, in analyzing the effect of the prosecutor’s remarks on the outcome of the trial, courts will consider the “invited response” or “invited reply” rule, i.e., whether “defense counsel’s comments ‘clearly invited the reply.’ ” Id. (quoting Lawn v. United States, 355 U.S. 339, 359-60 n. 15, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958)). Thus, “the Court must consider the probable effect the prosecutor’s response would have on the jury’s ability to judge the evidence fairly.” Id. at 12, 105 S.Ct. 1038.

This analysis requires the reviewing court to weigh not only the impact of the prosecutor’s remarks, but also to consider defense counsel’s statement. Id. If the prosecutor’s comments were “invited,” and went no further than required to “right the scale,” such remarks would not warrant overturning a conviction. Id. at 12-13, 105 S.Ct. 1038. In United States v. Young, the Supreme Court found that the remarks of the prosecutor, although motivated by defense counsel’s closing argument, were improper and resulted in error. 470 U.S. at 16, 105 S.Ct. 1038.

This error, however, did not rise to the level of plain error as the Supreme Court found the fundamental fairness of the trial was not undermined by the prosecutor’s improper remarks, nor had they contributed to a miscarriage of justice. Id.

In so holding, the Supreme Court reasoned that any potential harm from the prosecutor’s remark regarding his personal belief as to the guilt of the defendant was mitigated by the jury’s understanding that the prosecutor was responding to defense counsel’s repeated attacks on the prosecutor’s integrity and defense counsel’s argument that the evidence failed to establish a crime. Id. at 17-18, 105 S.Ct. 1038. The Court further reasoned that given the context of the prosecutor’s remarks and the broadside attack from defense counsel, the jury was not influenced to stray from its duty to be fair and unbiased.

Id. at 18, 105 S.Ct. 1038. Indeed, the jury acquitted the defendant in Young of the most serious charge he faced, which reinforced the Court’s conclusion that the prosecutor’s remarks did not undermine the jury’s ability to view the evidence independently and fairly. Id. at 18 n. 15, 105 S.Ct. 1038. The Court also took into consideration whether the prosecutor’s remark involving his personal opinion contained any suggestion that he was relying on information not presented to the jury which supported the charges against the defendant. Id. at 19, 105 S.Ct. 1038.

Having concluded that the improper remarks did not contain any such suggestion, but, rather, were supported by the defendant’s own testimony, the Court opined the jury'understood the comment for what it was — a defense of the prosecutor’s decision and integrity. Id. Finally, the Court noted that the record contained overwhelming evidence of the defendant’s guilt which eliminated any lingering doubt that the prosecutor’s remarks prejudiced the jury. Id. at 20, 105 S.Ct. 1038.

Like the prosecutor in Young, the prosecutor in this case appears to have made the “marked man” comments in response to defense counsel’s closing statement. The prosecutor’s reference to Moore as a “marked man” was in direct response to defense counsel’s argument that his bail had been changed so he could get out of jail without posting a bond in exchange for testifying against Werts.

Having .reviewed the prosecutor’s comments in view of the entire closing arguments made by both counsel and the evidence adduced at trial, we find that the prosecutor’s comments were invited and, for the most part, went no further than required to “right the scale.” After defense counsel’s charge, the prosecutor was entitled to explain why Moore’s bail had been changed.

This necessarily entailed pointing out that a prisoner who cooperates with the prosecution is not looked upon favorably by his fellow inmates and that the Commonwealth’s agreement to Moore’s release on bail was a reasonable response to the realities of prison life. Up to this point, we do not find the comments of the prosecutor to be improper. We think the prosecutor overstepped his bounds, however, when he remarked that the Commonwealth did not want to have Moore wind up hanging from the top of a cell.

Although this comment is improper and resulted in error, in the overall context of the entire closing statements and record evidence, we do not find this one sentence was sufficient to unfairly prejudice the jury. At most, this single wayward statement amounts to an ordinary trial error, which is insufficient to constitute a denial of due process. The prosecutor never stated that Werts threatened Moore or that Werts would have Moore killed if he was sent back to the Detention Center.

We further find that while not overwhelming, the state trial record contains ample evidence of Werts’ guilt, which further mitigates the possibility that the jury was prejudiced by the prosecutor’s improper comment. The jury had before it Werts’ confession and trial testimony, as well as the testimony of Moore, a co-defendant, and several other witnesses. Specifically, the other witnesses are Detective Dougherty, Detective McMillan, and Detective Verrugghe. Detective Dougherty testified in pertinent part that he observed fresh brush burns on Werts’ chest and back upon his arrival at the police station.

Based on Detective Dougherty’s testimony, a jury could certainly find that Werts’ injuries were consistent with what you would expect to see when a shirtless individual is pulled through a two-foot by two-foot opening, (when Werts was apprehended above the closet), as opposed to injuries sustained in a beating. Detective Dough-erty also stated that he gave Werts his Miranda warnings and Werts indicated that he understood his rights. Detective Dougherty testified during the interview that Werts appeared normal and responsive; he did not appear to be under the influence of drugs or alcohol.

Detective Dougherty further stated that Werts did not complain to him of any physical ailments and refused medical treatment when asked if he wanted it. Detective Dougherty read into evidence the incriminating statement he took from Werts; the bottom of each page contained Werts’ signature. The portion of Detective McMillan’s testimony which had a significant impact on the credibility of Werts’ trial testimony (and his repudiation of guilt) was his statements to the effect that the events on the morning of Werts’ arrest did not transpire as Werts described them.

Detective McMillan testified that no one punched or kicked Werts, or sprayed mace in his face, or hit him in the mouth with a shot gun. In addition, Werts’ guilt could also be inferred from Detective McMillan’s testimony that Werts had been found hiding from police in a crawl space above a closet. Finally, Detective Verrugghe’s testimony corroborates Werts’ statement in his confession to Detective Dougherty to the effect that Werts and Van drove to Werts house after the shooting, and that Van stayed at Werts’ house overnight.

It defies logic to suggest that Werts paid someone just to drive him home because he was drunk when the white Ford Falcon was still parked outside Werts’: residence the day after the shooting. Detective Verrugghe’s testimony lends credibility to Werts’ confession as opposed to his later denial at trial of his participation in the robbery.

Moreover, in its final jury charge, the trial court instructed the jurors that their factual finding should be based exclusively on the evidence presented during the trial and that their determination of the facts should not be controlled by expressions of opinion or comments on the facts by the prosecutor. The trial court further instructed the jurors that while they had a duty to consider the arguments of counsel, they had the right to reject any or all of these arguments.

Considering the prosecutor’s improper remark in the context of the entire trial, including the argument of defense counsel and the jury charge, we cannot say the prosecutor’s improper remark was sufficiently prejudicial to violate Werts’ due process rights. Therefore, the decisions of the state trial court and the Pennsylvania appellate courts comport with the clearly established Supreme Court precedent and do not involve an objectively unreasonable application of such law.

Since the state court adjudication is neither contrary to, nor an unreasonable application of the Supreme Court precedent, Werts is not entitled to federal habeas relief on his due process claim. B. We turn now to the merits of Werts’ ineffective assistance of counsel claim.

The prosecutorial remarks to which trial counsel failed to object and/or preserve for appeal, which form the basis of Werts’ ineffective assistance claim and which are not procedurally defaulted, include: (1) in the prosecutor’s opening statement, that a co-defendant was putting his life in his hands by testifying, and in the prosecutor’s closing argument, (2) that Detective McMillan thought Werts was a killer, and that (3) people in Werts’ neighborhood commit crimes for no reason.

The Pennsylvania Superior Court reviewed each of these statements and concluded that counsel was not ineffective for failing to object to these remarks of the prosecutor. With regard to the statement made during the opening in which the prosecutor referred to the possibility that a co-defendant had jeopardized his personal safety by agreeing to testify for the government, the superior court found that defense counsel had exercised reasonable trial strategy in failing to object to this comment — he intended to refute the statement with evidence and did not want to draw attention to the comment by objecting to it.

The court therefore declined to find “ineffectiveness based on a tactical decision which had a reasonable basis designed to serve a defendant’s interests.” Commonwealth v. Werts, No. 2762 Phil.1983, slip op. at 2 (Aug. 2, 1985) (citing Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983)). The remaining comments forming the basis of Werts’ ineffectiveness claim were discussed collectively by the superior court.

First, the superior court noted that at the completion of the prosecutor’s closing argument, defense counsel raised an objection at sidebar to the remarks and moved for a mistrial based on prosecutorial misconduct which was denied. Id. The superior court further observed that defense counsel testified at the PCHA hearing that he did not seek curative instructions because he was concerned with the impact of highlighting these comments. Id. Upon a review of the record, the superior court concluded that the prosecutor’s remarks did not warrant the declaration of a mistrial. Id.

The court’s decision appears to be predicated on three bases: (1) the prosecutor’s remarks could be construed as a proper response to defense counsel’s argument (citing Commonwealth v. Floyd, 506 Pa. 85, 91, 484 A.2d 365, 368 (1984)); (2) the prosecutor drew legitimate inferences from the evidence of record (citing Commonwealth v. Tucker, 461 Pa. 191, 201, 335 A.2d 704, 709 (1975)); and (3) defense counsel’s decision not to highlight these remarks through a request for a curative instruction was a reasonable strategy and would not be deemed ineffective in hindsight (citing Commonwealth v.

Anderson, 501 Pa. 275, 461 A.2d 208 (1983)). At the time the superior court issued its decision, the controlling case governing ineffectiveness claims in Pennsylvania was Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), which set forth the following test: our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.

The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weighing the alternatives as we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis. 427 Pa. at 604-05, 235 A.2d 352-53. The court may not substitute its determination as to what course of action would have been more effective in promoting the defendant’s interests for that of counsel. Commonwealth v. Roundtree, 469 Pa. 241, 249, 364 A.2d 1359, 1363 (1976).

Thus, if the court determines that “counsel made an informed choice, which at the time the decision was made reasonably could have been considered as advancing and protecting the [defendant’s] interests,” counsel will not be deemed ineffective. Id. (citing Commonwealth v. Hill, 450 Pa. 477, 482, 301 A.2d 587, 590 (1973)). Counsel is presumed to be competent and the defendant has the burden of proving otherwise. Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 161 (1999) (citation omitted); Washington, 427 Pa. at 603, 235 A.2d at 352.

Moreover, counsel cannot be deemed ineffective for failing to raise a meritless claim. Carpenter, 725 A.2d at 161 (citation omitted). In 1987, the Pennsylvania Supreme Court reviewed the ineffectiveness standard set forth in Washington to determine whether that standard also included a prejudice requirement. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

The court concluded that although Washington could be read as equating prejudice with the unreasonableness of counsel’s performance, thereby vitiating the need for showing actual prejudice, this language in Washington was inconsistent with the law as the supreme court has actually applied it. Pierce, 515 Pa. at 160, 527 A.2d at 976.

Historically, Pennsylvania caselaw has clearly demonstrated that the supreme court measured counsel ineffectiveness by two components: (1) the reasonableness of counsel’s conduct if it is determined that there is merit to the underlying claim and (2) how the ineffectiveness prejudiced the defendant. Id., 515 Pa. at 158-59, 527 A.2d at 975. To the extent Washington had been interpreted in past decisions to exclude prejudice from the analysis of ineffectiveness claims, the Pennsylvania Supreme Court overruled Washington and those decisions incorrectly interpreting Washington. 515 Pa. at 160-61, 527 A.2d at 976.

The court further opined that the Pennsylvania standard judging ineffectiveness claims was identical to the ineffectiveness standard enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pierce, 515 Pa. at 161-62, 527 A.2d at 976-77. In Strickland, the United States Supreme Court enunciated the test for ineffective assistance of counsel under the United States Constitution.

This test has two components: First, the defendant must show that counsel’s performance fell below an objective standard of reasonableness, 466 U.S. at 688, 104 S.Ct. 2052 and, second, the defendant must show he was actually prejudiced by counsel’s deficient performance. Id. at 687, 104 S.Ct. 2052. A defendant asserting an ineffectiveness claim must prove both elements in order for the court to conclude that the conviction is unreliable. Id.

The Supreme Court proffered the following edification of the reasonableness component: A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (citation omitted). Thus, the court concluded that when deciding an ineffectiveness claim, the reasonableness of counsel’s conduct must be judged in light of the facts of the particular case at the time the conduct occurred.

Id. at 690, 104 S.Ct. 2052. Turning to the prejudice component, the Court elaborated that for prejudice to be established, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

Our determination of whether the state appellate courts erred in denying Werts’ ineffective assistance of counsel claim requires us to review the state courts’ application of Supreme Court precedent to a particular set of facts. Here, the state appellate courts did not apply a rule of law that contradicts the Supreme Court’s holding in Strickland. Accordingly, we find that the state appellate court’s decision was not contrary to established Supreme Court precedent.

This conclusion does not end our inquiry, however, for we must also analyze Werts’ ineffectiveness claim under the “unreasonable application of’ provision of

section 2254(d)(1). Under that provision, the appropriate inquiry is whether the Pennsylvania courts’ application of Strickland to Werts’ ineffectiveness claim was objectively unreasonable, i.e., the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under Strickland. We find that under the facts of this case, the Pennsylvania Superior Court’s determination that trial counsel rendered effective assistance was not an unreasonable application of Strickland.

Counsel’s failure to object to the prosecutor’s remark in the opening statement that Moore was taking his life in his hands by testifying for the government was based on reasonable trial strategy as explained by defense counsel at the PCHA hearing.

There counsel testified that he did not object to the prosecutor’s comment because he did not want to draw attention to it by continuously objecting, that he thought the statement “cut both ways,” and because he thought the statement would “backfire” against the prosecutor because defense counsel “knew [he was] going to present evidence that [the prosecutor and Moore] had a deal and really that this guy was never in fear for his life.” Counsel’s explanation for his failure to object indicates that he employed what he believed to be sound trial strategy at the time.

Moreover, Werts has not presented any legal authority or pointed to any evidence in the record which would overcome the presumption that counsel’s performance constituted sound trial strategy. Thus, we hold that the judgment of the Pennsylvania Superior Court did not result in an outcome that cannot reasonably be justified under Strickland. Accordingly, Werts is not entitled to habeas relief on his claim of counsel ineffectiveness for failing to object to the prosecutor’s remark in his opening regarding Moore’s safety.

The Pennsylvania Superior Court further held that Werts was not denied effective assistance of counsel with regard to defense counsel’s failure to object to certain remarks of the prosecutor during the closing argument. After objectively evaluating the merits of the Pennsylvania Superior Court judgment, we are convinced that the court’s decision resulted in an outcome that can reasonably be justified under Strickland.

The prosecutor’s remark that Detective McMillan thought Werts was a killer was in direct response to defense counsel’s statement in closing that the detective had a certain predisposition concerning the case and towards Werts, and whether or not McMillan was concerned for his well being. If the remarks themselves are not improper, counsel cannot be held ineffective for failing to object to them.

Here, the prosecutor’s remark that Detective McMillan thought Werts was a killer was an invited reply to defense counsel’s statement and which went no further than required to “right the scale.” Young, 470 U.S. at 12-13, 105 S.Ct. 1038. Accordingly, such remark was not improper and thus Werts cannot claim counsel ineffectiveness for faffing to object to his remark.

Werts also claims counsel was ineffective for faffing to object to the following remark of the prosecutor: Moore testified that it was May 6th in the evening, and they went — he was at home drinking and they came to the house and Butch Jones came up to him and they went outside and Butch Jones was looking for a place to rob. Bear in mind, this is the way people are up there. They are sitting at home doing nothing and they decide to rob a place just out of the clear blue.

And Butch Jones'takes Tyrone Moore outside in the car and asked him “Do you know a place to rob?” And he said there is a Speakeasy over on Arizona Street and says Werts is there. Now Werts says he was asleep. This remark of the prosecutor appears to be a fair comment on the evidence presented at trial, which established that Werts’ accomplices were at Moore’s house on the day of the crime, trying to decide on a place to rob. - We note that there was never an argument made to the state courts that this remark was racially motivated and intended to inflame the jurors.

Indeed, Werts argued in the state collateral proceedings that this remark amounted to improper "personal opinion that the prosecutor believed he casually decided to participate in this robbery with his co-conspirators. See Brief for Appellant, Superior Court of Pennsylvania, No. 2762*PHL 83, at 16; Petition of Appellant for Allowance of Appeal to Pennsylvania Supreme Court, at 13. Our objective review of the record and the superior court’s decision reveals no basis for federal habeas relief. We find the prosecutor was merely attempting to point out reasonable inferences from the evidence presented at trial.

Accordingly, the prosecutor’s remarks were not improper and counsel’s performance cannot be deemed inadequate for faffing to object to the remarks. Moreover, defense counsel testified at the PCHA hearing that he did not file a timely objection or seek curative instructions for various reasons, including his concern over the impact of highlighting the remarks.

In this regard, counsel stated that, in his opinion, even if he had made a timely objection, the court would have given curative instructions rather than grant his motion for a mistrial, and he was more concerned -with further highlighting these statements and the additional harm done to the defendant. Counsel’s decision not to draw attention to the remarks cannot be deemed unreasonable trial strategy in light of the facts of this case. Granted counsel also admitted he was too embarrassed to object during the prosecutor’s closing and thought he could wait until the end.

Indeed, counsel cited caselaw to support his position in both his post-trial motions and in his brief to the Pennsylvania Supreme Court. Nonetheless, these trial errors do not rise to the level of ineffective assistance of counsel. See e.g., Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (finding no inequity in requiring petitioner to bear the risk of attorney error that results in a procedural default so long as counsel’s performance is not constitutionally ineffective under Strickland,); Coleman v.

Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“Attorney ignorance or inadvertence is not ‘cause’ [for the procedural, default] because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.’ ”) What Strickland requires is that counsel’s performance meet an objective standard of reasonableness. We cannot say.that under the facts presented here, counsel’s failure to object was unreasonable.

Werts has not proved either that the remarks were improper and therefore objectionable or that the basis for counsel’s failure to object might not be considered sound trial strategy. We hold, therefore, that the Pennsylvania Superior Court’s determination that trial counsel rendered effective assistance was not an unreasonable application of Strickland. Accordingly, Werts is not entitled to federal habeas relief on his claim of counsel ineffectiveness for failing to object to the prosecutor’s remarks. V.

For the reasons set forth above, we will affirm the judgment of the District Court denying Werts’ petition for writ of habeas corpus. . At trial, defense counsel lodged a timely objection to Detective McMillan's unsolicited response regarding the clothing. The trial court denied his motion for a mistrial and gave a cautionary instruction which, defense counsel argued on direct appeal, failed to extinguish the prejudicial mature of the response and remove its taint from the minds of the jurors. .

In 1982, the PCHA was superseded and replaced by the Post Conviction Relief Act ("PCRA”), 42 Pa.Cons.Stat.Ann. §§ 9541 et seq. . Werts also referenced several other comments which are not at issue in this appeal. . The Constitution does not guarantee a right to counsel at state collateral review proceedings. Therefore, the Supreme Court has held that there can be no Sixth Amendment violation for ineffective assistance of counsel based upon representation at such proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citations omitted). .

The District Court dismissed the following claims and Werts has not appealed that portion of the District Court's decision. Werts' third claim challenges the state trial court's limitation of the presentation of his defense on the issue as to why he was hiding in the crawl space and the issue of use of expert testimony to establish the voluntary nature of his incriminating statement. Werts contended the trial court erred in improperly limiting his defense and that trial counsel was ineffective for failing to preserve this issue for appeal.

In his fourth claim, Werts contended that he was denied his right to a fair trial by an impartial jury where the trial court refused to permit counsel to ask prospective jurors during voir dire whether they would reject testimony or evidence of a witness solely because he had been a drug user. The crux of the defense was that Werts' confession was the result of heroin withdrawal during interrogation.

Given society's intensely negative view of drugs and drug abuse, Werts contended that the failure of the trial court to permit any inquiry into potential juror bias in this area raised a serious question concerning the ability of prospective jurors to consider the defense’s contentions objectively. Moreover, Werts submitted that the prevalence of such bias in our culture, coupled with the prominent role of his drug abuse in his challenge to the alleged confession, cast doubt on the integrity of the voir dire proceeding and sufficiently undermined confidence in the outcome to warrant habeas relief. .

It appears that the District Court’s paraphrase, "casually decided to participate in the robbery,” refers to the prosecutor’s comment that people in Werts’ neighborhood haphazardly decide to commit crimes. . In addition to avoid drawing attention to the comment by objecting, defense counsel also thought he would refute the comment in the prosecutor's opening statement about a co-defendant fearing for his safety with evidence during the presentation of his case. . As explained infra, the District Court misstates the holding of the Pennsylvania Superi- or Court.

Indeed, only Werts’ claim, that counsel was ineffective for failing to object and seek a curative instruction to the prosecutor’s remark during his closing that Moore would be a "marked man” if he returned to prison, was denied review by the superior court because this issue had been finally litigated in the direct appeal. Thus, the District Court's conclusion that all of Werts' claims of ineffective assistance of counsel arising out of the prosecutor’s improper remarks were procedurally defaulted constitutes legal error. .

A state procedural default occurs when "the state court refuses to hear the merits of the claim because either (1) the defendant waived a PCRA claim she could have raised in an earlier proceeding but failed to do so; or (2) some other procedural bar exists, such as a statute of limitations.” Lambert, 134 F.3d at 518 (citation omitted). . The prosecutor vouched for the credibility of the homicide detectives as follows: These men are assigned to the Homicide Division of the Philadelphia Police Department, top division department. They are professionals.

They have worked in the police department for a number of years. They have testified to that. They have been employed as policemen for a number of years. If they had certain attitudes to color their thinking in cases, they would not be in the Homicide Division. They have to be professionals in work. They cannot bring in people and beat them every time they come in to get statements out of thehi. It just does not work like that. . The version of the PCHA in effect at the time Werts sought collateral review was codified at 19 P.S. §§ 1180-1 et seq. (1966).

The PCHA was repealed effective June 26, 1982 and was replaced by the PCRA, 42 Pa. Cons. Stat. Ann. §§ 9541 et. seq., as amended in 1988 and 1995. .Any ineffectiveness claim based on counsel's failure to object to the vouching statements is also procedurally defaulted as this claim was never presented to the state courts as either a due process or ineffective assistance of counsel challenge. . The Pennsylvania Supreme Court rejected this claim as meritless without any discussion. Commonwealth v. Werts, 483 Pa. 222, 226 n. 2, 395 A.2d 1316, 1318 n. 2 (1978). . Pub.L. No. 104-132, 110 Stat. 1214 (1996). .

The AEDPA also prescribes restrictions on when an evidentiary hearing may be held in a federal habeas case. See 28 U.S.C. §§ 2254(e)(2)(

A) and (B) (1997). These sections of the statute are not at issue in this appeal. . Defense counsel in his closing stated: Now, later on that day he [Moore] was supposed to have given a second statement, and we submit it was kind of difficult to get out of the Commonwealth's witnesses, Mr. Moore and also Detective Dougherty, as to what occurred in the second statement because at [sic] the second statement is some hours later and we submit perhaps after Mr.

Moore had time to recollect or somebody had said something to him or whatever, he said [in the second statement] the man who was seated on the passenger’s side of the car was James Johnson, and he picked out his photograph. Now, we submit though when Mr.

Moore took the stand because of what had been said at the lime he entered the plea, because of the fact he knew why he was out, his bail had been changed so he could get out without putting out money, a Federal Detainer had been lifted, he knew he, he testified, he had to say something against the man who is seated here [indicating the defendant], who he described as the defendant ... Mr. Moore knew he had to testify in a manner to frame Mr.

Werts in [sic] even though we submit he probably did not know who was seated in that car in view of the amount of liquor he had consumed that day, and the fact that he said that the people who were in the car he had never seen before in his life.... In his closing statement, the prosecutor responded: If a person cooperates in the prosecution he is entitled to a recommendation of leniency, and that is all we agreed to. Now, something is made of the fact that he signed his own hail and was allowed to go home. Common sense. Tyrone Moore was in the Detention Center with other individuals.

Now if Tyrone Moore had indicated he was going to testify against him and sent back to the Detention Center with these other individuals, he would be sent back as a marked man. We do not want to have Tyrone Moore wind up hanging from the top of a cell. So we let him sign his own bail so he could leave, so he would not be a marked man in the Detention Center, and he showed up every time. He showed up in this courtroom every time he was called, and he came in and testified in this case.

You heard Tyrone Moore testify, and he said that he agreed to testify and he pled guilty, but there is something much more he said. He said that he called the police when he found out that they were looking for him and he voluntarily cooperated with them from the very start. Before he was told that there would be any promise of leniency, before he was told that if he testified or pled guilty and testified we would recommend leniency.

He cooperated from the very start because he knew what his participation was in the case and he went into the police station and he told them what he did, and he told them what happened. He told them that,he did not know the names of the other individuals but he thought he heard some names that were said. . The Court noted that its recognition of the "invited response” rule in Lawn and earlier cases should not be construed as approval or encouragement of such improper remarks. .

Rather, the focus should be on "whether the prosecutor’s 'invited response,’ taken in context, unfairly prejudiced the defendant.” Id. at 12, 105 S.Ct 1038. . The Supreme Court applied the plain error standard of review in Young because defense counsel failed to raise an objection to the prosecutor’s remarks at trial, but raised the iss

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