Andre STEVENS, Petitioner, v. Jeffrey A. BEARD, Secretary, Pennsylvania Department of Corrections, Lois S. Folino, Superintendent, SCI Greene, Franklin J. Tennis, Superintendent, SCI Rockview Respondents, 701 F. Supp. 2d 671

OPINION ARTHUR J. SCHWAB, District Judge. 1. Introduction In the early morning hour of February 8, 1992, Petitioner Andre Stevens shot and killed his estranged wife, Brenda Jo Stevens, age 45, and Mike Love, age 28, at Armando’s Bar in Beaver County, Pennsylvania. Stevens and Brenda Jo were divorcing and they had arrived at the bar separately. He became enraged when he saw her dancing near Love and he went outside to his car and retrieved a loaded nine-millimeter semi-automatic pistol. When he came back into the crowded establishment, he approached the dance floor and opened fire on the victims.

He shot Brenda Jo at close range in the back of the head, killing her. He then turned and shot Love multiple times in different parts of the body. Several of Love’s wounds were defensive in nature, inflicted when he raised his arms to deflect the attack. After a brief pause, Stevens fired a final shot into Love’s groin area and stated “you’ll f_no more.” Love died as a result of the many injuries he sustained. Stevens waived his right to a jury trial as to his guilt. On April 21, 1993, the trial court (the Honorable Robert E.

Kunselman of the Court of Common Pleas of Beaver County) convicted him on the two counts of first-degree murder. A jury was empaneled for a separate penalty hearing, at the conclusion of which Stevens was sentenced to death on each conviction. As discussed in more detail below, Stevens’ first-degree murder convictions are not at issue at the present time. In 2004, I issued a decision in which I denied his single habeas guilt-phase claim, which was that his counsel was ineffective for failing to develop and present evidence of his alleged diminished capacity as a defense to the charges of first-degree murder.

Stevens v. Horn, 319 F.Supp.2d 592 (W.D.Pa. 2004). In that same decision, I granted Stevens ' a writ of habeas corpus on his claim that he is entitled to a new sentencing hearing because the trial court improperly excluded a prospective juror for cause based upon her general objection to the death penalty (Claim VII). The United States Court of Appeals for the Third Circuit affirmed, Stevens v.

Horn, 187 Fed.Appx. 205 (3d Cir.2006) (non-precedential) but the Supreme Court of the United States vacated its decision with respect to Claim VII and remanded for reconsideration in light of a recent decision issued by it. The Court of Appeals has in turn remanded the case back to this Court to reconsider Claim VII and, if need be, all of Stevens’ sentencing-phase claims. Thus, currently pending are Stevens’ habeas claims filed pursuant to 28 U.S.C. § 2254 challenging his sentences of death.

He contends they were obtained in violation of his federal constitutional rights and as relief seeks a new sentencing hearing. In support, he raises the following fourteen claims, which include numerous sub-claims: Claim I His lead trial counsel, Wayne S.

Lipecky, Esq., was ineffective for failing to investigate and present available mitigating evidence at the sentencing hearing; Claim II The second panel of prospective jurors was selected improperly; Claim III The Pennsylvania Supreme Court failed to provide him meaningful proportionality review on direct appeal a mandated by 42 Pa.Cons.Stat. § 9711(H)(3)(IID; Claim IV The trial court’s instruction concerning the aggravating circumstance of torture (42 Pa.Cons.Stat. § 9711(d)(8)) was unconstitutionally vague; in addition, the evidence was insufficient to establish that aggravating circumstance; Claim V The trial court’s instruction concerning the aggravating circumstance of “created a grave risk of death to another in addition to the victim” (42 Pa.Cons.Stat. § 9711(d)(7)) was unconstitutionally vague; Claim VI The aggravating circumstances of “created a grave risk of death to another in addition to the victim” and “convicted of another murder” (42 Pa Cons.Stat. §§ 9711(d)(7) & (11)) impermissibly double counted the same aggravating evidence; Claim VII The jury was not properly death qualified or life qualified; Claim VIII The trial court erred in deny his motion for a change of venue or venire; Claim IX The Commonwealth introduced prejudicial, improper evidence about his relationships with other women; Claim X The trial court’s instructions violated the constitutional mandate that the prosecution prove beyond a reasonable doubt every element of every aggravating circumstance; Claim XI The Commonwealth improperly introduced evidence and argument concerning invalid non-statutory aggravating factors, and the jury improperly considered such evidence and argument; Claim XII The trial court failed to instruct the jury properly on the nature and use of mitigating factors; Claim XIII The trial court erred in permitting the Commonwealth to introduce the testimony of a forensic pathologist to discuss Brenda Jo’s injuries and cause of death; Claim XIV The trial court failed to accurately instruct the jury on his parole ineligibility.

After careful consideration, I conclude that Stevens is not entitled to habeas relief on Claim VII or on any of his other sentencing-phase claims, and I therefore deny his petition for writ of habeas corpus. II. Relevant Procedural Background After his arrest, Stevens retained Wendell Freeland, Esq., as his defense counsel. He represented Stevens for approximately nine months and then withdrew in November 1992. The trial court appointed the Beaver County Public Defender’s office to replace Freeland and Wayne S. Lipecky, Esq., assisted by Thomas C. Phillis, Esq., assumed representation.

They represented Stevens through his trial, and Lipecky continued as counsel on the direct appeal. As set forth above, Stevens waived his right to a jury trial as to his guilt. On April 21, 1993, the trial court convicted him of two counts of first-degree murder. Jury selection for the sentencing hearing took place over the next three weekdays and the actual hearing commenced on Tuesday, April 27,1993. At the hearing, the Commonwealth had the burden of proving beyond a reasonable doubt that at least one statutorily-defined aggravating circumstance accompanied the murder.

Stevens could introduce, and the jury could consider, mitigating evidence. Mitigating circumstances had to be proved by a preponderance of the evidence. The jury could impose the death penalty only if it found that the statutorily-defined aggravating circumstances proven by the Commonwealth outweighed any mitigating circumstances proven by Stevens. See 42 Pa.Cons.Stat. § 9711.

The Commonwealth pursued the following two aggravating circumstances regarding the sentence to be imposed for the murder of Brenda Jo: (1) while in the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim, id. § 9711(d)(7); and (2) the defendant has been convicted of another murder committed either before or at the time of the offense at issue, id. § 9711(d)(ll).

Regarding the sentence to be imposed for the murder of Love, the Commonwealth pursued those two aggravating circumstances, as well as the third aggravator that the offense was committed by means of torture, id. § 9711(d)(8).

Stevens relied upon the following mitigating circumstances: (1) he had no significant history of prior criminal convictions, id. § 9711(e)(1); (2) he was under the influence of extreme mental or emotional disturbance, id. § 9711(e)(2); and (3) any other evidence of mitigation concerning his character and his record or the circumstances of the offense, id. § 9711(e)(8) (commonly referred to as the “catch all” mitigating factor). In its verdict, the jury found that Stevens established the first two mitigating circumstances, but not the third.

It found that the Commonwealth proved all of the aggravating circumstances outlined above. With respect to each murder, it found that the aggravating circumstances outweighed the mitigating circumstances and Stevens was sentence to death. Following his trial, Stevens filed post-trial motions, which were denied by the Court of Common Pleas en banc. (Dkt 15, App. 11, Commonwealth v. Stevens, Docket No. 365A of 1992, slip op. (C.P. Beaver Oct. 21, 1994) (“Opinion Denying Post-Trial Motions ”)).

In his direct appeal to the Pennsylvania Supreme Court, Stevens raised, in relevant part, Claim VIII (challenging the trial court’s denial of his motion for change of venue or venire), as well as the part of Claim IV challenging the sufficiency of the evidence of the aggravating circumstance of torture. On January 18, 1996, the Pennsylvania Supreme Court, in a unanimous decision, affirmed Stevens’ judgments of sentence. Commonwealth v. Stevens, 543 Pa. 204, 670 A.2d 623 (1996) (“Stevens I ”). It denied Claims VIII and IV on the merits. Id. at 625-28.

The Supreme Court of the United States denied Stevens’ petition for writ of certiorari on October 7, 1996. Stevens v. Pennsylvania, 519 U.S. 855, 117 S.Ct. 151, 136 L.Ed.2d 96 (1996). Upon the conclusion of his direct appeal, Stevens filed a pro se petition with the Court of Common Pleas seeking collateral relief under the Pennsylvania Post-Conviction Relief Act (“PCRA”). The PCRA Court (Judge Kunselman) appointed Stevens’ present counsel to represent him.

In March 1997, Stevens, through his new counsel, filed an amended petition for PCRA relief, in which he raised the rest of the claims at issue in this proceeding almost verbatim (Claims I through VII and Claims IX through XIV). (See Dkt. 15, App. 16). The PCRA Court granted Stevens’ request for an evidentiary hearing on Claim I and Claim III, and the hearing was conducted on January 26 through January 29, 1998. (See Dkt. 16, Apps. 17-24). Following the hearing, the PCRA Court issued a 95-page decision denying Stevens relief on all claims. (Dkt. 17, App. 26, Commonwealth v.

Stevens, Docket No. 365A of 1992, slip op. (C.P. Beaver July 1, 1998) (“PCRA Court Opinion ”)). Stevens appealed to the Pennsylvania Supreme Court. In a five to two decision, the court affirmed. Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507 (1999) (“Stevens II ”). It denied each of Stevens’ claims on the merits except for Claim XIV, which it reject under a state-law rule regarding the retroactive application of new law.

After the Pennsylvania Supreme Court issued its decision, Stevens filed a Petition for Writ of Habeas Corpus (Dkt. 7) with this Court. (See also Memorandum Of Law In Support Of Petition, Dkt. 19). In addition to the fourteen sentencing-phase claims outlined above, Stevens also raised one claim, as part of Claim I, challenging the guilt-phase of his trial. In that claim, he contended that he was entitled to a new trial as to his convictions because Lipecky was ineffective for failing to investigate and present a diminished capacity defense to the charge of first-degree murder.

In its Response (Dkt 12), the Commonwealth contended that each of Stevens’ habeas claims should be denied. On May 26, 2004, I issued a decision denying Stevens’ single guilt-phase claim and granting him sentencing-phase relief on his claim, raised as part of Claim VII, that a prospective juror was improperly excluded under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Stevens v. Horn, 319 F.Supp.2d 592 (W.D.Pa.2004) (“Stevens III”). Because I granted Stevens sentencing relief on his Witherspoon claim, his remaining sentencing claims were moot and were not addressed.

Stevens filed an appeal with the Court of Appeals challenging the denial of his guilt-phase claim. The Commonwealth cross-appealed, challenging the relief granted on the Witherspoon claim. On July 7, 2006, the Court of Appeals affirmed the judgment of this Court in all respects. Stevens v. Horn, 187 Fed.Appx. 205 (3d Cir.2006) ("Stevens IV”). Each side sought review in the Supreme Court. The Commonwealth’s petition for writ of certiorari was successful.

The Supreme Court vacated the Court of Appeals’ decision in Stevens TV with respect to the Witherspoon claim and remanded for further consideration in light of it recent decision in Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007). Beard v. Stevens, 551 U.S. 1111, 127 S.Ct. 2966, 168 L.Ed.2d 260 (2007). In Uttecht, the Supreme Court held that the United States Court of Appeals for the Ninth Circuit had erred in granting a state prisoner federal habeas relief on a Wither-spoon claim.

On July 25, 2008, the Court of Appeals issued a decision in which it reinstated the portion of its original opinion and judgment that rejected Stevens’ guilt-phase claim. Stevens v. Beard, 288 Fed.Appx. 4 (3d Cir.2008) (“Stevens V”). It remanded Stevens’ Witherspoon claim, concluding that it “is best addressed anew by the District Court in the first instance[,]” and emphasizing that it was “fully committing the remanded proceedings to the sound discretion of the District Court.” Id. at 6.

Immediately after the Court of Appeals issued its mandate, I issued a scheduling order directing that Stevens file an updated memorandum of law addressing all of his sentencing-phase claims on or before October 20, 2008. (Dkt. 43). Stevens’ counsel requested five extensions. On June, 4, 2009, the Updated Memorandum Of Law was filed. (Dkt. 54). The Commonwealth then filed its Updated Answer (Dkt. 61), to which Stevens filed a Reply Brief (Dkt. 64). On February 16, 2010, Stevens filed a Letter Brief Discussing Supplemental Authority (Dkt. 66). III.

Standard Of Review Stevens’ petition is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”). Under that statute, habeas relief is only available on the grounds that Stevens’ sentences of death were obtained in violation of his federal constitutional rights. 28 U.S.C. § 2254(a). Errors of state law are not cognizable. See, e.g., Priester v.

Vaughn, 382 F.3d 394, 402 (3d Cir.2004) (“Federal courts reviewing habeas claims cannot ‘reexamine state court determinations on state-law questions.’ ”) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). In describing the role of federal habeas proceedings, the Supreme Court, in Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), noted: [I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence....

The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials. Subsequent to that admonition, Congress enacted AEDPA, which “modified a federal habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

It “requires federal courts collaterally reviewing state proceedings to afford considerable deference to state courts’ legal and factual determinations.” Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir.2004); see also Lewis v. Horn, 581 F.3d 92, 109-18 (3d Cir.2009).

As codified at 28 U.S.C. § 2254(d), AEDPA provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (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. (Emphasis added).

Thus, AEDPA circumscribes a federal habeas court’s review of a state prisoner’s constitutional claims when the state court already has “adjudicated on the merits” and denied those claims. “[F]or the purposes of [§ ] 2254(d), a claim has been ‘adjudicated on the merits in State court proceedings’ when a state court has made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground.” Brian Thomas v. Horn, 570 F.3d 105, 117 (3d Cir.2009), cert. denied sub nom. — U.S. —, 130 S.Ct. 1879, 176 L.Ed.2d 368 (2010).

In his Updated Memorandum Of Law (Dkt. 54), Stevens acknowledges that, with the exception of Claim XIV, the Pennsylvania Supreme Court “adjudicated the merits” of each of his federal habeas claims in either Stevens I or Stevens II. He admits that my review of each of his claims, except for Claim XIV, is governed by AEDPA’s deferential standard of review at § 2254(d). Therefore, only Claim XIV will be reviewed de novo. See, e.g., Brian Thomas, 570 F.3d at 124 (when the state court has not “adjudicated a claim on the merits,” the federal habeas court applies de novo review to the claim).

With respect to all of Stevens’ other claims, I may grant habeas relief only if he shows that the state court’s adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “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).

In applying this standard, I am reminded that under AEDPA, federal courts “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.” Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir.2000). It is not sufficient for Stevens to show that the state court’s adjudication of any of his claims was an “incorrect or erroneous” application of Supreme Court precedent. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

Instead, he must show that the state court’s adjudication “cannot reasonably be justified under existing Supreme Court precedent.” Hackett v. Price, 381 F.3d 281, 287 (3d Cir.2004) (citations omitted); Knowles v. Mirzayance, — U.S. —, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (“The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold”)); Waddington v.

Sarausad, — U.S. —, 129 S.Ct. 823, 831, 172 L.Ed.2d 532 (2009) (where it is the state court’s application of governing federal law that is challenged, “the state court’s decision must be shown to be not only erroneous, but objectively unreasonable.”) (internal citations and quotations omitted). Finally, factual determinations made by the state court are also given considerable deference under AEDPA.

Within § 2254(d)(2)’s overarching standard, a petitioner may attack specific factual determinations that are subsidiary to the ultimate decision under § 2254(e)(1), which provides that “a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” See Lambert, 387 F.3d at 235-39; Lewis, 581 F.3d at 111. IV. Request For an Evidentiary Hearing Before turning to the merits of Stevens’ claims, I first must address his request for an evidentiary hearing.

To properly consider his request, a review of his earlier efforts to develop the record is necessary. A. In Stevens’ amended PCRA Petition, he raised all of the claims that he raises in the instant federal habeas petition, except for the two claims that he had already litigated on direct appeal (Claim VIII, which challenged the trial court’s denial of his request to change the venue or venire, and the part of Claim IV that challenged the sufficiency of the evidence of Love’s torture).

At the end of the amended PCRA Petition, Stevens made a broad request for an evidentiary hearing on all claims and all disputed issues of fact. (Dkt. 15, App. 16 at 129-32). Stevens attached to the amended PCRA Petition exhibits relevant to Claim I (ineffective assistance for failing to develop diminished capacity and mitigation evidence) and Claim III (challenging the Pennsylvania Supreme Court’s proportionality review process).

On July 22, 1997, the PCRA Court granted Stevens’ request for an evidentiary hearing on those two claims as they were the “claims as to which the court concludes that factual issues need to be resolved[.]” (Dkt. 63). The PCRA Court determined that no evidentiary hearing was needed on Stevens’ remaining claims because they did not raise issues of disputed fact and could be resolved by examination of the existing record. (Id.) The PCRA Court held a four-day evidentiary hearing on January 26 through 29, 1998, at which the following twelve witnesses testified:

(1) Ralph Landefeld, Ph.D., the psychologist who had performed testing on Stevens prior to his trial and who had testified as a defense witness at the sentencing hearing;

(2) Christine A. Martone, M.D., the psychiatrists who had examined Stevens prior to his trial for competency and prior to his sentencing for mitigation, and who had testified as a defense witness at the sentencing hearing;

(3) Rodney Altman, D.O., the other psychiatrist who had examined Stevens prior to his trial and sentencing and who had testified as a defense witness at the sentencing hearing;

(4) Carol Armstrong, Ph.D., a neuropsychologist who had evaluated Stevens in 1997 to support his PCRA claims;

(5) Lawson F. Bernstein, M.D., a psychiatrist who had examined Stevens in 1997 to support his PCRA claims;

(6) Stevens’ trial attorneys Lipecky, and

(7) Phillis; (8) his first attorney, Freeland; (9) his sisters, Rosmary Postich and

(10) Constance Corbitt; (11) his daughter, Karen Stevens Mangerie, who had testified as a defense witness at the sentencing hearing; and

(12) Eugene P. Ericksen, Ph.D., an expert in statistics who testified about the Pennsylvania Supreme Court’s proportionality review process. (See Dkt. 16, Apps. 17-24; see also PCRA Hr’g Exs. at Dkt. 30, App. 1 and Dkt. 32). In its opinion denying post-conviction relief, the PCRA Court reiterated why it had denied Stevens’ broad request for an evidentiary hearing on all claims: Upon review of [Stevens’] Amended Petition, it was apparent to the court that all of the issues, except for the two on which we granted a hearing, did not raise factual issues.

Rather, these involved matters of law and could be resolved by examining the relevant law and the transcript from the original proceedings in this case. Most of the issues involved legal questions regarding the correctness or adequacy of the court’s charge. The claims of ineffective assistance of counsel related to those issues were likewise based upon the legal analysis of the underlying issues, and as is evident from the above discussion, were meritless. Additionally, we found several of the issues to be completely frivolous, and consequently did not even grant argument on those matters.

See Order dated 7/27/97. For these reasons, we properly denied [Stevens’] request for an evidentiary hearing on all issues raised in his Amended Petition. (Dkt. 17, App. 26, PCRA Court Opinion at 94-95). When Stevens filed his habeas petition with this Court, he made a rote request for an evidentiary hearing “on all claims involving disputed issues of fact.” (Dkt. 7 at 94). He did not identify specific claims that required further factual development or otherwise indicate what additional testimony or documents he wished to present to this Court.

Nowhere in his subsequently filed Memorandum Of Law (Dkt. 19) or Supplemental Brief (Dkt. 29), did Stevens contend that he was entitled to, or required, an evidentiary hearing. After the Court of Appeals remanded this case, Stevens for the first time made a more specific request for an evidentiary hearing.

In his post-remand Updated Memorandum Of Law (Dkt. 54), he expressly requests a hearing on Claim I and the remanded Witherspoon claim at Claim VIL With respect to his other claims, he repeats the boilerplate suggestion that an “evidentiary hearing may be necessary, if the Court does not grant relief based on the existing record.” B. AEDPA, as codified at 28 U.S.C. § 2254(e)(2), limits the ability of a federal district court to hold an evidentiary hearing in habeas review. See Michael Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); Palmer v.

Hendricks, 592 F.3d 386, 392-94 (3d Cir.2010); Lewis, 581 F.3d at 104-05, 109 n. 11, 117; Goldblum v. Klem, 510 F.3d 204, 220-21 (3d Cir.2007), cert. denied sub nom. — U.S. —, 129 S.Ct. 106, 172 L.Ed.2d 85 (2008); Taylor v. Horn, 504 F.3d 416, 435-37 (3d Cir.2007), cert. denied sub nom. — U.S. —, 129 S.Ct. 92, 172 L.Ed.2d 78 (2008); Rolan v. Vaughn, 445 F.3d 671, 680 (3d Cir.2006); Clayton Thomas v. Varner, 428 F.3d 491, 497-99 (3d Cir.2005). Under AEDPA, if a state prisoner “has developed the factual basis of his claims in the state court, he is not entitled to an evidentiary hearing” in federal court.

Goldblum, 510 F.3d at 220 (citing 28 U.S.C. § 2254(e)(2)); Rolan, 445 F.3d at 680-81 (district court erred in conducting an evidentiary hearing on a claim when the state court had conducted a hearing on the same issue); Taylor, 504 F.3d at 435-37 (petitioner not entitled to evidentiary hearing in federal court when he could have presented his alleged new evidence to the PCRA Court). At the PCRA hearing, Stevens had the opportunity to develop, and did develop, evidentiary support for the factual allegations raised in Claim I and Claim III.

For that reason, he is not entitled to a hearing on either of those claims in this Court. With regard to Stevens’ remaining claims — including Claim VII (the Wither-spoon claim) — AEDPA provides that if the factual record was not developed in the state court proceeding, the district court must consider whether the failure to develop the record is attributable to the petitioner. Brian Thomas v. Horn, 570 F.3d at 125-26; Taylor, 504 F.3d at 435-37; Clayton Thomas, 428 F.3d at 498-99.

If the failure to develop the record is attributable to the petitioner, AEDPA prohibits an evidentiary hearing in federal court. 28 U.S.C. § 2254(e)(2). See, e.g., Lewis, 581 F.3d at 104-05 (citing Michael Williams, 529 U.S. at 435, 120 S.Ct. 1479 (the purpose of § 2254(e)(2) is “to ensure the prisoner undertakes his own diligent search for evidence”); Taylor, 504 F.3d at 437 (“Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.”)).

The Supreme Court has explained that “a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Michael Williams, 529 U.S. at 432,120 S.Ct. 1479. When the failure to develop the factual basis of a claim in the state court is not attributable to the petitioner, it is within the district court’s discretion to grant an evidentiary hearing on a claim.

Schriro, 550 U.S. at 473-75, 127 S.Ct. 1933; Palmer, 592 F.3d at 393; Lewis, 581 F.3d at 117; Rolan, 445 F.3d at 680-81; Clayton Thomas, 428 F.3d at 497-98. In deciding whether to exercise that discretion, the district court “must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief’ under AEDPA’s standards of review.

Landrigan, 550 U.S. at 474, 127 S.Ct. 1933 (citation omitted); see also Palmer, 592 F.3d at 395 (“bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing” on a habeas petition). Stevens contends that the failure to develop the record on Claim VII and his other claims cannot be attributed to him because he showed “diligence” by making a request for a hearing in his amended PCRA motion.

The Supreme Court has held that “diligence” sufficient to over come AEDPA’s prohibition on evidentiary hearings “will require in the usual case that the prisoner, at a minimum seek an evidentiary hearing in state court in the manner prescribed by state law[.]” Michael Williams, 529 U.S. at 437, 120 S.Ct. 1479. However, if, as Stevens suggests, all that is required is to make the type of broad, boilerplate request that he made to the PCRA Court in this case, AEDPA’s limitation on evidentiary hearings would be rendered meaningless.

See Lewis, 581 F.3d at 104-05 (denying petitioner’s request for a hearing on one of his habeas claims even though the state court had refused to grant him a hearing on that claim). In this case, the PCRA Court held an extensive hearing on the two claims upon which Stevens proffered additional evidence and demonstrated issues of fact. If he had advised the PCRA Court that he had evidence to support his other claims, as he did for Claim I and Claim III, there is reason to believe that the PCRA Court would have permitted him to introduce it.

Based on all of the foregoing, I am not convinced by Stevens’ position that he was diligent in attempting to develop the record in state court or that AEDPA does not prohibit this Court from conducting an evidentiary hearing. However, even if I assume that the statutory bar does not apply, I would still, in an exercise of my discretion, deny Stevens’ request. That is because he has failed to direct this Court to any evidence that he would introduce at a hearing to support Claim VII or any of his other claims.

He has not submitted the affidavits of any witnesses he would call to testify or any documents that he would introduce. He, has not even informed this Court that Lipecky, Phillis, or any other witness would be available to testify. Thus, he has failed to show that a hearing could enable him to prove the petition’s factual allegations or that there are any genuine issues of disputed fact. Id. Therefore, Stevens’ request for an evidentiary hearing is denied. Habeas review of his claims is limited to examining the record developed before the state court under the standards set forth in 28 U. S.C. § 2254(

d) and (e)(1) (discussed supra). Id.; Taylor, 504 F.3d at 435-37; Rolan, 445 F.3d at 678-81; Goldblum, 510 F.3d at 221. See also Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam) (citations omitted) (“[W]e have made clear that whether a state court’s decision was unreasonable must be assessed in light of the record the [state] court had before it.”). V.

Stevens’ Claims Claim I Ineffective Assistance For Failing To Investigate and Present Available Mitigating Evidence At the Sentencing Hearing Stevens claims that his lead defense attorney, Lipecky, failed to conduct an adequate investigation into available mitigation evidence, in violation of his Sixth Amendment right to effective assistance of counsel. Specifically, he faults counsel for failing to provide to the defense mental health experts, Dr. Altman, Dr. Landefeld, and Dr.

Martone: (1) the 22-pages of handwritten notes (sometimes described as a journal), maintained by him prior to the murders, which was recovered by the police during a search of his residence, and which he claims demonstrated that he was psychotic at the time of the crimes; (2) letters he had written to his first attorney, Freeland, that demonstrated paranoid and delusional thinking; (3) his complete military, employment, and school records; and (4) information from his daughter and two sisters detailing his difficult childhood, medical history, and troubled life. A.

The “clearly established Federal law,” 28 U.S.C. § 2254(d), for AEDPA purposes in which to analyze a claim of ineffective assistance is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, Stevens first must show that Lipecky’s representation “fell below an objective standard of reasonableness.” 466 U.S. at 688,104 S.Ct. 2052. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052.

The law presumes that counsel was effective: Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel’s was unreasonable.

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 (internal citations and quotations omitted). Recognizing that the scope and intensity of defense counsel’s investigation and development of defenses differs with the facts of each case, the Supreme Court in Strickland, “did not offer any special standards concerning the duty to investigate^]” Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 371 (3d Cir.2002) (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052).

It did, however, state that in all cases, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). In assessing Lipecky’s investigation, I must conduct an objective review of his performance measured for reasonableness under prevailing professional norms, including a context-dependent consideration of the challenged conduct as seen from counsel’s perspective at the time.

Wiggins, 539 U.S. at 522-27, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052) (internal quotations omitted); see also Bobby v. Van Hook, — U.S. —, 130 S.Ct. 13, 16-20, 175 L.Ed.2d 255 (2009) (per curiam). The Court of Appeals has explained that it is “only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel’s performance.” United States v. Kauffman, 109 F.3d 186, 190 (3d Cir.1997) (quoting United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989)).

Strickland also requires Stevens to show that he was prejudiced by his the alleged deficient performance. “This requires showing that counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In other words, Stevens “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.

As discussed below, the Pennsylvania Supreme Court denied Claim I because it determined that Stevens did not satisfy Strickland’s first prong (it held that his performance was objectively reasonable). Because it adjudicated Claim I on the merits, AEDPA’s standard of review applies, as Stevens admits. This standard adds another hurdle in addition to the already heavy burden he faces under Strickland. See Knowles, 129 S.Ct. at 1420 (noting “the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.”) B. 1.

In gathering information to prepare for the defense of his client, Stevens’ first attorney, Freeland, spoke with his daughter, Karen. (See Dkt. 16, App. 21 (Free-land Hr’g Test.) at 7-8). Freeland’s notes reflect that Karen asked him if anyone was going to evaluate her father, because she thought he was “crazy.” (Id.; see also Dkt. 30, App. 1, PCRA Ex. AA). In addition to his notes, Freeland’s file also contained Stevens’ 22-page journal; his partial military and employment records; and three letters that he had written to Free-land after the crimes. (See Dkt. 30, App. 1, PCRA Exs. BB, CC, DD).

In August 1992, when Stevens was still represented by Freeland, the Commonwealth retained Dr. Martone for the purpose of evaluating him to determine if he was competent to stand trial. (Trial Tr. 4/28/93 at 41). Dr. Martone is a board certified psychiatrist and is the Director of the Allegheny County Behavior Clinic, which is a clinic for evaluating mentally ill offenders that specializes in “the interface of law and psychiatry.” (Id. at 39-40). On August 24, 1992, Dr. Martone issued a four-page report. (Dkt. 32, PCRA Ex. V).

In it, she reviewed Stevens’ mental health history, his mental status pre- and post-arrest, and his early life history. Dr. Martone determined that Stevens was competent to stand trial and that he was not psychotic. She explained: The defendant does not suffer from a psychotic disorder and in my opinion there is no evidence that this defendant fulfills the criteria of the McNaught [sic] definition of not guilty by reason of insanity. He certainly was able to appreciate the nature and quality of his act and the wrongfulness of it.

Concerning the issue of guilty but mentally ill, again, the defendant is not now and was not at the time of the incident suffering from a psychotic disorder. He was preoccupied with his wife. He was not able to accept the divorce and had certain personality disorder traits. However, he did not lack, in my opinion, the ability to appreciate the nature and quality of his act and the wrongfulness of it, nor was he unable to conform his behavior to the norms of society. (Id. (emphasis added)).

In November 1992, Freeland withdrew because Stevens lacked the personal funds to hire mental health experts, and the trial court appointed Lipecky and Phillis as defense counsel. (Dkt. 16, App. 23 at 104-OS). When he took over Stevens’ case, Lipecky met with Stevens and reviewed the materials contained in Freeland’s files and Dr. Martone’s report. (Id. at 4, 104— 09).

He also interviewed Karen, who described her parents’ rocky marriage, said that Stevens seemed to her to be “out of touch,” that he had lost a lot of weight in a short period of time, and that he obsessed about drugs and Brenda Jo’s alleged infidelity. (Id. at 9-11; Dkt. 32, PCRA Ex. FF). Lipecky also interviewed Rosemary Postich, one of Stevens’ sisters, about his family and his relationship with his wife. (Id. at 125).

Lipecky’s investigation indicated to him that Stevens had mental health issues that required additional expert evaluation and he filed a motion for the appointment of a psychiatrist and psychologist to assist the defense. (Id. at 106-07, 126; see also Dkt. 31, App. 5). On March 9, 1993, the trial court granted the motion and Lipecky retained Dr. Altman to conduct a mental-health examination of Stevens. (Id. at 108-109). Dr. Altman is certified by the American Osteopathic Board of Neurology and Psychiatry and belongs to numerous psychiatric associations.

He had previously been employed as the attending psychiatrist for the prison population of the Western Penitentiary, during which time he examined “hundreds” of criminal defendants. (Dkt. 15, App. 9 at 12-16). Lipecky met with Dr. Altman several times. (Dkt. 16, App. 23 at 115). Dr. Altman conducted his initial examination of Stevens on March 29, 1993. (Dkt. 15, App. 9 at 12; Dkt. 16, App. 24 at 4). He informed Lipecky that Stevens was not psychotic — a diagnosis that was eonsistent with Dr. Martone’s August 1992 assessment. (Dkt. 16, App. 23 at 112, 116). Dr.

Altman wanted to conduct a second evaluation, and he and Lipecky met and reviewed the information Lipecky had about Stevens. (Id.) After this meeting, Dr. Altman arranged for Dr. Landefeld, a psychologist, to assist him in his evaluation of Stevens. (Dkt. 16, App. 17 at 9). At Dr. Altman’s request, Dr. Landefeld performed a neuropsychological screening of Stevens, which included the administration of several tests, including the Minnesota Multiphasic Personality Inventory-2, the Rorschach Test, the Benton Test of Visual Retention, and the Trail Making Test. (Id. at 10-12). Dr. Altman had asked Dr.

Landefeld to conduct this testing to “to determine or eliminate the possibility there could be some neurological components contributing to the situation.” (Dkt. 15, App. 9 at 6). Dr.

Landefeld also conducted a clinical interview of Stevens, which he described at the sentencing hearing as “basically gathering information from the patient or client directly to find out his relating of the details of the story and what went on and from that point ... and really take a look at whether there is evidence of any psychotic types of processes, hallucinations or delusions, whether, you know, they are able to really relate[,] if they are alert, [if there are] psychomotor types of issues and then certain issues relating to depression, sleep, appetite types of issues that could give indication leaning towards diagnosis.” (Id. at 7).

In his report, issued on or around April 9, 1993, Dr. Landefeld diagnosed Stevens as having an “Adjustment Reaction, with depressed mood” and “Paranoid Personality Disorder, with borderline and antisocial traits.” (Dkt. 30, App. 1, PCRA Ex. H). Dr. Landefeld verbally informed Dr. Altman of the results of his testing, and then Dr. Altman examined Stevens for a second time. (Dkt. 16, App. 24 at 11; see also Dkt. 15, App. 9 at 17). On April 15, 1993, Dr. Altman issued an eight-page report. (Dkt. 30, App. 1, PCRA Ex. 0).

In it, he reviewed Stevens’ background, including his education, military, and family history. (Id. at 1-7). Dr. Altman provided a detailed discussion of his examinations of Stevens and concluded: DISCUSSION AND FORMULATION: Mr. Stevens is an individual who has had a long history of emotional distrubance [sic] first recognized in his early teens while in the military and evidencing paranoid traits, schizoidal and isolative tendencies as well as possible overt psychosis. He has continued to have symptomatology within the same realm.

Although a large gap from his teens until his mental health commitment in 1972 is lacking, he again in 1972 evidences paranoid and quasi delusional thinking as well as impulse discontrol. CURRENT MENTAL STATUS EXAMINATION: Evidences continuing paranoid ideation as a predominate feature with periods of projection and externalization onto others as plotting in some way against him. He has difficulty in focus, continues to have tangential and circumstantial thought process and resultant difficulty in modulating his impulses when faced with either real or an imagined threatening situation. Individuals such as Mr.

Stevens can, at times of acute emotional turmoil, misperceive reality and can lack the ability to modulate their emotions with impulsive acting-out behavior. His current ambivalence and apathy are secondary to being within a very structured and regimented environment, namely jail, but do not alleviate the continued core problem of a relatively severe personality disorder consisting of paranoia, mood fluctuations, difficulties in judgment as well as rationalized disregard and retribution for and against others as a result of his continued paranoid personality. It is my opinion that given Mr.

Stevens overall mental defects that when removed from a rigid and structured environment and placed under severe mental duress that he could decompensate and misperceive reality as well as act out impulsively in a manner perceived by him to protect his own well-being from the aggressions of either direct or indirect of others. (Id. at 7-8 (emphasis added)). Dr. Altman diagnosed Stevens as having Severe Adjustment Disorder With Mixed Disturbance Of Emotions and Conduct, and Personality Disorder With Paranoid Borderline and Antisocial Traits. (Id. at 7).

He did not diagnose Stevens as being psychotic, and he did not find evidence of the more serious mental health issues that he would state Stevens had when he testified five years later at the 1998 PCRA hearing. Lipecky prepared to have Dr. Altman and Dr. Landefeld testify at the sentencing hearing in the event that the trial court found him guilty of first-degree murder. He reviewed with Dr. Altman his psychiatric assessment of Stevens and went over the capital sentencing statute and the available mental health mitigating circumstances. (Dkt. 16, App. 24 at 94). He provided Dr.

Landefeld with a list of questions he would ask him during trial. (Dkt. 16, App. 17 at 46). Following the trial court’s verdicts of guilt, Lipecky pursued additional expert mental health assistance. He contacted Dr. Martone, who had evaluated Stevens in August 1992 for competency, because he believed that she could provide helpful expert mitigation testimony at the sentence hearing. (Dkt. 16, App. 22 at 8; Dkt. 16, App. 23 at 19-20; see also Dkt. 30, App. 1, PCRA Ex. M). Lipecky had several conversations with Dr.

Martone and arranged for her to evaluate Stevens again for mitigation purposes. (Dkt. 16, App. 23 at 15-18, 22). Dr. Martone evaluated Stevens on April 27, 1993, and she reached diagnoses similar to that which Dr. Altman had reached. She concluded Stevens suffered from Adjustment Disorder with features of depression and Personality Disorder with explosive and paranoid features. (Dkt. 20, App. 1, PCRA Ex. M). She issued a three-page Addendum to her initial August 1992 report, explained that: MENTAL STATUS EXAMINATION The defendant was a well groomed white male who looked somewhat older than his stated age.

He was pleasant, polite and cooperative with the interview and oriented in all three spheres. His memory was intact. His thoughts were logical and coherent and free of loosened associations. There was no evidence of hallucinations. As before, there is some paranoid ideation, perhaps of delusional proportion. He certainly is suspicions of his wife’s fidelity and that may or may not be true. He is beginning to doubt his delusional thinking concerning Mr.

Love, but he still holds firm to the contention that his wife was unfaithful, abusing drugs and that she had sexually molested their daughter and would do so to their grandson. He also gives a rather bizarre account of his wife telling him that she knew of a nurse that sexually molested female patients once they were anesthetized or prepared for anesthesia in the hospital. It is his feeling that she was talking about herself. This certainly sounds delusional. His affect was almost tearful when talking about his wife and his actions.

RECOMMENDATION AND FORMULATION .... [I]n my opinion, I do find sufficient evidence for mitigating circumstances in considering the death penalty. To begin with, this man has a rigid, rather well entrenched, personality disorder with some fixed paranoid ideation and certainly a great deal of suspiciousness about his wife and other individuals involved with her. He has demonstrated some explosive features. When he sustained this prolonged separation with divorce papers, he suffered from an adjustment disorder with features of depression of a moderately severe degree.

When suddenly confronted with his wife at the time of the incident, he found himself hoping again for some sort of communication or involvement with her. When, instead, he saw her dancing with what he interpreted as a paramour, he reacted by shooting both of them. In my opinion, within a reasonable degree of medical certainty, this would constitute mitigating circumstances when considering sentencing. (Id. (emphasis added)). Similar to Dr.

Altman, she did not diagnose Stevens as being psychotic, and she did not find evidence of the more serious mental health issues that she would state Stevens had when she testified five years later at the 1998 PCRA hearing. At the sentencing hearing, the Commonwealth presented the testimony of the investigating officers, the pathologist who had performed the autopsies on the victims, numerous patrons from Armando’s Bar that had witnessed the shootings and the aftermath, and Brenda Jo’s brother, Gary Luikart. Stevens testified first to support his mitigation ease.

He described his marriage to Brenda Jo and provided his version of the killings. (4/28/93 Tr. at 2-38). Dr. Martone testified next.

She discussed in detail what she described as her two “full” evaluations of Stevens, which she explained consisted of a formal mental status examination and a narrative with him concerning the psychiatric symptoms he was suffering from when he committed the murders, his past psychiatric history, his early life history, his social history, as well as a review of his school and military records (which, she testified, showed that he previously had been diagnosed with schizoid personality disorder). (Id. at 42-54, 57-60). Importantly — considering Stevens’ present allegations — Dr.

Martone testified that she believed that the information Stevens gave her was accurate and that he was a reliable self-historian. (Id. at 44). She expressly stated that her exams were sufficient to obtain the necessary information to render the opinion she was giving. (Id. at 43). At the conclusion of Dr. Martone’s testimony, she testified that in her expert medical opinion, Stevens had a personality disorder mixed with prominent features of paranoia and that at the time of the murders he also suffered from an adjustment disorder because of the separation from his wife. (Id. at 54-56).

She stated: [Stevens was] obsessed with his wife and fidelity or lack of it.... [H]e suffered weight loss, crying spells, increased alcohol abuse, and feelings of depression .... [W]hen he saw her with another man he, in his words [sic] he was like a time bomb. He just exploded. I think that between the life-long personality disorder, the alcohol abuse ... the depressive symptomatolgy, there are mitigating circumstances evidence in my opinion in this situation. (Id. at 61-62). On cross-examination, Dr.

Martone did acknowledge that, in her opinion, Stevens understood at the time of the killings that what he was doing was wrong. She also said he had the ability to conform his behavior to normal societal standards. (Id. at 67). Next, the defense presented Dr. Landefeld. He described the neuropsychological screening tests that he performed on Stevens. (Dkt. 15, App. 9 at 7-8). Dr. Altman then testified and described in detail his two psychiatric evaluations of Stevens. (Id. at 19^44).

He explained that Stevens’ medical records showed that he suffered from a chronic personality disorder that required life-long treatment of psychotherapy and medication management, which he had neglected to receive. (Id. at 29-30). He stated that Stevens had a personality disorder and borderline paranoia and that he was operating under severe psychosocial stressors at the time of the murders which caused him to decompensate. (Id. at 36^40). Like Dr. Martone, Dr. Altman testified that Stevens was a reliable self-historian. (Id. at 20).

Karen Stevens testified about her parents’ troubled relationship, her father’s weight loss after their separation, and stated that her father “would just talk out of his head.... He just would say ... things that I knew weren’t true. I didn’t understand.” (4/28/93 Trial Tr. at 5). Finally, the defense presented the testimony of three of Stevens’ co-workers and/or friends, Ralph Tooch, Richard Kerlin, and Dwane Lipps, each of whom testified about his good character. (Dkt. 15, App. 9 at 45-55). 2. That the jury was not persuaded by the defense mitigation case is, accordingly to Stevens, Lipecky’s fault.

He argues that Lipecky’s investigation into available mitigating evidence fell below that which is required by the Sixth Amendment.

He also contends that he was prejudiced because, had Lipecky conducted a constitutionally sufficient investigation and provided the defense experts with additional information, there is a reasonable probability that the jurors would have placed more weight on the mitigating circumstance that one or more of them did find (that he was under the influence of extreme mental or emotional disturbance, § 9711(e)(2)) and also would have found the mitigating circumstances (that he was under the influence of extreme mental or emotional disturbance at the time of the murders, § 9711(e)(3), and the “catchall” at § 9711(e)(8)).

To support this claim, Stevens called Dr. Altman and Dr. Martone at the 1998 PCRA hearing, and they, along with Dr. Landefeld, blamed Lipecky for failing to provide them with the necessary information to make accurate diagnoses. They substantially revised the testimony that they had given at the 1993 sentencing hearing and stated that Stevens actually had much more serious mental health issues than they had previously determined. Stevens also presented the testimony of two additional mental health experts, Dr. Armstrong and Dr.

Bernstein, in an effort to show the type of mental health testimony that the defense could have offered at the sentencing hearing had Lipecky performed effectively. His daughter, Karen, and his sisters testified about Stevens’ troubled marriage and his childhood. The state courts were not persuaded by-Stevens’ PCRA evidence and arguments. Stevens II, 739 A.2d at 516-20. (See also, Dkt. 17, App. 26, PCRA Court Opinion at 15-44). The Pennsylvania Supreme Court held that Lipecky’s representation of Stevens did not fall below Strickland’s objective standard of reasonableness. Stevens II, 739 A.2d at 516-20.

It described Lipecky’s pre-sentencing preparation efforts and noted that his PCRA hearing testimony undercut much of the defense experts’ PCRA hearing testimony. The Pennsylvania Supreme Court applied the correct legal standard when it evaluated this and the rest of Stevens’ ineffective assistance claims. Id. at 512 (citing Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999) (legal standard for evaluating ineffective assistance claims in a PCRA proceeding is the same as the federal Strickland standard)). Therefore, its adjudication satisfies review under the “contrary to” clause of § 2254(d)(1).

See Terry Williams, 529 U.S. at 406, 120 S.Ct. 1495; Werts, 228 F.3d at 202-04. Thus, the only remaining questions for this Court to decide is whether the Pennsylvania Supreme Court’s adjudication of Claim I was an “unreasonable application of’ Strickland or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(l)-(2). It was neither.

See, e.g., Knowles, 129 S.Ct. at 1420 (“[Because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.”) (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (“[Ejvaluating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations”)).

Stevens contends that this Court should not to defer to the state court’s adjudication under AEDPA because the record shows that there are four pieces or types of evidence Lipecky either (

i) possessed but failed to provide to the defense experts or otherwise failed to effectively use; or, (ii) failed to develop and then provide to the mental health experts. I will address each seriatim. (

a) The journal The primary piece of evidence upon which Stevens relies is his 22-page journal. (Dkt. 32, PCRA Ex. I)- He contends that, despite surmising that the journal contained useful information, Lipecky did not give it to the defense experts. In support, he directs this Court to Dr. Landefeld’s, Dr. Altman’s, and Dr. Martone’s PCRA hearing testimony, in which they testified that they did not see the journal prior to the sentencing hearing. (Dkt. 16, App. 17 at 19-20; App. 22 at 14; App. 24 at 27, 35). The PCRA Court expressly rejected Stevens’ contention that Lipecky did not provide the journal to Dr.

Altman and Dr. Landefeld and credited Lipecky’s testimony to the contrary. (Dkt. 17, App. 26, PCRA Court Opinion at 22-29). See also Stevens II, 739 A.2d at 518 (“Contrary to the testimony of Dr. Altman at the PCRA hearing, Lipecky testified that he showed the twenty-two-page journal to Dr. Altman[.]”). Its finding of fact is supported by Lipecky’s PCRA hearing testimony and the contemporaneous evidence. During that hearing, Lipecky testified that he talked to Dr. Altman about Stevens’ journal and that as a result of their discussion, and at Dr. Altman’s instructions, he hand delivered the journal to Dr.

Landefeld. (Dkt. 16, App. 23 at 24-26, 110-16). The credibility of Lipecky’s recollection was buttressed by a memorandum from him to Dr. Landefeld, dated April 5, 1993, in which he stated: Dear Ralph: I am enclosing a 22 page document (?) which was taken from the defendant’s residence by the Commonwealth as a result of a search warrant. I thought perhaps you would look at this to see if you can make something of it. If you need anything further, please call me[.] s/ Wayne S. Lipecky. (Dkt. 32, PCRA Ex. I). I am bound by the PCRA Court’s factual finding.

Stevens has not rebutted it by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), nor has he shown that it was an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, id. § 2254(d)(2). As a result, there is no merit to Stevens’ claim that his counsel was ineffective for not providing the journal to Dr. Landefeld and Dr. Altman.

Stevens next argues that Lipecky provided ineffective assistance because he did not “ensure” that the journal was reviewed by the experts, ask them why it was not mentioned in their written reports, or otherwise question them about their conclusions regarding it. This argument likewise has no merit. Lipecky admitted during the PCRA hearing that, after he had talked to Dr. Altman about the journal and had hand delivered it to Dr. Landefeld’s office, he did not ask either of them follow-up questions about it.

His reasoning for that was simple: he had relied upon them to “to make whatever they could out of it.” (Dkt. 16, App. 23 at 36). He “assumed that [the journal] was something that they had digested” and that they had reached their final diagnoses of Stevens after having reviewed it. (Id. at 44-45). His explanation provides a reasonable basis for his decision not to ask the experts any further questions about the journal. With the benefit of hindsight, Lipecky admitted that there would have been no harm in asking Dr. Landefeld and Dr. Atman follow-up questions about the journal. (Dkt. 16, App. 23 at 32-33).

Nevertheless, he was not unreasonable because he failed to do so. Lipecky justifiably assumed that Dr. Atman and Dr. Landefeld would have notified him if they determined that the journal was useful to the defense; after all, they were the experts. “[I]t is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel’s was unreasonable.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. That is why Strickland creates “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

In the present case, Stevens has failed to come forward with evidence to overcome that presumption. The PCRA Court did accept Dr. Martone’s PCRA hearing testimony that Lipecky did not show her the journal. Even with that finding, the Pennsylvania Supreme Court found no ineffective assistance. I cannot conclude that its decision was objectively unreasonable under AED-PA’s standard of review. Athough Lipecky obviously would have had no strategic reason for not sharing the journal with Dr.

Martone, it cannot be said that, under the circumstances, he performed below the constitutionally required level of effective assistance.

See Flores-Ortega, 528 U.S. at 481, 120 S.Ct. 1029 (“[t]he relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.”); Lewis, 581 F.3d at 113-14 (even if the petitioner rebuts the presumption that counsel had a strategic basis for his decision, the “court must still determine whether, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance.”) (internal citations and brackets omitted). Lipecky already had spent a considerable amount of time with Dr. Atman and Dr.

Landefeld preparing the defense case, which included the development of mitigation evidence in the event Stevens was convicted of first-degree murder. Once the trial court found Stevens guilty, he retained Dr. Martone to provide additional support for the mitigation case. She would have testify in a few days, but Dr. Martone stated herself that being retained for the defense at that point in time was not unusual, particularly since she already had examined Stevens. Lipecky arranged to meet with Dr. Martone in person, but she cancelled and told him it was not necessary.

They instead spoke on the phone for about an hour. Lipecky also arranged for Dr. Martone to examine Stevens on the Sunday before she testified, which she did. That Lipecky did not show the journal to Dr. Martone between the few days he had retained her and when she testified was not objectively unreasonable, in light of the fact that they did not meet in person, and especially because he had provided the journal to the other defense experts and they had not notified him that it was significant. Moreover, after her second examination of Stevens, Dr.

Martone provided diagnoses that were on point with that given by Dr. Atman, which he made after having been provided with the journal. Thus, Lipecky reasonably assumed that she had the information necessary to make accurate diagnoses. (

b) Stevens’ letters to Freeland Next, Stevens argues that Lipecky provided him with ineffective assistance because he failed to provide the experts with several letters sent by him to his first counsel, Freeland. In one letter, dated August 2, 1992, Stevens wrote to Freeland that he believed Love had “fired a shot at me first[.]” (Dkt. 30, App. 1, PCRA Ex. BB).

In a letter dated October 19, 1992, Stevens once again stated that Love had shot at him, and also discussed his belief that Brenda Jo was involved in drugs and that the police were somehow involved in trying to protect her and Armando’s alleged illegal activities. (Dkt. 30, App. 1, PCRA Ex. CC). In another, undated letter, Stevens wrote to Freeland that he believed “there was a conspiracy to cause me harm.” (Dkt. 30, App. 1, PCRA Ex. DD).

Stevens contends that the accusations contained in the letters where unsubstantiated and demonstrated paranoid and delusional thinking and should have been provided to the defense experts. Lipecky acknowledged that he did not provide the actual letters to the defense experts. (Dkt. 16, App. 23 at 75-78). He did, however, testify that he verbally related the contents of the letters to them. (Id.) In addition, he arranged for all of the defense experts to conduct clinical examinations of Stevens, thus providing each with the opportunity to hear his client’s delusional allegations for themselves.

Additionally, the experts’ reports establish that they were well aware of the unsubstantiated claims that Stevens was making after the murders about his wife and Love, and of the paranoia and delusional thinking evidenced in the letters. (Dkt. 30, App. 1, PCRA Exs. H, M, and O). Thus, Stevens’ criticism of him regarding this evidence is baseless. (

c) Stevens’ complete institutional and employment records The file that Freeland provided to the Beaver County Public Defenders Office contained Stevens’ partial military and employment records. Lipecky provided those partial records to Dr. Altman. (Dkt. 15, App. 9 at 18; Dkt. 30, App. 1, PCRA Ex. O). Dr. Martone reviewed them as well. (4/28/93 Trial Tr. at 42-43, 46-50; Dkt. 30, App. 1, PCRA Ex. M). Dr. Landefeld was aware of at least the partial military record’s contents. (Dkt. 30, App. 1, PCRA Ex. H).

Nevertheless, Stevens argues that he received constitutionally ineffective assistance because Lipecky did not provide to the experts his full military and employment records. He also argues that Lipecky should have obtained and provided to the experts his school records. Stevens has failed to show that Lipecky’s conduct was constitutionally deficient for not providing a complete set of the documents at issue to the defense experts. If they required the additional documents, they should have asked Lipecky to get them.

The record shows that they were provided with additional records upon their request. (See Dkt. 15, App. 9 at 18, where Dr. Altman testified at the sentencing hearing that following his first examination of Stevens in March 1993, he “was supplied with records from the Community Mental Health Center in Rochester at my request.”; 4/28/93 Trial Tr. at 60, where Dr. Martone testified that she had asked for, and received, additional records prior to her second examination of Stevens; Dkt. 30, App. 1, PCRA Ex. M, where Dr.

Martone requested additional records she thought she needed (and subsequently received): “It would be helpful if I could have the records from the Rochester Mental Health Clinic to review their diagnosis and findings.”). Cf. Van Hook, 130 S.Ct. at 18-19 (holding performance not deficient when counsel gathered a substantial amount of information and then made a reasonable decision not to pursue additional sources); Strickland,, 466 U.S. at 699, 104 S.Ct. 2052 (“[Counsel’s] decision not to seek more character or psychological evidence than was already in hand was ... reasonable.”). (

d) Information from Stevens’ family Finally, Stevens argues that Lipecky provided him with constitutionally deficient assistance because he failed to develop his “social history” through interviews with his daughter, Karen, and his sister Rosemary Postich, and also failed to interview his other sister, Constance Corbitt. According to Stevens, they could have provided the defense with information about his troubled childhood, difficult family life, and medical history, including a history of convulsions and head injuries. This contention likewise lacks merit. Both Dr. Martone and Dr.

Altman testified at the sentencing hearing that Stevens was a reliable self-historian. (4/28/93 Trial Tr. at 44; Dkt. 15, App. 9 at 20). Lipecky therefore reasonably assumed that, during the doctors’ extensive interviews with Stevens, they would obtain from him any relevant information about childhood injuries, abuse, injuries, and dysfunction in order to make accurate diagnoses and conduct the necessary neuropsychological testing. They did not indicate to Lipecky that they needed to speak with Stevens’ relatives in order to form their diagnoses.

Lipecky also interviewed Karen and Postich prior to the trial and provided the doctor’s with information that they had provided to him. He also called Karen to testify at the sentencing hearing. She, along with the defense experts, provided background information about Stevens relevant to the mitigation case, and Lipecky efforts in gathering the “social history” did not fall below that which is required by constitutionally effective counsel.

Stevens also faults Lipecky for not providing a copy of Freeland’s notes to the defense experts in which Freeland had jotted down several things, including: “Convulsions when infant — died,” and “Battered husband syndrome.” (See Dkt. 32, PORA Ex. Z). He argues that the reference to convulsions was important and that the doctors should have been made aware of it.

Lipecky provided a reasonable basis for not providing the note to the experts: he testified that when he reviewed the note, it was his impression that it was a reference to the charges Stevens was making about his wife abusing his daughter and grandchild — charges of which the experts were already aware. (Dkt. 16, App. 23 at 88). 3. Stevens relies upon several recent cases to support his contention that Lipecky’s mitigation investigation was objectively unreasonable. I find those cases to be distinguishable. In Bond v.

Beard, 539 F.3d 256 (3d Cir.2008), cert. denied — U.S. —, 130 S.Ct. 58, 175 L.Ed.2d 232 (2009), the petitioner’s attorneys waited until the eve of the penalty phase to begin their preparations, and did not present any mental health evidence. In Outten v. Kearney, 464 F.3d 401 (3d Cir.2006), the petitioner’s attorneys’ penalty-phase preparation consisted solely of: (1) a letter to the petitioner asking him for the names of witnesses; and (2) limited discussions with the petitioner and his mother (who had not shown an interest the petitioner). In Rompilla v.

Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), the petitioner’s attorneys knew that the state intended to seek the death penalty by proving that he had a significant history of violent felony convictions, and that the state would attempt to establish that criminal history by proving his prior conviction for rape and assault. His attorneys also knew that the state planned to emphasize his violent character by introducing a transcript of the rape victim’s testimony from the earlier trial.

Despite that knowledge, and despite the fact that the prior conviction file was readily accessible, defense counsel inexplicably failed to review that file. Counsels’ failings did not end there. After being again informed just one day prior to the sentencing hearing that the state intended to rely on the prior conviction file, and after obtaining a copy of the very transcript the state intended to present in aggravation, counsel failed to review either the transcript or examine the contents of the file. In Wiggins v.

Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), counsels’ investigation of mitigating evidence consisted of three sources; psychological testing, a written presentence report (“PSI”), which included a one-page account of the petitioner’s personal history, and social services records the Department of Social Services (“DSS”) documenting the petitioner’s placements in foster care.

The Supreme Court held that the scope of trial counsels’ investigation was unreasonable when they failed to investigate the petitioner’s social history, despite knowledge from their client’s PSI report that he lived in “misery as a youth,” and had a background described as “disgusting.” The Court also found that counsels’ performance was objectively unreasonable in light of the DSS records, which revealed that the petitioner’s mother was a chronic alcoholic, and that he was sent to various foster homes. In Porter v.

McCollum, — U.S. —, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (per curiam), the “sum total of the mitigation evidence” that defense counsel presented was “inconsistent testimony about [the petitioner’s] behavior when intoxicated and testimony that [petitioner] had a good relationship with his son.” Id. at 449. The petitioner established in a post-conviction hearing that there was “extensive” and “substantial” mitigation evidence of which his counsel was completely unaware.

In contrast: This is not a case in which the defendant’s attorneys failed to act while potentially powerful mitigating evidence stared them in the face, cf. Wiggins, 539 U.S. at 525, 123 S.Ct. 2527, or would have been apparent from documents any reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374, 389-393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).

It is instead a case, like Strickland itself, in which defense counsel’s “decision not to seek more” mitigating evidence from the defendant’s background “than was already in hand” fell “well within the range of professionally reasonable judgments.” Van Hook, 130 S.Ct. at 19 (parallel citations omitted). I therefore conclude that the Pennsylvania Supreme Court’s determination that Lipecky’s investigation and performance was objectively reasonable withstands AEDPA’s standard of review.

I will, however, grant him a certificate of appeal-ability on this claim, because the Court of Appeals previously granted him one regarding the related claim that Lipecky was ineffective for failing to investigate evidence of diminished capacity. Claim II The Assemblage Of the Second Panel Of Prospective Jurors A. The selection of the jurors for the sentencing phase of Stevens’ trial commenced on the morning of Thursday, April 22, 1993. By the end of the next day, Friday, April 23rd, only nine jurors had been selected.

The parties still needed to choose three more jurors and two alternates, but only eight prospective jurors remained on the panel. Therefore, a second panel of prospective jurors had to be assembled. (Dkt. 14, App. 4, 4/23/93 Tr. at 69-72). Rule 1109 of the Pennsylvania Rules of Criminal Procedure, Exhaustion Of the Jury Panel, governed this exact circumstance and provided: When a sufficient number of qualified jurors are not present to permit selection of a jury, the court shall: (

a) Require the officials designated by law to summon prospective jurors to summon and return immediately from the county at large as many qualified and competent persons as shall be necessary; or (

b) Order in writing that the officials designated by law to summon prospective jurors produce the jury wheel or master list in open court in the presence of the judge, and to draw therefrom five names for every juror required. A venire shall then be issued requiring those persons so drawn be brought into court at a certain time. Pa.R.Crim.P. 1109 (West 1993) (amended and renumbered Rule 635, effective April 1, 2001).

The trial court discussed with the parties the options available under Rule 1109 and noted its preference for proceeding under subparagraph (a), as that was the more expeditious alternative. (Dkt. 14, App. 4, 4/23/93 Tr. at 69-72).

Neither party objected (id. at 72-74, 152-53), and the court issued the following Order: It appearing that the panel of available prospective jurors has been exhausted and no other qualified jurors are available to permit selection of a jury in this case, the Sheriff of Beaver County is directed to summon and return on April 26, 1993 at 8:00 a.m., from the County at large, 30 qualified and competent persons, to complete jury selection in this case. (Dkt. 14, App. 5).

Deputies with the Sheriffs Office executed the trial court’s order by serving summons upon individuals at the Beaver Valley Mall on Saturday, April 24, 1993. When court reconvened on Monday, April 26th, the voir dire of the eight remaining prospective jurors from the first panel was completed. (Dkt. 14, App. 6, 4/26/93 Tr. at 2-59). Two jurors were selected from among those eight individuals. (Id.) The parties needed to select one more juror and two alternates from the second panel of prospective jurors.

The court recessed in order to provide counsel with sufficient time to review the second panel’s juror information questionnaires. (Id. at 52). Afterwards, twelve prospective jurors from the second panel underwent individual voir dire before the one remaining juror and two alternates were selected. (Id. at 62-96; Dkt. 15, App. 8, 4/26/93 Tr., 1:43 p.m., at 3-60). B. Stevens raises numerous constitutional challenges to the manner in which the second prospective juror panel was assembled.

He claims that the deputies that summoned the individuals at the Beaver Valley Mall “pre-selected” the jury in violation of his Sixth Amendment right to have his counsel participate in the jury-selection process. He also contends that the process was arbitrary in violation of the Eighth Amendment; that it failed ensure that a fair cross-section of the community was selected in violation of his due process and equal protection rights; and, that his counsel was ineffective for failing to object at the trial court level and on direct appeal.

The PCRA Court denied Stevens’ claims on the merits (Dkt. 17, App. 26, PCRA Court Opinion at 44-50), and the Pennsylvania Supreme Court affirmed in Stevens II, 739 A.2d at 519-20, rejecting his numerous constitutional challenges. In addition to finding no federal constitutional infirmity, it also determined that the second panel was summoned in accordance with state law in a manner similar to that which it had approved in Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986). The state court’s decision easily withstands AEDPA’s review.

Stevens has not shown that the method by which the second panel of prospective jurors was assembled violated his federal constitutional rights, or that he was prejudiced by the process or by his counsel’s decision not to raise any objection at trial or on direct appeal. There is no evidence whatsoever that the deputies “pre-screened” the prospective jurors in an improper manner, or that the process utilized in serving the summons was anything other than neutral and random.

Thus, Stevens’ Eighth Amendment, due process, and equal protection claims plainly have no merit, as they are premised upon his unsupported allegations that the assemblage of the second panel was arbitrary, non-neutral, or non-random. There also is no evidence to support his contention that the second panel did not represent a fair cross-section of the community. See Stevens II, 739 A.2d at 520 (“A review of the voir dire shows that the potential jurors were from different locations in Beaver County and were of different ages and genders.”).

Stevens’ contention that the process utilized violated his right to have his counsel participate in the jury-selection process is equally without merit. The record establishes that on Monday, April 26, 1993, the prospective jurors that had been served with summons on Saturday arrived at the courthouse and completed juror questionnaires. Defense counsel was given a reasonable opportunity to examine the questionnaires prior to voir dire, and then voir dire was conducted under the normal procedures. Thus, defense counsel fully participated in the jury-selection process.

Stevens also has not shown that his counsel’s decision not to challenge the assemblage of the second prospective jury panel was objectively unreasonable under Strickland or that he was prejudiced. There was no basis for defense counsel to object to the process utilized, as it was in accordance with Pennsylvania law, and also because there was no evidence that it had been carried out in manner that was violative of the Constitution.

Additionally, it was objectively reasonable for counsel to have been satisfied with the process as they had sufficient opportunity to review the second panelists’ questionnaires and examine them during individual voir dire. The record also shows that the process yielded a panel from which the parties had no problem selecting one juror and two alternates. Claim III Proportionality Review At the time of Stevens’ conviction, the Pennsylvania Supreme Court was statutorily re

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