Brian THOMAS, Petitioner, v. Jeffrey BEARD, Acting Secretary of Corrections, et al., Respondent, 388 F. Supp. 2d 489

OPINION POLLAK, District Judge. I. On February 6, 1986, a jury empaneled in the Court of Common Pleas of Philadelphia County convicted Brian Thomas of murder in the first degree, burglary, involuntary deviate sexual intercourse, and rape. In a separate proceeding, the same jury sentenced Thomas to death. At issue today is Thomas’s federal habeas corpus petition filed pursuant to 28 U.S.C. § 2254. In this petition, Thomas claims that his trial and sentencing hearing were infected with constitutional error, and he seeks release or a new trial, or, at a minimum, a new sentencing hearing. II.

The evidence adduced at trial discloses the following: On August 9, 1985, at about 7:00 PM, St. Clair Holman, who rented a room in the Philadelphia apartment of Linda Johnson and her boyfriend, Irving Fur-low, entered the apartment. On opening the door, Holman saw that the apartment had been ransacked. In his own room, Holman found that his television set, and also a can in which he had approximately $29 in change, were missing. In Linda Johnson’s room, her dead body hung face-down on a broken box spring. Johnson’s eyes and face were swollen and her nose and right temple were bleeding.

There was a bite mark on her cheek, and there were bruises on her arms and thighs. The victim was nude from the waist down, and blood was oozing from her vagina and rectum. An autopsy revealed that, in addition to the injuries just described, Johnson sustained three fractured ribs, and a twenty-three inch tear reaching from the vagina and diaphragm up into the chest cavity. The autopsy also found that, with the use of a blunt instrument, a shirt had been inserted into Johnson’s rectum, through the intestinal wall and into her abdominal cavity. A blood-encrusted crutch was found near her body.

The medical evidence also indicated that the victim was still alive when the shirt was inserted into her rectum. Finally, there was evidence that sperm was deposited in the victim between 5:00 PM and 6:30 PM. The Commonwealth relied on the evidence summarized above to establish that Linda Johnson was raped, that her death was a homicide, and that the homicide was intentional and malicious.

At sentencing, the Commonwealth used the guilt-phase evidence to establish two of the aggravating factors that it invoked, successfully, to support a sentence of death: that the murder was committed during the course of a felony — namely, rape — and that the murder involved torture. To identify Thomas as the perpetrator, the Commonwealth adduced the following evidence: First, the officer who was first to arrive at the scene of the crime testified that he had seen Johnson with Thomas only two hours before, when he was investigating Johnson’s complaint of a stolen purse.

Second, Holman testified that he had seen Johnson and Thomas together at 5:45 PM. Third, a friend of Thomas’s testified that he had seen Thomas with Johnson at a bar across the street from her apartment during the late afternoon. Fourth, the sperm found in Johnson was deposited by a non-secretor (i.e., one who does not secrete traces of blood in his body fluid emissions), and Thomas’s blood was analyzed and typed to be that of a non-secretor. Fifth, blood found on his boxer shorts was determined to be human blood. Sixth, an impression of Thomas’s teeth fit with the bite mark left on Johnson’s cheek.

Finally, the television set and $29 taken from Holman’s room were found in Thomas’s possession. The judge presiding at trial and sentencing was the Honorable Edwin Maimed. Thomas was represented by court-appointed counsel. On February 6, 1986, a jury found Thomas guilty of murder in the first degree, rape, involuntary deviate sexual intercourse, and burglary. At the penalty phase that followed later in the day, the Commonwealth relied upon three aggravating factors. Two of these— killing in the course of another felony, and torture — have been referred to above.

The third aggravating factor was a significant history of violent felony convictions, see 42 Pa.C.S. § 9711(d)(6),(8),(9). To establish the third aggravating factor, the Commonwealth invoked

(1) Thomas’s 1978 conviction for felonious aggravated assault and indecent assault on a three-year old who suffered injuries to his rectum and intestines, and

(2) Thomas’s 1984 conviction for criminal trespass, wherein Thomas had unlawfully entered the home of a neighbor and then climbed into bed with her while she was sleeping. At the start of the penalty phase, counsel for Thomas advised the court, in the absence of the jury, that his client would present no mitigating evidence. The court ruled that Thomas should be colloquied regarding his decision to forego mitigating evidence, and Thomas was then questioned about his decision.

Immediately following the colloquy, the prosecution offered to stipulate to Thomas’s age and to the fact that he had a high school diploma, but Thomas, through counsel, declined the offer. The jury found the three proposed aggravating factors and no mitigating factors, and it voted death. Thomas’s post-verdict motions were argued and denied, and the trial court sentenced Thomas to death on the first-degree murder conviction, and to consecutive terms of imprisonment for a maximum of fifty years for the burglary, rape and involuntary deviate sexual intercourse convictions.

On June 17, 1989, the Pennsylvania Supreme Court issued its opinion in Thomas’s automatic direct appeal, see 42 Pa.C.S. § 9711(h)(1). Thomas, via a new court-appointed attorney, challenged the sufficiency of the guilt-phase evidence, and contested the evidence underpinning the aggravating factors found by the jury in the penalty phase.

As to the guilt phase, Thomas argued that the burglary conviction was improper because the evidence suggested that his entry into Johnson’s apartment was authorized; that the evidence was insufficient to support his conviction for involuntary deviate sexual intercourse; that there was no evidence that he penetrated Johnson and hence that his rape conviction was improper; that it was prejudicial to admit testimony from the medical examiner that Johnson would have experienced pain as a result of the insertion of the shirt into her rectum; and that a hatchet found at the murder scene should not have been admitted into evidence.

Regarding his sentence, Thomas argued that the evidence did not support a finding that the murder was committed during the course of the burglary, rape or involuntary deviate sexual intercourse; that the crime of criminal trespass did not constitute a prior violent felony; that the court’s torture instruction was improper; and that there was insufficient evidence to support a finding of torture. The Commonwealth argued that none of Thomas’s claims had been raised in post-verdict motions, and so these were waived.

The Pennsylvania Supreme Court rejected the Commonwealth’s waiver argument, noting that “in death penalty cases, we relax the waiver rule at times and address the merits of arguments raised for the first time in the direct appeal to this court.” Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699, 704 (1989) (Thomas-I). On addressing the merits, the court sustained the convictions and the death sentence. In 1992, Thomas sought collateral relief from his convictions and sentence by filing a petition under Pennsylvania’s Post-Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. (hereinafter “PCRA”).

Thomas was represented by yet another court-appointed attorney. Thomas’s amended PCRA petition expressly acknowledged the federal constitutional underpinning of Thomas’s claims, stating that Thomas’s waiver of the right to present mitigating evidence was constitutionally deficient, and that trial and appellate counsel’s performance was ineffective in violation of the Fourth, Fifth, Sixth, and Eighth Amendments of the Constitution.

Thomas’s PCRA counsel requested an evidentiary hearing, but the Court of Common Pleas, sitting as the PCRA court, denied the request, having determined that a decision could be made from the existing record. Commonwealth v. Thomas, No. 2716 (Pa.Commw.Ct., 1st Jud. Dist., Sept. 13, 1995). The PCRA court noted that Thomas would not be entitled to review of any claim that had been previously litigated or waived, but it nonetheless considered the merits of each claim of error, and, in an opinion of September 13, 1995, found them all to be wanting, and hence denied PCRA relief.

In his appeal from the denial of PCRA relief, Thomas’s PCRA counsel was joined by another attorney, then of the Center for Legal Education, Advocacy, and Defense Assistance and now of the Capital Habeas Unit of the Federal Defenders Association, who is one of Thomas’s current habeas counsel. The PCRA appeal brief raised twenty-three claims of error, and argued that, in light of the Pennsylvania Supreme Court’s policy of relaxing the waiver bar in death penalty cases, all of these claims of error were properly before the court.

Twenty-one of the twenty-three claims in Thomas’s PCRA appeal brief appear in his habeas petition.

For the sake of brevity, Thomas’s claims are listed in the form and order in which they appear in the habeas petition; the number by which each claim was designated in the PCRA appeal brief appears in arabic numerals in parentheses following each claim below: Claim I (Claim 1 in PCRA appeal brief) — Trial counsel was ineffective for failing to investigate, develop and present mitigating evidence concerning Thomas’s background and longstanding mental illness; Claim II (Claim 6) — Thomas was not competent to waive his right to present mitigating evidence and his waiver was not knowing, intelligent and voluntary; Claim III (Claims 4 and 5) — Trial counsel was per se ineffective; Claim IV (Claim 2) — The trial court erred when, after receiving the Pre-Sentence Investigation Report, which stated that Thomas suffered from psychological impairments, the court failed to order an investigation into Thomas’s competency to waive his right to present mitigating evidence; Claim V (Claim 3) — Thomas was denied due process of law if his counsel was not provided with the Pre-Sentence Investigation Report, and there is no indication in the record that counsel did receive that report; Claim VI (Claim 7) — The trial court’s instruction on the torture aggravating circumstance was vague, overbroad and erroneous; Claim VII (Claim 8) — The prosecutor engaged in misconduct during the guilt phase by invoking his own expertise, referring to the sentencing phase, and speculating as to the victim’s pain and suffering; Claim VIII (Claim 9) — The prosecutor engaged in misconduct at the sentencing phase by invoking his own experience, referring to Thomas’s future dangerousness, and appealing to the Bible; Claim IX (Claim 14) — The trial court erred in failing to instruct the jury that life imprisonment entailed no possibility of parole; Claim X (Claim 10) — The prosecutor engaged in misconduct when he threatened Thomas’s wife during the course of the trial; Claim XI (Claim 11) — The trial court erred in admitting the inherently suspect testimony of an expert in bite-mark identification; Claim XII (Claim 12) — Thomas’s prior non-violent convictions for defiant trespass and criminal trespass were improperly used to establish a significant history of prior violent felony convictions; Claim XIII (Claim 13) — Thomas’s conviction and sentence are unreliable because one of the jurors had a hostile relationship with Thomas’s wife when the two were in high school; Claim XIV (Claim 15) — The penalty phase jury instructions violated Mills v.

Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); Claim XV (Claim 16) — Thomas’s due process rights were violated because the jury was death-qualified but not life-qualified; Claim XVI (Claim 17) — The trial court erred at the guilt phase in defining “reasonable doubt” as a doubt that would cause one to “restrain from acting”' — -a formulation that lessened the prosecution’s burden of proof; Claim XVII (Claim 18) — The trial court erred in failing to provide the jury with any “reasonable doubt” instruction at the penalty phase, relying instead upon the faulty “reasonable doubt” instruction given at the guilt phase; Claim XVIII (Claim 19) — The trial court’s instruction regarding the meaning of the “preponderance of the evidence” standard by which Thomas had to establish mitigating evidence was inadequate; Claim XIX (Claim 21) — Trial counsel was ineffective for failing adequately to cross-examine St.

Clair Holman, failing to call additional witnesses who could have established that the victim’s boyfriend was the perpetrator, and failing to object to the introduction into evidence of Holman’s hatchet; Claim XXIII (Claim 23) — Thomas is entitled to a new trial and sentencing proceeding because the prejudicial effect of the cumulative errors in this case undermines confidence in the verdict and sentencing.

In addition to the claims listed above, the PCRA appeal brief advanced the following claims: Claim 20 — Trial counsel was ineffective for failing to conduct any crime scene investigations, obtain expert testimony, object to the illegal seizure of Thomas’s teeth impressions, or litigate in suppression the overly suggestive identification of Thomas by St.

Clair Holman; Claim 22 — A remand to the Court of Common Pleas was required for an evi-dentiary hearing on the location of sketches used by the prosecution at trial, so that these sketches could be compared to prejudicial photographs of the victim introduced at trial. On January 18, 2000, the Pennsylvania Supreme Court rendered its opinion. Commonwealth v. Thomas, 560 Pa. 249, 744 A.2d 713 (2000) (Thomas-II).

It considered the following claims to be previously litigated because it had decided these on direct appeal, and it thus declined to review these claims again: Trial counsel was ineffective for failing to investigate or present mitigating evidence (Claims 1 and 5 of Thomas’s PCRA appeal brief, which became Claims I and III of his habeas petition); at the penalty phase, the trial court gave an inappropriate instruction regarding torture (Claim 7, which became Claim VI of Thomas’s habeas petition); Thomas’s prior conviction for criminal trespass should not have formed the basis of a finding that he had a significant history of violent felony offenses (Claim 12, which is also Claim XII of Thomas’s habe-as petition); defense counsel was ineffective for failing to object to the admission of a hatchet (a portion of Claim 21, which became Claim XIX of Thomas’s habeas petition); and Thomas was denied counsel altogether at the penalty phase since his counsel did not present any evidence in mitigation (Claim 4, which became Claim III of Thomas’s habeas petition).

See generally Thomas-II, 744 A.2d at 714 n. 3. The court found that the majority of the remaining claims were waived and, pursuant to 42 Pa.C.S. § 9543(a)(3), it declined to review these as well.

More specifically, the court found that the following claims were waived because they were raised for the first time in Thomas’s PCRA appeal brief: Claim 2 (Claim IV), Claim 3 (Claim V), Claim 13 (Claim XIII), Claim 14 (Claim IX), Claim 17 (Claim XVI), Claim 18 (Claim XVII), Claim 19 (Claim XVIII), so much of Claim 8 as contended that it was prosecutorial misconduct for the.prosecutor to refer to the sentencing phase during the guilt phase (relevant portions of Claim VII), Claim 10 (Claim X), and Claim 23 (Claim XXIII). See generally Thomas-II, 744 A.2d at 715 n. 4.

In addition, the court found that other claims had been waived because they alleged ineffectiveness of trial counsel, but not appellate counsel, even though they were raised for the first time in Thomas’s amended PCRA petition: Claim 6 (Claim II), Claim 11 (Claim XI), Claim 16 (Claim XV), so much of Claims 8 and 9 as referred to the prosecutor’s improper invocations of his own experience (relevant portions of Claims VII and VIII, respectively), so much of Claim 8 as referred to the prosecutor’s statements about the victim’s pain and suffering (relevant portions of Claim VII), and so much, of Claim 9 as referred to the prosecutor’s statements about Thomas’s future dangerousness (relevant portions of Claim VIII).

See generally Thomas-II, 744 A.2d at 715 n. 4. The court addressed the merits of Claim 15 (Claim XIV), which stated that counsel was ineffective for failing to object to the court’s penalty phase instructions. More specifically, Thomas there argued that the instructions violated Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), because they failed to inform the jury that it was not required unanimously to find mitigating circumstances.

Because Mills had not been decided at the time of Thomás’s trial, the court rejected the contention that counsel was ineffective for failing to object to the trial court’s instructions. The court rejected Claim 20 (not raised in Thomas’s habeas petition) on the ground that Thomas had either failed to establish the deficiency of the various omissions attributed to trial counsel, or had failed to establish prejudice as a result of those omissions.' The court also rejected the portions of Claim 21 that had not been previously litigated.

These alleged that counsel was ineffective for failing adequately to cross-examine Holman, failure to call other witnesses whose testimony might have raised an inference that the victim’s boyfriend was the murderer, and failure to object to the admission in evidence of a hatchet. The Pennsylvania Supreme Court found that trial counsel’s decisions were reasonable and hence did not amount to a deficient performance.

Finally, the court dismissed as frivolous Claim 22 (not raised in Thomas’s habeas petition), which requested a remand to the Court of Common Pleas for an evidentiary hearing on the location of sketches used by the prosecution at trial.

Thomas’s counsel sought these sketches in order to compare them with allegedly prejudicial photographs of the victim introduced at trial after counsel “opened the door.” The court reasoned that the photographs were themselves a part of the record and had been made available to Thomas’s counsel, and that an evaluation of their potential to prejudice the jury could be made without comparing them to the prosecution’s sketches.

Having found that the bulk of the issues raised by Thomas had been previously litigated or waived, and that the remainder were meritless, the Pennsylvania Supreme Court affirmed the Court of Common Pleas’ denial of Thomas’s PCRA petition. III. As noted above, in addressing Thomas’s appeal from the Court of Common Pleas’ denial of Thomas’s PCRA petition, the Pennsylvania Supreme Court found that the majority of his claims had either been previously litigated or had been waived, and hence the court did not examine their merits.

Of the twenty-three claims raised in Thomas’s petition for federal habeas corpus relief, only two of these — Claim XIV (which was Claim 15 in Thomas’s PCRA appeal), a claim alleging a violation of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and Claim XIX (Claim 21 in Thomas’s PCRA appeal), a claim alleging ineffective assistance for failing to (

a) adequately cross-examine Holman, (

b) call certain witnesses, and (

c) object to admission into evidence of a hatchet — were addressed on the merits by the Pennsylvania Supreme Court when it heard Thomas’s PCRA appeal. Of the remaining claims, Claims I, III, VI and XII of his habeas petition, as well as Claim XIX to the extent it deals with admission of a hatchet into evidence, were deemed previously litigated, Thomas-II, 744 A.2d at 715 n. 3, and claims II, IV, V, VII, VIII, IX, X, XI, XIII, XV, XVI, XVII, XVIII, and XXIII were deemed waived, Thomas-II, 744 A.2d at 715 n. 4. Three claims not raised in Thomas’s PCRA appeal are presented in Thomas’s habeas petition.

These claims are as follows: Claim XX — The trial court erred in permitting testimony during the guilt phase regarding torture of the victim; Claim XXI- — Trial counsel was ineffective for failing to object to the testimony of the Commonwealth’s hair expert; Claim XXII — The trial court erred at the penalty phase in permitting two police officers to testify to the inflammatory details of Thomas’s prior convictions. A. The Third Circuit outlined the scope of review of § 2254 habeas petitions in Lines v.

Larkins, 208 F.3d 153 (3d Cir.2000): Petitioners who have not fairly presented their claims to the highest state court have failed to exhaust those claims. If, however, state procedural rules bar a petitioner from seeking further relief in state courts, the exhaustion requirement is satisfied because there is “an absence of available State corrective process.” 28 U.S.C. § 2254(b). Even so, this does not mean that a federal court may, without more, proceed to the merits.

Rather, 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. Id. at 160 (internal citations omitted). A claim “deemed exhausted because of a state procedural bar,” id., is not open to examination on federal habeas if the state procedural bar is not a procedural rule constituting “an independent and adequate state ground barring our review of a federal question,” Hathorn v.

Lovorn, 457 U.S. 255, 262, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982). But, “a state procedural ground is not ‘adequate’ unless the procedural rule is ‘strictly or regularly followed.’ State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.” Id. at 262-63, 102 S.Ct. 2421 (quoting Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964)).

Thus, a federal court may exercise jurisdiction over a procedurally defaulted claim if any one of three circumstances holds — first, where the default is caused by circumstances outside of the petitioner’s control and the petitioner suffers prejudice therefrom; second, where adherence to the state procedural rule will result in a fundamental miscarriage of justice; and third, where the state procedural rule is not adequate because it is not “firmly established, readily ascertainable, and regularly followed,” Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir.2001). B.

Thomas faces three potential sources of procedural default — a bar against previously litigated claims, 42 Pa.C.S. § 9543(a)(3); a bar against waived claims, id.; and a statute of limitations, 42 Pa.C.S. § 9545(b). Previously Litigated Claims To be eligible for relief under the PCRA, “the petitioner must plead and prove by a preponderance of the evidence” that “the allegation of error has not been previously litigated.... ” 42 Pa.C.S. § 9543(a)(3). Further, 42 Pa.C.S. § 9544(

a) provides that an issue has been previously litigated if:

(1) Deleted. (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or (3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence. In Thomas’s PCRA appeal opinion, the Pennsylvania Supreme Court stated that a number of Thomas’s claims — the claims that in the habeas petition are I, III, VI, XII, and a portion of XIX — -had “previously been decided by this Court on direct appeal; therefore, those claims will not be reviewed.” Thomas-II, 744 A.2d at 714.

Claims I, III, and XII The claims deemed previously litigated by the Pennsylvania Supreme Court are reproduced in Thomas’s habeas petition as Claims I, III, VI, XII, and a portion of Claim XIX. Claims I and III allege ineffectiveness of counsel for counsel’s failure to investigate or present mitigating evidence. In disposing of these claims in Thomas’s PCRA appeal, the Pennsylvania Supreme Court stated that “[t]he issue of the presentation of mitigating evidence, in all its possible manifestations, was determined by this Court’s previous decision.” Thomas-II, 744 A.2d at 714 n. 3 (emphasis added).

Taking the Pennsylvania Supreme Court at its word, then, it is apparent that Claims I and III are not procedurally defaulted; instead, these claims have been fully exhausted. Similarly, the substance of Claim XII was the same in Thomas’s direct appeal brief and his PCRA appeal brief. Thus, this claim also received review on the merits. Accordingly, Claims I, III, and XII are properly before this court. Claims VI and XIX The substance of Claim VI and of the hatchet aspect of Claim XIX differed between Thomas’s direct appeal and PCRA appeal brief.

As a general matter, a claim will be regarded as previously litigated but not exhausted where it is supported by a different legal theory or set of facts. See, e.g., Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939 (2001) (“a petitioner cannot obtain post-conviction review of claims previously lititgated [sic] on appeal by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims.”).

In the version of Claim VI presented to the Pennsylvania Supreme Court on direct appeal, Thomas challenged the instruction regarding torture as an aggravating circumstance, see 42 Pa.C.S. § 9711(d)(8), on the ground that the judge failed to make clear that torture requires an intention to cause pain and suffering.

By contrast, in the version of Claim VI advanced in Thomas’s PCRA appeal brief, Thomas argued that the torture instruction was unconstitutional because the judge’s use of the phrase “heinous, atrocious or cruel” was vague, overbroad, and erroneous; the judge’s alleged failure to include the element of intent was not mentioned at all. Similarly, the portion of Claim XIX pertaining to the admission into evidence of a hatchet assumed different forms in the direct appeal and PCRA appeal briefs.

In Thomas’s direct appeal brief, this claim was presented as an instance of trial court error, while in Thomas’s PCRA appeal Thomas alleged ineffectiveness of counsel for failing to object to the hatchet’s admission. Thus, the hatchet aspect of Claim XIX, like Claim VI, was previously litigated but not exhausted. See generally Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 88 (1998) (“a petitioner cannot obtain PCRA review of previously litigated claims by alleging ineffective assistance of counsel and presenting new theories of relief to support the previously litigated claims.”).

To the extent that aspects of Claims VI and XIX were presented in Thomas’s PCRA filings but not seen by the Pennsylvania Supreme Court on direct review, these claims might be regarded as waived. Whether waiver is an adequate ground for concluding that such aspects of Claims VI and XIX, and other of Thomas’s claims, are barred from federal habeas scrutiny, is the next question to be considered. Waived Claims The waiver bar requires the PCRA petitioner to “plead and prove by a preponderance of the evidence” that “the allegation of error has not been ... waived.” 42 Pa.C.S. § 9543(a)(3).

For purposes of determining whether the waiver bar is a state procedural rule of sufficient clarity and routine application so as to command deference from a federal habeas court, the relevant rule is the one in place at the time Thomas should, assertedly, have complied with the rule, and not the one in place at the time that the Pennsylvania Supreme Court ruled on his direct appeal or his PCRA petition. See, e.g., Terrell v. Morris, 493 U.S. 1, 2, 110 S.Ct. 4, 107 L.Ed.2d 1 (1989); Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir.1999); Doctor v.

Walters, 96 F.3d 675, 684 (3d Cir.1996) (“We must decide whether the rule was firmly established and regularly applied, not in 1993 when the Superior Court relied on it, but rather as of the date of the waiver that allegedly occurred when Doctor escaped in 1986.”); Jacobs v. Horn, 129 F.Supp.2d 390, 399 (M.D.Pa.2001).

Thus, for claims deemed “waived” because they were presented for the first time in Thomas’s PCRA petition, the relevant date of the alleged violation would have been prior to the time of the direct appeal, which was decided on June 27, 1989; for claims deemed waived because they were raised for the first time in Thomas’s PCRA appeal brief, the alleged violation would have occurred prior to September 13, 1995, when the Court of Common Pleas denied Thomas’s PCRA petition. Therefore, this court must look to the version of the waiver bar in effect between 1989 and 1995. Compare Pursell v.

Horn, 187 F.Supp.2d 260, 293 (W.D.Pa.2002) (“At the earliest, Pursell waived certain issues when he failed to raise them at trial in 1982 or on direct appeal in 1985. At the latest, he waived other issues when he failed to raise them in his PCRA filings with the Pennsylvania Supreme Court in 1994. Accordingly, my inquiry must focus on the state of Pennsylvania waiver law in death penalty cases between 1982 and 1994.”) (citations omitted).

The version of the PCRA in effect in 1989, at the time of Thomas’s direct appeal, defined an issue as waived if it “has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner did not appeal.” 42 Pa.C.S. § 9544(1). The statutory language remained unchanged until 1996, many months after Thomas’s PCRA petition. While issues deemed waived were formally barred, 42 Pa.C.S. § 9544, the waiver rule was, at least prior to 1998, regularly relaxed. In 1998, the Pennsylvania Supreme Court, in Commonwealth v.

Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998), acknowledged that “it has been our ‘practice’ to decline to apply ordinary waiver principles in capital cases” (internal citation omitted), and announced that it would thenceforth strictly adhere to the waiver bar of the PCRA because its experiences with relaxed waiver had “virtually eliminated any semblance of finality in capital cases,” id. at 700. The fact that Albrecht represented an about-face in the Pennsylvania Supreme Court’s treatment of waived claims in capital cases establishes that the effective rule before Albrecht was one of no-waiver.

Were this not the case, it would have been unnecessary for the Albrecht court to express so forcefully and explicitly its newly rigorous policy of refusing to review waived claims. See, e.g., Pursell v. Horn, 187 F.Supp.2d 260, 295 (W.D.Pa.2002) (“between 1978 and 1998, the Pennsylvania Supreme Court had a regular practice of forgiving waivers in capital cases, whenever they occurred, and reviewing the merits of a petition.”); Commonwealth v.

Pirela, 556 Pa. 32, 726 A.2d 1026, 1030 (1999) (“Although we have declined to apply ordinary waiver principles to capital cases in the past, we recently held that this practice will be discontinued.”) (citing Albrecht); Commonwealth v. Ford, 570 Pa. 378, 809 A.2d 325, 337 (2002) (Saylor, J., concurring) (noting that, until Albrecht, the Pennsylvania Supreme Court “had in effect its policy of relaxed waiver, which was then applied not only on direct appeal, but also in the post-conviction context.”).

Thus, the waiver rule applied in Thomas’s PCRA appeal was not adequate because it was not “regularly followed,” Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982). Indeed, as Judge Brody noted in Baker v.

Horn, 210 F.Supp.2d 592, 636 (E.D.Pa.2002), the Third Circuit has held in more than one capital case, and with respect to more than one Pennsylvania procedural rule, that as long as the possibility existed at the time of a prisoner’s default that the Pennsylvania courts might apply the relaxed waiver rule to the prisoner’s PCRA petition, Pennsylvania law did not clearly foreclose substantive review of claims in the petition, even if the claims were otherwise procedurally defaulted.

That the state courts might apply the relaxed waiver rule to a PCRA petition remained a possibility until the Pennsylvania Supreme Court expressly renounced the practice on November 23, 1998 in Commonwealth v. Albrecht, 720 A.2d at 700. In sum, this court finds that the waiver bar is not an adequate state law ground upon which to deny Thomas habeas review of the claims deemed waived in Thomas-II.

Accordingly, this court will address the merits of Claims II, IV, V, VII, VIII, IX, X, XI, XIII, XV, XVI, XVII, XVIII, X, XXIII, and also the merits of the aspects of Claim VI and XIX discussed supra, under “Previously Litigated Claims.” Time-barred Claims Claims XX, XXI, and XXII are raised for the first time in Thomas’s federal habe-as petition.

While Thomas has thus failed to exhaust these claims, he cannot seek state court review of these claims now because, in 1995, Pennsylvania amended its PCRA statute to require that an individual seeking PCRA relief file his petition within one year of his conviction’s becoming final on direct appeal. See 42 Pa.C.S. § 9545(b); 1995, Nov. 17, P.L. 1118, No. 32 (Spec.Sess. No. 1), § l. The 1995 amendment took effect in 1996, many months after Thomas’s PCRA petition. The time bar is not an adequate state ground upon which to deny the opportunity for federal relief.

As discussed above, in order for a state procedural bar to be deemed “adequate,” the state court rule must have been “firmly established and regularly followed” at the time of the habeas petitioner’s purported violation of it. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). A rule that applies to a petitioner retroactively cannot satisfy the adequacy requirement because it was not established at all, let alone “firmly established and regularly followed,” at the time that the petitioner would assertedly have violated it.

Accordingly, Claims XX, XXI, and XXII are within the scope of merits inquiry by this court. IV. This opinion now turns to the merits of Thomas’s numerous claims. It treats together Claims I and II, which allege respectively that trial counsel was ineffective for failing to investigate or present mitigating evidence, and that Thomas’s waiver of the right to present mitigating evidence was not knowing, intelligent, or voluntary. The remaining claims are addressed separately, in the order presented in Thomas’s petition.

Claim I — Failure to investigate and present mitigating evidence; and Claim II — Absence of a knowing, intelligent, and voluntary waiver of the right to present mitigating evidence Thomas contends trial counsel’s failure to investigate and present mitigating evidence at sentencing regarding his mental health constituted ineffective assistance of counsel. Claims of ineffective assistance of counsel are evaluated under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To succeed on such a claim, Thomas must show both deficient performance of counsel, based on an objective standard of reasonableness, and prejudice as a result of such deficiency, such that confidence in the result of the original sentencing proceeding is undermined. Id. at 694, 104 S.Ct. 2052. A. Although the Supreme Court’s recent ruling in Rompilla v. Beard, — U.S. —, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), sheds further light on precisely what is required of counsel, the duty to investigate potentially mitigating evidence was already well established as a requirement of Strickland. See Marshall v.

Hendricks, 307 F.3d 36, 99-107 (3d. Cir.2002). Quoting with approval from Justice Brennan’s concurring opinion in Strickland, the Third Circuit in Hendricks held that [the] right to present, and to have the sentencer consider, any and all mitigating evidence means little if defense counsel fails to look for mitigating evidence or fails to present a case in mitigation at the capital sentencing hearing.

Accordingly, counsel’s general duty to investigate takes on supreme importance to a defendant in the context of developing mitigating evidence to present to a judge or jury considering the sentence of death. 307 F.3d at 99 (quoting Strickland, 466 U.S. at 706, 104 S.Ct. 2052 (Brennan, J., concurring) (internal quotation omitted)) (alteration in original).

Further interpreting this duty, the Supreme Court recently held that this investigation “ ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’ ” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 11.4.1(C), p. 93 (1989)).

Although much is expected of trial counsel, it is also true that Strickland calls for great deference to attorneys’ decisions not to carry out a particular investigation, and for a general presumption of reasonableness of attorneys’ actions, particularly in the absence of a record on which to judge counsel’s performance. 466 U.S. at 690, 104 S.Ct. 2052. In assessing reasonableness, “hindsight is discounted by pegging inadequacy to ‘counsel’s perspective at the time’ investigative decisions are made.” Rompilla, 125 S.Ct. at 2462 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

There is no bright-line rule concerning the extent of an investigation'— how far an attorney must go is largely based on context. “A court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins, 539 U.S. at 527, 123 S.Ct. 2527. “Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Id. at 533, 123 S.Ct. 2527.

Even more important here is Strickland’s holding that “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.... And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” Id. at 691, 104 S.Ct. 2052.

However, the Supreme Court in Rompilla, noting that “we long have referred [to ABA standards] as guides to determining what is reasonable,” 125 S.Ct. at 2466 (internal quotation omitted), was at pains to quote the following ABA standard relating to counsel’s duty to investigate: It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.

The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty. 1 ABA Standards for Criminal Justice: Prosecution Function and Defense Function 4-4.1 (2d ed. 1982 Supp.). In addition, courts interpreting Strickland have held that there comes a point when a defendant’s actions should signal the need for further investigation by counsel.

The Third Circuit has recently made this obligation clear, specifically instructing that, in the context of mental health evidence, certain aspects of a defendant’s behavior, regardless of whether the defendant himself provides any information, should alert an attorney that a potentially mitigating condition exists. See Jacobs v. Horn, 395 F.3d 92, 101-103 (3d Cir.2005) (“At the time counsel decided not to investigate further, he knew or should have known from Jacobs’ behavior and from his interactions with Jacobs that he should initiate some investigation of a psychological or psychiatric nature.”).

This remains the case when a defendant refuses to contribute to his own case, or even where a defendant actively obstructs counsel’s performance. See Rompilla, 125 S.Ct. at 2462. In the instant case, there is no evidence that trial counsel (

a) obtained mental health records pertaining to Thomas’s past offenses and treatment; (

b) sought out, fully interviewed, and presented helpful testimony from family members and others familiar with Thomas’s background; or (

c) worked with a mental health expert to examine Thomas and present testimony regarding mental health-related mitigating circumstances. Had such inquiries been made, trial counsel would have been able to present an extensive clinical record — both documentary and testimonial — of a long history of mental illness, including repeated diagnoses of paranoid schizophrenia and an inability to control aggressive impulses.

In light of the clear duty of defense counsel to investigate such matters, reiterated most recently in Rompilla, the failure of Thomas’s counsel to do so does rise to the level of a Strickland deficiency. See also Williams v. Taylor, 529 U.S. 362, 395-96, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (failure to inquire into various aspects of defendant’s background, including possible mental handicap); Jacobs, 395 F.3d at 103 (failure to obtain medical records demonstrating mental deficiencies).

Affidavits from Thomas’s family members state that counsel never interviewed them, even though these family members were ready and willing to testify on Thomas’s behalf, particularly concerning Thomas’s acts of kindness toward others and the close relationship he enjoyed with his family members. Further, some of the affidavits describe the manifestations of Thomas’s mental illness, including his severe mood swings and inability to distinguish the imaginary from reality. See generally Ex. D; Ex. H of Suppl. Filing. All of this testimony would have been pertinent to a mitigation case. See 42 Pa.

C.S. § 9711(e)(2), (3), and (8) (listing, respectively, as mitigating factors, “[that] the defendant was under the influence of extreme mental or emotional disturbance,” “[that] [t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired,” and “[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.”).

More importantly, counsel was aware of some of Thomas’s own actions indicating questionable mental health, not the least of which were Thomas’s post-arrest suicide attempt and statements by Thomas that he wanted to die. But, despite this knowledge, counsel failed to assemble the substantial, documented, record of Thomas’s history of mental problems, and failed to even go so far as obtaining his own mental health examination of his client. See Rompilla, 125 S.Ct. at 2463.

As Jacobs and Rompilla suggest, given the stakes of this case and the availability of information should counsel have sought it, the failure to do so amounts to a failure to exercise reasonable judgment. It is true that in Rompilla, not only were the records counsel failed to discover publicly available, but the prosecution had specifically notified defense counsel that it was going to use these particular records as part of its case at sentencing.

In the instant case, the mental health evidence Thomas’s counsel might have presented was not in direct response to anything the prosecution had planned to introduce, and the information was not as easily accessible (i.e., in a public file in the same building as the current trial) as was the information concerning Rom-pilla’s past convictions. In addition, Thomas was not simply uncooperative with counsel — he expressly told counsel that he did not wish to present mitigating evidence.

However, Thomas’s counsel was nonetheless aware of the prosecution’s intention to argue the existence of several aggravating factors, and thus of the need to respond in order for there to be any hope of avoiding a death sentence. All of the pertinent information, including a series of mental health evaluations and a statement following Thomas’s suicide attempt while in custody, was readily available for counsel to discover with minimal effort. And, as discussed in

section D, infra, Thomas was never adequately informed and thus was not truly aware of what he was foregoing by choosing not to present such evidence. Under the circumstances, any waiver of the right to present mitigating evidence was not made knowingly. It is against this background that we must assess trial counsel’s duty, using the controlling professional standards of the time as a guide to evaluating the reasonableness of counsel’s actions.

In addition to the text quoted at page 29, supra, the commentary accompanying the ABA Standards for Criminal Justice identifies the principles underlying the duty to investigate. The lawyer also has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and to the court at sentencing. This cannot effectively be done on the basis of broad general emotional appeals or on the strength of statements made to the lawyer by the defendant.

Information concerning the defendant’s background, education, employment record, mental and emotional stability, family relationships, and the like, will be relevant. ... Investigation is essential to fulfillment of these junctions. ... The effectiveness of advocacy is not to be measured solely by what the lawyer does at the trial; without careful preparation, the lawyer cannot fulfill the advocate’s role. Commentary, 1 ABA Standards for Criminal Justice 4-4.1 (2d ed.1980) (emphasis added).

Here counsel’s deficient performance was not due to any pursuit of a particular trial strategy — there was simply no investigation at all, and thus no foundation on which to base any strategic choice. See United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989) (“counsel can hardly be said to have made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made.”); Blystone v. Horn, No. 99-490, slip op. at 120 (W.D.Pa.

March 31, 2005) (“trial counsel’s failure to obtain records from [defendant’s] background or request expert mental health assistance was not based on any tactical decision. Rather, it resulted from his inadequate preparation.”). Although the circumstances of every case might not call for a thorough investigation in all respects, if counsel chooses not to investigate certain matters, he must at least “make a reasonable decision that makes particular investigation unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

A ruling by Judge Van Antwerpen, while still a member of this court, helps to illuminate how such a decision should be evaluated. Because the post-trial evaluations show that mental health evidence existed pri- or to trial, both a complete failure to investigate and a partial investigation that failed to uncover such evidence must be considered unreasonable because counsel probably would have discovered such evidence had his investigation been reasonable....

Likewise, because such evidence probably would have been discovered, counsel’s decision not to make such an investigation, if indeed he made such a decision, must be considered unreasonable. Holloway v. Horn, 161 F.Supp.2d 452, 567-68 (E.D.Pa.2001), rev’d on other grounds, 355 F.3d 707 (3d Cir.2004). The fact that Thomas may have directed counsel not to present mitigating evidence, even assuming, arguendo, that such direction was made knowingly (but see

section D, infra), does not render reasonable counsel’s decision not to investigate. As ABA guidelines indicate, “The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered.” ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 11.4.1(C) (emphasis added).

Thus, while “ ‘[t]he right to counsel does not require that a criminal defense attorney leave no stone and no witness unpur-sued[,]’ the Sixth Amendment ‘does require a reasoned judgment as to the amount of investigation the particular' circumstances of a given case require.’ ” Blystone, slip op. at 121 (quoting Jermyn v. Horn, 266 F.3d 257, 308 (3d Cir.2001)).

As the case law and the controlling ABA standards indicate, effective representation necessitates not only the investigation of potentially mitigating evidence, but also the presentation of such evidence, particularly to rebut aggravating evidence presented by the prosecution. See Rompilla, 125 S.Ct. at 2465-2466. The Commonwealth argues that the silence of the record renders Thomas’s ineffective assistance claim groundless, as Thomas cannot prove that his counsel did not investigate.

While it is true that the record here is devoid of any affidavit or other recital by trial counsel of his particular efforts (or lack thereof), there is also nothing in the record to indicate that any investigation or independent mental health evaluation did occur — a notable omission, given the paper trail or other on-the-record indication(

s) such investigation would be likely to leave behind. More importantly, even if one assumes, arguendo, that counsel did investigate and discover the available mental health evidence, his failure to present such evidepce or at least to use such evidence as the basis for obtaining the defense’s own mental health evaluation constitutes an independent basis for a finding of deficient performance.

Given the prevailing professional standards, trial counsel’s failure to investigate and/or present the available mental health records and evaluations, along with counsel’s failure to obtain and present any independent mental health evaluation or examination, constituted deficient performance. The next step of the Strickland inquiry is to determine whether counsel’s deficient performance prejudiced Thomas. B. To establish prejudice under Strickland, a “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.” 466 U.S. at 694, 104 S.Ct. 2052. However, Strickland does emphasize the “strong presumption of reliability” of the criminal process. 466 U.S. at 696, 104 S.Ct. 2052. A court should only be concerned with “whether ... the result of the particular proceeding is unreliable because of a breakdown in the adversarial process.” Id. A “verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id.

Specifically, a defendant does not need to show that it is more likely than not that counsel’s deficiencies altered the outcome of the trial. See Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Hull v. Kyler, 190 F.3d 88, 110 (3d Cir.1999) (“This standard is not a stringent one. It is less demanding than the preponderance standard.”). In applying this standard, it is important to take into account whether the state requires unanimity for conviction and/or imposition of the death penalty, as this might further influence precisely what is necessary to demonstrate prejudice.

See Hendricks, 307 F.3d at 103. Here we have a case where the jury unanimously found three aggravating factors — commission of a murder during a felony, a significant history of felony convictions, and commission of murder by means of torture. In light of these factors, as well as the mountain of evidence of Thomas’s guilt and the extremely brutal nature of his crime, it is possible that the introduction of evidence of Thomas’s mental health might have had little or no effect on the jurors’ sentencing decision.

However, the absence of such evidence made it impossible for the jury to assess whether Thomas was “under the influence of extreme mental or emotional distress” or was “unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law,” two of the several potential mitigating factors the jury could find. See Petitioner’s Exhibit 0, First Degree Murder Verdict: Penalty Determination Sheet.

While one cannot, of course, know what effect the undiscovered evidence of Thomas’s mental history would have had on the jury had counsel gathered and presented the evidence, it is reasonably probable that, for a single juror, such evidence could have been powerful enough to affect his or her sentencing decision. See Wiggins, 539 U.S. at 534, 123 S.Ct. 2527. The Third Circuit recently addressed this issue in Jermyn, in which the jury imposed a sentence of death after finding that the one aggravating factor proved by the prosecution outweighed three mitigating factors.

Because of the delicate weighing of evidence the jury employed, the court there held that the failure of counsel to present additional evidence bolstering these mitigating factors was prejudicial. 266 F.3d at 309. “Because the jury’s decision must be unanimous, [defendant] can show prejudice in this case if there is a reasonable probability that the presentation of the [evidence] ... would have convinced one juror to find the mitigating factors to outweigh the single aggravating factor the Commonwealth relied upon in this case.” Id.

Although in Thomas’s case there were three serious aggravating factors' presented to the jury, rather than one, Thomas’s jury heard no mitigating evidence at all, and thus was left with little choice but to find the aggravating factors controlling and to impose a sentence of death. Thus, there is a reasonable probability that at least one juror would have decided that Thomas’s mental" condition constituted sufficient mitigation to render the death penalty improper. As the Supreme Court recently explained in Penry v.

Lynaugh, “ ‘evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional or mental problems, may be less culpable than defendants who have no such excuse.’ ” 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring)).

The extensive evidence available suggesting that Thomas was suffering from paranoid schizophrenia and other mental conditions, along with evidence of his suicide attempt and the background information that Thomas’s family members could have provided, “might well have influenced the jury’s appraisal of his moral culpability.” Williams, 529 U.S. at 398, 120 S.Ct. 1495. As another court in this circuit recently explained, “[i]n case after case, federal courts have found prejudice when counsel fails to investigate, develop, or introduce mitigating evidence that is similar to the evidence in [defendant’s] case.

This case is no different.” Pursell v. Horn, 187 F.Supp.2d 260, 387 (W.D.Pa.2002) (citing Williams, 529 U.S. at 397-98, 120 S.Ct. 1495; Jermyn, 266 F.3d at 257). As in Pursell and many other cases, while the potentially mitigating evidence at issue might not have swayed every juror, or even a majority of jurors, Thomas must only show a reasonable probability that one juror would have found death an inappropriate punishment. 187 F.Supp.2d at 386; see also Jermyn, 266 F.3d at 309.

Thomas has successfully met this burden, and so counsel’s failure to present — or even investigate — this evidence meets the Strickland standard of prejudice. C. Because counsel failed to present any evidence in mitigation, Thomas’s chance to escape the death penalty became especially contingent upon counsel’s penalty phase closing argument.

Sadly, that performance was grossly deficient: counsel’s closing argument was largely incoherent, and portions of it that could be said to have a semblance of coherence served only to underscore the tragic fact of Johnson’s death: Now, whatever the Commonwealth has tried to structure for you, and I am not being facetious when I say it, I point out that Miss Johnson is dead. The Commonwealth would have you look for a practical point that this was done, that was done, albeit it was done. Now, the question is Miss Johnson is dead....

I only ask that you insofar as as [sic] determining your verdict take your time as to what your verdict may be.... I don’t know if I am using the correct word when I say verdict, sentence, your verdict has been entered. N.T.2/6/86 at 6.53-54. Other portions of the sentencing closing invited the jury to consider factors irrelevant to their sentencing deliberations, and reflected serious misunderstanding of the nature of the legal principles and proceedings in play.

For example, defense counsel argued that there was insufficient evidence to convict Thomas of rape even though the jury had, by that point in the proceedings, already rendered a guilty verdict on the rape charge. Id. at 6.52.

Similarly, in attempting to rebut the prosecution’s prior violent criminal history ag-gravator, counsel not only made an implausible, speculative argument about the possible existence of a “different” Brian Thomas, but he also led the jury away from its proper consideration of whether Thomas had a significant history of violent felony convictions to consider instead whether he had a “significant history of felony convictions,” without any regard for their violent or non-violent nature. Id. at 6.54-55.

As lamentable as these discrete errors or misstatements may be, they pale in comparison to the impression left by a reading of the closing argument in toto: With the Court’s permission, ladies and gentlemen of the jury, having arrived at a verdict, you are now on the penalty stage in which you are the determiners of that. One thing, during the case in chief I might want to point out notwithstanding your returning verdict as you have, I still would like to point out the factor that maybe there may not be there which seems to come about by virtue of you asking a particular question.

That is the particular situation concerning the rape charge. Now, be that as it may, we thought in terms it wouldn’t be necessary to explain to you what is meant by sexual intercourse, but, of course, if you find your conclusion were predicated upon remote sperm, that’s one thing. That was however, if you are dealing with the situation I don’t recall any particular testimony, expertwise or medical testimony or anything else, that may give rise to someone having sexual intercourse or for that matter involuntary sexual deviate conduct or act.

Your verdict is there, but I still point that phase out to you that there was no indication of the usual sexual intercourse definition in which it would be necessary to find that there was an insertion of a penis. That came to whatever came to. In dealing — what you are dealing with you have a situation where you have to determine whether or not it would be the imposition of the death penalty or life in this matter. Now, whatever the Commonwealth has tried to structure for you, and I am not being facetious when I say it, I point out that Miss Johnson is dead.

The Commonwealth would have you look for a practical point that this was done, that was done, albeit it was done. Now, the question is Miss Johnson is dead. You will be instructed by the Court on the limitations insofar as the imposition of the death penalty, when it can occur, under what circumstances, and how are you to evaluate that. Now, with regard to the particular matter that you have heard, I point out that how do you approach this phase of it, I will underscore and ask you to do the same as I asked you to do in the case in chief or the case itself.

Again with regard to this, you have to evaluate it, you have to determine what your position is and determine what your verdict will be. I only ask that you insofar as as [sic] determining your verdict take your time as to what your verdict may be, also having arrived at your decision in good conscience, whatever it may be, to stand by that verdict. I don’t know if I am using the correct word when I say verdict, sentence, your verdict has been entered. With regard to the matters of prior record of Mr. Thomas, I submit to you, ladies and gentlemen, you have a 1977 or 1978 guilty plea situation with regard to Mr.

Thomas. As to the 1984 situation, you have a Brian Thomas. It has not been demonstrated to you that he is the one. Aside from that, you will find that the Court will instruct you that it will be necessary that you find a significant history of felony convictions. I will leave it to the Court to explain what is meant by significant history, take them one at a time, felony convictions, plural. So there is a standard, there is a test that you must evaluate and you must apply, but under the circumstances that you have had in listening to this case, I harken to you that it is a situation in which a death has occurred.

It’s a situation that you have spoken of. On behalf of Brian Thomas I would ask that you consider very strongly in your sentence to consider the imposition of the death penalty. Thank you, ladies and gentlemen — the non-imposition of the death penalty, and bring back a verdict or a sentence of life imprisonment. N.T.2/6/86 at 6.51-55. In sum, counsel’s closing was, at best, incoherent and, at worst, in the service of the prosecution’s contention that the jury should select death rather than life imprisonment. Counsel wholly failed in his duty to present a closing argument helpful to Thomas.

Instead, counsel’s closing, whose importance was heightened in the absence of any mitigating evidence, gravely prejudiced his client. D. The Commonwealth argues that any assertable deficiency of defense counsel in investigating possible lines of a mitigation defense at the sentencing phase cannot constitute a cognizable instance of ineffective assistance of counsel for the reason that Thomas directed counsel not to argue in mitigation. Thomas does not deny that he so advised counsel, and the record reflects that Thomas, in colloquy, even expressed such a desire to the trial judge.

But while “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions,” Strickland, 466 U.S. at 691, 104 S.Ct. 2052, not every such waiver is constitutionally valid. As the Supreme Court made plain more than sixty years ago, “[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.

The determination of whether there has been an intelligent waiver ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Court has examined this requirement in several contexts, most notably with respect to a defendant’s guilty plea. See, e.g., North Carolina v.

Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (waiver in the context of a guilty plea “cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.”). In its discussion of the waiver of the right to counsel, the Court has used similar language in terms of the knowledge required.

To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948); see also Pa. R.Crim. P. 121(c) (requiring a “knowing, voluntary, and intelligent waiver of counsel”).

As the Court recently explained, “The purpose of the ‘knowing and voluntary’ inquiry ... is to determine whether the defendant actually [understands] the significance and consequences of a particular decision[.]” Godinez v. Moran, 509 U.S. 389, 401 n. 12, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Courts have extended this standard to waivers of the right to present mitigating evidence, see, e.g., Wilkins v.

Bowersox, 145 F.3d 1006, 1015-1016 (8th Cir.1998), and it is clear that such a waiver cannot be knowingly and intelligently made in the absence of full information about the nature of one’s choices. “First, counsel’s duty to investigate reasonably and inform and advise his client must be fulfilled before either the lawyer or his client can decide what evidence to present; if counsel failed to investigate and advise, then Petitioner’s waiver was not knowing and intelligent and thus without legal effect” Holloway, 161 F.Supp.2d at 569 (emphasis added), rev’d on other grounds, 355 F.3d 707 (3d Cir.2004).

As the Third Circuit has squarely held, the absence of an informed decision vitiates an otherwise valid waiver. See United States v. Gray, 878 F.2d at 712. The court in Gray expressly held that a defendant’s reluctance to subpoena witnesses could not act as a waiver of his right to have those witnesses testify, as this reluctance was based on inaccurate information-counsel did not know, and therefore failed to inform the defendant, that subpoenaed witnesses were entitled to compensation for their expenses.

Id. “This therefore is not a case in which the defendant made an informed decision which precluded counsel from having a duty to pursue a given line of investigation.” Id. Indeed, as several courts have suggested, the failure to investigate itself precludes a knowing waiver, as there will always be uninformed decisions in such cases. See, e.g., Blanco v.

Singletary, 943 F.2d 1477, 1500-03 (11th Cir.1991) (counsel’s failure to talk to potential mitigation witnesses and to investigate defendant’s mental health status resulted in an unknowing, involuntary waiver, as without knowing what evidence defendant was foregoing, counsel “could not have advised [him] fully as to the consequences of his choice not to put on any mitigation evidence”). A defendant’s desire not to present mitigating evidence, therefore, cannot by itself terminate counsel’s duty to investigate.

Indeed, “[t]he reason lawyers may not ‘blindly follow’ such commands is that although the decision whether to use such evidence is for the client, the lawyer first must evaluate potential avenues and advise the client of those offering potential merit.” Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986). See also Battenfield v.

Gibson, 236 F.3d 1215, 1227-35 (10th Cir.2001) (because counsel failed to conduct a reasonable investigation for possible mitigating evidence, he could not competently advise the defendant as to the meaning, nature, and availability of such evidence; therefore, the defendant’s waiver was not knowing and intelligent); Coleman v. Mitchell, 268 F.3d 417, 449-50 (6th Cir.2001) (for the refusal to present mitigating mental health evidence to be an informed one, counsel must fulfill its independent obligation to investigate despite a defendant’s expressed wishes to the contrary); Matthews v.

Evatt, 105 F.3d 907, 920 (4th Cir.1997) (“counsel has the obligation to conduct a reasonable investigation even if the defendant is reluctant to cooperate”); Weekley v. Jones, 76 F.3d 1459, 1466 (8th Cir.1996) (“an attorney may [not] blindly follow a client’s uncounselled wishes”). In the instant case, the evidence is compelling that Thomas’s decision not to present mitigating evidence was not an informed one. His counsel never made clear to him the gravity of his decision not to present mitigating evidence, and it is apparent that Thomas did not understand the nature of the penalty phase hearing.

As Thomas stated in his affidavit prepared in support of his petition, he “did not then understand that I could present evidence concerning my character as a mitigating circumstance during the penalty phase. I was under the belief that I could only present evidence relating to the circumstances of the offense.” Affidavit of Brian Thomas, Exhibit F.

Although the trial court, in colloquy, attempted to make clear the consequences of Thomas’s decision not to present mitigating evidence, the transcript does not indicate that Thomas truly-understood the type of information he could present and the way in which such evidence could factor into sentencing. In particular, it was not made clear to Thomas, either by the trial court or by counsel, how this stage of the trial materially differed from the guilt phase: [Defense Counsel]: Mr. Thomas, you recall during the case in chief we inquired as to whether or not you wanted to testify in your own behalf.

Do you recall that? THE DEFENDANT: Yeah, I do. Why do I answer all these questions before? We done be over that already. No, I don’t want to get on the stand. THE COURT: Well, this is a different portion. THE DEFENDANT: I still don’t want to get on the stand. THE COURT: Under no condition? THE DEFENDANT: No. THE COURT: This is your own decision? THE DEFENDANT: Yes it is. THE COURT: Did you discuss it with your lawyer, Mr. Watson? THE DEFENDANT: Yes.

THE COURT: And you already told him, I would like to repeat, but it’s your decision not to take the stand at this penalty stage of the hearing or even to present any evidence. Is that your independent and voluntary decision? THE DEFENDANT: It is. THE COURT: Any promises or threats been made to you to induce you to take that position? THE DEFENDANT: No. THE COURT: Now, let me point out to you that this is an extremely serious matter to you. The jury may return a verdict of death in the electric chair if they find certain matters have occurred.

On the other hand, they may come back in with a verdict of life imprisonment. Now, having told you this, the importance of this decision of yours should be very clear to you. Is it? THE DEFENDANT: Yeah, it is. THE COURT: Where are you right now, this very moment? THE DEFENDANT: In City Hall. THE COURT: Do you know the courtroom? THE DEFENDANT: 654. THE COURT: Have you taken any drugs or anything within the last 24 hours? THE DEFENDANT: No. THE COURT: Are you satisfied with the representation of you by Mr. Watson so far? THE DEFENDANT: I am. [The prosecutor]: May I ask two questions? THE COURT: Yes. Q.: Mr.

Thomas, do you have any witnesses that you would like to call at this time at this stage at this proceeding? A.: No. Q.: Are you sure about that? A.: No. [Defense counsel]: No, no, I only asked him one time. Why keep asking the same question? THE COURT: You mean no, you don’t have any witnesses to call? THE DEFENDANT: Right. [The prosecutor]: Q. There is no witness in existence you would like to call, sir, at this time. Yes or no? A.: I said no. [The prosecutor]: Thank you. I am satisfied, Your Honor. THE COURT: All right, bring the jury-back.

Because the nature of the proceeding was not adequately explained to Thomas, he could not possibly have had full knowledge of what he was waiving when he instructed counsel that he did not wish to present mitigating evidence. As such, his waiver was not made knowingly, voluntarily, and intelligently, and therefore must be considered invalid. Counsel had a duty to investigate that was independent of any expressed reluctance of Thomas.

Only after such an investigation would counsel have been in a position to advise Thomas of all the avenues available to him, explain to him the nature of the proceeding, and then be guided by his client’s informed decision. The duty to investigate is well established, and it cannot be overcome by the misguided instructions of an uninformed client. Thomas’s asserted waiver of the right to present mitigating evidence' was uninformed and hence ineffective. Therefore, it could not cure the Strickland deficiency canvassed above.

In sum, Thomas was denied his Sixth Amendment right to effective counsel at the penalty phase of his trial, and is therefore entitled to a new sentencing hearing. Claim, III — Denial of effective assistance of counsel Invoking United States v.

Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), Thomas argues that defense counsel’s assistance at the penalty phase was per se ineffective given counsel’s failure to adduce any mitigating evidence, to agree to a stipulation that would have allowed the jury to consider Thomas’s age and high school diploma as mitigating factors, and to render a coherent closing argument.

In contrast with Strickland, which requires a showing of prejudice, see 466 U.S. at 694, 104 S.Ct. 2052, in Cronic, the Supreme Court has identified three situations implicating the right to counsel that involved circumstances “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658-659, 104 S.Ct. 2039.

Relevant here is the situation where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” id. at 659, 104 S.Ct. 2039, which results in a “denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable,” id. Thomas argues that counsel’s failure to mount any defense during the penalty phase effectively deprived him of counsel altogether, thereby presumptively establishing prejudice. There is certainly much to lament in defense counsel’s penalty phase performance.

Nonetheless, the court need not reach the issue of whether counsel was ineffective per se in light of the court’s finding, under Claims I and II, that counsel’s performance met the Strickland standard for ineffectiveness. Thus, Thomas would not benefit from further relief even if the court were to find in his favor on Claim III. Accordingly, this claim will be dismissed without prejudice.

Claim IV — Trial court’s failure to order a competency evaluation at sentencing Thomas contends he was denied due process by the trial court’s failure to sua sponte order a hearing regarding his competency to waive his right to present mitigating evidence, after it had received a copy of the presentence report indicating Thomas’s questionable mental health. In addition, Thomas contends trial counsel was deficient for failing to request such a hearing or otherwise raise the matter at sentencing.

While it is true that “due process requires that the trial court inquire sua sponte into the defendant’s competence if there is reason to doubt it,” United States v. DiGilio, 538 F.2d 972, 987 (3d Cir.1976), Thomas’s argument that the presentence report provided such reason for doubt is belied by the report itself. Lawrence Byrne, the psychologist who conducted a court-ordered evaluation as part of the presentence report, found Thomas to be competent. Assuming, arguendo, that Thomas was entitled to a court-ordered investigation into his competency, this entitlement was satisfied by Byrne’s evaluation.

As the Commonwealth persuasively notes, “[s]urely the court was not supposed to keep sending [Thomas] back until the psychologist concluded otherwise.” Response to Petition, at 62. Since Thomas did not have a right to another competency evaluation, counsel cannot have been deficient for failing to raise the issue at trial. Claim V — Defense not provided a copy of the presentence report Noting that the trial court record does not indicate whether or not trial counsel ever received a copy of the presen-tence investigation (PSI) report, Thomas speculates that his counsel may not have received the report.

That report contained Lawrence Byrne’s court-ordered psychological evaluation of Thomas, and stated that Thomas suffered from “Severe Multiple Personality Disorders,” as well as “Sociopathic, Reactive Paranoid, and Schizoid Traits.” Pet. Ex. K. at 4. Further, Byrne found that Thomas exhibited “a great deal of underlying psychopathology which is clearly focused in the sexual area, with indication of ... very primitive, brittle and inadequate controls.” Id.

Thomas argues that the PSI report would have been invaluable to his counsel since it called into question his ability to waive mitigating evidence and, indeed, to be prosecuted at all. Because due process forbids a court from imposing the death sentence, “at least in part, on the basis of information which he had no opportunity to deny or explain,” Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Thomas contends that his due process rights were violated if his counsel was not given the PSI report. See also Commonwealth v.

Martin, 466 Pa. 118, 351 A.2d 650, 657 (1976) (“if the court orders a presentence report, defense counsel has a right to examine its contents before sentencing and, if he contests any portion, to offer evidence in rebuttal.”). Of course, as Thomas acknowledges, the claim of a due process violation is speculative, and will remain so until it is known whether defense counsel received the PSI report. Thomas thus requests an evidentiary hearing on this issue. The Commonwealth contends that 28 U.S.C. § 2254(e)(2) forbids such a hearing. That

section provides that “[i]f the [habeas] applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that — (

A) the claim relies on — (

i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (

B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” The Supreme Court has stated, however, that the conditions imposed by § 2254(e)(2) apply only to the habeas petitioner who is “at fault for the deficiency in the state-court record.” Williams v. Taylor, 529 U.S. 420, 433, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).

By contrast, said the Court in Williams, “[i]f there has been no lack of diligence at the relevant stages in the state proceedings, the prisoner has not ‘failed to develop’ the facts under § 2254(e)(2)’s opening clause, and he will be excused from showing compliance with the balance of the subsection’s requirements.” Id. at 437, 120 S.Ct. 1479. The Williams habeas petitioner was found by the Court not to have exercised the diligence required to preserve the claim that nondisclosure of a psychiatric report evaluating Williams’s co-defendant was in contravention of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While the report had been prepared before Williams’s trial, and was found in his file when it was reviewed by counsel for his federal habeas petition, the issue was first raised in Williams’s federal habeas petition, and Williams’s state habeas counsel later averred that he did not recall seeing the report at the time that he reviewed Williams’s file to prepare for Williams’s state habeas case.

The Court rejected this explanation, noting that “[t]here [were] repeated references to a ‘psychiatric’ or ‘mental health’ report in a transcript of [the co-defendant’s] sentencing proceeding, a copy of which petition

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