Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2008

Fahy v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 03-9008




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                                      PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                   Case No: 03-9008

                     HENRY FAHY

                            v.

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


                   Case No: 03-9009

                    HENRY FAHY,
                        Appellant

                            v.

MARTIN HORN, Commissioner, Pennsylvania Department
of Corrections; CONNER BLAINE, JR., Superintendent of
  the State Correctional Institution at Greene; JOSEPH P.
MAZURKIEWICZ, Superintendent of the State Correctional
                  Institution at Rockview
   On Appeal from the United States District Court for the
             Eastern District of Pennsylvania
                (E.D. Pa, No. 99-cv-05086)
       District Judge: Honorable Norma L. Shapiro

                  Argued October 16, 2007

  Before: AMBRO, SMITH, and COWEN, Circuit Judges.

Counsel:

Marilyn F. Murray (Argued)
Thomas W. Dolgenos
Office of District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499
Counsel for Martin Horn, et al.

Matthew C. Lawry
Billy H. Nolas (Argued)
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
Counsel for Henry Fahy

                  (Filed: January 24, 2008)




                              2
                  OPINION OF THE COURT




SMITH, Circuit Judge.

       Twenty-seven years after the murder of twelve-year-old
Nicoletta Caserta, the case of Henry Fahy returns to this Court,
and possibly not for the last time. The Commonwealth of
Pennsylvania (“Commonwealth”) appeals from the order of the
District Court granting Fahy’s Petition for Writ of Habeas
Corpus, which vacated his death sentence. Fahy cross-appeals
from the District Court’s denial of his guilt phase claims.
Today, we vacate the judgment of the District Court to the
extent that the writ was granted on the basis of Mills v.
Maryland, 

(1988),1 and we remand the matter to


   1
       In Mills v. Maryland, the Supreme Court announced that
the Constitution prohibits a state from requiring jurors to agree
unanimously that a particular mitigating circumstance exists
before they can consider that circumstance in their determination
of whether to impose the death penalty or life imprisonment.
Mills, 

.
     Fahy alleged that the jury instructions at the penalty phase
of his proceeding, as well as the verdict sheet, unconstitutionally
led the jury to believe that they had to find any mitigating

                                3
the District Court to consider sentencing-phase issues which that
court did not address at the time it granted habeas relief. We
affirm the District Court’s determination that the guilt phase
claims do not warrant habeas relief.

                               I.

       The factual background and procedural history that
follow are lengthy and complex.

       The body of Nicky Caserta was found by her stepfather
on the late afternoon of January 9, 1981. The twelve-year-old
was found sprawled across the floor of her basement with a t-
shirt and an electrical cord wrapped tightly around her neck,
multiple tears to the vagina and rectum, and eighteen stab
wounds to the chest area. A medical examiner confirmed these
findings and ruled her death a homicide.

       On January 29, 1981, police interviewed Fahy’s



circumstance unanimously before they could give effect to that
circumstance. Fahy now concedes that in light of Beard v.
Banks, 

(2006), which held that Mills was not
retroactively applicable on collateral review, he cannot obtain
relief under Mills.
     In light of Beard v. Banks, this Court will vacate the
judgment of the District Court to the extent that the writ was
granted on the Mills claim.

                               4
girlfriend, Rosemarie Kelleher, who lived across the street from
Nicky Caserta and was also her aunt. Fahy lived with Kelleher.
The interview of Kelleher concerned an alleged sexual assault
by Fahy upon her six-year old son. She called Fahy and
requested that he come down to the station for questioning. He
arrived shortly thereafter. Police then questioned Fahy and
advised him that they had two warrants for his arrest on charges
of rape. He was subsequently placed under arrest. After his
arrest, Fahy was questioned regarding the rape and murder of
Nicky Caserta. He ultimately gave the police a detailed
confession and led them to the sewer where he had disposed of
the knife used to kill her. Fahy subsequently denied making
statements to the police, but his motion to suppress those
statements was denied.

       On January 24, 1983, Fahy was tried by a jury for the
rape and murder of Nicky Caserta, with the Honorable Albert F.
Sabo, Court of Common Pleas of Philadelphia County,
presiding. During the guilt phase of the proceeding, the jury
heard evidence that led to guilty verdicts on all counts—first-
degree murder, rape, burglary, and possession of an instrument
of crime.

       The proceedings then entered the penalty phase. The
prosecution, in seeking the death penalty, presented evidence
intended to support three aggravating circumstances under
Pennsylvania’s death penalty statute: 1) “The defendant
committed a killing during the perpetration of a felony,” 42

                               5
Pa.C.S. § 9711(d)(6); 2) “The defendant has a significant history
of felony convictions involving the use or threat of violence to
the person,” 42 Pa.C.S. § 9711(d)(9); and 3) “The offense was
committed by means of torture,” 42 Pa.C.S. § 9711(d)(8). The
jury determined that all three aggravating circumstances were
present. The defense presented evidence of four mitigating
circumstances and the jury found that two were present: 1) “The
defendant was under the influence of extreme mental or
emotional disturbance,” 42 Pa.C.S. § 9711(e)(2); and 2) “The
capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law
was substantially impaired,” 42 Pa.C.S. § 9711(e)(3). The jury
determined that Fahy should receive a sentence of death, and on
November 2, 1982, Judge Sabo formally imposed the death
sentence for the murder conviction.2 On direct appeal, the
Pennsylvania Supreme Court upheld the convictions and
sentences. Commonwealth v. Fahy, 

(Pa. 1986)
(“Fahy 1”).

        On March 18, 1987, Fahy filed a pro se petition under the


    2
        Judge Sabo imposed ten to twenty years for the rape
conviction, ten to twenty years for the burglary conviction, and
two and one-half to five years for the weapons conviction.
Judge Sabo ordered the burglary and rape convictions to run
concurrently with each other but consecutively to the murder
conviction. The weapons conviction was to run consecutively
to the burglary and rape convictions.

                                6
Post Conviction Hearing Act (“PCHA”), 42 Pa.C.S. § 9541
(superseded and replaced by the Post Conviction Relief Act
(“PCRA”) in 1988) concerning his murder conviction as well as
his conviction in an unrelated rape case (“PCRA #1”). As a
result, the petition was procedurally defective.          It was
transferred to Judge Sabo, who dismissed it without prejudice to
Fahy’s right to refile separate petitions. Fahy took no action for
four years.

       The Governor issued a warrant of execution for Fahy on
November 21, 1991. Judge Sabo denied Fahy’s application for
a stay. On appeal, the Pennsylvania Supreme Court granted a
stay of execution and remanded to Judge Sabo pursuant to the
PCRA for a hearing to determine whether trial counsel had been
ineffective for failing to object to a jury instruction regarding the
aggravating circumstance of the killing of another committed by
means of torture, which did not provide a definition of the term
“torture.” 3 Judge Sabo denied the PCRA petition (“PCRA #2”)
and upheld the sentence of death. Fahy appealed. The
Pennsylvania Supreme Court affirmed the denial of Fahy’s
petition on July 1, 1994.


   3
     In the wake of the Pennsylvania Supreme Court’s remand,
Fahy’s counsel, apparently mindful that all claims not raised in
the first post-conviction petition are waived, filed a motion on
April 14, 1992, with the Supreme Court asking that it clarify its
order to expressly encompass claims in addition to the torture
issue. The Court denied the motion.

                                 7
       On June 5, 1995, the Governor issued a second death
warrant. On July 7, 1995, the Pennsylvania Supreme Court
granted a stay of execution to allow Fahy to file another PCRA
petition (“PCRA #3”).4 This third PCRA petition was filed on
August 4, 1995, with a supplemental petition filed on September
12, 1995. Judge Sabo held an evidentiary hearing on the claims
raised in PCRA #3 and thereafter denied the petition. Fahy
appealed to the Pennsylvania Supreme Court.

       While this appeal was pending, Fahy filed a handwritten
pro se motion on December 5, 1995, asking the PCRA court to
allow him to withdraw his appeal and to waive all collateral
proceedings so that his death sentence could be carried out.5
Because the Pennsylvania Supreme Court then had jurisdiction
over PCRA #3, Judge Sabo forwarded the letter to that Court.
On July 17, 1996, the Supreme Court remanded the appeal “for
a colloquy to determine whether petitioner fully understands the


      4
         Fahy also requested that the District Court stay his
execution to permit him to file a habeas corpus petition.
Because the state court had already issued a stay of execution,
District Judge Shapiro dismissed the habeas petition without
prejudice for failure to exhaust state remedies.
  5
     On March 22, 1996, upon learning of Fahy’s pro se motion,
his counsel (Mr. Gelman and Mr. Natali) filed a motion for the
PCRA court to determine Fahy’s competency to waive his
rights. On October 23, 1996, the PCRA court denied the
motion.

                               8
consequences of his request to withdraw his appeal and to waive
all collateral proceedings.” Pursuant to the remand, on August
2, 1996, Judge Sabo purported to conduct a hearing consistent
with the direction from the Supreme Court. At that time, Fahy
told Judge Sabo that he desired an additional week to consider
his request to waive all collateral proceedings. Judge Sabo
granted Fahy the extra time, and during that week Fahy signed
a sworn affidavit, prepared by his counsel, stating that he no
longer wished to waive his appellate rights, that he wanted to
proceed with his appeal, and that he desired continued
representation by counsel. However, when Fahy appeared
before Judge Sabo on August 9, he stated that he had again
changed his mind, i.e., that he did not want to be represented by
his attorneys and that he did not want to pursue any further
appeals. After asking Fahy several questions, Judge Sabo
declared, “All right, Mr. Fahy, I will inform the Supreme Court
of Pennsylvania that you were knowingly waiving all your
appellate rights and all your PCRA rights.”

       Twelve days later, Fahy’s attorneys advised the
Pennsylvania Supreme Court that Fahy was again pursuing his
appeal of the denial of PCRA #3 because the alleged waiver was
involuntary. On September 17, 1997, the Pennsylvania Supreme
Court unanimously affirmed Judge Sabo’s determination that
Fahy had validly waived his right to all appellate and collateral
proceedings. The Court never reached the merits of his appeal
from the denial of PCRA #3. Commonwealth v. Fahy, 

(Pa. 1997) (“Fahy 3”).

                               9
       Thereafter, on November 12, 1997, Fahy filed a fourth
PCRA petition (“PCRA #4”). Judge Sabo dismissed the petition
on two grounds: 1) failing to set forth a prima facie case that a
miscarriage of justice had occurred; and 2) timeliness. The
Pennsylvania Supreme Court affirmed Judge Sabo’s order
dismissing PCRA #4. Commonwealth v. Fahy, 

(Pa. 1999) (“Fahy 4”).6

       Fahy then filed a motion for a stay of execution, together
with an amended habeas petition in the District Court. On
October 14, 1999, the District Court stayed the execution for a
period of 120 days and determined that the amended petition
should be treated as a first, and not a successive, habeas petition
because the first application was dismissed without prejudice.
Then-Chief Judge Giles, acting as emergency motions judge,
determined that despite the one-year statute of limitations under
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the habeas petition was timely by virtue of both
statutory and equitable tolling. See Fahy v. Horn, 

    6
       The Supreme Court specifically declined to address the
issues of whether Fahy’s attorneys had authority to file the
fourth PCRA petition for collateral relief or whether Fahy did
withdraw, or even could withdraw, his waiver of collateral and
appellate proceedings. The Court assumed arguendo that Fahy
had renounced his waiver, but that he was still not entitled to
relief because his petition was untimely. Fahy 

n.9.

                                10
(3d Cir. 2001). He further stated that his decision would be
subject to modification by District Judge Shapiro; she later
agreed that Fahy’s amended habeas petition was properly filed.
The Commonwealth appealed. On appeal, this Court rejected
statutory tolling but affirmed the application of equitable tolling.

The case then returned to the District Court.

                   B. District Court Decision

       In light of the stay and the equitable tolling, Fahy’s
federal habeas case was assigned to Judge Shapiro. She found
that Fahy was competent when he waived his right to appellate
and collateral review during the state court proceedings, but that
the evidence established that Fahy either was, or believed he
was, improperly induced to waive his rights. She also concluded
that Fahy’s claims were not otherwise procedurally defaulted.
Upon reaching the merits, the District Court ruled that Fahy’s
fourth claim, a Mills claim, was meritorious, and she therefore
vacated his death sentence. As a result, the District Court did
not reach the remainder of Fahy’s claims alleging constitutional
error in the sentencing phase of his trial.7                  The


   7
      Both parties to this appeal agree that, if this Court finds
Fahy’s waiver to be invalid and his claims not otherwise
procedurally barred, this matter should be remanded to the
District Court to consider the remaining sentencing-phase claims
in light of our vacatur of relief on the Mills claim. The
remaining claims are as follows:

                                11
CLAIM III. Ineffective assistance of counsel
during sentencing (penalty) phase of trial for: A)
Failure to develop and present mitigating
evidence; B) Failure to contemporaneously object
or request an instruction in response to
prosecutor’s suggestion that Fahy was a “serial
pedophile”; C) Failure to contemporaneously
object or request an instruction in response to
prosecutor's suggestion that Fahy was involved in
an incestuous relationship with the victim; and,
D) Discussion of the possibility of parole and
failure to contemporaneously object or request an
instruction in response to prosecutor’s arguments
concerning Fahy’s future dangerousness and his
possibility of parole.
        CLAIM VII. Prosecutorial misconduct
during sentencing/penalty phase of the trial for:
A) Improperly interjecting unadjudicated criminal
conduct; B) Improperly arguing Fahy's future
dangerousness to jury by asking, “How many
more people does he have to kill?”; and, C)
Improperly denigrating Fahy’s mitigating
evidence.
        CLAIM VIII. Prosecutor’s comment “No
sentence is final until it’s appealed,” diminished
the jury’s sense of responsibility for imposing
sentence in violation of Fahy’s rights under
Caldwell v. Mississippi, 

(1985).
        CLAIM IX. Jury was unconstitutionally

                       12
District Court denied the petition in all other respects.

                               II.




       instructed on the “torture” aggravating
       circumstance.
               CLAIM X. No definitive proof that the
       jury found the “torture” aggravating circumstance.
               CLAIM XI. The “proportionality review”
       performed by the Supreme Court of Pennsylvania
       did not provide Fahy meaningful appellate review
       as mandated by Pennsylvania and federal law.
               CLAIM XIII. Trial court failed to properly
       instruct the jury on mitigating factors.
               CLAIM XIV. Jury was not permitted to
       consider and give effect to the non-statutory
       mitigating evidence that was presented.
               CLAIM XV. Trial court violated Simmons
       v. South Carolina, 

(1994), in failing
       to accurately instruct the sentencing jury that, if
       sentenced to life, Fahy would be parole ineligible.
               CLAIM XVI. Aggravating circumstance
       instruction (d)(9), “significant history of felony
       convictions involving the use of or threat of
       violence to the person,” is unconstitutionally
       vague.

Fahy v. Horn, 

, *35–36 (E.D.Pa. Aug. 26,
2003).

                               13
       The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 2241 and 2254; this Court has jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253. We apply a plenary standard of
review when a district court dismisses a habeas petition based
on a review of the state court record without holding an
evidentiary hearing. Duncan v. Morton, 

, 196 (3d
Cir. 2001) (citing Zilich v. Reid, 

, 320 (3d Cir.
1994)).8 Our review is also plenary as to a district court’s
determinations regarding exhaustion, procedural default, and
nonretroactivity. Albrecht v. Horn, 

, 114 (3d Cir.
2007).

                              III.

       Fahy raised twenty-one claims for relief in his amended
habeas petition, four of which were later withdrawn. Prior to
reaching any of the claims on the merits, the District Court
addressed threshold issues—first, the validity of Fahy’s state
court waiver, and second, whether his claims were otherwise
procedurally defaulted.

                          A. Waiver

        The Commonwealth argued that Fahy’s state court


    8
       The District Court did hold an evidentiary hearing to
resolve waiver issues, but no evidentiary hearing was held on
the habeas petition itself.

                              14
waiver prohibited consideration of the merits of his habeas
claims because Fahy had waived his rights to appellate and
collateral review and was not free to change his mind at will.
The Commonwealth further argued that 28 U.S.C. § 2254(d),9
required the District Court to accord deference to the state
court’s determination that Fahy’s waiver was valid. Fahy


   9
      AEDPA made significant revisions to the law of habeas
corpus practiced within the federal judicial system. One such
revision is § 2254(d), which limits a federal court’s authority to
grant writs of habeas corpus on behalf of persons in state
custody. Specifically, the section delineates three standards of
review that constrain the federal courts:

       (d) An application for a writ of habeas corpus on
       behalf of a person in custody pursuant to the
       judgment of a State court shall not be granted
       with respect to any claim that was adjudicated on
       the merits in State court proceedings unless the
       adjudication of the claim—
       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly
       established Federal law, as determined by the
       Supreme Court of the United States; or
       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of
       the evidence presented in the State court
       proceeding.

28 U.S.C. § 2254(d).

                               15
countered by arguing that he was coerced into waiving his rights
and, as such, the waiver was invalid.

        The District Court acknowledged that AEDPA
heightened the level of deference accorded to state court
determinations; however, it found that § 2254(d) was
inapplicable to the waiver issue. It recognized that § 2254(d)
pertained to any “claim” by the habeas petitioner “that was
adjudicated on the merits . . . .” 28 U.S.C. § 2254(d).
Following this Court’s precedent, the District Court defined the
term “claim” in § 2254(d) as a substantive request for habeas
relief. See Cristin v. Brennan, 

, 413, 417–18 (3d
Cir. 2002). The District Court concluded that because the
waiver issue did not entitle Fahy to relief on the merits of his
habeas petition, it was not required to accord deference to the
state court’s conclusion under § 2254(d).

       We agree with the District Court’s assessment that it need
not defer under § 2254(d) to the state court’s determination that
Fahy’s waiver was valid. Cristin instructs that a “claim” is that
which, if granted, provides entitlement to relief on the 

–18. Because resolution of the question as to
whether Fahy’s waiver was valid will not entitle him to relief on
the merits of his habeas petition, the waiver question is not a
“claim.” Therefore, the state court’s determination that the
waiver was valid is not entitled to deference under § 2254(d).

       The Commonwealth additionally argued that the state

                               16
court finding that Fahy’s waiver was knowing and voluntary
should be presumed correct under § 2254(e)(1) because it was
litigated, considered, and unequivocally rejected.10 The District
Court considered whether the factual determinations made in the
waiver proceeding were entitled to deference under 28 U.S.C.
§ 2254(e)(1), which reads in relevant part:

       In a proceeding instituted by an application for
       writ of habeas corpus by a person in custody
       pursuant to the judgment of a State court, a
       determination of a factual issue by a State court


      10
         As the District Court recognized, this assertion is
supported by language in the Pennsylvania Supreme Court
decisions. In the decision affirming the dismissal of Fahy’s
fourth PCRA petition, the Pennsylvania Supreme Court said,

       [T]he assertion that his guards influenced the
       validity of [Fahy]’s waiver was previously
       litigated and rejected by this court. On appeal
       from the PCRA court’s determination that
       [Fahy]’s waiver was valid, [he] specifically
       argued that his decision to waive appellate and
       collateral review was motivated by abuse and
       harassment by his guards, i.e., the conditions of
       his incarceration. This court nevertheless found
       [Fahy]’s waiver of his rights to be valid.

Fahy 

(citing Fahy 

).

                               17
       shall be presumed to be correct. The applicant
       shall have the burden of rebutting the presumption
       of correctness by clear and convincing evidence.

Court acknowledged that a federal habeas court
must afford a state court’s factual findings a presumption of
correctness and that the presumption applies to the factual
determinations of state trial and appellate courts. See Duncan
v. Morton, 

, 196 (3d Cir. 2001). However, it
determined that deference could not be accorded to the finding
that Fahy’s waiver was knowing and voluntary. The District
Court identified that a valid waiver of post-conviction relief
requires that a court determine both that the petitioner has an
ability to understand, i.e., competency, and that the petitioner
understands and freely chooses to waive. See Gilmore v. Utah,

(1976). The District Court then found that a
competency determination had not been made, and therefore no
deference under § 2254(e)(1) need be given to the state court’s
finding of competency or finding that Fahy’s waiver was
knowing, intelligent and voluntary.

        We disagree with the District Court’s position that no
competency determination was made. In this case, Judge Sabo
explicitly concluded that Fahy was competent. At the end of the
waiver colloquy Judge Sabo stated: “I am making the decision
he’s fully competent, he knows what he’s doing.” Here, the




                              18
state court’s explicit11 factual finding that Fahy was competent
is presumed correct, unless Fahy rebuts “the presumption of
correctness by clear and convincing evidence.”              See
§ 2254(e)(1).

       The District Court suggests that Fahy rebutted this
presumption because “no real competency determination was
undertaken.” However, not every case calls for such a
determination. See Godinez v. Moran, 

, 402 n.13
(1993). The Supreme Court has stated that “a court is [not]
required to make a competency determination in every case . . .
. As in any criminal case, a competency determination is
necessary only when a court has reason to doubt the defendant’s


  11
      Our Court has recognized that competency is a state court
factual finding that, if supported by the record, is presumed
correct. Taylor v. Horn, 

, 433 (3d Cir. 2007)
(citing Thompson v. Keohane, 

, 111 (1995) (citation
omitted)). A finding of competency may be implicit or explicit.

case, Judge Sabo found that Fahy had validly waived
any post-conviction relief. Because a valid waiver requires that
a court determine both the petitioner’s ability to understand, i.e.,
competency, and that the petitioner does understand and freely
chooses to waive, a finding of a valid waiver presupposes a
finding of competency. See 

v. Utah, 

(1976)). Therefore, even if Judge Sabo had not made
an explicit finding of competency, this implicit finding of
competency is presumed correct under § 2254(e)(1) to the same
extent as express factual findings. 

record reveals insufficient indicia
of incompetency to compel the PCRA court to hold a
competency hearing;12 and we are not aware of any requirement
that mandates the PCRA court to set forth the specific factual
findings that give rise to a determination of competency—this
is particularly true given our position on implicit factual
findings. See 

; see also supra note 11.

       In addition to our disagreement with the District Court’s
position that no competency determination was made, we
believe Godinez makes the District Court’s reliance on the
absence of a competency determination problematic. When the
District Court used the supposed absence of a competency
determination as the standard for determining that the finding of
knowing and voluntary waiver was not entitled to § 2254(e)(1)
deference, it erred. Because the District Court applied the


   12
       Indeed, in Taylor v. Horn, this Court relied on the trial
court’s own observations and interactions with the defendant in
upholding the trial court’s decision not to hold a competency

–34 (holding that the court’s decision
not to hold a competency hearing before accepting petitioner’s
guilty plea comported with federal standards of due process
because “[t]he record shows that throughout the proceedings
Taylor was able to engage with counsel and respond to the trial
court’s inquiries, and that trial counsel never expressed concern
over Taylor’s competency.”). Similarly, Judge Sabo relied on
his personal interaction with Fahy, Fahy’s response to questions,
and Fahy’s insistence that he was competent.

                               20
wrong standard, this Court exercises plenary review over what
deference is to be accorded the state court’s voluntariness
determination.13

      Unlike the pre-AEDPA framework, the District Court
recognized that the current § 2254(e),14 read literally, eliminates


    13
       The question of whether the District Court applied the
correct standard of review to the PCRA court’s voluntariness
determination is a question of law subject to de novo review by
this Court. See 

(“We review de novo
whether the District Court appropriately applied AEDPA's
standards of review.”).
   14
         28 U.S.C. § 2254(e) provides:

          (1) In a proceeding instituted by an application for
          a writ of habeas corpus by a person in custody
          pursuant to the judgment of a State court, a
          determination of a factual issue made by a State
          court shall be presumed to be correct. The
          applicant shall have the burden of rebutting the
          presumption of correctness by clear and
          convincing evidence.
          (2) If the applicant has failed to develop the
          factual basis of a claim in State court proceedings,
          the court shall not hold an evidentiary hearing on
          the claim unless the applicant shows that—
          (A) the claim relies on—
                  (i) a new rule of constitutional law,

                                  21
the requirement that findings must be in writing, and drops
federal standards relevant to the state court’s fact-finding
process and evidentiary record, including evidentiary hearing
requirements. Our Court has already acknowledged as much.
In Lambert v. Blackwell, we noted that the habeas statute no
longer explicitly conditions federal deference to state court
factual findings on whether the state court held a hearing. 

, 238 (3d Cir. 2004). However, we have declined to
conclude “that state court . . . procedures are entirely irrelevant
in a federal court’s habeas review of state court determinations.”

commentator has noted:

       Bluntly stated, it appears that the federal habeas
       courts must accept state court findings at face
       value—no questions asked. A change of that kind


              made retroactive to cases on
              collateral review by the Supreme
              C ourt, that w as previously
              unavailable; or
              (ii) a factual predicate that could
              n o t h a v e b e e n p re v io u sly
              discovered through the exercise of
              due diligence; and
       (B) the facts underlying the claim would be
       sufficient to establish by clear and convincing
       evidence that but for constitutional error, no
       reasonable factfinder would have found the
       applicant guilty of the underlying offense.

                                22
       would be dramatic and not something that anyone
       would lightly read into the new law. . . . I read
       § 2254(e)(1) to drop the specific procedural and
       substantive standards contained in the former
       § 2254(d). But I do not read it to dispense with a
       federal court's rudimentary responsibility to
       ensure that it is deciding a constitutional claim
       based on factual findings that were forged in a
       procedurally adequate way and were anchored in
       a sufficient evidentiary record. In this sense,
       § 2254(e)(1) departs from prior law, but only to
       substitute general notions of procedural regularity
       and substantive accuracy for detailed statutory
       standards.

Larry W. Yackle, Federal Evidentiary Hearings Under the New
Habeas Corpus Statute, 6 B.U. P UB. INT. L.J. 135, 140–41
(1996)). We agree with this view. We have already held that
“the extent to which a state court afforded a defendant adequate
procedural means to develop a factual record . . . might be a
consideration while applying deference under . . . § 2254(e)(1).”

. Today we hold that when a state
court’s waiver colloquy fails to reveal whether the requirements
of a valid waiver have been met due to procedural infirmities,
substantive deficiencies, and an insufficient probing into a
defendant’s knowledge of the rights he is waiving, the findings
by that court concerning the waiver are too unreliable to be
considered “factual determinations.” They are not, therefore,

                               23
entitled to the presumption of correctness.15


    15
        The question of when the presumption of correctness
applies is not an entirely new issue. The First Circuit recently
acknowledged as much, noting that

         [t]here is some disagreement about whether the
         presumption of correctness always applies or if
         there are instead certain procedural prerequisites.
         See, e.g., Mayes v. Gibson, 

, 1289
         (10th Cir. 2000) (if there was no “full, fair, and
         adequate hearing in the state court,” the
         presumption of correctness does not apply); cf.
         Taylor v. Maddox, 

, 1001 (9th Cir.
         2004) (“If . . . a state court makes evidentiary
         findings without holding a hearing and giving
         petitioner an opportunity to present evidence,
         such findings clearly result in an ‘unreasonable
         determination’ of the facts [under § 2254(d)(2)
         ].”); 1 Hertz & Liebman § 20.2c
         (§ 2254(d)(2)’s reasonableness standard applies to
         both the process and the substance of state court
         factfindings).

Teti v. Bender, 

, 59 (1st Cir. 2007). The First Circuit
went on to agree with this Court’s decision in Lambert. 

Circuit has taken the position that ‘the extent to
which a state court provides a ‘full and fair hearing’ is no longer
a threshold requirement before deference applies; but it might be
a consideration while applying deference under § 2254(d)(2)

                                 24
       While it is not difficult to discern the “factual
determinations” made by Judge Sabo, we find the circumstances
surrounding these determinations problematic. Fahy’s waiver
of his collateral and appellate rights resulted from a colloquy
that was procedurally infirm. Judge Sabo did not allow Fahy’s
counsel to develop a factual record and the manner in which he
conducted the proceedings constructively denied Fahy the
assistance of his counsel.16 Importantly, Judge Sabo refused to


and § 2254(e)(1).’ 

. We agree with
this approach. While it might seem questionable to presume the
correctness of material facts not derived from a full and fair
hearing in state court, the veracity of those facts can be tested
through an evidentiary hearing before the district court where
appropriate.”). However, we do not believe that state court
“findings” should automatically receive deference simply
because of the ability to hold an evidentiary hearing later.
Indeed, this would only provide an incentive for state courts to
bypass usual judicial procedures designed to ensure accuracy for
the sake of convenience, expediency or otherwise. We alluded
to this in our Lambert opinion. While we explicitly declined to
address how deeply a federal habeas court “may plumb the
adequacy of state court jurisdiction and procedures in deciding
how to apply section 2254(d) and (e)(2),” we did so because we
concluded that there were no procedural issues involved that
would lower the level of deference we must afford. 

. Such is not the case in the current appeal.
  16
     Judge Sabo also subjected Fahy’s attorneys to verbal abuse
at various points in the hearing. For example, when responding

                               25
allow Fahy’s counsel to ask questions of Fahy about his own
waiver, his own request in his letter to the court. As the
exchange below demonstrates, Judge Sabo refused to allow
Fahy to explain why the conditions of his incarceration were
coercive and were prompting his request to waive all appellate
and collateral proceedings.17

       COUNSEL FOR FAHY: “Explain the conditions of your
       incarceration right now?”

       COUNSEL FOR GOVERNMENT: “It is objected to,
       Your Honor.”

       THE COURT: “Come on, Counselor.”

       COUNSEL FOR FAHY: “For the record, Your Honor,
       Mr. Fahy—”

       THE COURT: “That is not the purpose of what he is
       down here for. Now cut this out. If you want to argue
       that[,] argue it to the Supreme Court.



to counsel’s request to make a mental health proffer, Judge Sabo
declared, “[Fahy] has more brains than you have” and “I told
you he has more brains than all of you together.”
  17
      However, Judge Sabo tacitly acknowledged that the prison
conditions may have been affecting Fahy by giving him a week
in a different prison while he considered his request to waive.

                              26
...

COUNSEL FOR FAHY: “Your Honor, I have a list of
other questions I am going to ask him. Are you denying
me the right to do that?”

THE COURT: “Yes, I am.”

COUNSEL FOR FAHY: “All right. May I make a
proffer of those questions?”

THE COURT: “Well, what?”

COUNSEL FOR FAHY: “I want to talk about the
conditions of his incarceration, Your Honor.”

THE COURT: “What’s that got to do with this? The
Supreme Court didn’t send him down here for me to find
out what the conditions are.”

COUNSEL FOR FAHY: “The conditions of his
incarceration are what is causing him to make this
decision.”

THE COURT: “Maybe it is, I don’t know, but he is
making the decision on his own.”

COUNSEL FOR FAHY: “I think if you would allow me
to ask the questions that he would answer that the
conditions of his incarceration cause him—”


                      27
COUNSEL FOR GOVERNMENT: “I would object to
that.”

...

COUNSEL FOR FAHY: “And if I may, your Honor: As
to that purpose, the conditions . . .”

THE COURT: “Counselor.”

COUNSEL FOR FAHY: “Two sentences, Judge, so you
could listen to me for just a moment.”

THE COURT: “I don’t want to remove you from the
case. I don’t know why I let you in.”

...

COUNSEL FOR FAHY: “All we are asking is a chance
to either ask Mr. Fahy the question or make a proffer.”

THE COURT: “Okay, you made the proffer. I am not
concerned about the conditions at Greene.”

COUNSEL FOR FAHY: “But the conditions in Greene
are causing psychological hardship and have created this
problem.”

THE COURT: “Argue that to the Supreme Court and if
the Supreme Court wants me to go into these
psychological things, fine. But they didn’t send it down

                       28
for that purpose.”

COUNSEL FOR FAHY: “But, Your Honor – ”

THE COURT: “For one purpose only they sent it down
and that is all I am interested in.”

COUNSEL FOR FAHY: “All I am saying, Your Honor,
if the conditions of incarceration cause psychological
problems, Your Honor should hear about it.”

THE COURT” “Look, I know what Greene County is
like. It is a recently-built institution, State institution.”

COUNSEL FOR FAHY: “Mr. Natali asked Mr. Fahy the
conditions of his incarceration. He fell apart and started
crying on the stand. It is causing psychological
hardship.”

...

COUNSEL FOR FAHY: “And, Your Honor, just so we
are clear: We ask for permission to either ask the
questions or make a proffer.”

THE COURT: “And I said you will take it up with the
Supreme Court.”

...

COUNSEL FOR FAHY: “Okay. And just so it is clear:

                         29
       Your Honor is denying both of those requests; is that
       correct?”

       THE COURT: “I am denying anything.”

       In analyzing a defendant’s waiver of constitutional rights,
the United States Supreme Court has said that the purpose of the
“‘knowing and voluntary’ inquiry . . . is to determine whether
the defendant actually does understand the significance and
consequences of a particular decision and whether the decision
is uncoerced.” 

n.12 (second emphasis
added). Here, we are loathe to accord a presumption of
correctness to a determination of voluntariness where the judge
explicitly refused to consider any evidence of coercion.

       In addition, the colloquy failed to adequately probe into
Fahy’s knowledge of the rights that Judge Sabo asserted he was
waiving. This omission is especially egregious given that Fahy
told the court he had not spoken about federal appeals with his
attorneys and Judge Sabo blatantly disregarded his counsel’s
objections to the questioning.

       THE COURT: “Are you telling me that you wish to
       withdraw your appeal to the Pennsylvania Supreme Court
       and to the Federal Courts?”

       FAHY: “Yes, I am.”

       COUNSEL FOR FAHY: “There is no Federal Court

                               30
proceeding, Your Honor.”

THE COURT: “Well, he could have that opportunity,
Counselor.”

COUNSEL FOR FAHY: “Well.”

THE COURT: “And that’s what he is giving up.”

COUNSEL FOR FAHY: “Well, I would object to that.”

THE COURT: “I don’t care if you object.”

COUNSEL FOR FAHY: “May I state—”

THE COURT: “You are not here to cross-examine or
anything. This is between Mr. Fahy and myself, who was
sent down for me to decide.”

COUNSEL FOR FAHY: “Yes, to—”

THE COURT: “To let him know what he is giving up.
He knows he is giving up his rights in both the State
Courts and the Federal Courts. And that the net result
will be that he would be executed. He knows that.”

COUNSEL FOR FAHY: “All I am asking for, Your
Honor, is permission to state my objection.”

THE COURT: “To say what?”


                      31
COUNSEL FOR FAHY: “To state my objection, the
grounds for the objection.”

THE COURT: “I don’t care what your objections are. .
. .”

COUNSEL FOR FAHY: “The only thing I am
requesting, Your Honor, is permission to state my
objection. If Your Honor thinks—”

THE COURT: “Well, you could state it to the Supreme
Court if you wish.”

...

COUNSEL FOR GOVERNMENT: “And by waiving
your right to further appeals [do you understand] all
those Courts I told you about will not review your case?”

FAHY: “Yes, I am aware of it.”

COUNSEL FOR GOVERNMENT: “And you have
discussed this case and all of these issues with all the
attorneys that represent you?”

FAHY: “No, I have not.”

COUNSEL: “You have discussed it with, you have
discussed the issues with some of your attorneys?”

FAHY: “No, I have not. I am aware of it my own self. I

                       32
       mean they have, we have spoken simply about this period
       of time we are in, we haven’t spoken about Federal
       Courts and so on and so on and other appeals. We have
       simply spoken about this recent area we are in, this first
       stage.”

Based on this inadequate colloquy, we are not prepared to say
that Fahy knowingly waived his federal habeas rights. Indeed,
in the context of, for example, the waiver of Miranda rights, the
Supreme Court has required that “the waiver must have been
made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.”
Moran v. Burbine, 

, 421 (1986). While the
colloquy does reveal that Fahy may have understood that the
decision to waive his federal habeas rights could ultimately lead
to his execution, it does not reveal that he had any knowledge
whatsoever of the purpose of federal habeas corpus or its
procedures. In a capital case, where the consequences are so
grave, we are particularly wary of accepting a waiver of federal
habeas rights when we are not convinced that the defendant was
aware of the nature and scope of those rights.

       Fahy’s equivocation as to whether to waive all appellate
and collateral proceedings further compels our conclusion that
the waiver was neither knowing nor voluntary. On December 5,
1995, Fahy filed a handwritten pro se motion to the PCRA court
requesting permission to waive all collateral proceedings and to
withdraw his appeal that was currently pending before the


                               33
Pennsylvania Supreme Court.            On July 17, 1996, the
Pennsylvania Supreme Court remanded “for a colloquy to
determine whether petitioner fully understands the consequences
of his request to withdraw his appeal and to waive all collateral
proceedings.” Pursuant to this instruction, Fahy went before the
PCRA court for a waiver colloquy on August 2, 1996. At that
time, he stated that he desired an additional week to consider his
request. During that week, Fahy signed a sworn affidavit stating
that he no longer wished to waive his appellate rights, that he
wanted to proceed with his appeal, and that he desired continued
representation by counsel. However, two days after signing this
affidavit, Fahy again appeared before the PCRA court and stated
that he had again changed his mind and desired once more to
waive his appeals. It was at this time that the waiver colloquy
was hastily and peremptorily conducted and that Judge Sabo
determined that Fahy had validly waived his rights.

        We are in full agreement with the Commonwealth that if
a defendant who has participated in a waiver proceeding is then
allowed, without exception, to change his mind whenever he
chooses, the doctrine of waiver will be rendered purposeless.
Moreover, such an indulgence would be bad judicial policy
resulting in frequent hearings and the expenditure of untold
judicial resources. It is the rule in this Circuit that we will not
“review the merits of [a defendant’s] appeal if we conclude that
she knowingly and voluntarily waived her right to appeal unless
the result would work a miscarriage of justice.” United States
v. Shedrick, 

, 297 (3d Cir. 2007) (citations

                                34
omitted). Accordingly, if we were to conclude that Fahy
knowingly and voluntarily waived his right to appeal to this
Court, we would not allow him to change his mind unless the
result would work a miscarriage of justice. Here, however, we
have concluded that Fahy’s purported waiver was not knowing
and voluntary. What we have before us is a record of
equivocation. It does not support an enforceable waiver, which
would deny Fahy federal review of his claims, including his
sentence to death. See United States v. Khattak, 

,
563 (3d Cir. 2001) (endorsing consideration of multiple factors
in deciding whether to relieve the defendant of an otherwise
valid waiver, including “the impact of the error on the
defendant”).

        Thus, we conclude that Fahy’s state court waiver was
invalid and is not a procedural obstacle to the exercise of our
jurisdiction over his habeas petition.

                     B. Procedural Default

       The Commonwealth also argues that we are precluded
from reviewing the merits of Fahy’s habeas petition because his
claims are procedurally defaulted. We reject this argument.

       The doctrine of procedural default prohibits federal
courts from reviewing a state court decision involving a federal
question if the state court decision is based on a rule of state law
that is independent of the federal question and adequate to

                                35
support the judgment. Nara v. Frank, 

, 199 (3d
Cir. 2007) (citations omitted). Procedural default occurs when
“a state court declined to address a prisoner’s federal claims
because the prisoner had failed to meet a state procedural
requirement.” Coleman v. Thompson, 

, 730 (1991).
For a federal habeas claim to be barred by procedural default,
however, the state rule must have been announced prior to its
application in the petitioner’s case and must have been “firmly
established and regularly followed.” Ford v. Georgia, 

, 423–24 (1991). This Court has declared why this
requirement is important:

               First, the test ensures that federal review is
       not barred unless a habeas petitioner had fair
       notice of the need to follow the state procedural
       rule. As we said in Cabrera v. Barbo, “a
       petitioner should be on notice of how to present
       his claims in the state courts if his failure to
       present them is to bar him from advancing them
       in a federal court.”
               Second, the firmly established and
       regularly followed test prevents discrimination.
       Novelty in procedural requirements can be used
       as a means of defeating claims that are disfavored
       on the merits. If inconsistently applied procedural
       rules sufficed as “adequate” grounds of decision,
       they could provide a convenient pretext for state
       courts to scuttle federal claims without federal
       review. The requirement of regular application
       ensures that review is foreclosed by what may

                                36
         honestly be called “rules”—directions of general
         applicability—rather than by whim or prejudice
         against a claim or claimant.


Bronshtein v. Horn, 

, 707–08 (3d Cir. 2005)
(internal citations omitted). Consequently, whether the rule was
firmly established and regularly followed is determined as of the
date the default occurred, not the date the state court relied on it,
because a petitioner is entitled to notice of how to present a
claim in state court. 

(internal citations
omitted).

       As the District Court succinctly summarized, the
Commonwealth’s argument is that all of the claims asserted in
Fahy’s PCRA #3 are procedurally defaulted because they were
raised and waived (and never exhausted),18 and those in PCRA


    18
        A federal court may not grant a writ of habeas corpus
under § 2254 unless the petitioner has “exhausted the remedies
available in the courts of the State.”            28 U.S.C.
§ 2254(b)(1)(A). To do so, a petitioner must “‘fairly present’ all
federal claims to the highest state court before bringing them in
federal court.” Stevens v. Delaware Corr. Ctr., 

,
369 (3d Cir. 2002) (quoting Whitney v. Horn, 

, 250
(3d Cir. 2002)). This requirement ensures that state courts
“have ‘an initial opportunity to pass upon and correct alleged
violations of prisoners' federal rights.’” United States v.
Bendolph, 

, 173 (3d Cir. 2005) (quoting Duckworth

                                37
#4 were raised out of time under the PCRA. Essentially, the
Commonwealth argues that default by waiver and the PCRA
time-bar are adequate state grounds to prohibit federal habeas
review. We disagree and adopt the District Court’s conclusion
that neither default by waiver nor the PCRA time-bar was firmly
established or regularly followed rules as of the date Fahy’s
default occurred. They cannot, therefore, be considered
“adequate” state procedural rules barring consideration of
Fahy’s claims.

       First, the Commonwealth argues that Fahy waived the
claims raised in PCRA #3 when he withdrew his appeal to the
Pennsylvania Supreme Court. We have already concluded that
the waiver was not effective and does not bar our review of his
claims. Even if this were not the case, at the time of Fahy’s
August 1996 waiver, the Supreme Court of Pennsylvania
applied the relaxed waiver doctrine to reach the merits of claims
brought by capital defendants that would otherwise be barred by
waiver. This rule was in recognition of the fact that the
“imposition of the death penalty is irrevocable in its finality.”
Commonwealth v. Zettlemoyer, 

, 942 n.3 (Pa.



v. Serrano, 

, 3 (1981)). However, even if a state court
refuses to consider the claim on procedural grounds, it is still
exhausted as long as the state court had the opportunity to
address it. Nara v. Frank, 

, 198 (3d Cir. 2007)
(citing Bond v. Fulcomer, 

, 309 (3d Cir. 1989)).


                               38
1982). Although the Pennsylvania Supreme Court later
abrogated the doctrine of relaxed waiver, see Commonwealth v.
Albrecht, 

(Pa. 1998) (explicitly abandoning the
practice of relaxed waiver in PCRA appeals), at the time of
Fahy’s purported waiver the Court’s practice was to address all
issues arising in a death penalty case even if the issue had been
waived. Thus, in 1996, default by waiver was not a rule that
was firmly established and regularly followed. It cannot be a
ground for procedural default.

       Fahy’s counsel filed PCRA #4 in November of 1997.
The state court dismissed this petition as untimely pursuant to
Pennsylvania's one-year PCRA statute of limitations, 42 Pa.
Cons.Stat. Ann. § 9545(b)(1).19 Thus, the Commonwealth
argues that Fahy’s claims raised in PCRA #4 are procedurally
defaulted because they are time-barred.

        This Court has held that § 9545(b)(1) was not firmly
established or regularly applied until November 23, 1998, at the
earliest, when the Supreme Court of Pennsylvania decided
Albrecht, 

. See 

–09
(recognizing that petitioner, whose second PCRA petition was
untimely under § 9545(b)(1), had not defaulted federal review
because Pennsylvania previously applied a “relaxed waiver”


   19
      The District Court was correct in concluding that Fahy's
default occurred in August of 1996, when Fahy's time to file a
fourth petition expired.

                               39
rule, under which a claim of constitutional error in a capital case
would not be waived by a failure to preserve it). Thus, the
District Court was correct in determining that Fahy's claims
raised for the first time in PCRA #4 are not barred by procedural
default. See 

.

       Because there are no procedural barriers to our exercise
of jurisdiction, we proceed to the merits of Fahy’s habeas
petition.

                               IV.

        There are six claims presented to this Court for review.
Our standard of review over each claim varies depending on
how that claim was disposed of in the Pennsylvania courts.
Some of the claims were addressed on direct appeal in the state
system, some were “adjudicated on the merits” by Judge Sabo
following Fahy’s third PCRA petition, and others were raised
for the first time in Fahy’s fourth PCRA petition that was time-
barred.20


   20
       When according deference under AEDPA, federal courts
are to review a state court’s determinations on the merits only to
ascertain whether the state court reached a decision that was
“contrary to” or involved an “unreasonable application” of
clearly established Supreme Court law, or if a decision was
based on an “unreasonable determination” of the facts in light
of the evidence presented. 28 U.S.C. § 2254(d). We have

                                40
articulated the appropriate analysis as follows:

               A state court decision is contrary to
       Supreme Court precedent under § 2254(d)(1), if
       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.
               The state court’s decision is an
       unreasonable application of clearly established
       law, under § 2254(d)(1) if the state court: (1)
       unreasonably applies the correct Supreme Court
       precedent to the facts of a case; or (2)
       unreasonably extends or refuses to extend that
       precedent to a new context where it should (or
       should not) apply. 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.
               We have previously held that our analysis
       under § 2254 is a two step process. First, we
       identify the applicable Supreme Court precedent
       and determine whether it resolves the petitioner’s
       claim. If [we determine] that the state court
       decision was not ‘contrary to’ the applicable body
       of Supreme Court law—either because the state
       court decision complies with the Supreme Court

                              41
 A. Failure to Preserve Voir Dire Transcripts as Violative of
                        Due Process

        Fahy argues that the failure to prepare and/or preserve the
transcripts of his voir dire proceedings violated his rights to due
process and a meaningful appeal because he was not afforded a
fair and meaningful opportunity to raise jury selection errors.
He raised this claim in PCRA #4, which was dismissed as
untimely. Because the PCRA court never reached the merits of
this claim, our review is de novo.



       rule governing the claim, or because no such rule
       has been established—then [we] should undertake
       the second step of analyzing whether the decision
       was based on an ‘unreasonable application of’
       Supreme Court precedent.

Shelton v. Carroll, 

, 436–37 (3d Cir. 2006)
(internal citations omitted).
        The claims that come to us from Fahy’s fourth PCRA
petition, however, were time-barred and the PCRA court never
reached the merits of those claims. When “the state court has
not reached the merits of a claim thereafter presented to a
federal habeas court, the deferential standards provided by
AEDPA . . . do not apply.” Appel v. Horn, 

, 210
(3d Cir. 2001). “In such an instance, the federal habeas court
must conduct a de novo review over pure legal questions and
mixed questions of law and fact, as a court would have done
prior to the enactment of AEDPA.” Id.; 

.

                                42
        It is indisputably true that a criminal defendant has the
right to an adequate review of his conviction, i.e., a sufficiently
complete record. Mayer v. City of Chicago, 

, 198
(1971). However, as the District Court aptly pointed out, neither
the Supreme Court, nor our Court, has held that due process
requires a verbatim transcript of the entire proceedings or that an
incomplete record confers automatic entitlement to relief.21 This
Court has recognized a defendant’s request for a complete
transcript only when the defendant has shown a “colorable
need” for the transcript. Karabin v. Petsock, 

, 969
(3d Cir. 1985) (citing 

). Specifically,
“[a] criminal defendant must first show a ‘colorable need’ for a
complete transcript before the state must meet its burden of


     21
          See, e.g., Scott v. Elo, 

(6th Cir. 2002)
(explaining that the Supreme Court decision in Mayer v. City of
Chicago, 

, 198 (1971), “does not stand for the
proposition . . . that where a portion of a trial transcript is
missing and unobtainable, and where a defendant makes a claim
that could possibly implicate that portion of the transcript, a
retrial is always necessary. Rather, . . . federal habeas relief
based on a missing transcript will only be granted where the
petitioner can show prejudice.”); Stirone v. United States, 

, 256 (3d Cir. 1965) (failure of stenographer to
transcribe voir dire was harmless error where “[t]here is no
accusation even in this late collateral suit that there was error of
any kind in the voir dire examination itself or that the failure of
the stenographer to record the voir dire resulted in substantial
error.”).

                                43
showing that something less will suffice.” 

has not shown a “colorable need” for the voir dire transcript, we
will deny relief on this claim.

        With the exception of a Batson claim,22 Fahy alleges no
other specific instance of wrongdoing arising out of the voir
dire.23 Tellingly, Fahy does not even submit an affidavit from
trial counsel, Daniel H. Greene, alleging the possibility that error


   22
     As set forth below, Fahy does not have standing to pursue
a Batson claim. Accordingly, Batson does not provide Fahy
with a “colorable need” for the voir dire transcript.
    23
         Counsel admitted as much in oral argument before this
Court:

          THE COURT: “Isn’t your adversary correct that our
Karabin decision makes that pretty tough for you?”
          COUNSEL FOR FAHY: “Karabin says show need.
Show us why you need this transcript before—”
          THE COURT: “That has to be more than ‘because I
might be able to find something,’ right?”
          COUNSEL FOR FAHY: “I wish it wasn’t, but it is more
than that.”
          THE COURT: “Yes, so what are you offering us?”
          COUNSEL FOR FAHY: “Sure. And what we’re offering
you is a Batson claim, and the Batson claim that has something
to it. . . .”

N.T. 69–70 ¶ 19–24, 1–9.

                                44
occurred during the voir dire.24 This Court in Karabin found the
fact that the defendant had “not shown that trial counsel w[as]
unavailable to appellate counsel when and if needed” relevant
to the “colorable claim” inquiry. 

(holding that Karabin had not shown a “colorable need” for the
transcripts of opening and closing statements, and thereby
rejecting his contention of a due process violation).

       Simply stated, Fahy has not provided this Court with any
concrete claims of error occurring during the jury selection
process that would justify a reconstruction of the record of that
voir dire proceeding almost twenty-five years later.

                         B. Batson Claim

        Fahy alleges that the prosecution used its peremptory
strikes to challenge jurors in a racially discriminatory manner in
violation of the Supreme Court’s holding in Batson v. Kentucky,

(1986). This claim was raised in PCRA #4 and is
subject to de novo review.

      In Batson, the Supreme Court held that a defendant could
make out a prima facie case of racial discrimination in the
prosecution’s use of peremptory challenges by using proof


    24
        Fahy does submit an affidavit from Greene on another
issue, thus indicating his ability to procure such a statement if it
could be helpful.

                                45
adduced solely from his own case, as opposed to the systematic
showing of exclusion required by Swain v. Alabama, 

(1965). Batson further held that if the facts establish, prima
facie, purposeful discrimination and the prosecutor does not
come forward with a neutral explanation for his action, the
petitioner’s conviction must be reversed. 

(citing Whitus v. Georgia, 

, 549–50 (1967);
Hernandez v. Texas, 

, 482 (1954); Patton v.
Mississippi, 

, 469 (1947)). Establishing a prima
facie case explicitly required the defendant to “show that he is
a member of a cognizable racial group, and that the prosecutor
has exercised peremptory challenges to remove from the venire
members of the defendant's race.” 

(internal citation omitted) (emphasis added).

       In 1991, the Supreme Court decided Powers v. Ohio and
held that a defendant’s race is irrelevant to his standing to object
to the prosecutor’s racially discriminatory use of peremptory
challenges. 

(1991).

        There is no question that Batson would apply to Fahy’s
case—Batson was decided in April of 1986 and Fahy’s case did
not become final until January of 1987. However, Fahy is white
and he is objecting to the exclusion of African-Americans from
his jury. Because Powers was decided in 1991, we must decide
whether we can apply it retroactively to Fahy’s claim. The
answer to this question lies in the resolution of whether Powers
is a “new rule.”

                                46
        We will not apply a new rule to cases on collateral review
unless it falls within one of the exceptions set forth in Teague v.
Lane, 

, 301 (1989).25 Fahy does not argue that
Powers falls within one of the two Teague exceptions; rather, he
argues that the holding in Powers is not a new rule and thus,
there is no barrier to it being applied to his case on collateral
review.

        In Teague, the Court explained that “a case announces a
new rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government. . . . [A]
case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became

. The Supreme Court has indicated that
if the outcome is susceptible to debate among reasonable minds,


  25
     The Court in Teague held that “implicit in the retroactivity
approach we adopt today . . . is the principle that habeas corpus
cannot be used as a vehicle to create new constitutional rules of
criminal procedure unless those rules would be applied
retroactively to all defendants on collateral review through one
of the two exceptions we have 

.
Thus, a new rule will be applied retroactively only in two
instances: first, if the rule “places certain kinds of primary,
private individual conduct beyond the power of the criminal
law-making authority to proscribe,” and second, “if it requires
the observance of those procedures that . . . are implicit in the
concept of ordered liberty” that are “watershed rules of criminal
procedure.” 

(internal quotations omitted).

                                47
a new rule has been announced. See Butler v. McKellar, 

, 415 (1990). The Court reiterated this principle in
Williams v. Taylor when it explained that a rule “is not dictated
by precedent unless it would be ‘apparent to all reasonable
jurists.’” 

, 409 (2000) (quoting Lambrix v.
Singletary, 

, 528 (1997)). The “new rule”
principle, then, lends itself to validating reasonable, good-faith
interpretations of existing precedents made by state courts even
though they are shown to be contrary to later decisions. 

States v. Leon, 

, 918–19 (1984) (deciding
not to apply the exclusionary rule when officers acted in the
objectively reasonable belief that their conduct did not violate
the Fourth Amendment, even if it was later determined that their
actions did violate the Fourth Amendment).

       Fahy argues that the rule in Powers is not a new rule
because it was dictated by Batson and the Supreme Court’s
jurisprudence on third-party standing. He argues that, at the
time his conviction became final, any state court not extending
Batson to a white defendant challenging the exclusion of
African-American jurors would have been “objectively
unreasonabl[e].” See O’Dell v. Netherland, 

, 156
(1997). We reject this argument. Batson explicitly required, as
part of the prima facie showing, that the defendant be of the
same race as the excluded juror. Clearly then, it was not
“objectively unreasonable” for a court prior to Powers to refuse
to extend Batson to a white defendant challenging the exclusion
of African-American jurors.        Tellingly, four courts of

                               48
appeals—after Batson was decided but before Powers—required
that the defendant and the excluded juror be of the same race in
order to assert a Batson claim. United States v. Rodriquez, 

, 392 (11th Cir. 1989); United States v. Angiulo, 

, 984 (1st Cir. 1988); United States v. Townsley, 

, 1190 (8th Cir. 1988) (en banc); United States v.
Vaccaro, 

, 457 (9th Cir. 1987).

        We recognize that the Powers Court cited Batson to
support its holding. Specifically, it noted that Batson was not
limited to the harm caused to the defendant when members of
his own race were excluded from the jury. 

(citing 

–88). Rather, Batson “was
designed ‘to serve multiple ends,’ only one of which was to
protect individual defendants from discrimination in the
selection of jurors. Batson recognized that a prosecutor’s
discriminatory use of peremptory challenges harms the excluded
jurors and the community at large.” Id. (citing 

–88) (internal citations omitted).

        We do not dispute that Batson arguably presages Powers.
However, even assuming that to be true, it does not follow that
the rule in Powers was “dictated by” the rule in Batson, such
that the outcome in Powers was not susceptible to debate among
reasonable minds. Indeed, the dissent in Powers itself makes
clear the extent to which just such a debate was taking place at
the time.



                              49
        The Powers dissent characterized the majority’s opinion
as a “clear departure” from “prior law.” 

Two
Justices dissented from the Powers decision because they
believed that Batson challenges should proceed only when there
is racial identity between the defendant and the excluded jurors.

(Scalia, J., dissenting, joined by Rehnquist, C.J.)
(“[B]oth before and after Batson, and right down to the release
of today’s opinion, our jurisprudence contained neither a case
holding, nor even a dictum suggesting, that a defendant could
raise an equal-protection challenge based upon the exclusion of
a juror of another race; and our opinions contained a vast body
of clear statement to the contrary.”). Additionally, after Powers,
five courts of appeals addressed whether Powers applies
retroactively and each has held that it does not. Echlin v.
LeCureux, 

(6th Cir. 1993) (“We agree . . . that
Powers announced a new rule insofar as it extended Batson to
cover challenges by a white defendant to the prosecutor’s
exclusion of black jurors.”); Holland v. McGinnis, 

(7th Cir. 1992); Jones v. Gomez, 

(9th Cir.
1995); Nguyen v. Reynolds, 

(10th Cir. 1997);
Farrell v. Davis, 

(11th Cir. 1993).

        Accordingly, we are persuaded that Batson did not dictate
the result in Powers. Therefore, Fahy’s Batson claim fails
because Powers was a new rule decided after judgment was
final in his case.

                     C. Confession Claim

                               50
        Fahy alleges that his confession was involuntary and the
product of an unconstitutional waiver. Accordingly, he
contends that its admission at trial violated his rights under the
Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution.26 Fahy further argues that trial counsel was
ineffective for failing to properly present evidence of his mental
health problems to the suppression court to show the involuntary
nature of his confession.

                  1. Involuntary Confession

        Fahy raised the issue of the voluntariness of his
confession on direct appeal from his conviction and capital
sentence.27 The suppression court found, and the Pennsylvania
Supreme Court affirmed, that the evidence supported the finding
that Fahy’s confession had been voluntary and that Fahy had
knowingly and intelligently waived his Miranda rights. Fahy 

(“Our review of the conflicting testimony
illustrates that Appellant, in fact, was informed of the charges



  26
     Specifically, Fahy alleges that the confession was obtained
by exploiting his mental, emotional and physical impairments,
and his dependence on large doses of anticonvulsant medication
to control his epilepsy.
  27
     “Claims that state courts have incorrectly decided Miranda
issues . . . are appropriately considered in federal habeas
review.” Thompson v. Keohane, 

, 107 n.5 (1995).

                               51
against him, advised of the nature of the questioning, and
cognizant of his constitutional rights.”). Because this claim was
adjudicated on the merits in state court, it is entitled to deference
under AEDPA.28 In order for Fahy to succeed on the merits of
his confession claim, he must demonstrate, and this Court must
accept, that the state court’s determination was “contrary to”
clearly established federal law or reflected “an unreasonable
application of” that law. 28 U.S.C. § 2254(d). In doing so, the
appropriate focus of habeas corpus review is the suppression
hearing conducted in the state trial court and the findings of fact
made by the court before denying the motion to suppress.
Schmidt v. Hewitt, 

, 798 (3d Cir. 1978).

        Our first task is to identify the relevant federal law, as
determined by the Supreme Court.               For purposes of
§ 2254(d)(1), clearly established law “refers to the holdings, as
opposed to the dicta, of th[e] Court’s decisions as of the time of
the relevant state-court decision.” Williams v. Taylor, 

, 412 (2000). We must identify “the governing legal
principle or principles set forth by the Supreme Court at the time
the state court renders its decision.” Lockyer v. Andrade, 

, 71–72 (2003).

       Miranda itself held that “[t]he defendant may waive
effectuation” of the rights conveyed in the warnings “provided
the waiver is made voluntarily, knowingly and intelligently.”


   28
        See supra notes 9 & 14.

                                  52
Miranda v. Arizona, 

, 444 (1966). The inquiry has
two distinct dimensions:

      First, the relinquishment of the right must have
      been voluntary in the sense that it was the product
      of a free and deliberate choice rather than
      intimidation, coercion, or deception. Second, the
      waiver must have been made with a full
      awareness of both the nature of the right being
      abandoned and the consequences of the decision
      to abandon it. Only if the “totality of the
      circumstances surrounding the interrogation”
      reveal both an uncoerced choice and the requisite
      level of comprehension may a court properly
      conclude that the Miranda rights have been
      waived.


Moran v. Burbine, 

, 421 (1986). The ultimate
question in the voluntariness calculus is “whether, under the
totality of the circumstances, the challenged confession was
obtained in a manner compatible with the requirements of the
Constitution.” Miller v. Fenton, 

, 112 (1985).

       Consistent with Schmidt’s instruction, we look to the
suppression hearing and that court’s findings of fact to
determine whether the Pennsylvania Supreme Court’s
adjudication of the confession claim was “contrary to” this



                              53
applicable federal law or reflected “an unreasonable application
of” the law.

       After reviewing the transcript of the suppression hearing
and that court’s findings of fact,29 we are satisfied that they are
accurately reflected in the Pennsylvania Supreme Court’s
analysis of the confession claim. The Pennsylvania Supreme
Court’s discussion of the confession is as follows:




  29
      The suppression court found that Fahy arrived voluntarily
to be interviewed, that he was advised that there were two
warrants for his arrest on rape charges and that he was taken into
custody at 10:15 p.m. It found that he was advised of his rights
and that he waived his right to remain silent and his right to have
an attorney present, and that the waiver was recorded in his own
hand. The suppression court found that he orally confessed to
the killing, signed the confession statement, and that the
confession was not the product of threats or coercion. Further,
the suppression court found that Fahy was lucid and did not
claim to be under the influence of drugs.
        In its conclusions of law, the suppression court
recognized that “the ultimate test for voluntariness is whether
the confession is the product of an essentially free and
unconstrained choice by its maker.” Commonwealth v. Alston,

, 243 (Pa. 1974). In determining that Fahy’s
confession was voluntary, the court considered the duration of
the interrogation; the allowance of time for rest; food and use of
toilet facilities; and the lack of physical coercion and threats.

                                54
When faced with conflicting testimony, a
suppression court, as factfinder, may pass upon
credibility, and these findings will not be
disturbed when supported by the record.
Commonwealth v. Guest, 

, 

(1983); Commonwealth v. Firth, 

, 

(1978). The record reveals and
the suppression court found that the evidence
introduced by the prosecution was more credible
than that of Appellant, and, therefore, the court
refused to grant the motion to suppress.

At the suppression hearing, Detectives Chitwood
and Rosenstein testified to the events surrounding
the arrest and subsequent confession. Their
testimony established that Appellant voluntarily
appeared at the Philadelphia Police Sex Crimes
Unit and was taken to the Police Administration
Building for questioning regarding two warrants
for rape. Detective Chitwood proceeded to inform
Appellant that he was the prime suspect in the
rape and murder of Nicky Caserta. The detective
advised Appellant of his constitutional rights by
placing a standard police form containing the
Miranda rights in front of him and at the same
time reading the warnings to him aloud. Appellant
indicated his decision to waive his rights by
initialing a standard police form containing both
the warnings and questions regarding his
understanding of his rights. At first, Appellant


                       55
denied his involvement in the Caserta killing.
However, after being shown pictures of the
victim’s body, Appellant exclaimed, “I did it, I
did it.” Appellant then confessed to the crimes,
giving a detailed description of how he raped and
killed young Nicky Caserta. Appellant also gave
the exact location of where he disposed of the
murder weapon and later guided the police
officers to the sewer where the knife was hidden.

After reading the statement, Appellant affixed his
signature to each individual page of the ten page
document. Detective Chitwood testified that
during the interview and confession Appellant
was alert and responsive. Throughout the
questioning, Appellant was neither threatened nor
coerced by the police, and denied being under the
influence of drugs. The complete interview lasted
approximately one and one-half hours.

Appellant’s testimony at the suppression hearing
was totally contradicted by the testimony of the
Commonwealth’s witnesses. Appellant claimed
his confession was not voluntarily obtained.
Appellant also claims his confession was not
properly extracted, in that during the police
questioning he experienced fatigue and the effects
of his seizure and depression medication. We
stated in Commonwealth v. Jones, 

,
432–33, 

, 125 (1974), “Intoxication


                       56
is a factor to be considered, but it is not sufficient,
in and of itself to render a confession
involuntary.” “The test is whether there was
sufficient mental capacity for the defendant to
know what he was saying and to have voluntarily
intended to say it.” Commonwealth v. Culberson,

, 428, 

, 417 (1976). See
also[] Commonwealth v. Manning, 

,

(1981); Commonwealth v. Smith,

, 

(1972).

The duty of the suppression court is to determine
whether the Commonwealth has established by a
preponderance of the evidence that the confession
was voluntary and that the waiver of
constitutional rights was knowing and intelligent.
Jones, 

on review is to
determine whether the record supports the factual
findings of the trial court and to determine the
legitimacy of the inferences and legal conclusions
drawn from those findings. Commonwealth v.
Kichline, 

, 

(1976);
Commonwealth v. Goodwin, 

, 

(1975). Reviewing Appellant's
arguments in light of the previously espoused
standard, we are convinced the suppression court
was correct in ruling that Appellant's statements
were admissible. Our review of the conflicting
testimony illustrates that Appellant, in fact, was
informed of the charges against him, advised of


                         57
       the nature of the questioning, and cognizant of his
       constitutional rights.

Fahy 

–11.

       On direct appeal, as the District Court recognized, the
Supreme Court of Pennsylvania did not cite to any United States
Supreme Court precedent or use “totality of the circumstances”
language in reviewing the merits of Fahy’s confession claim.
Instead, the Supreme Court of Pennsylvania appropriately relied
on its own state court cases, which articulated the proper
standard.30

  30
      See, e.g., Commonwealth v. Jones, 

, 124 (Pa.
1974) (“The United States Supreme Court has made it clear that
there is no simple litmus paper test for determining whether a
confession is involuntary. Instead, courts must consider the
totality of the circumstances surrounding the confession. The
burden is on the Commonwealth to demonstrate that the
accused’s will was not overborne, either through physical or
mental pressure and that the statement issued from free choice.”)
(citations omitted); Commonwealth v. Kichline, 

,
290 (Pa. 1976) (“All attending circumstances surrounding the
confession must be considered in this determination. These
include: the duration and methods of the interrogation; the
length of delay between arrest and arraignment; the conditions
of detainment; the attitudes of the police toward defendant;
defendant’s physical and psychological state; and all other
conditions present which may serve to drain one’s power of
resistance to suggestion or to undermine one’s self-

                               58
        Because the state court applied the correct rule, Fahy’s
entitlement to relief depends on whether application of that rule
was contrary to established federal law or an unreasonable
application of that law. Based on the principles already
articulated, we conclude that the state court’s decision complies
with the Supreme Court’s mandate to consider the totality of the
circumstances and is therefore not “contrary to” the applicable
body of Supreme Court law existing at the time. The decision
was also not an “unreasonable application” of that precedent.
The suppression court was entitled to make the credibility
determination that it did in the face of conflicting testimony, and
it applied the correct law to its findings of fact and came to a
reasonable conclusion. On review, the Supreme Court of
Pennsylvania applied the proper standard and was reasonable in
affirming the suppression court’s legal conclusions in light of
the evidence presented and the applicable law.

                    2. Ineffective Assistance



determination.”); Commonwealth v. Goodwin, 

,
895 (Pa. 1975) (“Further, in determining the voluntariness of the
waiver, all attending factors and circumstances must be
considered and evaluated: [T]he duration, and the methods of
interrogation; the conditions of detention, the manifest attitude
of the police toward the defendant, the defendant’s physical and
psychological state and all other conditions present which may
serve to drain one’s powers of resistance to suggestion and
undermine his self-determination.”).

                                59
       Fahy argues that his trial counsel was ineffective for
failing to investigate and present mental health evidence in
support of the motion to suppress his confession. We infer that
Fahy believes we should review this claim de novo, as he asserts
there was no “adjudication on the merits” of this claim in state
court. We disagree. Fahy first raised this claim in PCRA #3,
and we agree with the District Court that there was an
adjudication on the merits by the PCRA court in Judge Sabo’s
October 25, 1995, Findings of Fact and Conclusions of Law
(“1995 Opinion”).31

       Fahy argues that the ineffective assistance claim
presented in PCRA #4 and on review in this habeas petition is
distinct from the claim presented in PCRA #3 and decided upon


   31
        In the 1995 Opinion, Judge Sabo concluded:

        Trial counsel was effective in litigating
        defendant’s motion to suppress and could not
        have advanced his claim with expert psychiatric
        testimony . . . . Trial counsel did present evidence
        that defendant had mental problems, but the thrust
        of his motion was that the police tricked
        defendant into signing a blank form on which the
        police wrote the confession. Defendant’s
        supposed mental problems had little, if anything,
        to do with the alleged ruse. Defendant’s motion
        was incredible, with or without, expert testimony,
        and this Court properly rejected it.

                                60
by Judge Sabo. His actual claim, he alleges, is that effective
counsel would have presented mental health evidence to support
the contention that his confession was not voluntary, knowing
and intelligent. This claim, he argues, is different from that
which Judge Sabo decided—whether effective counsel would
have presented mental health evidence to support the claim that
he was tricked into making the statement.

        In the context of Fahy’s testimony at the suppression
hearing, we are convinced that this is a distinction without a
difference. Fahy testified that he never confessed to the murder
of Nicky Caserta. His contention during the entirety of the
suppression hearing was that at no point during the interrogation
did he ever admit to having anything to do with her death. He
testified that he never signed a confession and that he
consistently denied all involvement to the detectives. We fail to
see how mental health testimony during this hearing would have
brought anything to bear on whether his confession was
knowing, intelligent and voluntary. Fahy does not contend that
he was psychologically coerced into giving a confession, or that
the detectives intimidated or tricked him into giving a
confession, or even that he was unable to understand and
comprehend the situation due to mental health deficiencies;32
rather, he testified that he made no confession at all.


  32
     During the suppression hearing, Fahy admitted that he was
“very aware of what was going on . . . [j]ust uncomfortable and
wanted to get out of there.”

                               61
        Thus, we agree with the District Court that there was an
“adjudication on the merits” in state court when Judge Sabo held
that counsel was not ineffective for failing to present expert
psychiatric testimony. Therefore, in order for Fahy to succeed
on this claim, he must convince this Court that the state court’s
determination was “contrary to” clearly established federal law,
or reflected an unreasonable application of that law. 28 U.S.C.
§ 2254(d).

        In order to succeed on a claim of ineffective assistance,
Fahy must show that the state court’s decision is either contrary
to, or involves an unreasonable application of, the standard set
forth in Strickland v. Washington, 

(1984). Thus,
to prevail, Fahy must show that his counsel failed to perform
adequately33 and that actual prejudice occurred as a result.

–94. “The defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 

Alternatively, Fahy must show that the state court applied
Strickland unreasonably to the facts of his case.



  33
     “This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” 

–94.

                               62
         As previously stated, Fahy testified at the suppression
hearing and at trial that he did not give the police a detailed
confession; he argued that he signed blank forms. At no point
does he contend that he would have given the completely
contradictory testimony of admitting to making the confession
if trial counsel had investigated and raised issues of his mental
health with respect to the voluntariness of the confession.
Moreover, Fahy admitted at the suppression hearing that he was
aware of what was occurring at the time he was questioned.

        Even assuming that Fahy’s counsel introduced mental
health reports, we fail to see how the result would have been
different. While Fahy points to conclusions from psychiatric
reports before and after trial, he does not explain how the
conclusions in those reports would make him more susceptible
to coercion, much less bear on his denial of making any
confession at all. Thus, trial counsel did not perform deficiently
by failing to introduce such evidence. Further, given the facts,
we can only conclude that the state court’s finding—that trial
counsel could not have advanced his claim with expert
psychiatric testimony such that his failure to introduce such
testimony did not constitute deficient performance—was
reasonable.

        Finally, we agree with the District Court that Fahy has
not presented evidence of a reasonable probability that, despite
the strength of the other evidence (including his admission at
trial that he told the police, his mother, and his girlfriend that he

                                63
had killed Nicky Caserta), the exclusion of the confession would
have altered the results of the trial. See Fahy v. Horn, 

, *46. Fahy is not entitled to relief on this claim.

                 D. Prosecutorial Misconduct

        Fahy asserts four instances of prosecutorial misconduct
which he contends were so prejudicial as to entitle him to relief
from his conviction. In evaluating such claims, we consider
“whether the prosecutors’ comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’” Darden v. Wainwright, 

, 181 (1986)
(citation omitted). The Supreme Court further instructs that, for
due process to have been offended, “the prosecutorial
misconduct must be ‘of sufficient significance to result in the
denial of the defendant's right to a fair trial.’” Greer v. Miller,

, 765 (1987) (citing United States v. Bagley, 

, 676 (1985) (quoting United States v. Agurs, 

, 108 (1976))). See also Ramseur v. Beyer, 

,
1239 (3d Cir. 1992) (holding that our review of a prosecutor’s
conduct in a state trial in a federal habeas proceeding is limited
to determining whether the prosecution’s conduct “so infect[ed]
the trial with unfairness as to make the resulting conviction a
denial of due process.” (quoting 

)). This
determination requires us “to distinguish between ordinary trial
error and that sort of egregious misconduct which amounts to a
denial of constitutional due process.” 

(quoting United States ex rel. Perry v. Mulligan, 

674, 678 (3d Cir. 1976)). Because we are satisfied that the
prosecutor’s comments, considered both individually and
cumulatively, did not amount to a denial of due process, we
reject Fahy’s claim of prosecutorial misconduct.

          1. The Prosecutor’s Comment About Incest

       Fahy alleges that the prosecutor suggested in her closing
argument that he had an incestuous relationship with Nicky
Caserta. Fahy raised this claim as an ineffective assistance of
counsel claim in PCRA #3 and it was rejected. The District
Court was correct in concluding that the claim was “adjudicated
on the merits” and entitled to § 2254(d) deference.

        Fahy contends that his case had nothing to do with incest
and that the prosecutor’s comments were simply an attempt to
inflame the passions of the jury. The PCRA court concluded
that the prosecutor did not suggest that Fahy himself committed
incest but was instead responding to the defense’s argument that
Fahy could not have raped and murdered the victim because he
loved her. According to the PCRA court, trial counsel was not
ineffective for failing to assert a baseless objection. We agree
with the District Court’s conclusion that this decision was not
contrary to or an unreasonable application of United States
Supreme Court precedent. Again, the PCRA court did not cite




                               65
to Supreme Court precedent; however, it appropriately relied on
its own state court cases, which articulate the proper standard.34

       A significant part of Fahy’s defense strategy was to
persuade the jury that he had a close, loving relationship with
Nicky Caserta, and therefore, could not have killed her. In her
closing argument, the prosecutor noted that the only witness



  34
      See, e.g., Commonwealth v. Green, 

, 561–62
(Pa. 1990) (citing with approbation observations made by Chief
Justice Burger in United States v. Young, 

, 10 (1985):

       [Our] standards reflect a consensus of the
       profession that the courts must not lose sight of
       the reality that [a] criminal trial does not unfold
       like a play with actors following a script. It should
       come as no surprise that in the heat of argument,
       counsel do occasionally make remarks that are not
       justified by the testimony, and which are, or may
       be, prejudicial to the accused. Nevertheless, a
       criminal conviction is not to be lightly overturned
       on the basis of a prosecutor’s comments standing
       alone, for the statement or conduct must be
       viewed in context; only by so doing can it be
       determined whether the prosecutor's conduct
       affected the fairness of the trial.

and quotations omitted)).


                               66
who testified to a close relationship between Fahy and his victim
was Fahy himself. The prosecutor argued that

       [n]ot one other person that took that stand, except
       the defendant, ever said that Nicky used to come
       over and kiss the defendant. Was that part of their
       little scenario to have you believe that they were
       so close and loving? And ladies and gentlemen,
       even if they were close, which the evidence would
       not indicate, it would simply indicate that she
       knew him because he was her aunt’s boyfriend.
       She saw him because he lived with [her] aunt
       when she went to visit [her young cousin]. But,
       ladies and gentlemen, you’ve heard of incest.
       And incest occurs even when it’s your natural
       child, unfortunately, in this society and other
       societies. In this case, it’s not a natural
       relationship, it was not a blood relationship. So
       the fact that she knew the defendant is only one
       more little piece of the puzzle.

The prosecutor’s argument was simply this: if sexual abuse can
occur in a blood relationship, then a fortiori, it can occur in a
non-blood relationship, albeit a “loving” one. This argument
was proper and logical when responding to the defense’s
argument that Fahy could not have raped and murdered Nicky
Caserta because he loved her. Therefore, such a comment did
not render Fahy’s trial fundamentally unfair, and the state
court’s decision that Fahy’s right to due process had not been
violated was not contrary to or an unreasonable application of


                               67
clearly established federal law.

               2. Prior Incarceration Comment

        The second allegation is that the prosecutor intentionally
and improperly elicited testimony of a prior incarceration from
Fahy. On direct appeal, the Supreme Court of Pennsylvania
noted that Fahy’s answer was unsolicited and promptly stricken.
Fahy 

. It further observed that the answer did
not indicate that he was convicted of a crime or the nature of the
crime, and the comment was not exploited later in the trial or
during closing arguments. 

Court concluded that
the “single, unintentional reference did not inflame the passions
and prejudices of the jury to the extent that Appellant was
denied a fair trial.” 

Court concluded that the
state court’s decision was not contrary to or an unreasonable
application of Supreme Court precedent. We agree.

       The questioning by the prosecutor proceeded as follows:

       Q. Mr. Fahy[,] approximately how long did you live at
       2063 East Rush Street?

       A. For about two years.

       Q. And how often did you during that two year period
       did you live there?

       A. Very often.

       Q. For approximately how many months in the year of

                               68
1980 did you live there?

A. Months?

Q. Yes. How many of the months in 1980 did you live
there?

A. As far as I know, all of them.

Q. You were never living anywhere else besides 2063 in
1980?

A. Not that I can remember; no.

Q. In 1979, how many months did you live there?

A. ‘79

(There was a long extended pause.)

I’m not sure. I think I was-(Pause) I think I could have
been locked up for-

Mr. Greene: Objection.

THE COURT: Strike from the record the witness’ last
answer to that question as not being responsive. Mr.
Fahy, would you please answer specific questions? Don’t
volunteer, or go into-

THE WITNESS: I’m trying to, Your Honor.

                       69
       THE COURT: The question was, how many months and
       you can tell us how many months. Now, you can’t—

       THE WITNESS: Well, I am— I believe that me and
       Cookie [Fahy’s then-girlfriend] got in a few arguments
       and I was away from the house-oh, for maybe about a
       day or two, at my mother’s or different places until
       Cookie cooled down. But, I don’t believe I was ever
       away from the house in ‘79 for any month at all.

       Fahy argues that “the prosecutor knew or should have
known that probing repeatedly into Mr. Fahy’s whereabouts at
the time in question would likely lead to his prior incarceration
being revealed. In fact, that was the manifest purpose of the line
of questioning.” The record fails to support this argument.

        As the District Court pointed out, the question posed
called for no more than a simple numerical answer. The
prosecutor asked Fahy directly how many months during 1979
he lived across the street from Nicky Caserta. As for any
wrongful purpose behind the question, the prosecutor clarified
at side-bar that Fahy lied on direct examination when he said
that he lived at the house across the street from the victim for
two years, because for most of those years he was in and out of
jail. It was permissible, therefore, for the prosecutor to ask a
question designed to place the defendant’s credibility in
question, and to undermine his contention that he had a close
relationship with his victim. This claim provides no basis for a
finding of prosecutorial misconduct. And assuming, arguendo,
that there was improper conduct on the part of the prosecutor,
the Pennsylvania Supreme Court correctly identified that the

                               70
applicable test is ultimately whether that conduct denied the
defendant a fair trial. Fahy 

. That Court’s
conclusion that Fahy was not denied a fair trial is neither
contrary to nor an unreasonable application of United States
Supreme Court precedent.

            3. “Representative of Satan” Comment

      Fahy alleges that the prosecutor improperly referred to
Fahy as a “representative of Satan.” He raised this claim in
PCRA #4, which was dismissed as untimely without a review of
the merits. We review this claim de novo.

        In his closing argument, defense counsel suggested to the
jury that whoever killed Nicky Caserta was “some representative
of Lucifer or Satan,” a “reprobate” and a “profligate.” In
response, the prosecutor used defense counsel’s own words to
argue that the evidence demonstrated that Fahy committed the
killing, and thus, Fahy was the “representative of Satan.”
Specifically, at the start of her closing argument, the prosecutor
stated:

       And if there is a reprobate, profligate, and a
       representative of Satan who committed this act,
       the evidence in this case indicates that the
       representative of Satan in this case is seated right
       over there. (Indicating to the Defendant.) And, it
       is the defendant in this case because all of the
       evidence in this case so indicates.



                               71
Fahy argues that the prosecutor’s response was “unmistakably
a religious argument, which asserted that Mr. Fahy must be
convicted and put to death because he was literally the devil.”
We disagree.

        We do not condone the characterization of Fahy as
demonic, nor consider it a proper form of argument. However,
the objectionable content was invited by or was responsive to
the closing summation of the defense. See 

. The Supreme Court in United States v. Young
explained that the idea of “invited response” is used not to
excuse improper comments, but to determine their effect on the
trial as a whole. 

, 12 (1985). Specifically, the
Supreme Court has instructed that

       [i]nappropriate prosecutorial comments, standing
       alone, would not justify a reviewing court to
       reverse a criminal conviction obtained in an
       otherwise fair proceeding. Instead . . . the remarks
       must be examined within the context of the trial to
       determine whether the prosecutor’s behavior
       amounted to prejudicial error. In other words, the
       Court must consider the probable effect the
       prosecutor’s response would have on the jury’s
       ability to judge the evidence fairly. In this context,
       defense counsel’s conduct, as well as the nature
       of the prosecutor’s response, is relevant.
       

–12 (citing Lawn v. United
       States, 

(1958)).



                                72
       To put it another way, the fact that a prosecutor’s
comment was invited may have a mitigating effect on the impact
that comment might otherwise have on the jury.

      Here, it is not enough that the prosecutor’s comments
were inadvisable or even objectionable. See 

appropriate standard of review for such a habeas claim is “the
narrow one of due process” to determine whether the
prosecutor’s comments “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.”
Donnelly v. DeChristoforo, 

, 642–43 (1974).

         In light of defense counsel’s closing comments, which
first introduced the notion of Satan’s criminal responsibility into
the proceedings, we are confident that the jury could not have
believed that the prosecutor was arguing that Fahy was literally
the devil—only that the evidence indicated that he committed
the murder, and thus was the “representative of Satan” that
defense counsel had initially referred to. Thus, we reject Fahy’s
contention that this comment so tainted the trial that he was
denied due process.

              4. Comments on Fahy’s credibility

      Fahy argues that the prosecutor repeatedly expressed her
personal opinion that Fahy had testified falsely. He raised this
claim in PCRA #3 and it was rejected. 35 Despite this, the

   35
        The PCRA court concluded that:

        [Defense] counsel argued in closing that the

                                73
District Court concluded that there was no “adjudication on the

       defendant told the truth on the stand in denying
       his guilt and that the Commonwealth witnesses,
       particularly the police officers who recorded
       defendant’s confession, had lied. The prosecutor
       could respond to trial counsel’s argument about
       the credibility of his client, especially where she
       told the jury that she was not expressing her
       personal opinions, but was commenting on the
       evidence.

       The PCRA court’s opinion spent a page discussing the
claim and indicated how it reached the decision:

       The prosecutor did not commit misconduct in
       commenting on the credibility of the defendant.
       Pennsylvania courts have allowed prosecutors
       great leeway in presenting argument based on the
       evidence of record concerning the credibility of
       defense witnesses, especially where, as here, the
       defendant makes credibility an issue. . . . Here
       trial counsel argued in closing that defendant told
       the truth on the stand in denying his guilt and that
       the Commonwealth witnesses, particularly the
       police officers who recorded defendant’s
       confession, had lied. The prosecutor could
       respond to trial counsel’s argument about the
       credibility of his client, especially where she told
       the jury that she was not expressing her personal
       opinion.

                               74
merits” under Chadwick v. Jenecka, 

(3d Cir.
2002), and therefore, it is not entitled to deference. We disagree
with the District Court and conclude that the state court decision
is entitled to § 2254(d) deference. In Chadwick, this Court
noted that “the Supreme Court clearly held that the § 2254(d)
standards apply when a state supreme court rejects a claim
without giving any indication of how it reached its decision.”

v. Angelone, 

, 237 (2000)
(affirming state supreme court’s rejection of a claim without
explanation, concluding that the adjudication was neither
“contrary to,” nor involved an “unreasonable application of,”
any of its decisions)).36 At all events, we agree with the District
Court with regard to the merits of the claim.

      The first allegedly improper statement occurred while the
prosecutor was cross-examining Fahy:

         Q: Didn’t you just say that you were seeing her?

         A: I was seeing—I said I used to. I was seeing no one at
         the time. I was with Cookie. I went with Cookie for

    36
         While we realize that the state supreme court never
reached the merits of Fahy’s third petition because of his waiver,
we believe that deference still applies to the PCRA court’s
decision. See 28 U.S.C. § 2254(d) (“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 . . . .”)
(emphases added)).

                                75
       good, so if you want to try to get a few things into my
       mind and get them twisted, you know, it’s up to you.

       Q: Why don’t you just answer questions?

       A: I’m trying to answer the question as best I can. You
       want me to tell you what you want.

       Q: All I want from you, Mr. Fahy, is the truth, if you
       know what that is.

Defense counsel objected to this last statement and asked for a
mistrial. The trial court denied the request but instructed the
jury to disregard the remark. Defense counsel later objected to
statements made during the prosecution’s closing argument.
The prosecutor, in discussing Fahy’s testimony and credibility,
stated:

       [Defense counsel] said that there is a scenario that
       was presented. Well, from the evidence in this
       case, the scenario that was the defendant’s version
       of what happened was a well-orchestrated
       scenario. Mr. Fahy would have you believe that
       he only talked to his lawyer about his testimony
       once or twice. Is that believeable? The way
       [defense counsel] prepared this case, that he only
       talked to his client once or twice?

              Mr. Fahy took the stand and went through
       an entire day, minute by minute, practically. He
       told you exactly where he placed battery cables

                               76
       and what he did. But, when it came to cross-
       examination, he couldn’t remember the lies he
       told on direct examination. And all of a sudden,
       he gives a completely different answer from the
       morning to the afternoon session. He couldn’t
       remember which lies he was supposed to tell.

      Defense counsel objected to the use of the word “lies”
and the trial court instructed the prosecutor to rephrase her
statement. The prosecutor then pointed to a specific instance of
Fahy’s inconsistent testimony.

        Fahy argues that the prosecutor’s comments in the above
instances were improper statements of her personal belief about
his credibility and thereby prejudiced the jury. If a defendant
testifies on his own behalf, as occurred here, a prosecutor may
attack his credibility to the same extent as any other witness.
See Fitzpatrick v. United States, 

, 315 (1900). This
does not mean, however, that a prosecutor may express his
personal belief in the credibility of a witness or the guilt of a
defendant. See, e.g., Berger v. United States, 

, 88
(1935). When the claim is that a prosecutor’s remark at trial so
infected the trial with unfairness as to make the resulting
conviction a denial of due process, we must examine the
comment in light of the entire proceedings. 

. We do not think that the state court’s decision here
is an unreasonable application of this law. See supra note 35.

      Here, the prosecutor explained to the jury at the
beginning of her closing argument that she could not give her
personal opinion of Fahy’s guilt. She then proceeded during her

                               77
closing to point out the inconsistencies in Fahy’s testimony. Her
comments on Fahy’s preparation for his testimony served as a
suggestion that the jury consider the detailed nature of his
testimony in contrast to his claims that he had discussed it only
“once or twice” with his counsel. The record supports this
argument, in that Fahy’s testimony regarding his whereabouts on
the day of the murder was given in considerable detail. While
the prosecutor’s conclusory use of the word “lies” was
unfortunate, it did not infect the proceedings with unfairness.

       Fahy attempts to argue that while the record supported
the assertion that he made inconsistent statements, it did not
support an inference that both statements were lies. This is
sophistry. Either Fahy signed his Miranda warnings or he did
not; only one statement could be true.

       Because the prosecutor made it clear that she was not
expressing her personal opinion but was relying on the facts in
the case, we do not believe that her use of the word “lies” or her
comment about Fahy’s credibility made the resulting conviction
a denial of due process. Therefore, we reject Fahy’s claim.

       5. Cumulative Effect of Prosecutorial Comments

       Fahy argues that cumulatively these comments had a
substantial prejudicial effect on the defense. As noted above,
the comments Fahy recites were either not improper, or if they
were improper, not prejudicial. Taken together, their
cumulative effect could not have deprived Fahy of a fair trial.

    E. All Prior Counsel Rendered Ineffective Assistance

                               78
        In catch-all fashion, Fahy asserts that, to the extent that
prior trial and direct appeal counsel failed to properly investigate
and failed to make certain objections at trial, as alleged
throughout his brief, he was provided ineffective assistance of
counsel in violation of his rights under the Sixth and Fourteenth
Amendments. He raised this issue for the first time in PCRA
#4, and we therefore review the claim de novo.

        We “must indulge a strong presumption that counsel’s
conduct falls within a wide range of reasonable professional
assistance.” Berryman v. Morton, 

, 1094 (3d Cir.
1996) (citing 

). That is to say, the
“defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered
sound trial strategy.’” 

(quoting
Michel v. Louisiana, 

, 101 (1955)). Indulging this
presumption after reviewing each of counsel’s claims, we are
satisfied that prior trial and direct appeal counsel (here, the same
counsel in both instances) provided reasonable professional
assistance. Even assuming error by counsel, Fahy has failed to
show that any alleged deficient performance actually prejudiced
his defense. 

. That would require
a showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, i.e., a trial the result of which is reliable.

failed to convince us that he was deprived of a fair
trial, and we deny this claim.

                F. Cumulative Effect of All Errors

       Fahy also argues that the cumulative effect of all of the
errors at trial entitle him to relief. Individual errors that do not

                                  79
entitle a petitioner to relief may do so when combined, if
cumulatively the prejudice resulting from them undermined the
fundamental fairness of his trial and denied him his
constitutional right to due process. Albrecht v. Horn, 

, 468 (3d Cir. 2006). “Cumulative errors are not harmless if
they had a substantial and injurious effect or influence in
determining the jury’s verdict, which means that a habeas
petitioner is not entitled to relief based on cumulative errors
unless he can establish ‘actual prejudice.’” 

v.
Abrahamson, 

, 637 (1993)).

        We have already concluded that the admission of Fahy’s
confession was not error, and that at least two out of the four
challenged prosecutorial remarks were proper comment.
However, even if we were to combine all of the prosecutor’s
allegedly improper remarks with the admission of Fahy’s
detailed confession, there is still weighty evidence of Fahy’s
guilt in the record. The testimony of the Commonwealth’s
witnesses established that the person who killed Nicky Caserta
entered the house between 7:15 a.m., when the child’s mother
left, and 7:30 a.m. when the child was supposed to meet a
schoolmate. The door was locked, so it was unlikely the victim
would have let anyone in the house whom she did not know.
Fahy had told a coworker at 6:45 a.m. that he would pick him up
in five minutes, but then arrived over an hour later looking pale.
Fahy later took a bath and washed his long underwear. Fahy’s
girlfriend testified that he confessed to her, and Fahy himself
testified that he confessed to the killing when speaking with his
mother. The verdict was not, therefore, unreliable.

                         V. Conclusion

                               80
        For the reasons stated, we will vacate the judgment of the
District Court entered on August 26, 2003, to the extent that the
writ was granted on the Mills issue. The matter will be
remanded to the District Court. On remand, the District Court
should apply Teague in conjunction with Beard and deny relief
on the Mills claim. The District Court should consider whether
trial and appellate counsel were ineffective for failing to object
to and litigate the Mills violation. The Court should consider the
remaining sentencing-phase issues, which it initially denied as
moot. The Court’s determination that the guilt phase issues do
not warrant habeas relief will be affirmed.




                               81