Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-2005

Jacobs v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 01-9000




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                                         PRECEDENTIAL

    IN THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                      NO. 01-9000
                   ________________

                   DANIEL JACOBS,
                                Appellant

                            v.

 MARTIN HORN, Commissioner, Pennsylvania Department
                     of Corrections;
   CONNER BLAINE, JR., Superintendent of the State
                Correctional Institution,
    Greene County; JOSEPH P. MAZURKIEWICZ,
                 Superintendent of the
       State Correctional Institution at Rockview
      ____________________________________

     On Appeal From the United States District Court
         For the Middle District of Pennsylvania
               (D.C. Civil No. 99-cv-01203)
       District Judge: Honorable James M. Munley
______________________________________

                   Argued June 8, 2004

  Before: SCIRICA, Chief Judge, McKEE and FUENTES,
                    Circuit Judges.
                   (Filed January 20, 2005)
                 _______________________


Stuart B. Lev, Esquire (Argued)
Matthew C. Lawry, Esquire
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
           Attorneys for Appellant

Jonelle H. Eshbach, Esquire (Argued)
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
           Attorney for Appellees



             OPINION OF THE COURT
             _______________________
FUENTES, Circuit Judge.

       Pennsylvania inmate Daniel Jacobs was sentenced to
death for murdering his girlfriend Tammy Mock and to life in
prison for murdering their baby Holly Jacobs. On federal
habeas review, the District Court concluded that Jacobs’ trial
counsel rendered ineffective assistance during the penalty phase
for failing to investigate and present mitigating evidence

                               2
concerning Jacobs’ cognitive and emotional impairments and his
childhood and family background.          The District Court
conditionally granted a writ of habeas corpus to allow the
Commonwealth to resentence Jacobs. The District Court
rejected each of Jacobs’ remaining challenges to his convictions
and sentences.

       Jacobs now appeals from the District Court’s denial of
federal habeas relief on several of his claims challenging his
convictions.1

       For the following reasons, we will reverse the District
Court’s denial of habeas corpus relief on Jacobs’ claim that trial
counsel rendered ineffective assistance during the guilt phase by
failing to adequately investigate, prepare, and present mental
health evidence in support of his diminished capacity defense.
We will affirm the District Court’s denial of habeas corpus relief
on each of Jacobs’ remaining claims.

I.       BACKGROUND

       Daniel Jacobs and his girlfriend Tammy Mock lived in an
apartment in York, Pennsylvania, with their seven-month-old
daughter Holly Jacobs. In February 1992, York police received
a telephone call from Jacobs’ mother, Delois Jacobs, in Virginia,
who under a fictitious identity asked them to check on Tammy


     1
      The Commonwealth does not appeal from the District
Court’s decision to grant habeas corpus relief on Jacobs’ claim
of ineffective assistance of counsel at the penalty phase.

                                3
and Holly. This telephone call prompted the police to check the
apartment, where they found Tammy and Holly dead in the
bathtub. Tammy had been stabbed more than 200 times. Holly
died from drowning and had no stab wounds or evidence of
trauma. The police tracked down Delois, who gave a statement
that Jacobs had admitted in telephone conversations that he had
killed both Tammy and Holly. Delois also testified at a
preliminary hearing that Jacobs admitted killing Tammy and
Holly.

       In preparation for trial, counsel consulted with Dr. Robert
Davis, a psychiatrist with a clinical and forensic practice. Dr.
Davis conducted a mental health evaluation of Jacobs regarding
his criminal responsibility and competency to stand trial.
Counsel did not inform Dr. Davis that Jacobs was subject to the
death penalty, and did not provide him with materials
concerning Jacobs’ background or the background of the
offenses. Dr. Davis reported orally to counsel that he found no
evidence of a major mental illness. At counsel’s request, Dr.
Davis did not prepare a written report.

         Jacobs was tried before a jury in the York County Court
of Common Pleas for the first degree murders of Tammy and
Holly. At trial, Jacobs denied killing Holly. He testified that
Tammy killed Holly and that he stabbed Tammy to death after
losing control at the sight of Holly dead in the bathtub. He
presented a heat of passion and diminished capacity defense,
i.e., that he was incapable of forming a specific intent to kill her
given his mental state at the time of the killing. Delois testified
that Jacobs admitted in his telephone calls that he killed Tammy,
but that she could not remember whether he also admitted that

                                 4
he killed Holly. The Commonwealth presented Delois’ pretrial
statements that Jacobs admitted to killing both Tammy and
Holly.

       The jury found Jacobs guilty of murder in the first degree
of both Tammy and Holly. Jacobs was sentenced to death for
murdering Tammy and to life in prison for murdering Holly. On
direct appeal, the Pennsylvania Supreme Court affirmed the
judgments of sentence. Commonwealth v. Jacobs, 

(Pa. 1994) (“Jacobs I”). Jacobs pursued state collateral relief
under Pennsylvania’s Post Conviction Relief Act (“PCRA”).
The PCRA court conducted hearings and denied all relief in an
oral decision rendered June 13, 1997. The Pennsylvania
Supreme Court affirmed. Commonwealth v. Jacobs, 

(Pa. 1999) (“Jacobs II”).

       Jacobs then filed the current habeas corpus petition in the
District Court, in which he presented fifteen claims for relief. 2
Without conducting an evidentiary hearing, the District Court
granted habeas relief as to Jacobs’ claim of ineffective
assistance of counsel during the penalty phase for failing to
investigate and present mitigating evidence concerning Jacobs’
cognitive and emotional impairments, and evidence that he
suffers from the effects of a traumatic and neglectful childhood.


   2
    The District Court’s opinion enumerates the claims Jacobs
presented in his habeas corpus petition. See Jacobs v. Horn, 

, 396-97 (M.D. Pa. 2001). Jacobs challenges the
District Court’s denial of only four of those claims in this
appeal, as set forth fully infra.

                                5
Jacobs v. Horn, 

, 405-08 (M.D. Pa. 2001)
(“Jacobs III”). According to the District Court, if counsel had
investigated Jacobs’ background and childhood, he would have
discovered the following facts. Jacobs’ mother Delois drank
heavily while she was pregnant with Jacobs. His alcoholic
father severely beat her in the presence of their children. After
Delois left Jacobs’ father when Jacobs was very young, she was
involved in relationships with several men who drank heavily
and abused her, as well as Jacobs. Jacobs’ older brother also
beat him constantly and stabbed him on one occasion. When he
was about six years old, Jacobs suffered brain damage due to a
car accident. As a young teenager, Jacobs often acted like a
child and required his mother’s assistance in getting dressed.
Relatives who visited the home sometimes found Jacobs sitting
at home undressed, dirty, and unkempt. One of Delois’
boyfriends, with whom she was involved for about ten years,
would become intoxicated with Jacobs then fly into a rage and
beat him. As Jacobs grew older, he attempted to assist his
mother by working but was unable to find and maintain
employment.

       Based on counsel’s failure to discover and present
mitigating evidence3 at the penalty phase, the District Court
conditionally granted the writ of habeas corpus to allow the


    3
     The District Court also relied on mental health evidence
demonstrating that Jacobs suffers from mild mental retardation,
organic brain damage, and other mental and emotional
impairments. See Jacobs 

. We
discuss this evidence in detail infra.

                               6
Commonwealth to resentence Jacobs for murdering Tammy. 

The District Court found each of Jacobs’ remaining
challenges to his convictions either lacking in merit or
procedurally barred from federal habeas review. Jacobs timely
appealed. The District Court issued a certificate of appealability
and stayed its order pending appeal.

II.    JURISDICTION AND STANDARDS OF REVIEW

      Our jurisdiction is based on 28 U.S.C. §§ 1291 and 2253.
The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 2241 and 2254. Because the District Court ruled on Jacobs’
habeas corpus petition without conducting an evidentiary
hearing, our review of the District Court’s decision is plenary.
See Marshall v. Hendricks, 

, 50 (3d Cir. 2002).

      We apply the same standards as the District Court, as
mandated by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”):

              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

                                7
              Supreme Court of the United States; or




              (2) resulted in a decision that was based on an
              unreasonable determination of the facts in light of
              the evidence presented in the State court
              proceeding.




28 U.S.C. § 2254(d); 

. A federal habeas
court must presume that a state court’s findings of fact are
correct. See 28 U.S.C. § 2254(e)(1). The petitioner bears the
burden of rebutting the presumption of correctness by clear and
convincing evidence. 

court decision is contrary to Supreme Court
precedent under § 2254(d)(1) where the state court reached a
“‘conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially
indistinguishable facts.’” 

(quoting
Williams v. Taylor, 

, 413 (2000)). A state court
decision is an unreasonable application under § 2254(d)(1) if the
court “identifies the correct governing legal rule from the
Supreme Court’s cases but unreasonably applies it to the facts
of the particular case or if the state court either unreasonably
extends a legal principle from the Supreme Court’s precedent to
a new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should apply.”

                                8
Gattis v. Snyder, 

, 228 (3d Cir. 2002) (citing

). The unreasonable application test
is an objective one – a federal court may not grant habeas relief
merely because it concludes that the state court applied federal
law erroneously or incorrectly. Wiggins v. Smith, 

,
520-21 (2003); 

.

       AEDPA’s deferential standards of review do not apply
“unless it is clear from the face of the state court decision that
the merits of the petitioner’s constitutional claims were
examined in light of federal law as established by the Supreme
Court of the United States.” Everett v. Beard, 

,
508 (3d Cir. 2002). In cases where the AEDPA standards of
review do not apply, federal habeas courts apply pre-AEDPA
standards of review. 

AEDPA, federal habeas courts
conducted a de novo review over pure legal questions and mixed
questions of law and fact. Appel v. Horn, 

, 210 (3d
Cir. 2001). In such circumstances, the state court’s factual
determinations are still presumed to be correct, rebuttable upon
a showing of clear and convincing evidence under § 2254(e)(1).

       On appeal, Jacobs challenges the District Court’s denial
of habeas corpus relief on the following claims:4


       4
     The District Court issued a certificate of appealability
authorizing Jacobs to pursue seven specific issues on appeal.
See 28 U.S.C. § 2253(c)(3). Jacobs has elected to pursue only

                                9
      (1)    Trial counsel was ineffective for failing to
             adequately investigate, prepare, and present
             mental health evidence in support of the
             diminished capacity defense to the charges of first
             degree murder.




      (2)    Appellant’s constitutional rights to due process
             and the effective assistance of counsel were
             violated where the trial court failed to properly
             instruct the jury on Pennsylvania’s corpus delicti
             rule, trial counsel failed to object or request an
             appropriate instruction , and w here th e
             Commonwealth’s evidence was insufficient,
             under Pennsylvania law, to prove that Holly
             Jacobs was killed by criminal means.




      (3)    Appellant was denied his right to effective
             assistance of counsel as a result of trial counsel’s
             failure to investigate and present evidence that
             Mr. Jacobs’ mother had a long history of
             alcoholism and was intoxicated when the
             purported admissions were made.




four of them on appeal.

                              10
       (4)    Trial counsel was ineffective for failing to inquire
              concerning racial bias among members of the
              jury, where the entire venire was white and the
              case involved the murder of a white female
              teenager and child by her African-American
              boyfriend.

Appellant’s Opening Br. at ii-iv.      We address each claim
separately.

       A.     Ineffective Assistance of Counsel During the
              Guilt Phase for Failing to Investigate and
              Discover Mental Health Evidence




       We begin with Jacobs’ claim that trial counsel rendered
ineffective assistance during the guilt phase by failing to
investigate and present mental health evidence for the purpose
of supporting his diminished capacity defense.5 Jacobs testified
that on the day of the killings, he and Tammy argued, fought,
and cut each other. According to Jacobs, after fighting with
Tammy, he helped her into the bathtub, brought the baby into
the bathroom, then left the bathroom. When he returned to the


   5
     Jacobs exhausted this claim by presenting it in his PCRA
petition and on PCRA appeal. The Pennsylvania Supreme Court
rejected this claim on the merits. See Jacobs 

. Therefore we apply the AEDPA standard of review to
this claim.

                               11
bathroom a short time later, he saw the baby dead in the bathtub,
lost control, and stabbed Tammy repeatedly. Based on Jacobs’
testimony, defense counsel presented a heat of passion and
diminished capacity defense, asserting that Jacobs lacked the
specific intent to kill Tammy Mock.6

       In preparation for Jacobs’ PCRA appeal, Dr. Julie Kessel,
a licensed and certified psychiatrist familiar with forensic
mental health issues, conducted a forensic psychiatric evaluation
of Jacobs. (Kessel Affidavit ¶¶ 1-2). Dr. Kessel reported that
Jacobs suffers from a number of mental health deficits,
including mild mental retardation, organic brain damage, and
schizoid personality disorder, and was a child witness and victim
of abuse, neglect, and drug and alcohol abuse. (Id. ¶¶ 3-5).
According to Dr. Kessel, the combination of these impairments
substantially hindered Jacobs’ mental, emotional, and cognitive
capacities. (Id. ¶ 5). In Dr. Kessel’s opinion, at the time of the
crimes, Jacobs’ capacity to appreciate the criminality of his
conduct and to conform his conduct to the requirements of the
law was substantially impaired. (Id. ¶ 12). His impairments
also substantially diminished his capacity to formulate the
specific intent to kill. (Id. ¶ 14). Dr. Kessel concluded that
Jacobs “did not in fact have the specific intent to kill Ms.


  6
    In Pennsylvania, the diminished capacity defense requires a
defendant to admit general culpability. See Commonwealth v.
Legg, 

, 433 (Pa. 1998). Because Jacobs denied
killing Holly, the diminished capacity defense was unavailable
as to the baby’s murder. See Commonwealth v. Johnson, 

, 578 (Pa. 2002).

                               12
Mock.” (Id. ¶ 14).

        Dr. Patricia Fleming, a licensed clinical psychologist and
neuropsychologist, also evaluated Jacobs and reported that he
“is seriously psychologically, emotionally and cognitively
impaired.” (Fleming Affidavit ¶ 4). After conducting a number
of psychological and neuropsychological tests, Dr. Fleming
reported that Jacobs suffers from mild mental retardation, brain
damage, and cognitive and emotional impairments. (Id. ¶¶ 9,
13). At the time of the offenses, Dr. Fleming stated, Jacobs’
disturbances “substantially impaired [his] capacity to appreciate
the consequences of his conduct or to conform his conduct to
the requirements of the law.” (Id. ¶ 13). In particular, his
“mental retardation, brain damage and other mental health and
cognitive impairments significantly diminish[ed] his capacity to
premeditate and form a specific intent to kill.” (Id. ¶ 14). Dr.
Fleming concluded that the facts “support the conclusion that
[Jacobs] did not have the capacity to form the specific intent to
kill.” (Id.).

       As described previously, trial counsel pursued a heat of
passion and diminished capacity defense to the murder of
Tammy Mock. Beyond his oral consultation with Dr. Davis,
however, counsel took no further steps to discover evidence of
Jacobs’ mental retardation, brain damage, or other impairments.
Trial counsel was thus unable to support Jacobs’ diminished
capacity defense with psychiatric evidence establishing that he
suffered from any mental disorders which prevented him from
formulating the specific intent to kill. Apparently the only
evidence of heat of passion or diminished capacity presented at
the guilt phase was Jacobs’ own testimony that he “lost it” and

                               13
stabbed Tammy repeatedly upon seeing their baby drowned in
the bathtub. Jacobs claims that trial counsel’s failure to
investigate, discover, and present mental health evidence
constitutes ineffective assistance in violation of the Sixth
Amendment.

       Sixth Amendment claims of ineffective assistance of
counsel are governed by the familiar two-prong test of
Strickland v. Washington, 

(1984):

       First, the defendant must show that counsel’s
       performance was deficient. This requires showing that
       counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show
       that the deficient performance prejudiced the defense.
       This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

see 

.

       Under Strickland’s first prong, Jacobs must show that
counsel’s performance was deficient. The proper standard for
attorney performance is that of “reasonably effective assistance”
– Jacobs must show that trial counsel’s representation fell below
an objective standard of reasonableness considering all the
circumstances. 

. Counsel’s
reasonableness must be assessed on the facts of the particular
case, viewed as of the time of counsel’s conduct. 

In
the context of ineffective assistance based on counsel’s failure

                               14
to investigate, the court must determine whether counsel
exercised “reasonable professional judgment.” 

.

        In Pennsylvania, when asserting a diminished capacity
defense, “a defendant attempts to negate the element of specific
intent to kill and, if successful, first degree murder is reduced to
third degree murder.” Commonwealth v. McCullum, 

, 1009 (Pa. 1999). According to the Pennsylvania Supreme
Court, “[d]iminished capacity is an extremely limited defense,
which requires extensive psychiatric testimony establishing a
defendant suffered from one or more mental disorders which
prevented him from formulating the specific intent to kill.”
Commonwealth v. Cuevas, 

, 393 (Pa. 2003) (citing
Commonwealth v. Zettlemoyer, 

, 943 (Pa. 1982)).

       The specific question posed here is whether counsel
exercised reasonable professional judgment in failing to
investigate further and discover Jacobs’ mental retardation,
brain damage, and other impairments as evidence to support the
diminished capacity defense. To his credit, counsel did ask Dr.
Davis to evaluate Jacobs. (Davis Affidavit ¶ 2). Counsel did
not, however, inform Dr. Davis that the Commonwealth was
seeking the death penalty, nor did he provide Davis with any
background information concerning the crimes or Jacobs’
history. (Id. ¶¶ 2, 3). According to Dr. Davis, if he had known
that this was a capital case, he would have automatically
requested testing for brain damage or other impairments that are
not readily apparent from a standard evaluation. (Id. ¶ 6). Dr.
Davis reported orally to counsel that he did not find any
evidence of a major mental illness. (Id. ¶ 4). Upon receipt of

                                15
this report, counsel chose not to investigate further, although he
presented the diminished capacity defense at trial. Counsel did
not question any of Jacobs’ family members or friends regarding
his childhood, background, or mental health history, or obtain
any medical records demonstrating mental deficiencies.

       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.” (PCRA
Hearing Tr. 5/29/97 at 29:24). Counsel knew that Jacobs, a
young man with no criminal history or history of violence,
admitted to stabbing his girlfriend more than 200 times.
Counsel knew that Jacobs faced the death penalty, yet did not
inform Dr. Davis that the Commonwealth was seeking the death
penalty, nor did he provide Davis with any background
information concerning the crimes or Jacobs’ history. Counsel
interviewed Jacobs’ mother before trial, but did not ask her any
questions regarding Jacobs’ mental health history, childhood, or
background. In light of all that was known or made available to
counsel, we conclude that Jacobs has satisfied the first prong of
the Strickland test. He has demonstrated that counsel did not
exercise reasonable professional judgment in failing to
investigate further and discover evidence of Jacobs’ mental
retardation, brain damage, and other impairments that could
have prevented him from forming the specific intent to kill
Tammy Mock.

       The District Court was persuaded that counsel’s
performance was not deficient in this regard. See Jacobs 

. The District Court relied on two

                               16
cases from other circuits that the District Court interpreted as
holding that counsel is not required to investigate further unless
a psychiatric evaluator indicates further information is needed.

these, on which the Commonwealth relies heavily,
is Hendricks v. Calderon, 

(9th Cir. 1995).

       In Hendricks, counsel hired a psychiatrist who met with
the defendant for about four and one-half hours and found no
evidence to support a “mental defense.” 

The
psychiatrist posited that psychological testing might be useful
and suggested that counsel consult a psychologist.            A
psychologist then interviewed the defendant for about fifteen
hours, ran several psychological tests, reviewed records
regarding the crime and the defendant’s life history, and found
no evidence to support a mental defense. Counsel relied on the
experts’ opinions and decided not to explore further or present
a mental defense. 

Circuit ruled that Hendricks’ attorneys had
discharged their duty to seek out a psychiatric evaluation. 

The Ninth Circuit further ruled that counsel “fell
within the broad range of presumptively acceptable conduct by
hiring two mental health professionals to investigate potential
mental defenses and then relying on their shared, unqualified
conclusion that there was no basis for a mental defense.” 

Attorneys, the court opined, cannot be forced to “second-
guess their experts.” 

dissimilar to Jacobs’ case in two significant
respects. First, Hendricks involved material facts vastly
different from those in Jacobs’ case. Hendricks’ attorneys

                               17
employed both a psychiatrist and a psychologist who evaluated
the defendant separately and extensively, and with the benefit of
background information. The experts agreed that no evidence
existed to support a diminished capacity defense. In Jacobs’
case, while counsel asked Dr. Davis to evaluate Jacobs, there is
no information to indicate that Dr. Davis’ evaluation was
sufficiently extensive. His affidavit states only that he
“examined Mr. Jacobs to determine if he had a major mental
illness or other impairment that would render him incompetent
to stand trial or that would negate or reduce his criminal
responsibility.” (Davis Affidavit ¶ 4). In conducting his
evaluation, Dr. Davis was not aware that Jacobs was subject to
the death penalty, nor was Dr. Davis privy to any background
information whatsoever. As a result, no psychological testing
occurred. In turn, counsel failed to discover Jacobs’ mental
retardation, brain damage, and other emotional and mental
impairments.

        We also find the legal issue presented in Hendricks
unlike the one presented in Jacobs’ case. The question raised in
Hendricks was whether counsel was ineffective in deciding not
to investigate more extensively before making a strategic choice
not to present a diminished capacity defense at all. The question
raised here is whether counsel was ineffective by failing to
investigate and discover evidence to support the defense he
pursued. Although subtle, the distinction is significant. An
attorney’s strategic choices made after a thorough investigation
“are virtually unchallengeable.” 

.
Hendricks reiterates and applies this well established principle.
Counsel’s failure to investigate adequately and discover
evidence to support his strategy of choice is an entirely different

                                18
question, one which Hendricks does not address. See 

. In short, Hendricks is inapposite and does not
affect our conclusion that Jacobs has satisfied the first prong of
Strickland by demonstrating that his attorney failed to exercise
reasonable professional judgment in this regard.7


   7
     Our dissenting colleague suggests that counsel performed
reasonably by relying on Dr. Davis’ oral report in deciding not
to inquire further into Jacobs’ mental health. The dissent
correctly notes that Dr. Davis did not state that he was incapable
of forming a conclusion on the information available to him, nor
did he ask for any additional information. Several other “highly
relevant facts” prevent us from agreeing, however. It is
undisputed that Dr. Davis was completely unaware that Jacobs
was subject to the death penalty. (Davis Affidavit ¶¶ 2, 4, 5, 7.)
At the time he offered his opinion, Dr. Davis was unaware that
Tammy Mock had been stabbed more than 200 times because he
was not provided with the autopsy report or other background
materials concerning the killings, other than “a police report
with some information concerning the alleged facts of the
offense.” (Id. ¶¶ 3, 12.) Dr. Davis was unaware that the killings
occurred after a heated argument between Jacobs and Mock.
(Id. ¶ 12.) He knew nothing about Jacobs’ background, such as
his lack of a criminal history or history of violent behavior. (Id.
¶¶ 3, 12.) As Dr. Davis later opined, these facts alone “suggest
that Mr. Jacobs was highly emotionally disturbed at the time of
the offense,” and that he was “overcome by a powerful and
uncharacteristic emotional reaction.” (Id. ¶ 12.) In our view, in
light of all the circumstances present in this capital case, it was
patently unreasonable for counsel to rely solely on Dr. Davis’

                                19
        In addition to establishing that his attorney performed
deficiently, Jacobs must demonstrate that he was prejudiced by
counsel’s error. See 

. The prejudice
component requires Jacobs to show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” 

Jacobs need not show that counsel’s deficient performance
“more likely than not altered the outcome in the case” – rather,
he must show only “a probability sufficient to undermine
confidence in the outcome.” 

This standard is not
“‘a stringent one.’” Jermyn v. Horn, 

, 282 (3d Cir.
2001) (quoting Baker v. Barbo, 

, 154 (3d Cir.
1999)).

        We are persuaded that Jacobs has satisfied Strickland’s
prejudice prong. As described above, Dr. Kessel conducted a
forensic psychiatric evaluation of Jacobs. (Kessel Affidavit ¶¶
1-2). According to Dr. Kessel, the combination of Jacobs’
mental health impairments substantially impaired Jacobs’
mental, emotional, and cognitive capacities. (Id. ¶ 5). In Dr.
Kessel’s opinion, Jacobs “did not in fact have the specific intent
to kill” Tammy Mock. (Id. ¶ 14). Dr. Fleming also evaluated
Jacobs and concluded that Jacobs’ disturbances “substantially


uninformed opinion in deciding not to investigate Jacobs’
mental health history further. The unreasonableness of
counsel’s decision is compounded by the fact that he pursued a
diminished capacity defense without any expert evidence to
support it, as expressly required by Pennsylvania law. See

.

                               20
impaired [his] capacity to appreciate the consequences of
conduct or to conform his conduct to the requirements of the
law.” (Fleming Affidavit ¶ 13). Dr. Fleming also stated that
Jacobs’ “mental retardation, brain damage and other mental
health and cognitive impairments significantly diminish[ed] his
capacity to premeditate and form a specific intent to kill.” (Id.
¶ 14). According to Dr. Fleming, the facts “support the
conclusion that he did not have the capacity to form the specific
intent to kill.” (Id.).

        In Pennsylvania, diminished capacity “is an extremely
limited defense, which requires extensive psychiatric testimony
establishing a defendant suffered from one or more mental
disorders which prevented him from formulating the specific
intent to kill.” 

. Both Drs. Kessel and
Fleming have expressed a willingness to testify that Jacobs
suffered from mental disorders that deprived him of the capacity
to form the specific intent to kill Tammy Mock. In our view,
Jacobs’ case is the specific type in which the diminished
capacity defense as to the murder of Tammy Mock is
appropriate. Moreover, we are persuaded that if the jury had
heard Drs. Kessel and Fleming testify based on their extensive
evaluations, there is a reasonable probability that the jury would
have found Jacobs guilty of third degree murder, not first degree
murder, of Tammy Mock. 8


    8
     We are aware, as our dissenting colleague notes, that no
court heretofore has decided whether Jacobs has satisfied the
prejudice prong of Strickland. Both the Pennsylvania Supreme
Court and the District Court ruled that trial counsel did not

                               21
        For these reasons, we conclude that Jacobs has
demonstrated that trial counsel rendered ineffective assistance
in violation of the Sixth Amendment. Under AEDPA, however,
our determination that the Pennsylvania Supreme Court
erroneously rejected this claim on the merits does not
necessarily entitle Jacobs to federal habeas relief. Rather,
AEDPA requires Jacobs to demonstrate that the Pennsylvania
Supreme Court’s rejection of this claim either is contrary to, or
involved an objectively unreasonable application of, Strickland.


perform deficiently. Thus, neither of those courts was required
to decide whether Jacobs suffered prejudice. Even so, the issue
of prejudice was properly before each of those courts, as were
the affidavits of Drs. Kessel and Fleming supporting Jacobs’
assertion of prejudice. The Commonwealth could have
challenged Jacobs’ expert evidence by submitting expert
evidence of its own. It appears that the Commonwealth made
the strategic choice not to submit such evidence, a choice we do
not question. Regardless, because the prejudice determination
here is purely a legal one, we need not remand to the District
Court to make such a determination in the first instance or to
allow the Commonwealth a second opportunity to challenge
Jacobs’ expert evidence. We emphasize that Jacobs need not
establish his diminished capacity defense conclusively for the
purpose of demonstrating a Sixth Amendment violation. Rather,
as we have explained, he is required to show only a reasonable
probability that the outcome of the proceedings would have been
different if trial counsel had presented evidence of Jacobs’
mental retardation, organic brain damage, and other mental
deficiencies. See 

.

                               22
See 28 U.S.C. § 2254(d)(1); 

;

.

       In denying this claim, the Pennsylvania Supreme Court
did not cite Strickland, nor did it apply Strickland’s two-part
test. Rather, the Pennsylvania Supreme Court applied the
following standard:

       With respect to claims of ineffective assistance of trial
       counsel, Appellant is required to establish that the claim
       has arguable merit; that trial counsel had no reasonable
       basis for proceeding as he did; and that the alleged
       ineffectiveness of counsel so undermined the truth-
       determining process that no reliable adjudication of guilt
       or innocence could have taken place.

Jacobs 

(citing Commonwealth v. Collins,

, 1113 (Pa. 1996)). The Pennsylvania Supreme
Court then concluded:

       Based on the results of the psychiatric evaluation, and
       given Appellant’s trial testimony, it is clear that trial
       counsel did investigate and pursue a diminished capacity
       defense on behalf of Appellant to the best of his ability.
       Accordingly, as trial counsel had a reasonable basis for
       proceeding as he did, he cannot be deemed ineffective.

Jacobs 

.

       The Pennsylvania Supreme Court’s rejection of this claim
is based solely on the finding that counsel had a reasonable basis

                               23
for deciding not to investigate further. In making this finding,
the Pennsylvania Supreme Court placed great weight on the fact
that Dr. Davis orally reported that he found no evidence of a
major mental illness negating or reducing criminal liability.
Apparently, the Pennsylvania Supreme Court disregarded
counsel’s failure to provide Dr. Davis with the necessary
information to conduct a proper evaluation, as well as several
other highly relevant facts known to counsel at the time he
decided not to investigate further.

        In our view, the Pennsylvania Supreme Court’s decision,
based on a single factor to the exclusion of other relevant
factors, involved an unreasonable application of Strickland.9
Strickland teaches that a court deciding any ineffectiveness
claim must “determine whether, in light of all the circumstances,
the identified acts or omissions [of counsel] were outside the
wide range of professionally competent assistance.” 

(emphasis added). Specifically, in an
ineffectiveness claim challenging counsel’s decision not to
investigate, Strickland mandates that counsel’s decision “must
be directly assessed for reasonableness in all the circumstances.”

     9
       We have previously ruled that Pennsylvania’s test for
assessing ineffective assistance of counsel claims is not contrary
to Strickland. See Werts v. Vaughn, 

, 204 (3d Cir.
2000). Thus, under § 2254(d)(1), the relevant question here is
whether the Pennsylvania Supreme Court’s decision involved an
unreasonable application of Strickland.

                               24
         Since Strickland, the United States Supreme Court has
repeatedly emphasized the necessity of assessing an
ineffectiveness claim in light of all the circumstances. See

; Roe v. Flores-Ortega, 

,
478 (2000); Kimmelman v. Morrison, 

, 384 (1986).
We too have underscored the importance of the circumstance-
specific inquiry mandated by Strickland. See Lewis v. Johnson,

, 659 (3d Cir. 2004); Rompilla v. Horn, 

, 257 (3d Cir.), cert. granted, 

(2004); Duncan
v. Morton, 

, 201 (3d Cir. 2001); Berryman v.
Morton, 

, 1101 (3d Cir. 1996); Frey v. Fulcomer,

, 358 (3d Cir. 1992). These cases amply
demonstrate that an assessment of the reasonableness of
counsel’s performance under Strickland requires consideration
of all the circumstances. Here, the Pennsylvania Supreme Court
did not adhere to Strickland’s clear mandate. In light of all the
relevant facts described above, we are constrained to conclude
that the Pennsylvania Supreme Court’s decision involved an
unreasonable application of Strickland.

        For these reasons, we conclude that trial counsel rendered
ineffective assistance in violation of the Sixth Amendment at the
guilt phase by failing to investigate and present evidence
showing that Jacobs suffered from mental retardation, organic
brain damage, and other emotional and mental impairments that
prevented him from forming the specific intent to kill Tammy
Mock. We further conclude that the Pennsylvania Supreme
Court’s rejection of this claim on the merits involved an
unreasonable application of Strickland. Accordingly, we will
reverse the District Court’s decision denying federal habeas
relief on this claim, and will remand with instructions to grant

                               25
the writ.10

       While our decision invalidates Jacobs’ conviction for the
first degree murder of Tammy Mock, the question remains
whether counsel’s ineffectiveness also invalidates Jacobs’
conviction for murdering Holly. As noted previously, the
diminished capacity defense requires a defendant to admit
general culpability. See Commonwealth v. Legg, 

,
433 (Pa. 1998). Because Jacobs denied killing Holly, the


  10
     Our decision is not influenced by Jacobs’ argument that the
District Court’s decision denying habeas relief based on
counsel’s conduct during the guilt phase is inconsistent with its
grant of relief on his claim of ineffective assistance during the
penalty phase. During the guilt phase, the defendant must
establish that he “suffered from one or more mental disorders
which prevented him from formulating the specific intent to
kill.” See 

. Diminished capacity
evidence at the guilt phase is limited to expert psychiatric
testimony demonstrating that the defendant was unable to form
the specific intent to kill. See 

.
The jury’s function during the sentencing phase is to weigh
mitigating factors against aggravating factors. See 42 Pa. Cons.
Stat. Ann. § 9711(c). At sentencing, the jury must consider
“evidence of mitigation concerning the character and record of
the defendant and the circumstances of his offense” and must
weigh mitigating factors against aggravating factors. 42 Pa.
Cons. Stat. Ann. §§ 9711(c), (e)(8). In short, counsel’s duties at
the guilt phase and his duties at the sentencing phase differ
significantly.

                               26
diminished capacity defense was unavailable as to the baby’s
murder. See Commonwealth v. Johnson, 

, 578
(Pa. 2002). That is because, as Jacobs acknowledges, a
diminished capacity defense is inconsistent with an assertion of
innocence.11 See Commonwealth v. Williams, 

,
111 (Pa. 2004).

       Nonetheless, Jacobs argues that a diminished capacity
defense to the murder of Holly would not be inconsistent in his
case. Jacobs cites Legg for the proposition that “a diminished
capacity defense is available where the defendant admits to facts
which may cause a jury to hold him responsible for the killing
to some degree.” (Appellant’s Supplemental Mem. at 2).
Jacobs argues that because his trial counsel conceded in closing
argument that Holly’s death could have been accidental and that
the jury could have found Jacobs criminally responsible for her
death, a diminished capacity defense would not have been
inconsistent with his testimony that he did not kill Holly.

          To the extent that Jacobs argues that his case is similar to


     11
       See Appellant’s Supplemental M em. at 2. After oral
argument, Jacobs’ counsel requested permission to file a
supplemental memorandum addressing whether counsel’s
ineffectiveness undermined Jacobs’ conviction for murdering
Holly. The Commonwealth in turn requested permission to file
a supplemental memorandum responding to Jacobs’
supplemental memorandum. We granted these requests and
have considered the parties’ supplemental memoranda in
rendering our decision.

                                  27
Legg, we disagree. There, Betty Legg was convicted of the first
degree murder of her husband and was sentenced to life in
prison. 

. Legg expressly admitted that
she shot and killed her husband but maintained that the shooting
was accidental. 

Counsel did not present evidence of
Legg’s diminished capacity. The Pennsylvania Supreme Court
found that a diminished capacity defense would not have
conflicted with Legg’s position that the shooting was accidental,
and ruled that counsel rendered ineffective assistance by failing
to present such evidence. 

        Here, Jacobs has consistently denied killing Holly and in
fact blamed her death on Tammy. Under Pennsylvania law, a
diminished capacity defense was simply unavailable as to
Holly’s death because Jacobs maintained his innocence. We
find nothing in Legg suggesting otherwise. In fact, Legg
distinguishes Betty Legg’s situation from others in which the
defendants maintained their innocence. See 

(distinguishing Commonwealth v. Cross, 

(Pa.
1993), and Commonwealth v. Mizell, 

(Pa. 1981)).
Because the sole issue at trial was Betty Legg’s mental state at
the time of the shooting, not whether she killed her husband,
Legg’s counsel should have raised a diminished capacity
defense to negate the specific intent to kill. See 

.

      Moreover, we do not read defense counsel’s closing
argument as a concession that Jacobs could be criminally
responsible for Holly’s death.    Rather, defense counsel
acknowledged that there was no direct evidence that Tammy
Mock murdered Holly and stated that “we don’t know” how

                               28
Holly drowned. (Trial Tr., Vol. IV, 9/17/92 at 735:9-736:4).
Regardless, counsel emphasized, Jacobs was “most sure” that he
did not hurt Holly in any way and believed that Tammy Mock
killed Holly. (Id. at 736:5-736:12, 739:1-739:4). Counsel
concluded his closing argument by reminding the jury that
Jacobs admitted causing Tammy Mock’s death but denied
causing Holly’s death. (Id. at 745:20-746:4).

       Jacobs argues alternatively that counsel’s ineffective
assistance invalidates his conviction for murdering Holly
because expert testimony regarding his mental disorders and
defects would have corroborated his testimony that he lashed out
in a rage after finding Holly dead in the bathtub. This, he
believes, would have supported his testimony that he did not kill
Holly. Whether the evidence would have supported his version
of the facts, however, is not the relevant inquiry. We must
examine his argument in light of his specific claim that trial
counsel rendered ineffective assistance by failing to present such
evidence. Under Strickland, we must determine whether there
is a reasonable probability that the result of the proceeding
would have been different if the jury had heard expert testimony
regarding his mental disorders. See 

.
In light of Delois’ two statements that Jacobs admitted killing
Holly, we cannot find a reasonable probability that the jury
would have acquitted Jacobs of Holly’s murder if the jury had
heard expert testimony regarding his mental disorders.

       For these reasons, we will reverse the District Court’s
decision denying federal habeas relief as to Jacobs’ claim of
ineffective assistance of counsel at the guilt phase in failing to
investigate and present evidence of mental disorders, but only as

                               29
to Jacobs’ conviction for the first degree murder of Tammy
Mock. We will remand to the District Court with instructions to
grant the writ conditioned upon the Commonwealth providing
Jacobs a new trial on the charge of murdering Tammy Mock.

         B.    Challenges to Jacobs’ Conviction for the
               Murder of Holly Jacobs Based on
               Pennsylvania’s Corpus Delicti Rule

         Jacobs’ next claim is based on Pennsylvania’s corpus
delicti rule and its application to his mother’s pretrial statements
that he admitted in telephone conversations that he killed his
baby Holly. Jacobs alleges that the trial court violated his
federal right to due process by failing to instruct the jury in
accordance with state law on the Commonwealth’s burden of
proof to establish the corpus delicti of Holly’s murder before
considering his out-of-court admissions. He also alleges that
counsel rendered ineffective assistance in violation of the Sixth
Amendment by failing to object to the corpus delicti jury
instruction. He further asserts that the evidence apart from his
out-of-court admissions is insufficient to establish the corpus
delicti.

       According to Pennsylvania’s corpus delicti rule,12 before
introducing a criminal defendant’s out-of-court admission, “the
Commonwealth must establish by independent evidence that a
crime has in fact been committed.” Commonwealth v. Reyes,


    12
     Translated literally, corpus delicti means “the body of a
crime.” Black’s Law Dictionary 344 (6th ed. 1990).

                                30


, 727 (Pa. 1996). A defendant’s confession “is not
evidence in the absence of proof of the corpus delicti.”
Commonwealth v. Taylor, 

, 590 (Pa. 2002)
(internal quotations omitted). In a murder prosecution, the
corpus delicti consists of evidence that an individual is dead and
that the death resulted from criminal means. Commonwealth v.
Tallon, 

, 80 (Pa. 1978).

        The Pennsylvania Supreme Court has described the
application of the rule as a “two-tiered approach” having a “dual
level of proof.” 

. The first tier pertains
solely to the admissibility of the defendant’s out-of-court
confession. 

At this stage, the trial court must
determine whether the Commonwealth has established by a
preponderance of the evidence (apart from the confession) that
a crime has in fact been committed.13 

Once the
trial court admits the confession, the jury may not consider the
confession unless the Commonwealth proves the corpus delicti
beyond a reasonable doubt. 

.

       Because Jacobs’ claim actually consists of three related
but separate claims, he must show that he exhausted each of




      13
       Jacobs makes clear that he does not challenge the
admissibility of his out-of-court statements to his mother.
(Reply Br. at 10-11).


                               31
them.14 In his PCRA petitions,15 Jacobs does not mention the
corpus delicti rule at all. In his brief on PCRA appeal, however,
Jacobs argues that the trial court misapplied the corpus delicti
rule and wrongly admitted his out-of-court statements, that the
trial court failed to instruct the jury properly on the corpus
delicti rule, and that all previous counsel were ineffective for
failing to object to the trial court’s actions and failing to pursue
the matter on direct appeal or in PCRA proceedings.

       Apparently, the Pennsylvania Supreme Court overlooked
Jacobs’ challenge based on the trial court’s corpus delicti
instruction. Plainly, the Pennsylvania Supreme Court addressed
the merits of Jacobs’ assertion that “trial counsel and PCRA
counsel were ineffective in not raising the trial court’s failure to


   14
      Unfortunately, the Commonwealth does not address fully
whether these claims are properly exhausted.                The
Commonwealth reads these claims in part as challenging the
trial court’s admission of Jacobs’ statements to his mother, and
asserts that it is not cognizable as an issue of state law.
(Appellees’ Br. at 28-29). The Commonwealth also reads these
claims as challenging counsel’s failure to object to the
admission of the evidence, and argues that it is exhausted but
without merit because Jacobs’ statements were properly
admitted. It appears that the Commonwealth concedes that
Jacobs exhausted his challenge to the jury instruction on the
corpus delicti rule.
        15
      Jacobs filed a pro se PCRA petition, which counsel
subsequently supplemented.

                                32
apply the corpus delicti rule regarding the death of Holly
Jacobs.” Jacobs 

. The Pennsylvania
Supreme Court also addressed whether “the trial court erred in
permitting into evidence the statements of [Jacobs’] mother
relating to [his] confessed killing of Holly Jacobs where there
was no independent evidence to establish that Holly Jacobs died
as a result of anything other than an accident.” 

its opinion does the Pennsylvania Supreme
Court specifically mention the trial court’s instruction to the jury
regarding corpus delicti or counsel’s failure to object to it.
Significantly, the Pennsylvania Supreme Court specifically
found certain claims waived for failure to present them to the
PCRA court – Jacobs’ challenge to the jury instructions on
corpus delicti is not mentioned in the list of waived claims. 

& n.9. In other words, although Jacobs presented his jury
instruction challenge, the Pennsylvania Supreme Court neither
addressed it nor found it waived. We can only conclude that the
Pennsylvania Supreme Court overlooked this aspect of Jacobs’
corpus delicti claim.

      We must also conclude that the Pennsylvania Supreme
Court would not have deemed this claim waived – that court
considered on the merits several other claims in precisely the
same posture.16 Because no state court has issued a decision on


   16
    Alternatively, for reasons discussed infra in section III.D,
Pennsylvania’s application of its waiver rule in capital cases on
PCRA appeal is not an adequate state procedural rule for
purposes of determining whether this claim is procedurally

                                33
Jacobs’ due process challenge to the jury instructions, the
deferential standards of review of § 2254(d)(1) do not apply.
See 

. Rather, we review this claim de
novo. See 

. Even so, for the following
reasons, the District Court correctly concluded that these claims
do not warrant granting federal habeas relief.

               1.     Jury Instruction on Corpus Delicti

        Under Pennsylvania law, the jury cannot consider a
defendant’s out-of-court admission unless the jury first finds
that the Commonwealth established the corpus delicti beyond a
reasonable doubt. See 

. The federal Due
Process Clause in turn protects a criminal defendant against
conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
charged. In re Winship, 

, 364 (1970). The Due
Process Clause also requires that the jury be instructed on the
necessity of proof beyond a reasonable doubt. Cool v. United
States, 

, 104 (1972). On federal habeas review, the
relevant question is “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violated due
process . . . , not merely whether the instruction is undesirable,
erroneous, or even universally condemned.” Martin v. Warden,
Huntingdon State Correctional Inst., 

, 809 (3d Cir.
1981) (alteration in original) (quoting Henderson v. Kibbe, 

, 154 (1977) and Cupp v. Naughton, 

, 146-
47 (1973)). “‘[A] single instruction to the jury may not be


barred under federal habeas law.

                                34
judged in artificial isolation but must be viewed in the context
of the overall charge.’” 

(quoting

).


        Here, Jacobs contends that the trial court violated his
right to federal due process by failing to instruct the jury that it
must find the corpus delicti beyond a reasonable doubt before
considering his out-of-court confessions, as required by state
law. A review of the instruction as it pertains specifically to
Jacobs’ confessions reflects that the charge was not perfect. The
trial court spent four transcript pages of the 44-page charge
discussing “special rules” that apply when considering a
defendant’s confession:

       In this case, the Commonwealth is presenting the
       testimony of the Defendant’s mother in the belief that it
       is a confession, an admission, by him that he committed
       these crimes, and there are special rules that apply to
       confessions.




       The Commonwealth has introduced evidence of a
       statement which it claims was made by the Defendant.
       Before you consider the statement as evidence against the
       Defendant you must find, first, that a crime in fact was
       committed; second, that the Defendant in fact made the
       statement; and third, that the statement was voluntary.
       Otherwise, you must disregard the statement.


                                35
Each juror should ultimately decide these questions for
himself and thereby individually accept or reject the
Defendant’s statement as evidence. You must not allow
the fact that I admitted the statement into evidence to
influence you in any way during your deliberations. . . .

Now to get back to confessions. There does not appear
to be a great deal of dispute that a crime was in fact
committed, at least in regard to the death of Tammy
Mock. Now that doesn’t – my saying that doesn’t make
it a fact. Nothing is a fact in the case until you as jurors
determine it to be a fact, but in the arguments of counsel,
that was what I understood defense counsel to indicate.
That’s the only reason I’m saying that. But that’s
something for you to determine when you get out to the
jury room. . . .

So it appeared to the Court that the specific issue that you
would have to focus on in this particular area is that the
Defendant in fact made the statement. And in that
regard, what you want to focus on in particular is was
[sic] his actual words as he spoke them repeated to you.
In other words, did he say that exact thing? And, of
course, there’s been some varied testimony in regard to
that. You’ve heard the statement from the witness on the
stand, the mother. You’ve heard statements that she
made on earlier occasions and her reasons as to why
there is a distinction between the two, and you’ve also
heard the Defendant say what his version of his statement
or conversation was to his mother.


                        36
       So you’re going to have to work out if it’s been proven
       to you beyond a reasonable doubt what his exact words
       were, and if you’re satisfied as to what the exact words
       were, then you may consider that along with finding that
       a crime has been committed and that the statement was
       voluntary.

(Trial Tr., Vol. V, 9/18/92 at 786:20-789:20).

        Jacobs argues that the trial court’s charge is
constitutionally infirm because it omitted any reference to the
Commonwealth’s burden of proving the corpus delicti beyond
a reasonable doubt, failed to distinguish between the deaths of
Tammy and Holly, and “all but directed a verdict on the corpus
delicti issue.” (Appellant’s Opening Br. at 40-41). While
Jacobs’ criticisms of this portion of the charge are not entirely
unfounded, it is apparent that he has neglected to examine the
charge as a whole – rather, he has isolated the portion of the
charge as it relates specifically to confessions and essentially
excluded consideration of the remaining forty pages of the
charge.

       In the charge, the trial judge referred numerous times to
the Commonwealth’s burden to prove each and every element
of the crime beyond a reasonable doubt. Never did the trial
court suggest any other burden of proof or that Jacobs bore any
burden whatsoever. Based on the charge as a whole, we find it
extremely unlikely that the jury perceived that the
Commonwealth’s burden was ever less than beyond a
reasonable doubt. Additionally, the trial judge specifically
instructed the jury that the murder of Tammy and the murder of

                               37
Holly required individual findings:

       And as always, there’s [sic] going to be two separate
       findings, first that Tammy Mock is dead and second that
       Holly Jacobs is dead, and I won’t repeat that each time.
       Please assume that applies to everything I’m going to
       say. You’ll have two separate findings for each one.

(Id. at 804:7-804:12).

       To the extent that Jacobs argues that the trial court “all
but directed a verdict,” this contention also lacks support based
on an examination of the charge as a whole. In its general
instructions, the trial court charged the jury:

       Now, how do you make that decision? Well, in effect
       you, collectively, are the judge of the facts. In effect,
       there’s [sic] two judges in the case. I’m the judge for the
       law and you must follow the law as I am now going to
       give it to you, but you are the judges of the facts and it’s
       totally up to you to determine exactly what happened and
       what’s been proved by the Commonwealth and whether
       it meets their burden and the verdict that flows from that
       after you apply the law to the facts as you find them.

(Id. at 779:11-779:21).

        Moreover, the trial court specifically reminded the jury
of its duty to determine the facts regarding Jacobs’ confession:
“Each juror should ultimately decide these questions for himself
and thereby individually accept or reject the Defendant’s

                               38
statement as evidence. You must not allow the fact that I
admitted the statement into evidence to influence you in any way
during deliberations.” (Id. at 787:9-787:14). The judge further
noted that there did “not appear to be a great deal of dispute that
a crime was in fact committed, at least in regard to the death of
Tammy Mock . . . [but] my saying that doesn’t make it a fact.
Nothing is a fact in the case until you as jurors determine it to be
a fact.” (Id. at 788:7-788:12) (emphasis added). Contrary to
Jacobs’ assertions, the trial court did distinguish the death of
Tammy from that of Holly, and did not express an opinion
whether a crime had been committed as to Holly.

        Notwithstanding the adequacy of the instructions as a
whole, Jacobs relies on Commonwealth v. Ahlborn, 

(Pa. Super. Ct. 1995), for the proposition that Pennsylvania
law requires the trial court to specifically charge the jury to find
the corpus delicti beyond a reasonable doubt. In Ahlborn, the
trial court charged the jury that prior to considering the
confession, it must find that a crime had, in fact, occurred. 

According to the Superior Court, such an instruction
failed to convey the reasonable doubt standard and essentially
diluted the Commonwealth’s burden of proof. 

According to Jacobs, the trial court’s failure to instruct the jury
in compliance with Ahlborn violated his federal right to due
process.

       Ahlborn supports the conclusion that the trial court must,
as a matter of state law, specifically charge the jury to find the
corpus delicti beyond a reasonable doubt, even if the trial court
has correctly instructed the jury as to the Commonwealth’s
overall burden. Nothing in Ahlborn suggests, however, that the

                                39
trial court’s instruction violated the federal Due Process Clause.
Ahlborn examines only a single paragraph in the instruction
regarding the defendant’s confession without considering the
overall instructions. 

Such an analysis does not
comport with the well-established principle of federal law that
a single instruction must be viewed in light of the overall
charge. See 

. Therefore, Ahlborn
does not and should not govern whether the trial court’s corpus
delicti instruction violated Jacobs’ constitutional right to due
process.17 The District Court properly rejected this claim on the
merits.

              2.      Ineffective Assistance of Counsel for
                      Failure to Object to Jury Instructions




       Jacobs’ related claim is that trial counsel rendered
ineffective assistance by failing to object specifically to the
corpus delicti instruction. To the extent that this claim is based
on counsel’s failure to object as a matter of federal law, this
claim is without merit. For the reasons set forth previously,
Jacobs cannot show a reasonable probability that the outcome of
the proceeding would have been different if counsel had


  17
     We note also that Ahlborn was a direct appeal of a criminal
conviction. The burden of demonstrating that an erroneous
instruction was so prejudicial as to support a federal collateral
attack on a state court judgment is greater than that required to
establish error on direct appeal. See 

.

                               40
objected based on the federal Due Process Clause.

        Whether counsel rendered ineffective assistance by
failing to object to the corpus delicti charge under state law is a
separate question. As described previously, Ahlborn suggests
that the trial court must specifically charge that the
Commonwealth must prove the corpus delicti beyond a
reasonable doubt before the jury can consider an out-of-court
admission. Significantly, the corpus delicti instruction at issue
in Ahlborn is similar to the one given at Jacobs’ trial; the trial
court in each case instructed the jury that it had to find “that a
crime in fact” was committed. Ahlborn holds that such an
instruction essentially dilutes the Commonwealth’s burden of
proof.

        We cannot end our inquiry here, however, because both
the Pennsylvania Supreme Court and the District Court ruled
that the Commonwealth was not required to prove the corpus
delicti of Holly’s murder under the closely related exception to
the corpus delicti rule. As the Pennsylvania Supreme Court has
explained:

       This exception comes into play where an accused is
       charged with more than one crime, and the accused
       makes a statement related to all the crimes charged, but
       the prosecution is only able to establish the corpus delicti
       of one of the crimes charged. Under those circumstances
       where the relationship between the crimes is sufficiently
       close so that the introduction of the statement will not
       violate the purpose underlying the corpus delicti rule, the
       statement of the accused will be admissible as to all the

                                41
       crimes charged.

Commonwealth v. Bardo, 

, 874 (Pa. 1998).

        We agree that the closely related exception applies here.
There is no question that the Commonwealth established the
corpus delicti of Tammy Mock’s murder. Jacobs himself
testified in court that he killed Tammy Mock when he lost
control upon discovering that she had drowned Holly. The
police found the bodies of both Tammy and Holly in the bathtub
several days later. Because the closely related exception applies,
the trial court was not required to instruct the jury that it must
find the corpus delicti of Holly’s murder beyond a reasonable
doubt. See 

that the closely related exception applies
only to the admissibility tier of the corpus delicti rule.
(Appellant’s Opening Br. at 44 n.24). According to Jacobs, the
Pennsylvania Supreme Court has never applied the closely
related exception to the second tier of the rule. (Id.). This is
incorrect. In Bardo, for example, the Pennsylvania Supreme
Court expressly considered whether “the trial court erred in its
instruction to the jury on the corpus delicti 

. The Pennsylvania Supreme Court relied squarely on the
closely related exception to conclude that the claim was
“meritless.” 

that Jacobs’ claim of ineffective assistance
based on counsel’s failure to raise a state law objection to the
corpus delicti instruction must fail. If counsel had raised such
an objection, there is no reasonable likelihood that the outcome

                               42
of the proceedings would have been any different. Likewise, if
appellate counsel had raised this argument on direct appeal, it is
unlikely that the Pennsylvania Supreme Court would have
vacated Jacobs’ conviction for Holly’s murder.

              3.      Sufficiency of Evidence of Corpus
                      Delicti

       Jacobs’ final claim based on the corpus delicti rule is that
the evidence of Holly’s murder (apart from his out-of-court
admission) is insufficient to support a finding beyond a
reasonable doubt that the baby was killed by unlawful means.
Jacobs asserts that Holly died from drowning under
circumstances equally consistent with an accident as with a
crime. (Appellant’s Opening Br. at 48). From this, Jacobs
concludes that the Commonwealth failed to prove beyond a
reasonable doubt that a crime had been committed.

      The short answer to this argument is that the
Commonwealth was not required to prove the corpus delicti of
Holly’s murder because the closely related exception applies.
Even if it did not apply, this argument lacks merit. The
circumstances of Holly’s death are not equally consistent with
an accident as with a crime. Indeed, Jacobs testified that
Tammy killed Holly to get back at him, and that he killed
Tammy when he lost control at finding his baby dead. No
persuasive evidence was presented at trial to establish that




                                43
Holly’s death was anything but a homicide.18

       For these reasons, we agree with the District Court that
Jacobs’ claims based on the corpus delicti rule do not warrant
federal habeas relief.

        C.    Ineffective Assistance of Counsel for Failing to
              Investigate and Present Evidence of Delois
              Jacobs’ Alcoholism

       At a preliminary hearing, Delois Jacobs testified that her
son had admitted to her in telephone conversations that he killed
both Tammy and Holly. At trial, however, Delois testified that
she had been going through some problems and was very upset
when Jacobs called her, and that she could not remember
whether he admitted killing Holly. (Trial Tr., Vol. III, 9/16/92
at 543:20-545:3, 549:2-551:12). Jacobs now claims that trial
counsel rendered ineffective assistance by failing to investigate
and present evidence that Delois had a long history of
alcoholism and may have been intoxicated when Jacobs made
out-of-court admissions to her.19

      The Pennsylvania Supreme Court rejected this claim on
the merits because: (1) there was no evidence that Delois was


   18
     Common sense suggests that an infant of Holly’s age did
not climb into the bathtub on her own and drown accidentally.
   19
      Jacobs exhausted this claim by presenting it in his PCRA
petition and on PCRA appeal.

                               44
intoxicated at the time Jacobs confessed to her; and (2) trial
counsel testified at the PCRA hearing that he did not want to
undermine the credibility of Delois’ trial testimony by cross-
examining her regarding her alcoholism. Jacobs 

. According to the Pennsylvania Supreme Court, counsel
had a reasonable basis for proceeding as he did and thus was not
ineffective. 

Court likewise rejected this claim
on the merits after concluding that counsel’s actions constituted
sound trial strategy. Jacobs 

.

         We agree that this claim lacks merit. Jacobs’ assertion is,
at best, that his mother may have been under the influence of
alcohol at the time he confessed to her. We find no evidence
establishing that Delois was intoxicated or that intoxication
caused her to misrepresent the content of her conversations with
Jacobs. Counsel testified at the PCRA hearing that he had
spoken to Delois a couple of times before trial, and that she had
never mentioned the possibility of intoxication. (PCRA Hearing
Tr. 5/29/97 at 39:21-39:25). At the PCRA hearing, Delois
testified that she did not remember whether she had been
drinking alcohol the day Jacobs confessed to her. (PCRA
Hearing Tr. 6/13/97 at 16:14-16:24). In other words, Jacobs has
little factual support for his assertion of ineffective assistance in
this regard.

       Additionally, Jacobs has failed to address how he was
prejudiced by counsel’s failure to discover Delois’ alcoholism
and potential intoxication. He does not explain how he can
demonstrate a reasonable probability that he would have been
acquitted of murdering Holly if counsel had attacked Delois’
credibility. Delois’ testimony at trial plainly favored Jacobs – if

                                 45
counsel had attacked Delois’ credibility with evidence of
alcoholism, the jury could well have discounted her entire
testimony, including that portion of her testimony which was
favorable to Jacobs.

        In short, Jacobs has fallen short of demonstrating that he
is entitled to federal habeas relief as to this claim. The District
Court properly rejected this claim on the merits.

       D.     Ineffective Assistance of Counsel for Failing to
              Request Voir Dire Concerning Racial Bias




        Jacobs is African-American; Tammy Mock was white.
Each member of the venire panel was white. During voir dire,
trial counsel did not question any prospective juror concerning
racial bias. Jacobs claims that trial counsel rendered ineffective
assistance during voir dire for failing to inquire about racial
bias, especially where a young African-American man was on
trial for murdering his white girlfriend.

       The District Court declined to consider this claim.
According to the District Court, this claim challenged counsel’s
representation at the penalty phase, not at the guilt phase. The
District Court believed that it need not address the merits of this
issue because the death sentence had been vacated on other
grounds. Jacobs 

.

     After reviewing Jacobs’ habeas petition and his reply
memorandum in support filed in the District Court, we disagree

                                46
that this claim challenges only counsel’s representation at the
penalty phase. This claim challenges counsel’s failure “to
inquire concerning racial bias among the members of the jury,
where the entire venire was white and the case involved the
murder of a white female teenager and child by her African-
American boyfriend.” (Pet. at 26). In his reply memorandum,
Jacobs alleges that “counsel ineffectively failed to inquire
concerning racial bias among members of the jury.” (Reply
Mem. at 47). The discussion of this claim is included within the
discussion of several other of counsel’s alleged errors regarding
voir dire. (Id. at 46-58). Jacobs concludes this discussion in the
following manner:

       Counsel’s numerous failures to protect Mr. Jacobs’ right
       to be tried by an impartial jury that would decide his guilt
       or innocence and sentence based on the law and the facts
       rather than preconceived bias, prejudice, or statements
       made about the case outside the court created an
       “unacceptable risk of . . . prejudice infecting the capital
       sentencing proceeding,” Turner v. 

, in violation of Petitioner’s Sixth, Eighth and
       Fourteenth Amendment rights.

(

8). To conclude that this claim challenges the death
sentence, but not the underlying convictions, is unduly
restrictive.

      We consider next whether this claim is exhausted and
thus subject to federal habeas review. According to the
Commonwealth, this claim is procedurally barred because the
Pennsylvania Supreme Court found it waived for failure to

                               47
present it to the PCRA court. (Appellees’ Br. at 36-37). The
Commonwealth is correct that the Pennsylvania Supreme Court
refused to consider this claim on the merits after finding it
waived for failure to present it to the PCRA court. Jacobs 

n.5.

        The fact that the Pennsylvania Supreme Court refused to
consider this claim for procedural reasons does not necessarily
render the issue procedurally barred on federal habeas review.
A federal “habeas court ‘will not review a question of federal
law decided by a state court if the decision of [the state] court
rests on a state law ground that is independent of the federal
question and adequate to support the judgment.’” Szuchon v.
Lehman, 

, 325 (3d Cir. 2001) (quoting Coleman v.
Thompson, 

, 729 (1991)). We have previously
explained that a rule is adequate 20 only under the following
conditions: “(1) the state procedural rule speaks in unmistakable
terms; (2) all state appellate courts refused to review the
petitioner’s claims on the merits; and (3) the state courts’ refusal
in this instance is consistent with other decisions.” Doctor v.
Walters, 

, 683-84 (3d Cir.1996). In other words, a
procedural rule is adequate only if it is “firmly established,
readily ascertainable, and regularly followed at the time of the
purported default.” 

.

       Generally, Pennsylvania’s PCRA requires a petitioner to


  20
   There is no question that the Pennsylvania Supreme Court’s
application of its waiver rule is independent from any federal
question presented.

                                48
prove that his allegation of error has not been w aived. 42 Pa.
Cons. Stat. Ann. § 9543(a)(3). An issue is deemed waived if the
petitioner could have raised it but failed to do so before trial, at
trial, during unitary review, on appeal or in a prior state
postconviction proceeding. 

Currently, the
Pennsylvania Supreme Court enforces the waiver rule in capital
cases on PCRA appeal, and generally deems an issue waived
where the petitioner failed to present it to the PCRA court. See
Commonwealth v. Albrecht, 

, 700 (Pa. 1998).

        Prior to Albrecht, however, the Pennsylvania Supreme
Court applied the relaxed waiver doctrine in capital cases on
PCRA appeal. 

relaxed waiver doctrine, the
Pennsylvania Supreme Court declined to apply ordinary waiver
principles in capital cases in an effort to prevent the court “from
being instrumental in an unconstitutional execution.” 

23, 1998, the Pennsylvania Supreme Court in
Albrecht expressly abandoned the relaxed waiver doctrine in
capital cases on PCRA appeal. 

question, then,
is whether Pennsylvania’s strict enforcement of the waiver rule
in capital cases on PCRA appeal was “firmly established, readily
ascertainable, and regularly followed at the time of the
purported default.” 

.

        According to the Pennsylvania Supreme Court, Jacobs
waived his claim challenging counsel’s failure to request voir
dire regarding racial prejudice when he failed to present it to the
PCRA court. See Jacobs 

n.5. Jacobs
initiated PCRA proceedings by filing a pro se petition on
January 13, 1997, which appointed counsel supplemented on
May 23, 1997. The PCRA court denied many of Jacobs’ claims

                                49
in an oral decision rendered May 29, 1997. The PCRA court
then denied all relief in a second oral decision on June 13, 1997.
The Pennsylvania Supreme Court did not firmly establish its
strict enforcement of the waiver rule in such cases until
November 23, 1998, when it decided Albrecht, more than a year
after Jacobs’ PCRA petition was denied. It follows that the
Pennsylvania Supreme Court’s strict enforcement of its waiver
rule in capital cases on PCRA appeal is not adequate to support
the judgment for the purpose of finding a procedural default
under federal habeas law. See 

.
Accordingly, we are free to examine the merits of Jacobs’
claim.21
        “[A] capital defendant accused of an interracial crime is
entitled to have prospective jurors informed of the race of the
victim and questioned on the issue of racial bias.” Turner v.
Murray, 

, 36-37 (1991). The defendant must
specifically request such an inquiry. 

“[T]he trial judge
retains discretion as to the form and number of questions on”
racial prejudice. 

potential jurors were never
questioned concerning racial bias because trial counsel did not
request it. The specific issue, then, is whether counsel rendered
ineffective assistance by failing to request such voir dire.

       Under Strickland, a federal habeas court “must indulge
a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland,


  21
    Because no state court has rendered a decision on the merits
of this claim, we review it de novo. See 

.

                                

. The defendant bears the burden of overcoming
the presumption that “the challenged action might be considered
sound trial strategy.” 

omitted). “When
counsel focuses on some issues [and excludes] others, there is
a strong presumption that he did so for tactical reasons rather
than through sheer neglect.” Yarborough v. Gentry, 

,
8 (2003). This presumption “has particular force where a
petitioner bases his ineffective-assistance claim solely on the
trial record, creating a situation in which a court may have no
way of knowing whether a seemingly unusual or misguided
action by counsel had a sound strategic motive.” 

(internal quotation marks and citation omitted).

       Here, if Jacobs’ counsel had requested voir dire
respecting racial prejudice, the trial court would have been
constitutionally bound to grant his request. See 

. Our review of the entire voir dire confirms that
counsel did not ask any questions of any potential jurors
regarding racial prejudice. Certainly nothing in the record
suggests that Tammy Mock’s killing was racially motivated.
Counsel reasonably could have believed that probing the jurors’
potential racial prejudices might unduly emphasize the racial
differences, somehow inject racial issues into a trial where none
existed, or taint the jurors’ view of Jacobs and his attorney. In
other words, counsel reasonably could have concluded that
asking prospective jurors questions about racial prejudice would
do more harm than good. Under these circumstances, and in the
absence of any evidence to the contrary, we presume that
counsel’s decision was sound trial strategy.

       Jacobs has failed to overcome this strong presumption.

                               51
He notes “continuing racial tensions in York” since the 2001
indictment of a former mayor for his alleged participation in the
slaying of an African-American woman in 1969. (Appellant’s
Opening Br. at 63 n.37). He does not describe the racial climate
in York at the time of his trial in 1992, nor does he explain how
the racial tensions in 2001 could have impacted his trial.

        Jacobs also asserts that his trial was racially sensitive
because it involved an interracial sexual relationship between an
African-American man and his white girlfriend. He suggests
that counsel always has a duty to inquire into possible racial bias
in a racially sensitive case. (Appellant’s Opening Br. at 64, 66).
Whether Jacobs properly characterizes his trial as racially
sensitive is subject to debate.22 Even if his trial were racially
sensitive, Jacobs cites no federal authority for the proposition
that the Constitution requires defense counsel to inquire into
possible racial bias in each racially sensitive case.23 Moreover,


         22
          To the extent that Jacobs relies on Reynolds v.
Commonwealth, 

(Va. Ct. App. 1988), for the
proposition that his case was racially sensitive, we are not
persuaded. Reynolds’ case was “replete with racial epithets”
and “racially inflammatory evidence.” 

Our scrutiny
of the record here reveals no such evidence.
    23
     Jacobs cites Butler v. State, No. C.C.A. 1163, 

(Tenn. Crim. App. June 23, 1988), holding that counsel
was ineffective for failing to request voir dire regarding racial
prejudice. We find nothing in Butler suggesting that the
Constitution requires counsel to inquire about racial prejudice in

                                52
we decline to adopt a rule which would require counsel to
inquire as to racial prejudice, even where he reasonably deemed
such questioning a poor strategic choice.

       For these reasons, we conclude that Jacobs has failed to
demonstrate that trial counsel performed deficiently by failing
to inquire into possible racial bias on voir dire. Accordingly, his
claim of ineffective assistance in this regard fails.

IV.    CONCLUSION

        For the foregoing reasons, we will reverse the District
Court’s order denying habeas corpus relief on Jacobs’ claim of
ineffective assistance of counsel during the guilt phase by
failing to investigate, discover, and present evidence to support
a diminished capacity defense to the murder of Tammy Mock.
We will remand this matter to the District Court with
instructions to enter an order granting the writ of habeas corpus
conditioned on the Commonwealth’s grant of a new trial, within
a reasonable time, on the charge of murdering Tammy Mock.
We will affirm the District Court’s denial of habeas corpus relief
on each of Jacobs’ remaining claims.




each racially sensitive case, however. We note also that the
Tennessee Supreme Court reversed the court of appeals’
unpublished decision. See Butler v. State, 

(Tenn. 1990).

                                53
SCIRICA, Chief Judge, concurring in part and dissenting in
part.
       I concur with much of the Court’s opinion, but I
respectfully dissent as to Part III.A. In my view, the
Pennsylvania Supreme Court’s analysis does not constitute an
unreasonable application of clearly established federal law that
warrants vacating Jacobs’ conviction and granting him a new
trial.
       Jacobs claims his trial counsel was constitutionally
ineffective for failing to adequately investigate and present
evidence supporting a diminished capacity defense. More
specifically, he argues that the affidavits of Drs. Kessel and
Fleming– each of whom performed psychiatric examinations of
Jacobs for his state collateral appeal– establish that his trial
counsel’s efforts to obtain expert testimony were so deficient
and prejudicial as to rise to the level of constitutional
ineffectiveness.
       The District Court found trial counsel not ineffective on
the guilt phase.24 Because I believe the District Court properly
applied the standards of the Antiterrorism and Effective Death




  24
   Because the District Court dismissed this claim based solely
on a review of the state court records– without conducting its
own evidentiary hearing– our review is plenary. Marshall v.
Hendricks, 

, 50 (3d Cir. 2002) (citing Duncan v.
Morton, 

, 196 (3d Cir. 2001)).

                              54
Penalty Act of 1996 (“AEDPA”), 25 I would affirm.
                         I. Discussion
      As the Court notes, the relevant inquiry here is whether
the Pennsylvania Supreme Court’s decision involved an
“unreasonable application” of clearly established federal law.26


   25
     The Pennsylvania Supreme Court addressed this claim on
the merits on PCRA appeal. See Commonwealth v. Jacobs, 

, 548-49 (Pa. 1999). Thus, we apply the standards set
forth in the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), P.L. 104-132, 110 Stat. 1214., 28 U.S.C. §
2254(d); see also Appel v. Horn, 

, 210 (3d Cir.
2001) (deferential standards provided by the AEDPA apply only
to those claims adjudicated on the merits in state court
proceedings). Under the AEDPA, a petitioner is entitled to
habeas relief only where the state court proceedings “resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law,” 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)(1).
    26
       The applicable federal law in this instance is the well-
settled two-prong test established by the Supreme Court in
Strickland v. Washington, 

(1984). Under
Strickland, in order to merit habeas relief based on a claim of
ineffective assistance of counsel petitioner must demonstrate
that: (1) his attorney’s performance was deficient, and (2) he
was prejudiced by this deficiency. 

.

                               55
A state court decision involves an “unreasonable application of
federal law” under 28 U.S.C. § 2254(d)(1) where it “correctly
identifies the governing legal rule but applies it unreasonably to
the facts of a particular prisoner’s case.” Williams v. Taylor,


To demonstrate deficiency, petitioner must establish that
counsel’s performance “fell below an objective standard of
reasonableness.” 

To overcome the presumption that
counsel was effective, petitioner bears the burden of establishing
that counsel’s performance was unreasonable under “prevailing
professional norms.” 

“In evaluating counsel’s
performance, we are ‘highly deferential’ and ‘indulge a strong
presumption’ that, under the circumstances, counsel’s
challenged actions ‘might be considered sound . . . strategy.’”
Buehl v. Vaughn, 

, 169 (3d Cir. 1999) (citing

). To show prejudice, petitioner must
demonstrate that “counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”

.
        Ultimately, the “benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” 

“the issue is not what conduct is
‘prudent or appropriate, but only what is constitutionally
compelled.’” Rompilla v. Horn, 

, 246 (3d Cir.
2004) (quoting Burger v. Kemp, 

, 794 (1987)), cert.
granted 

(2004). Indeed, the Sixth Amendment
does not require perfection; instead, it “simply . . . ensure[s] that
criminal defendants receive a fair trial.” 

                                 56


, 407-08 (2000). For a federal court to find a state
court’s application of law unreasonable, “the state court’s
decision must have been more than incorrect or erroneous.”
Wiggins v. Smith, 

, 520 (2003) (citing Lockyer v.
Andrade, 

, 75 (2003)). Rather, “[t]he state court’s
application must have been ‘objectively unreasonable.’” 

21 (citing 

). As the Supreme Court
has stressed, “an unreasonable application is different from an
incorrect one.” Bell v. Cone, 

, 694 (2002).
       The Pennsylvania Supreme Court evaluated petitioner’s
claim as follows:
              Next, Appellant maintains that trial
       counsel was ineffective in failing to adequately
       investigate and present evidence supporting a
       diminished capacity defense. The PCRA court
       rejected this assertion as the record clearly
       revealed that trial counsel pursued such a defense
       on behalf of Appellant.
              Specifically, trial counsel testified at the
       PCRA hearing regarding his efforts in this regard.
       He stated that initially when he suggested to
       Appellant that a psychiatric evaluation should be
       conducted, Appellant rejected the idea claiming
       his sanity. Trial counsel stated that he was able to
       convince Appellant to submit to a psychiatric
       evaluation and that he arranged for such
       evaluation to be performed. Following this
       examination, trial counsel was contacted by the
       examining psychiatrist and told that, in his
       opinion, Appellant was sane and knew what he

                               57
       was doing at the time of the alleged crimes.
       Counsel, therefore, told the psychiatrist not to
       issue a report and he was not called to testify at
       trial.
                Nevertheless, consistent with Appellant’s
       trial testimony, trial counsel pursued a diminished
       capacity defense in regards to the killing of
       Tammy Mock. Appellant testified at trial that he
       was not responsible for Holly Jacobs’ death. He
       stated that when he handed Holly Jacobs to
       Tammy Mock, who was in the bathtub, Mock
       drowned Holly. Appellant testified that after this
       incident occurred, he ‘lost it’ and killed Tammy
       Mock. Given this admission, trial counsel argued
       that Appellant was incapable of forming a
       specific intent to kill given his mental state at the
       time of the killing.
                Based on the results of the psychiatric
       evaluation, and given Appellant’s trial testimony,
       it is clear that trial counsel did investigate and
       pursue a diminished capacity defense on behalf of
       Appellant to the best of his ability. Accordingly,
       as trial counsel had a reasonable basis for
       proceeding as he did, he cannot be deemed
       ineffective.
Commonwealth v. 

.
       Like the District Court, I believe this analysis does not
constitute an unreasonable application of federal law. In my
view, the Court has undertaken de novo review, conducting its
own independent application of Strickland rather than focusing

                                58
its review on an analysis of whether the state court’s application
of that test was reasonable under controlling and clearly
established law. A habeas petitioner, however, “must do more
than show that he would have satisfied Strickland’s test if his
claim were being analyzed in the first instance, because under §
2254(d)(1), it is not enough to convince a federal habeas court
that, in its independent judgment, the state-court decision
applied Strickland incorrectly.” 

(citing

).
       The Pennsylvania Supreme Court’s conclusion that trial
counsel did not render ineffective assistance was a reasonable
application of Strickland. Testimony at the PCRA hearing
established that trial counsel ordered a psychiatric evaluation for
Jacobs. Despite Jacobs’ initial reluctance, trial counsel arranged
an examination with Dr. Robert Davis, who examined petitioner
“to determine if he had a major mental illness or other
impairment that would render him incompetent to stand trial or
that would negate or reduce his criminal responsibility.” Dr.
Davis was aware, specifically, of counsel’s intent to present a
diminished capacity defense, and he was provided with the
police report detailing the allegations underlying the offense.
Dr. Davis found no evidence of mental illness and orally
informed trial counsel that, in his opinion, Jacobs suffered no
psychiatric illness, knew what he was doing at the time of the
alleged murders and was sane.
      Relying on Dr. Davis’ opinion, trial counsel did not
request a written report. As intended, counsel presented a




                                59
diminished capacity defense at trial. 27 Highlighting Jacobs’
testimony that he “lost it” and killed Tammy Mock because she
had drowned his daughter Holly Jacobs, trial counsel argued to
the jury that Jacobs’ mental state rendered him incapable of
forming a specific intent to kill at the time of Mock’s death.
       This record supports the state court’s conclusion.
Accordingly, I would find that the Pennsylvania Supreme Court
applied Strickland reasonably in concluding that trial counsel’s
investigation and presentation of a diminished capacity defense
did not constitute ineffective assistance of counsel.
       The Court places great weight on the Pennsylvania
Supreme Court’s apparent disregard of trial counsel’s failure to
provide Dr. Davis with several “highly relevant facts” and other
information “necessary . . . to conduct a proper evaluation.”
This appears to include trial counsel’s failure to provide Dr.
Davis with additional background information and his failure to
ask petitioner’s mother, during her interview, about her son’s
mental health background.
        Strickland requires a reviewing court to consider the
totality of the circumstances, but I believe the state court’s
analysis did just that. Significantly, Dr. Davis did not state that
he was incapable of forming a conclusion on the information
available to him and the results he obtained through the
psychiatric examination. As the District Court noted, the record



    27
    It bears noting that a diminished capacity defense under
Pennsylvania law is “extremely limited” in scope.
Commonwealth v. Cuevas, 

, 393 (Pa. 2003).

                                60
revealed no request by Dr. Davis for background information
beyond that provided by counsel. Nor was there any reason that,
after receiving the doctor’s opinion, counsel would have been on
notice to track down medical records or to pursue other inquiries
that might possibly relate to Jacobs’ mental health.
       The right to counsel “does not require that a criminal
defense attorney leave no stone unturned and no witness
unpursued.” Berryman v. Morton, 

, 1101 (3d Cir.
1996). With the benefit of hindsight, petitioner now argues that
trial counsel might have been able to present psychiatric
testimony at trial suggesting Jacobs suffered from mild mental
retardation, organic brain damage, or cognitive impairments.
The test for ineffectiveness, however, “is not whether counsel
could have done more; perfection is not required. Nor is the test
whether the best criminal defense attorneys might have done
more. Instead the test is . . . whether what counsel did was
within the wide range of reasonable professional assistance.”

(citations omitted).
        Like the PCRA Court, the Pennsylvania Supreme Court,
and the District Court, I believe trial counsel’s decisions to
arrange a pyschiatric examination, rely on the professional
opinion of Dr. Davis, and present a diminished capacity defense
supported by Jacobs’ testimony, are not constitutionally
defective. Furthermore, I believe the Pennsylvania Supreme
Court reasonably applied Strickland in reaching this conclusion.
For these reasons, I would affirm the District Court’s denial of
petitioner’s ineffective assistance claim regarding trial counsel’s
failure to investigate and present a diminished capacity defense



                                61
at the guilt phase.28




   28
     Until now, no court has addressed the prejudice prong of
Strickland at the guilt phase. The doctors’ testimony by
affidavit was only presented for the first time in Jacobs’ PCRA
appeal before the Pennsylvania Supreme Court. Because the
Pennsylvania Supreme Court found trial counsel’s performance
constitutionally adequate at both the guilt and penalty phases, it
did not consider the affidavits under either prejudice prong of
Strickland. The District Court also found trial counsel not
ineffective on the guilt phase, and thus did not address
Strickland’s prejudice prong on the first degree murder verdict.
       The affidavits of Drs. Kessel and Fleming, therefore– the
evidence upon which this Court relies in concluding there exists
a reasonable probability that the jury, had it heard testimony
from these two doctors, would have found Jacobs guilty of third
degree murder rather than first degree murder– have never been
factually contested in any court. In my view, vacating the
conviction is inappropriate where the issue of prejudice has
never been engaged on the verdict of first degree murder. At
most, then, this case should be remanded to the District Court to
consider prejudice at the guilt phase of the trial.

                               62