2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2009

Lewis v. Horn

Precedential or Non-Precedential: Precedential

Docket No. 06-9007

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 06-9007 and 06-9008

 

REGINALD S. LEWIS,

 Appellant, No. 06-9007

 v.

COMMISSIONER MARTIN HORN,

Pennsylvania Department of Corrections;

CONNOR BLAINE, Superintendent of the

State Correctional Institution at Graterford;

JOSEPH P. MAZURKIEWICZ, Superintendent of the

State Correctional Institution at Rockview

 Martin Horn, Connor Blaine and

 Joseph P. Mazurkiewicz,

 Appellants, No. 06-9008

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 00-cv-00802)

District Judge: Honorable Bruce W. Kauffman

 
2

Argued August 4, 2009

Before: SMITH, FISHER and

VAN ANTWERPEN, Circuit Judges.

(Filed: September 14, 2009 )

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

Attorneys for Reginald Lewis

Joshua S. Goldwert (Argued)

Thomas W. Dolgenos

Ronald Eisenberg

Arnold H. Gordon

Lynne Abraham

Office of the District Attorney

Three South Penn Square

Philadelphia, PA 19107-3499

Attorneys for Martin Horn, Connor Blaine

and Joseph P. Mazurkiewicz

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.
3

In this appeal, we are presented with the difficult task of

considering a Pennsylvania death row inmate’s challenges to his

conviction and sentence, stemming from a trial that occurred

over twenty-five years ago. Appellant Reginald Lewis filed a

petition for a writ of habeas corpus in the District Court seeking

relief from his judgment of conviction and sentence. The

District Court denied Lewis relief from his conviction, rejecting

his arguments that the Commonwealth’s use of peremptory

strikes violated Batson v. Kentucky, 476 U.S. 79 (1986), that his

counsel was ineffective during the guilt phase of his trial, and

that the Commonwealth suppressed exculpatory evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963). But the

District Court was persuaded by Lewis’s arguments that his

counsel rendered constitutionally ineffective assistance at the

penalty phase of his trial and therefore granted relief to Lewis

from his death sentence. Because we conclude that the District

Court committed several errors in its analysis of this claim, we

will vacate its order granting sentencing relief, and remand for

further proceedings consistent with this opinion. We will affirm

the District Court in all other respects.

I.

At approximately 6:30 p.m. on November 21, 1982,

Christopher Ellis was brutally stabbed nine times by a man

wielding a butcher knife in the Oxford Bar, located on Oxford

and Sixth Streets in Philadelphia, Pennsylvania. The stabbing

was observed by all of the patrons of the bar, including the

group that accompanied Ellis to the bar to celebrate the birthday

of one of the members. Following the incident, the police

showed each of the witnesses a photo-array of eight pictures,
4

one of which depicted Lewis, and each witness identified Lewis

as the person who committed the murder. Subsequently, when

the police arrested Lewis for shoplifting from a department

store, he had assumed the name of Booker T. Beatty, Jr. While

still in police custody on that charge, Lewis was arrested

pursuant to an outstanding warrant and charged with the murder

of Christopher Ellis.

A. Trial and Direct Appeal

Over the course of the trial in the Court of Common Pleas

of Philadelphia County, the prosecution produced six

eye-witnesses who identified Lewis as the individual they had

seen commit the murder. Each witness had been familiar with

Lewis as a person who “hung around” the neighborhood. They

all knew him by his first name only, “Reggie” or Reginald.

There was also testimony that frequently Lewis was seen

wearing clear lens, “schoolboy” glasses prior to the incident,

similar to the glasses dropped by the assailant at the scene of the

murder. One witness testified that immediately prior to the

stabbing Lewis and Ellis were arguing over a five dollar debt

Ellis allegedly owed Lewis. The bartender testified that the

assailant was a previous customer at the bar and had a girlfriend

named Stephanie, who was pregnant at the time and lived on the

1600 block of Marshall Street in Philadelphia. The

Commonwealth produced Lewis’s fiancée, Stephanie McCorey,

who testified she was pregnant at the time of the incident and

had previously resided at 1610 N. Marshall Street. The

bartender also testified that Lewis approached him the next day

and told him not to mention Lewis’s name with regard to the

incident. In defense, Lewis maintained he was in San Diego
In a Pennsylvania jury trial, after a first-degree murder 1

verdict “is recorded and before the jury is discharged, the court

shall conduct a separate sentencing hearing in which the jury

shall determine whether the defendant shall be sentenced to

death or life imprisonment.” 42 Pa. Cons. Stat. Ann.

§ 9711(a)(1).

5

visiting his brother, Michael, at the time of the incident. In

support of this claimed alibi defense, Lewis produced his

brother and other family members to corroborate the story.

On August 1, 1983, the jury found Lewis guilty of firstdegree murder and possession of an instrument of crime.

During the penalty phase, the Commonwealth sought to 1

establish the aggravating circumstance of “a significant history

of felony convictions involving the use or threat of violence to

the person,” see 42 Pa. Cons. Stat. Ann. § 9711(d)(9), offering

evidence of Lewis’s 1973 aggravated assault conviction in

Philadelphia, and his 1976 first-degree murder and felony

assault convictions in Camden, New Jersey. Lewis in turn

testified in an attempt to downplay his culpability and minimize

the violence of his prior convictions, and his counsel, in closing

argument, emphasized Lewis’s youth at the time of the prior

offenses. After approximately one hour of deliberation, the jury

returned its verdict, finding one aggravating circumstance and

no mitigating circumstances, and sentencing Lewis to death on

the first-degree murder conviction.

Lewis, represented by new counsel, filed a direct appeal

to the Pennsylvania Supreme Court, which, on December 22,
6

1989, affirmed his judgment of conviction and sentence.

Commonwealth v. Lewis, 567 A.2d 1376 (Pa. 1989) (Lewis I).

In his direct appeal, Lewis raised a number of arguments,

including a challenge to the Commonwealth’s use of peremptory

strikes during jury selection. Although Lewis did not cite

Batson v. Kentucky, 476 U.S. 79 (1986), which the United States

Supreme Court decided during the pendency of Lewis’s direct

appeal, he included a short argument in his brief under the

heading “Defendant Was Denied His Constitutional Right To A

Fair Trial By A Jury Of His Peers By The Improper Use of

Peremptory Challenges By The Commonwealth,” which stated

the following:

“Appellant wishes to preserve this argument and

alleges the Commonwealth unfairly and

improperly used its peremptory challenges to

exclude members of Appellant’s race (Black)

from the jury. Counsel requests this issue be

remanded for an evidentiary hearing to determine

the validity of the assertion.”

(App. at 1891.) In rejecting Lewis’s Batson claim, the

Pennsylvania Supreme Court noted Lewis’s “failure to identify

specific veniremen or specific parts of the record in support of

his allegation,” and reasoned that “absent a prima facie showing

of improper use of peremptory challenges by the

Commonwealth, this claim could not provide a basis . . . to

vacate the judgment of sentence.” Lewis I, 567 A.2d at 1381

n.3. The Pennsylvania Supreme Court rejected the remainder of

Lewis’s arguments, none of which is relevant to the current

appeal.
Lewis’s PCRA petition was timely because he filed it 2

before an amendment to the PCRA went into effect in January

1996, which created a one-year filing deadline from the date

judgment becomes final. See 42 Pa. Cons. Stat. Ann. § 9545(b);

see also Bronshtein v. Horn, 404 F.3d 700, 708 (3d Cir. 2005)

(discussing when the one-year filing deadline became a firmly

established and regularly followed rule).

7

B. State Post-Conviction Proceedings

On August 7, 1995, almost six years after the

Pennsylvania Supreme Court affirmed Lewis’s conviction and

sentence on direct appeal, Lewis filed a timely pro se petition

for post-conviction relief under Pennsylvania’s Post Conviction

Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. § 9541 et seq. In 2

this petition, Lewis argued that his counsel was ineffective at the

guilt phase of his trial for failing to object during voir dire to

what he alleged was the Commonwealth’s discriminatory use of

peremptory strikes. Additionally, Lewis argued that his counsel

was ineffective at the penalty phase of his trial for conducting

“no investigation geared toward the penalty hearing” and for

presenting “no information regarding [his] mental illness.” On

November 20, 1995, counsel was appointed to represent Lewis

in his PCRA proceeding, and on April 10, 1996, Lewis’s

counsel filed an amended PCRA petition, followed by a

supplemental amended petition and memorandum of law filed

on June 18, 1996. On January 15, 1997, the PCRA court issued

a ten-day notice of dismissal of Lewis’s petition. In response,

Lewis’s current counsel, who had assumed representation of

him, filed objections to the proposed dismissal. In Lewis’s
8

objections to the notice of dismissal, he expanded on his claim

of ineffective assistance of counsel at the penalty phase, and he

also argued that the Commonwealth violated Brady v.

Maryland, 373 U.S. 83 (1963), by not providing exculpatory

evidence of certain bus tickets allegedly located in a briefcase he

was carrying at the time of his arrest.

On February 7, 1997, the PCRA court denied Lewis’s

petition without conducting a hearing. Lewis appealed to the

Pennsylvania Supreme Court, elaborating on the arguments he

raised before the PCRA court and also adding to his arguments

a claim that his trial counsel was ineffective at the guilt phase of

his trial for failing to adequately prepare alibi witnesses and for

failing to investigate a defense of self defense. On January 19,

2000, the Pennsylvania Supreme Court affirmed the denial of

Lewis’s petition, holding: (1) the Batson claim was previously

litigated on direct appeal and could not be reconsidered; (2) the

ineffective assistance of counsel at the guilt phase claim was

waived because it was raised for the first time on appeal from

the PCRA court’s dismissal of Lewis’s petition; (3) the Brady

claim failed because the bus ticket did not support an alibi

defense as there was no indication of a date of travel and the

briefcase containing the ticket was not in the custody of the

police; and (4) the ineffective assistance of counsel at the

penalty phase claim failed because the record did not support

Lewis’s contention that he suffers from brain damage or serious

mental illness. Commonwealth v. Lewis, 743 A.2d 907 (Pa.

2000) (Lewis II). The Pennsylvania Supreme Court rejected

several other arguments raised by Lewis, none of which are

relevant to the instant appeal.
We limit our discussion of the claims reached by the 3

District Court to those which are relevant to the instant appeal.

9

C. Federal Habeas Proceedings

In September 2000, Lewis filed the present petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the

United States District Court for the Eastern District of

Pennsylvania alleging sixteen separate grounds for relief, only

some of which the District Court reached. Lewis v. Horn, 2006 3

WL 2338409 (E.D. Pa. Aug. 9, 2006). In reviewing Lewis’s

Batson claim, the District Court applied the deferential standard

set forth in § 2254(d) and concluded that “the Pennsylvania

Supreme Court reasonably applied Batson in determining that

[Lewis] failed to make a prima facie claim of discriminatory

jury selection.” Id. at *13. The District Court also rejected

Lewis’s argument that his appellate counsel was ineffective for

failing to raise the Batson claim in a professionally reasonable

manner on direct appeal, concluding that “[b]ecause [Lewis]

cannot establish a prima facie case under Batson, his claim of

ineffective assistance of counsel for failure to raise this claim

must also fail.” Id. at *12 n.12. The District Court also denied

Lewis’s request for an evidentiary hearing on the Batson claim

under § 2254(e)(2) because of Lewis’s failure to develop the

factual record necessary to support this claim. Id. at *14. In

support of these conclusions, the District Court observed that

Lewis had “failed to object to any of the Commonwealth’s

peremptory challenges on the basis that they were being

exercised in a racially discriminatory manner,” and also noted

that there was “no record of the racial make-up of the venire,”
10

and no “record of the race of those stricken jurors nor any

indication as to the racial composition of the jury that tried and

sentenced [Lewis].” Id. at *13-14.

Turning to Lewis’s claim of ineffective assistance of

counsel at the guilt phase of his trial, the District Court

exercised de novo review, reasoning that the Pennsylvania

Supreme Court’s refusal to reach the issue because of waiver

was not an independent and adequate ground for declining to

address the merits of the claim in light of Pennsylvania’s relaxed

waiver doctrine in capital cases, which was in effect at the time

of Lewis’s alleged procedural default. Id. at *4, *14 n.14. The

District Court determined that Lewis’s “contention that the

failure of the alibi defense was the result of trial counsel’s lack

of preparation is not supported by the record,” and therefore

concluded that his counsel’s presentation of the alibi defense

“did not fall below an objective standard of reasonableness as

defined by Strickland [v. Washington, 466 U.S. 668 (1984)].”

Id. at *15. The District Court also concluded that Lewis’s

counsel did not perform deficiently by making a strategically

reasonable choice “not to present a theory of self-defense that

would be factually inconsistent with and thereby undermine the

credibility of [Lewis’s] alibi defense.” Id. at *16.

Next, the District Court reviewed Lewis’s Brady claim,

applying § 2254(d)’s deferential standard to the Pennsylvania

Supreme Court’s decision on the merits of this issue. Id. at *16

n.15. The District Court denied the claim, explaining that “this

Court cannot conclude that the Pennsylvania Supreme Court

unreasonably applied the principals [sic] of Brady to this claim”

and that Lewis “has not demonstrated that the state court
11

unreasonably determined the facts based on the evidence.” Id.

at *17. Notwithstanding its conclusions, the District Court

granted a certificate of appealability to Lewis as to these three

guilt phase claims. Id. at *19.

As for Lewis’s ineffective assistance of counsel at the

penalty phase claim, the District Court stated that “the

Pennsylvania Supreme Court reached the merits of this claim,”

and consequently it would “apply [§ 2254(d)’s] deferential

standard of review.” Id. at *5 n.6. The District Court

determined: “The evidence that [Lewis] has presented, both in

the PCRA courts and in his habeas proceedings, reveals that he

does in fact suffer from a host of mental health issues, many of

which may be attributable to his deeply troubled family

background.” Id. at *6. Consequently, the District Court

concluded that “there can be no reason, strategic or otherwise

for trial counsel’s failure to investigate and present mitigating

evidence.” Id. at *11. Because of this, the District Court held

that the Pennsylvania Supreme Court unreasonably applied the

Strickland and Terry Williams v. Taylor, 529 U.S. 362 (2000)

standards in assessing whether Lewis’s “trial counsel rendered

constitutionally ineffective assistance at the sentencing phase.”

Id. While noting that “[t]he Pennsylvania Supreme Court did

not reach the prejudice inquiry,” id. at *12 n.10, the District

Court determined that Lewis was prejudiced by his counsel’s

performance at the penalty phase of his trial, reasoning that

“[h]ad the jury heard the evidence regarding [Lewis’s] life

history and the conclusions reached by some of the mental

health experts, there is a reasonable probability that at least one

juror would have found the mitigating circumstances to

outweigh the aggravating circumstances.” Id. at *12. As a
12

result of these conclusions, the District Court granted Lewis’s

writ of habeas corpus and “direct[ed] that he either be given a

new sentencing hearing or sentenced to life imprisonment.” Id.

Because the District Court granted relief to Lewis on this

ground, it declined to reach his other claims for relief from his

sentence.

Following the District Court’s decision, Lewis timely

appealed and the Commonwealth cross-appealed.

II.

The District Court had jurisdiction under 28 U.S.C.

§§ 2254 and 2241, and we have jurisdiction under 28 U.S.C.

§§ 1291 and 2253. Because the District Court ruled on Lewis’s

habeas petition without conducting an evidentiary hearing, our

review of its legal conclusions is plenary. Duncan v. Morton,

256 F.3d 189, 196 (3d Cir. 2001). Accordingly, we will “review

the state courts’ determinations under the same standard that the

District Court was required to apply.” Thomas v. Horn, 570

F.3d 105, 113 (3d Cir. 2009). Following the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), habeas relief cannot be granted by a federal court on

a claim that was “adjudicated on the merits” in state court unless

the adjudication “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 “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). “[F]or the purposes of

[§] 2254(d), a claim has been ‘adjudicated on the merits in State
13

court proceedings’ when a state court has made a decision that

finally resolves the claim based on its substance, not on a

procedural, or other, ground.” Thomas v. Horn, 570 F.3d at 117.

But 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, 250 F.3d 203, 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.

Additionally, regardless of whether a state court reaches the

merits of a claim, a “federal habeas court must afford a state

court’s factual findings a presumption of correctness and . . . the

presumption applies to factual determinations of state trial and

appellate courts.” Fahy v. Horn, 516 F.3d 169, 181 (3d Cir.

2008).

III.

A. Batson Claim

Lewis argues that he should be granted relief from his

conviction, or at least receive an evidentiary hearing, based on

his claim that the prosecutor’s jury selection was racially

discriminatory in violation of the Equal Protection Clause as

articulated in Batson v. Kentucky, 476 U.S. 79 (1986). More

specifically, Lewis contends that he has established a prima

facie case of racial discrimination and that the Commonwealth

has not offered race-neutral reasons for the prosecutor’s

peremptory strikes. He alleges that the facts of this case

demonstrate a pattern of discriminatory strikes because the
14

prosecutor used eight peremptory challenges against African

American venire members and only four against white venire

members, which resulted in an empaneled jury that consisted of

all-white jurors. He also makes allegations about the

discriminatory culture of the Philadelphia District Attorney’s

Office at the time of his trial.

Lewis raised this claim for the first time on direct appeal

to the Pennsylvania Supreme Court. At that time, he did not

provide any factual support for his claim, but merely asserted

that “the Commonwealth unfairly and improperly used its

peremptory challenges to exclude members of [Lewis’s] race

(Black) from the jury.” (App. 1891.) The Pennsylvania

Supreme Court observed that Lewis failed to “identify specific

veniremen or specific parts of the record in support of his

allegation,” and denied relief from conviction on this ground

because of Lewis’s failure to make “a prima facie showing of

improper use of peremptory challenges by the Commonwealth.”

Lewis I, 567 A.2d at 1381 n.3. Lewis reiterated the Batson

claim in his amended PCRA petition, but he did not provide any

factual support for this claim until he submitted objections to the

PCRA court’s notice of dismissal, at which time he asserted that

the Commonwealth struck eight African American venire

members. On appeal to the Pennsylvania Supreme Court, Lewis

also added allegations about a culture of discrimination in the

Philadelphia District Attorney’s Office, as demonstrated by the

infamous McMahon juror selection training tape. The

Pennsylvania Supreme Court concluded that Lewis’s Batson

claim was previously litigated on direct appeal and could not be

revisited. Lewis II, 743 A.2d at 908. Lewis presented the same

Batson arguments to the District Court, which reviewed the
Additionally, Lewis contends that the Pennsylvania 4

Supreme Court’s conclusion during the PCRA appeal that the

previous litigation rule barred reconsideration of the Batson

claim is not an independent and adequate ground to foreclose

review in federal court at this time. We agree. At the time

when Lewis’s Batson claim was first litigated – during his direct

appeal – the Pennsylvania Supreme Court had a practice of

reaching the merits of claims in capital cases, despite the

existence of procedural defects. See Banks v. Horn, 126 F.3d

206, 212-14 (3d Cir. 1997). Therefore, the fact that Lewis’s

claim may have been previously litigated in his first appeal is an

inadequate state procedural rule that does not bar our review of

15

claim under the deferential standard of § 2254(d) and concluded

that the Pennsylvania Supreme Court’s adjudication of the issue

on direct appeal was not an unreasonable application of Batson.

Lewis, 2006 WL 2338409, at *13. The District Court also

rejected Lewis’s request for an evidentiary hearing on his

Batson claim, reasoning that Lewis failed in the state courts to

develop the factual record necessary to support his claim. Id. at

*14.

Lewis now argues that the District Court erred by

applying § 2254(d) and that de novo review is appropriate

because the Batson claim that he raised on direct appeal is not

the same Batson claim as he raised in the PCRA and federal

habeas proceedings, and, therefore, the refusal of the state courts

to reach the issue did not constitute an adjudication on the merits

of the instant claim to which the District Court and this Court

owe deference. While we do not find particularly persuasive 4
the claim at this time.

16

Lewis’s argument that the various iterations of his Batson claim

actually constituted two distinct claims, we need not resolve

whether the Pennsylvania Supreme Court’s decision on direct

appeal is entitled to AEDPA deference because we conclude

that, even if we exercise de novo review, his claim fails for

several reasons.

The first shortcoming with respect to this claim is the

absence of a timely objection to the prosecutor’s exercise of

peremptory strikes during jury selection. Although Batson was

not decided until after Lewis’s trial and during the pendency of

his direct appeal, Lewis did not make any objections to the

prosecutor’s use of peremptory challenges under the thenprevailing standard of Swain v. Alabama, 380 U.S. 202, 223-24

(1965). As the Supreme Court explained, an objection to the

jury selection process under Swain “necessarily states an equal

protection violation subject to proof under the Batson standard,”

Ford v. Georgia, 498 U.S. 411, 420 (1991), and therefore serves

to preserve such a claim for further review. Because Batson

relies on trial judges “to decide if the circumstances concerning

the prosecutor’s use of peremptory challenges creates a prima

facie case of discrimination,” 476 U.S. at 97, we have held that

a timely objection is a prerequisite to raising a Batson claim.

Abu-Jamal v. Horn, 520 F.3d 272, 284 (3d Cir. 2008); see Allen

v. Lee, 366 F.3d 319, 327-28 (4th Cir. 2004) (en banc); Thomas

v. Moore, 866 F.2d 803, 804 (5th Cir. 1989). In Abu-Jamal, we

explained that
The procedural posture of Abu-Jamal’s Batson claim is 5

similar to that of Lewis’s claim. Although Abu-Jamal, like

Lewis, was convicted prior to the Supreme Court’s decision in

Batson, his direct appeal was still pending when the Supreme

Court decided Batson, and therefore Batson applied

retroactively to his case. See Griffith v. Kentucky, 479 U.S. 314,

328 (1987). Moreover, similarly to Lewis, “Abu-Jamal did not

object to the prosecutor’s use of peremptory challenges at any

point during voir dire or at his 1982 trial. Abu-Jamal first raised

the argument that the prosecutor used peremptory strikes in a

racially discriminatory manner on direct appeal to the

Pennsylvania Supreme Court, which issued its opinion in 1989.”

520 F.3d at 283-84 (footnote omitted).

17

“[e]ven before Batson, a timely objection of racial

bias involving jury composition would have

alerted the judge to errors that might be corrected

in the first instance and given the judge the

opportunity to develop a complete record of the

jury selection process for appellate review.”

520 F.3d at 282. Therefore, we concluded that the existence of

a timely objection to the use of peremptory strikes is not merely

a matter of state procedural law; instead, “a timely objection is

required to preserve” a claimed Batson violation for appeal and

failing to do so will result in forfeiture of the claim. Id. at 284. 5

Lewis contends that his pro se comments during jury

selection were sufficient to preserve his Batson claim. In the

course of voir dire, Lewis spoke out in response to the
18

prosecutor’s use of peremptory strikes on two occasions, at one

point stating, “So prejudiced. So prejudiced,” and at another

point stating, “I knew he would do that.” (App. 217, 439.)

Because one of the primary reasons for requiring a timely

objection to the exercise of peremptory strikes is to alert the trial

judge to the purported misconduct and to allow the trial judge to

remedy the discrimination, we must assess whether either or

both of Lewis’s comments should have put the trial judge on

notice of the alleged racially discriminatory use of peremptory

challenges. The statement “I knew he would do that” carries

with it so many neutral and even benign implications that it is

too ambiguous of an utterance to expect that it would alert the

trial judge to an allegation of racial discrimination. On the

contrary, the statement “So prejudiced. So prejudiced” is not

subject to the same neutral or harmless interpretation. Yet even

though it is accusatory, this single remark, uttered by Lewis

himself, and not his counsel, provided insufficient notice to the

trial judge of a claim that the prosecution was striking venire

members in a racially discriminatory manner.

Nonetheless, even assuming Lewis properly preserved

this claim, he has failed to establish a prima facie showing of a

Batson violation. Batson claims are analyzed under a three-part

burden shifting framework:

“First, a defendant must make a prima facie

showing that a peremptory challenge has been

exercised on the basis of race. Second, if that

showing has been made, the prosecution must

offer a race-neutral basis for striking the juror in

question. Third, . . . the trial court must determine
19

whether the defendant has shown purposeful

discrimination.”

Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (citations

omitted). “A prima facie case will be found if, after considering

the[] facts and all relevant circumstances, the ‘evidence [is]

sufficient to permit the trial judge to draw an inference that

discrimination has occurred’ in the prosecutor’s exercise of

peremptory challenges.” Abu-Jamal, 520 F.3d at 288 (quoting

Johnson v. California, 545 U.S. 162, 170 (2005)). In Batson,

the Supreme Court identified “a ‘pattern’ of strikes against black

jurors included in the particular venire” and “the prosecutor’s

questions and statements during voir dire examination and in

exercising his challenges” as two of the “relevant

circumstances” courts may consider in deciding whether a

defendant has established a prima facie case of racial

discrimination, 476 U.S. at 96-97, and we have identified

several additional relevant factors, including “‘how many

members of the cognizable racial group are in the venire panel;

the nature of the crime; and the race of the defendant and the

victim.’” Abu-Jamal, 520 F.3d at 288 n.16 (alterations omitted)

(quoting United States v. Clemons, 843 F.2d 741, 748 (3d Cir.

1988)); see Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir.

1995) (listing the relevant factors at the first step of the Batson

analysis as “(1) the number of racial group members in the

panel, (2) the nature of the crime, (3) the race of the defendant

and the victim, (4) a pattern of strikes against racial group

members, and (5) the prosecution’s questions and statements

during the voir dire”).
In Abu-Jamal, we explained the difference between the 6

strike rate and the exclusion rate: “The strike rate is computed

by comparing the number of peremptory strikes the prosecutor

used to remove . . . potential jurors [of the defendant’s race]

with the prosecutor’s total number of peremptory strikes

exercised,” whereas the “exclusion rate . . . is calculated by

comparing the percentage of exercised challenges used against

. . . potential jurors [of the defendant’s race] with the percentage

of . . . potential jurors [of the defendant’s race] known to be in

the venire.” 520 F.3d at 290.

20

In Abu-Jamal, we emphasized the importance (although

not necessity) of supplying information about the strike rate and

the exclusion rate in order to demonstrate a prima facie violation

of Batson, noting that “[t]he Supreme Court has found prima

facie Batson cases based on a pattern of discrimination, but only

where the trial record has indicated both the strike rate and the

racial composition of the venire.” Abu-Jamal, 520 F.3d at 290. 6

Despite the fact that the record revealed that “the prosecution

used ten peremptory strikes to remove black venirepersons from

the petit jury out of a total of fifteen peremptory strikes

exercised, resulting in a strike rate of 66.67%,” we were unable

to conclude that Abu-Jamal had demonstrated a prima facie case

of racial discrimination in the absence of “evidence from which

to determine the racial composition or total number of the entire

venire” – information that “would permit the computation of the

exclusion rate and would provide important contextual markers

to evaluate the strike rate.” Id. at 291-92.
21

The evidence in support of a prima facie violation of

Batson is weaker in the present case than it was in Abu-Jamal.

Here, Lewis alleges that the prosecutor exercised eight

peremptory strikes against African American potential jurors

and four against white potential jurors, and that Lewis was tried

and convicted by an all-white jury. However, Lewis does not

cite to any record support, nor does he offer other support

outside the record, to substantiate this bare allegation, and

therefore we cannot rely on this information to evaluate whether

he has demonstrated a prima facie Batson violation. See id. at

292 n.18. Additionally, Lewis acknowledges that the racial

composition of the entire venire remains unknown and instead

posits that “the venire likely was statistically similar to the

overall population of Philadelphia.” Without information about

the number and racial composition of the entire venire, we

cannot calculate the exclusion rate and we lack the “contextual

markers” to analyze the significance of the strike rate. Thus,

even if we were to accept as true Lewis’s bald assertion that

eight of the twelve venire members whom the prosecutor struck

were African American, a strike rate of 66.67% is insufficient

information to establish a prima facie case of racial

discrimination in the exercise of peremptory strikes. See id. at

293 (“As noted, here the prosecution used ten of fifteen

peremptory strikes against black potential jurors. We have

never found a prima facie case based on similar facts.”).

In an attempt to bolster his claim, Lewis points to the

McMahon training tape, created in 1987 and featuring Assistant

District Attorney Jack McMahon, as evidence that a culture of

discrimination existed throughout the Philadelphia District

Attorney’s Office at the time Lewis was prosecuted. Although
22

many of the practices advocated in the McMahon tape flout the

principles outlined in Batson, the tape was created four years

after Lewis’s trial and fails to provide any information about the

routine practices of the particular prosecutor in Lewis’s case or

the practices actually utilized at Lewis’s trial. This type of

general information, while not inconsequential, will not do as a

substitute for the concrete, case specific information that is

necessary to demonstrate a prima facie Batson violation.

Thus, the only reliable information we have to assess this

claim is evidence of the fact that Lewis is African American and

that the victim, Ellis, was African American. This does not

support an inference that the crime was racially motivated, nor

is there any indication that the crime was racially charged.

Moreover, there is no evidence of the racial composition of the

venire, and there is nothing more than unsupported allegations

about the racial composition of the empaneled jury and the race

of the venire members whom the prosecution excluded with its

peremptory strikes. As a result, we simply cannot conclude that

Lewis has met his burden, at the first step of Batson, “to develop

a record sufficient to establish a pattern of discrimination that

gives rise to an inference of discrimination.” See id. at 291.

Because we do not find Lewis’s Batson claim meritorious, we

also reject his argument that his appellate counsel was

ineffective for failing to make an adequate proffer in support of

his Batson claim on direct appeal. Lastly, we deny Lewis’s

request for an evidentiary hearing on this claim for similar

reasons as explained by the District Court; that is, we conclude

that he has failed at every stage of his state court proceedings to
Despite Lewis’s repeated requests for an evidentiary 7

hearing, he failed to make any efforts to provide reliable

evidence in support of his Batson claim, such as by providing

affidavits of the stricken venire members attesting to their race,

obtaining voter registration cards identifying the stricken venire

members’ race, or submitting exhibits of Lewis’s notes from

jury selection, the notes of his counsel, or the notes of the

prosecutor. Because Lewis has not availed himself of these

means of substantiating his allegations, we fail to see how an

evidentiary hearing would be beneficial.

23

develop the factual basis necessary to support this claim. 28 7

U.S.C. § 2254(e)(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 . . . (ii) a factual

predicate that could not have been previously discovered

through the exercise of due diligence”); see Michael Williams v.

Taylor, 529 U.S. 420, 435 (2000) (explaining that the purpose

of § 2254(e)(2) is “to ensure the prisoner undertakes his own

diligent search for evidence”); Taylor v. Horn, 504 F.3d 416,

437 (3d Cir. 2007) (“‘Federal courts sitting in habeas are not an

alternative forum for trying facts and issues which a prisoner

made insufficient effort to pursue in state proceedings.’”

(quoting Michael Williams, 529 U.S. at 437)).
24

B. Ineffective Assistance of Counsel

at the Guilt Phase Claim

Lewis argues that he is entitled to relief from his

conviction because his trial counsel rendered ineffective

assistance by failing to properly investigate and present his alibi

defense and by not presenting a theory of self defense. More

specifically, Lewis contends that his trial counsel failed to

investigate documentary evidence – namely bus tickets – which

supported his alibi defense, failed to contact and secure the

attendance of certain alibi witnesses, and failed to properly

prepare the alibi witnesses who did testify. Lewis asserts that he

was prejudiced by his counsel’s lack of preparation because the

presentation of a weak alibi defense suggested consciousness of

guilt and bolstered the Commonwealth’s case.

Lewis raised this ineffectiveness claim for the first time

before the Pennsylvania Supreme Court on appeal from the

denial of his PCRA petition. The Pennsylvania Supreme Court

determined that this claim was waived because “[t]he version of

the PCRA in effect at the time [Lewis] filed the instant petition

provided that an issue is waived ‘if it could have been raised . . .

in a prior proceeding,’” Lewis II, 743 A.2d at 909 (quoting 42

Pa. Cons. Stat. Ann. § 9544(b)). It also explained that this

particular claim was “not raised before the PCRA court in

[Lewis’s] PCRA petition or any amendments nor in [Lewis’s]

Objection to the PCRA court’s notice of intent to dismiss,” id.

at 909 n.2, and the doctrine of “‘relaxed waiver’ does not apply

to claims made in capital PCRA petitions.” Id. at 909.
25

Although the Pennsylvania Supreme Court declined to

reach the merits of Lewis’s claim on grounds that it was waived,

we cannot conclude that this decision was based on an

independent and adequate state procedural rule such that it

would bar our review of the claim. Federal habeas courts “‘will

not review a question of federal law decided by a state court if

the decision of that court rests on a state law ground that is

independent of the federal question and adequate to support the

judgment.’” Lambrix v. Singletary, 520 U.S. 518, 522 (1997)

(quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). A

state procedural rule is adequate if it was “firmly established and

regularly followed” at the time of the alleged procedural default.

Ford, 498 U.S. at 424. To be considered firmly established and

regularly followed, “(1) the state procedural rule [must] speak[]

in unmistakable terms; (2) all state appellate courts [must have]

refused to review the petitioner’s claims on the merits; and

(3) the state courts’ refusal in this instance [must be] consistent

with other decisions.” Doctor v. Walters, 96 F.3d 675, 683-84

(3d Cir. 1996).

In 1998, the Pennsylvania Supreme Court announced that

it would no longer “decline to apply ordinary waiver principles

. . . in PCRA appeals.” Commonwealth v. Albrecht, 720 A.2d

693, 700 (Pa. 1998). But for two decades prior to this decision,

the Pennsylvania Supreme Court maintained a “practice of

reaching the merits of claims in PCRA petitions in capital cases

regardless of the failure of the petition to meet the appropriate

procedural criteria.” Banks v. Horn, 126 F.3d 206, 214 (3d Cir.

1997). Therefore, notwithstanding the fact that the

Pennsylvania Supreme Court ruled on Lewis’s PCRA appeal

after its decision in Albrecht, for purposes of determining
The District Court also concluded that at the time of 8

Lewis’s purported procedural default, the Pennsylvania Supreme

Court utilized the doctrine of relaxed waiver to review all capital

claims. See Lewis, 2006 WL 2338409, at *4. However, the

District Court considered 1984 to be the relevant time for

assessing the adequacy of Pennsylvania’s waiver rules because

this was the year in which Lewis filed his direct appeal. See id.

Because the Pennsylvania Supreme Court focused on Lewis’s

failure to raise his ineffective assistance claim in his PCRA

petition or any subsequent amendments to the petition, we

consider this to be the relevant time for assessing Lewis’s

waiver.

26

whether there is a procedural bar to our review of Lewis’s claim,

we must look to the time at which his procedural default

supposedly occurred. See Doctor, 96 F.3d at 684 (explaining

that the relevant time for determining whether a rule was firmly

established and regularly applied is not when the state court

relied on it, “but rather . . . the date of the waiver that allegedly

occurred”). Although Lewis had the opportunity to raise his

claim of ineffective assistance of counsel in his PCRA petition,

the petition was filed in 1995 (and amended in 1996) at a time

when the Pennsylvania Supreme Court still applied the doctrine

of relaxed waiver to PCRA appeals in capital cases. Therefore, 8

the Pennsylvania Supreme Court’s refusal to reach Lewis’s

ineffective assistance of counsel claim because of his failure to

raise it in his PCRA petition does not bar our review as it was

not an independent and adequate procedural rule.
27

Because the Pennsylvania courts did not reach the merits

of Lewis’s claim of ineffective assistance of counsel at the guilt

phase of his trial, we review this claim de novo. The test for

ineffective assistance of counsel contains two components:

“First, the defendant must show that counsel’s

performance was deficient. This requires

showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show

that the deficient performance prejudiced the

defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.”

Strickland, 466 U.S. at 687. To establish deficient performance,

a “defendant must show that counsel’s representation fell below

an objective standard of reasonableness.” Id. at 688. In

analyzing this first prong of the Strickland test, there is a strong

presumption that counsel performed reasonably. Id. at 689. To

establish prejudice, 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.” Id. at 694. Under this standard, we

are unable to conclude that the conduct of Lewis’s counsel was

objectively unreasonable, and even if it were, we would be

unable to conclude that the result of Lewis’s trial would have

been different but for his counsel’s error.
28

None of Lewis’s arguments persuade us that he has

overcome the presumption that his counsel performed

reasonably. Despite Lewis’s complaint that his trial counsel did

not sufficiently prepare his alibi witnesses, the record indicates

otherwise. In the middle of trial, Lewis’s counsel discussed

with the court the difficulties he was having in presenting the

alibi defense. (App. at 1163.) He mentioned that he had $2,500

to bring witnesses in from California but he wanted to make sure

the witnesses would be beneficial and have material testimony

before they came to court. He also stated that he had only

received the address for Lewis’s brother, Michael, a week

before and that he was having difficulty contacting him, adding

that the phone number for Michael’s wife had been

disconnected. Lewis’s counsel suggested that he could not go

forward with the defense until he reached Michael Lewis. (App.

at 1164-65.) The prosecutor commented that based on his

investigator’s discussions with Michael Lewis and his wife, they

appeared reluctant to come to Philadelphia and serve as alibi

witnesses. (App. at 1166-67.)

Despite these difficulties, Lewis’s counsel was able to

present Michael Lewis as an alibi witness. Michael’s testimony

– that he met Lewis at the Trailways bus station in California on

November 19 – was uncomplicated and therefore undermines

Lewis’s argument that he was inadequately prepared. (App. at

1425.) Similarly, although Clarence Edwards stated that the

first time he was contacted to be an alibi witness was the day

before he testified at the trial, he also stated that Lewis’s trial

counsel was trying to get in touch with him, (App. at 1307-08),

and his testimony – that Lewis asked for a ride to the Trailways

bus station around November 14 – was straightforward as well.
Although Lewis asserts that McCorey’s testimony was 9

important to show that the Commonwealth destroyed evidence

of his bus tickets to California, we reject this argument – as well

as the argument that trial counsel was ineffective for not

requesting the bus tickets from the Commonwealth – for reasons

explained in Part III.C.

29

(App. at 1285-88.) As for Lewis’s contention that his counsel’s

failure to recognize his fiancée, Stephanie McCorey, when she

entered the courtroom in violation of a sequestration order

caused him to lose a crucial witness, McCorey admitted that she

did not know anything about the case and that, upon entering the

courtroom, she told a court officer that she was not a witness.

(App. at 1090, 1094.) Lewis’s counsel stated that he had met

with McCorey for a few minutes the previous week and that he

had listed her as a possible witness only because Lewis had

given him her name. (App. at 1090, 1094.) Additionally, Lewis

has not offered any affidavit from McCorey as to what

testimony she could have provided at trial. Likewise, with 9

respect to potential alibi witnesses who did not testify, Lewis

has not presented any affidavits describing what those witnesses

would have testified about.

For all of these reasons, we cannot agree with Lewis that

his trial counsel’s investigation and presentation of the alibi

defense was objectively unreasonable. Moreover, even if we

were to conclude that his counsel’s performance was deficient,

in light of the overwhelming evidence against him – including

six eyewitnesses who knew Lewis and identified him as the

assailant and the eyeglasses left at the crime scene which
Similarly, there is no statement from Lewis that his 10

counsel failed to investigate or discuss with him a possible

theory of self defense.

30

resembled onesthat Lewis had been photographed wearing – we

would not be able to conclude that there is a reasonable

probability that the outcome of Lewis’s trial would have been

different in the absence of his counsel’s errors.

Nor can we conclude that Lewis has demonstrated that

his counsel performed unreasonably by failing to present a

theory of self defense in addition to, or instead of, the alibi

defense. As Lewis emphasizes elsewhere in his appeal, he has,

from the time of his arrest, relied upon an alibi, and he has not

provided any indication that he would have allowed his counsel

to present a theory of self defense. Instead, Lewis’s statements 10

during pre-trial hearings reveal an insistence on maintaining an

alibi defense and, as the District Court noted, it would have been

factually inconsistent to present a theory of self defense in the

alternative. Moreover, the testimony of the only witness who

observed the entire altercation between Lewis and Ellis would

have directly contradicted a theory of self defense. (App. 1113.)

Therefore, Lewis has not overcome the presumption that his

counsel’s decision not to present a theory of self defense was a

strategically reasonable one, and we reject his arguments to the

contrary.
31

C. Brady Claim

Lewis argues that he is entitled to relief from his

conviction because the Commonwealth violated Brady v.

Maryland, 373 U.S. 83 (1963), by suppressing evidence of a bus

ticket from Philadelphia to San Diego, contained in a briefcase

he was carrying at the time of his arrest, that he alleges

supported his alibi defense. Lewis contends that the

Pennsylvania Supreme Court, on PCRA review, unreasonably

determined the facts relevant to this claim by crediting the

testimony of Detective Kane, the arresting officer, that the

Greyhound bus ticket contained in Lewis’s briefcase did not

indicate the date, origin, or destination of travel and that the

briefcase as well as its contents were turned over to Lewis’s

fiancée. Lewis maintains that the briefcase contained stubs of

his bus tickets from his trip to San Diego, which would have

placed him outside of Philadelphia on the night of the murder.

He contends that Detective Kane took “active” steps to conceal

the tickets by failing to inventory the briefcase, preserve the

tickets, or disclose them to the defense.

In Brady, the Supreme Court held that “the suppression

by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” 373 U.S. at 87. The Supreme

Court has outlined a three-part test to determine if a Brady

violation has occurred: “‘The evidence at issue must be

favorable to the accused, either because it is exculpatory, or

because it is impeaching; that evidence must have been

suppressed by the State, either willfully or inadvertently; and
32

prejudice must have ensued.’” Banks v. Dretke, 540 U.S. 668,

691 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82

(1999)); see Lambert v. Blackwell, 387 F.3d 210, 252 (3d Cir.

2004).

Because Lewis’s Brady claim was adjudicated on the

merits in state court during his PCRA proceedings, we review

it under the deferential standard set forth in § 2254(d). In doing

so, we cannot conclude that the Pennsylvania Supreme Court’s

decision “involved an unreasonable application” of Brady or

“was based on an unreasonable determination of the facts.” The

Pennsylvania Supreme Court determined that the evidence did

not support Lewis’s claim because the bus ticket would not have

corroborated his alibi defense and the ticket was not seized by

the police. It noted that Lewis testified “that he took a

Trailways bus to San Diego and a Greyhound bus for the return

trip to Philadelphia” and that Detective Kane testified “that he

only recalled seeing a Greyhound ticket in the briefcase and

specifically recalled seeing the Greyhound logo on the ticket.”

Lewis II, 743 A.2d at 910-11. Moreover, the Pennsylvania

Supreme Court observed that, according to Detective Kane’s

testimony, the Greyhound ticket “did not contain any

information regarding date of travel or the point of origin of the

travel,” and that “[t]he ticket, along with the briefcase and its

other contents, was transported with [Lewis] to prison on the

day of his arrest and later turned over to [Lewis’s] fiancée.” Id.

at 911. Consequently, the Pennsylvania Supreme Court

concluded that “[t]here can be no Brady violation where the

prosecution did not have custody of the ticket and where it

would not have provided exculpatory evidence.” Id. Although

Lewis challenges Detective Kane’s credibility, he has not
Lewis is not entitled to an evidentiary hearing on either 11

his ineffective assistance at the guilt phase claim or his Brady

claim because he failed to develop the factual bases for these

claims in his state court proceedings. See § 2254(e)(2).

Moreover, even if § 2254(e)(2) did not prohibit an evidentiary

hearing on these claims, we would still conclude that a hearing

would be inappropriate because Lewis would not be able to

establish the facts needed to demonstrate that relief should be

granted on either claim. See Schriro v. Landrigan, 550 U.S.

465, 474 (2007) (“In deciding whether to grant an evidentiary

hearing, a federal court must consider whether such a hearing

could enable an applicant to prove the petition’s factual

allegations, which, if true, would entitle the applicant to federal

habeas relief.”).

33

proffered clear and convincing evidence to overcome the

presumption of correctness that attaches to the state court’s

factual determinations. See § 2254(e)(1). For these reasons, we

must reject Lewis’s arguments and conclude that he is not

entitled to relief on the basis of this claim.11

D. Ineffective Assistance of Counsel

at the Penalty Phase Claim

In its cross-appeal, the Commonwealth argues that the

District Court erred in granting Lewis sentencing relief based on

his claim that his counsel rendered ineffective assistance at the

penalty phase of his trial by failing to investigate and present

mitigating evidence. The Commonwealth argues that the

District Court failed to afford deference to the Pennsylvania
34

Supreme Court’s reasonable factual findings, instead

substituting its own view of the evidence, and that the District

Court failed to apply the presumption that counsel performed in

a professionally reasonable manner. The Commonwealth also

argues that the District Court improperly evaluated the prejudice

prong of this claim under a de novo standard of review rather

than applying AEDPA’s deferential standard. We will address

each of these arguments in turn.

1. Deference to State Court Factual Determinations

Lewis first challenged his counsel’s effectiveness at the

penalty phase of his trial during his PCRA proceedings. The

PCRA court denied relief on this claim and, on appeal from that

decision, the Pennsylvania Supreme Court addressed and

rejected the claim on its merits. See Lewis II, 743 A.2d at 909-

10. Therefore, under these circumstances, the role of a federal

habeas court is to review the state court’s disposition through

the lens of § 2254. Although the District Court recognized as

much when it stated that “the Pennsylvania Supreme Court

reached the merits of this claim” and it was thus obligated to

“apply AEDPA’s deferential standard of review,” Lewis, 2006

WL 2338409, at *5 n.6, the District Court nonetheless went on

to determine the facts for itself and, in doing so, failed to give

appropriate deference to the state court’s decision.

In Lewis II, the Pennsylvania Supreme Court determined

that the record did not support Lewis’s claim that he suffered

from serious mental illness and brain damage. 743 A.2d at 909.

The Pennsylvania Supreme Court provided the following

analysis of this claim:
35

“In his PCRA petition, appellant contended that

his trial counsel was ineffective for failing to

investigate, discover and present evidence at the

penalty phase of appellant’s trial that appellant

was mentally ill. In support of this claim,

appellant offered affidavits from a psychiatrist

who examined him nearly fifteen years after the

murder and concluded that he suffered from brain

damage and mental illness at the time of the

murder and from family members claiming that

appellant was ‘different’ as a child and that he

suffered abuse at the hands of his father.

Negating appellant’s claim, however, is the

presentencing mental health evaluation conducted

on August 18, 1983, less than one year after the

murder, in which the evaluator found that

appellant did not manifest any major mental

illness that could be a factor in the disposition of

his case and that appellant appeared to be

competent for sentencing.

Appellant’s claim that he suffers from brain

damage or serious mental illness is also simply

not supported by the record. Appellant played a

very active role in his trial and in pre-trial

proceedings. At a conference before the court on

May 19, 1983, at which appellant’s

then-appointed counsel sought leave to withdraw,

appellant stated that he was ‘legally astute and

legally competent to represent’ himself. N.T.

5/19/83 at 6. Throughout the conference, he
36

spoke in a coherent and cogent manner,

displaying a good command of language and

vocabulary as well as knowledge of the legal

process and his constitutional rights. Id. at 6-16.

Further, appellant testified at a suppression

hearing on July 27, 1983, where he also

demonstrated clarity of thought and intelligence.

N.T. 7/27/83 at 182-220. Appellant also testified

at length at his trial regarding his alibi defense,

once again showing no signs of brain damage or

mental illness but rather appearing intelligent and

well-spoken. N.T. 8/10/83 at 1054-1113.

Because appellant gave no indication at the time

of his trial that he suffered from brain damage or

serious mental illness, his trial counsel and

subsequent appellate counsel cannot be

ineffective for failing to investigate, discover and

present evidence of such brain damage or mental

illness.”

Id. at 909-10 (footnote omitted). As this passage makes clear,

the Pennsylvania Supreme Court evaluated the evidence that

Lewis presented in support of his claim that counsel was

ineffective at the penalty phase of trial and compared it to the

record as a whole in the course of determining that Lewis had

not demonstrated that at the time of his trial he was suffering

from brain damage or mental illness. However, when the

District Court analyzed this claim, it stated that “[t]he evidence

that [Lewis] has presented, both in the PCRA courts and in his

habeas proceedings, reveals that he does in fact suffer from a

host of mental health issues, many of which may be attributable
37

to his deeply troubled family background.” Lewis, 2006 WL

2338409, at *6. The District Court reached this conclusion

without mentioning the Pennsylvania Supreme Court’s finding

to the contrary.

Under AEDPA, factual determinations made by state

courts – such as the one at issue here – are entitled to deference:

“[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.”
Additionally, under § 2254(d)(2), relief cannot be 12

granted on a claim that was adjudicated on the merits in state

court proceedings unless the adjudication “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.”

We have previously explained that “‘the language of

§ 2254(d)(2) and § 2254(e)(1) implies an important distinction:

§ 2254(d)(2)’s reasonableness determination turns on a

consideration of the totality of the ‘evidence presented in the

state-court proceeding,’ while § 2254(e)(1) contemplates a

challenge to the state court’s individual factual determinations,

including a challenge based wholly or in part on evidence

outside the state trial record.’” Taylor v. Horn, 504 F.3d at 429

(quoting Lambert, 387 F.3d at 235). Here, the District Court did

not grant relief to Lewis on the basis that the Pennsylvania

Supreme Court’s decision resulted in an unreasonable

determination of the facts but rather that the decision amounted

to an unreasonable application of federal law to the facts of

Lewis’s case. See Lewis, 2006 WL 2338409, at *11.

38

§ 2254(e)(1). This presumption of correctness applies to 12

factual determinations of both state trial and appellate courts.

See Rolan v. Vaughn, 445 F.3d 671, 679 (3d Cir. 2006);

Duncan, 256 F.3d at 196. Implicit factual findings are entitled

to § 2254(e)(1)’s presumption of correctness as well. Campbell

v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000). Additionally,

while § 2254 does not condition deference to state court factual

findings on whether the state court held a hearing, Fahy, 516

F.3d at 182, the procedures used in the state court’s adjudication

of a claim may impact whether the petitioner has rebutted the
39

presumption of correctness, see Lambert, 387 F.3d at 239. Thus

“state fact-finding procedures may be relevant when deciding

whether . . . a petitioner has adequately rebutted a fact, but the

procedures are not relevant in assessing whether deference

applies to those facts.” Rolan, 445 F.3d at 679.

In light of this standard, the District Court was not free

to determine anew the underlying facts of this claim; rather, the

Pennsylvania Supreme Court’s factual determination that Lewis

had not demonstrated that he suffered from mental illness or

brain damage was entitled to a presumption of correctness and

the burden was on Lewis to rebut this presumption with clear

and convincing evidence. Because the District Court did not

address whether Lewis rebutted the presumption of correctness

that attached to the state court’s factual determinations, and

instead arrived at its own interpretation of the facts without

conducting an evidentiary hearing, we will engage in a plenary

review of this issue. See Slutzker v. Johnson, 393 F.3d 373, 378

(3d Cir. 2004) (“[O]ur review of the District Court’s factual

findings is . . . plenary, because [the District] Court relied solely

on the state court record, and did not conduct an evidentiary

hearing.”).

Upon review of the evidence that Lewis provides in

support of his claim that information was available to his trial

counsel pertaining to his mental illness and brain damage, we

cannot conclude that he has rebutted the presumption of

correctness that attaches to the state court’s factual

determination. As even a brief summary of the mental health

evaluations reveals, the evidence that Lewis relies on to

establish his mental illness and brain damage is in large part
40

contradictory. For example, in a psychiatric evaluation

conducted shortly after trial in August 1983, Dr. Camiel

reported that Lewis was more intelligent than previous testing

had shown; that Lewis’s “thoughts progressed in a normal

associative manner without evidence of an underlying thought

disorder or rambling pattern of speech”; and he diagnosed Lewis

as having an Antisocial Personality Disorder, with his grandiose

thoughts constituting a narcissistic component to his disorder.

(App. at 2162-66.) Similarly, a psychiatric evaluation conducted

by Dr. Canals in 1993 provided the following information:

Lewis appeared to be very intelligent; “during the interview he

did not show any symptoms of being psychotic, he appeared to

be in good contact with reality, he was somewhat grandiose,

admitted to episodes of feeling high without the use of

chemicals and his conversation was well organized”; he had

Polysubstance Abuse Severe, Explosive Disorder, Antisocial

Personality Disorder, Paranoid Personality Disorder, and

Hypomanic Personality Disorder; and Lewis was not suffering

from any major mental illness. (App. at 2156-61.)

In contrast, a psychological evaluation conducted by Dr.

Wellman in 1984 revealed that tests placed Lewis’s IQ at 77,

considered borderline mentally retarded; mentioned brain

damage and a head injury inflicted by his father; and described

Lewis’s self-image as “inflated to the point of mild grandiosity,”

noting that those persons with this profile type often have

paranoid mental activity and disordered thinking. (App. at

2168-69.) Likewise, Lewis was evaluated in 1997 by a forensic

psychologist, Dr. Berland, who observed that a test put Lewis’s

IQ at 86, the bottom of the average range; testing indicated a

serious psychotic disturbance involving delusional paranoid
41

thinking, psychotic mood disturbance, and perceptual

disturbance including hallucinations; testing suggested diffuse

or widespread damage to Lewis’s cerebral cortex, which may

have been congenital; and Lewis suffered from brain damage

and chronic, serious, mental illness. (App. at 2171-72, 2186.)

In combination, this evidence is far from conclusive with respect

to establishing that Lewis suffers from mental illness or brain

damage.

In addition to these professional evaluations, Lewis offers

declarations from various family members and friends in support

of his claim that evidence of his mental illness and brain damage

was available to his trial counsel. For example, Lewis’s mother

stated that she drank turpentine while pregnant with Lewis and

that he had suffered a head injury as a young boy when his

father slammed Lewis’s head into the bathtub. (App. 1968-70.)

But Lewis himself has never acknowledged any abuse – he

informed Dr. Canals that he was raised by “very good” parents

who were “decent law-abiding citizens” and that he was never

abused (App. 2156) – nor has he submitted reports from any

doctors specializing in neurological issues. Other evidentiary

problems include that Lewis has not submitted medical records

of psychiatric treatment from before or during his incarceration,

he has not submitted any school records showing learning or

emotional problems, and he has not addressed the possibility

that his allegedly delusional behavior was actually caused by his

heavy drug use. Further undermining Lewis’s attempt to show

that he suffers from mental illness and brain damage is the

affirmative evidence of his active and engaged conduct at trial

and during pre-trial hearings. (App. at 739-772.) Therefore, at

best, the evidence of record with respect to Lewis’s mental
42

health and brain damage is in conflict and we cannot conclude

that Lewis rebutted, with clear and convincing evidence, the

state court’s factual determination that the record did not support

his claim of mental illness or brain damage. Moreover, the

District Court’s mistake in disregarding the Pennsylvania

Supreme Court’s factual determinations in favor of its own

infected the remainder of its analysis.

2. Reasonableness of Counsel’s Performance

Based on its own determination of the underlying facts of

this claim, the District Court concluded that “trial counsel failed

to present any evidence whatsoever in mitigation [which] leads

inexorably to the conclusion that he failed to make any

reasonable effort to uncover such evidence,” and “there can be

no reason, strategic or otherwise for trial counsel’s failure to

investigate and present mitigating evidence.” Lewis, 2006 WL

2338409, at *11. Thus the District Court concluded that the

Pennsylvania Supreme Court unreasonably applied the Supreme

Court’s precedents in Strickland and Terry Williams. Id.

However, in reaching these conclusions, the District Court failed

to apply the presumption that Lewis’s counsel performed in a

professionally reasonable manner.

To reiterate, in order to establish deficient performance,

a “defendant must show that counsel’s representation fell below

an objective standard of reasonableness.” Strickland, 466 U.S.

at 688. The courts, in turn, must make “every effort . . . to

eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate

the conduct from counsel’s perspective at the time.” Id. at 689.
43

Therefore, in evaluating the first prong of the Strickland test,

courts “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Id. The presumption can be

rebutted by showing “that the conduct was not, in fact, part of a

strategy or by showing that the strategy employed was

unsound.” Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir.

2005) (footnote omitted). Consequently,

“[i]n cases in which the record does not explicitly

disclose trial counsel’s actual strategy or lack

thereof (either due to lack of diligence on the part

of the petitioner or due to the unavailability of

counsel), the presumption may only be rebutted

through a showing that no sound strategy posited

by the Commonwealth could have supported the

conduct.”

Id. at 500 (footnote omitted) (citing Yarborough v. Gentry, 540

U.S. 1, 8 (2003), in which the Supreme Court explained that the

presumption of reasonableness “has particular force where a

petitioner bases his ineffective-assistance claim solely on the

trial record, creating a situation in which a court may have no

way of knowing whether a seemingly unusual or misguided

action by counsel had a sound strategic motive” (internal
In contrast, where the government “can show that 13

counsel actually pursued an informed strategy (one decided upon

after a thorough investigation of the relevant law and facts),”

Varner, 428 F.3d at 500, the initial presumption that counsel

performed reasonably becomes “virtually unchallengeable,”

Strickland, 466 U.S. at 690.

44

quotation marks omitted)). Nonetheless, even if the 13

presumption is rebutted, a court must still “‘determine whether,

in light of all the circumstances, the identified acts or omissions

[of counsel] were outside the wide range of professionally

competent assistance.’” Jacobs v. Horn, 395 F.3d 92, 106 (3d

Cir. 2005) (quoting Strickland, 466 U.S. at 690).

In his PCRA proceedings, Lewis framed his ineffective

assistance argument as a challenge to his trial counsel’s failure

to conduct any “investigation geared toward the penalty

hearing” and to present “information regarding [his] mental

illness.” The District Court was persuaded that there was “no

reason, strategic or otherwise for trial counsel’s failure to

investigate and present mitigating evidence.” Lewis, 2006 WL

2338409, at *11. However, as we have already discussed, the

District Court did not apply the presumption of correctness to

the Pennsylvania Supreme Court’s finding that the record did

not support Lewis’s claim that, at the time of trial, he suffered

from mental illness or brain damage. Thus, the District Court’s

statement that “no reason, strategic or otherwise” existed for

trial counsel’s “failure to . . . present mitigating evidence” of

Lewis’s “mental health issues” is incorrect for at least two

reasons.
Of course, this is different than saying that such 14

evidence existed but counsel was merely unaware of it or failed

to discover it. We discuss the reasonableness of trial counsel’s

investigation into mitigating evidence separately.

45

First, if evidence of Lewis’s mental illness and brain

damage was lacking because he did not in fact suffer from either

condition – as the Pennsylvania Supreme Court found – it

cannot be said that “no reason” existed for failing to present

such evidence. A valid reason for not presenting evidence is

that it does not exist. Second, even if the state court’s factual 14

determination that Lewis had not established that he was

suffering from mental illness or brain damage could be

disregarded, it was error for the District Court not to employ the

presumption that Lewis’s counsel acted in a professionally

reasonable manner. Instead of applying this presumption, the

District Court jumped to the conclusion that counsel’s failure to

present mitigating evidence was unreasonable. However, under

our caselaw, where, as here, the record is silent as to counsel’s

strategy or lack thereof, the defendant bears the burden of

proving that no sound strategy offered by the Commonwealth

would have supported the conduct. See Varner, 428 F.3d at 500.

Because the District Court did not engage in this analysis, we

consider it best not to do so in the first instance at this time.

In addition to Lewis’s claim that his counsel was

ineffective for failing to present evidence of his mental illness

and brain damage, Lewis also premised his ineffective

assistance claim on grounds that his counsel failed to conduct

any investigation in preparation for the penalty phase of his trial.
46

While counsel’s failure to present mitigating evidence of

Lewis’s mental health may have come within the wide range of

reasonable professional assistance – either because the evidence

to support this claim did not exist or a sound strategy supported

the decision not to present the evidence – we must still

determine whether counsel’s efforts to investigate any

mitigating evidence were reasonable. In Strickland, the

Supreme Court instructed that “counsel has a duty to make

reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary,” and therefore,

“[i]n any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all

the circumstances, applying a heavy measure of deference to

counsel’s judgments.” 466 U.S. at 691. The Supreme Court

further explained that “what investigation decisions are

reasonable depends critically on” information supplied by the

defendant, noting that “when a defendant has given counsel

reason to believe that pursuing certain investigations would be

fruitless or even harmful, counsel’s failure to pursue those

investigations may not later be challenged as unreasonable.” Id.

To this end, “inquiry into counsel’s conversations with the

defendant may be critical to a proper assessment of counsel’s

investigation decisions, just as it may be critical to a proper

assessment of counsel’s other litigation decisions.” Id.

Accordingly, before we can assess the reasonableness of

counsel’s investigatory efforts, we must first determine the

nature and extent of the investigation that took place as well as

the nature and extent of the communications that occurred

between Lewis and his counsel on this issue. This task is made

difficult by the fact that Lewis’s trial counsel is deceased,
47

having died shortly after the conclusion of Lewis’s trial, and

Lewis himself has not offered any statements on his own behalf.

On this record, Lewis has not established that his counsel in fact

failed to undertake any investigation of his family background

or failed to consult with him regarding the decision to

investigate. Although Lewis offers declarations from his mother

and siblings that they were not contacted by Lewis’s trial

counsel, as the Commonwealth points out, these were unsworn

statements not tested by the adversary method, and were offered,

in large part, by witnesses who testified at trial in support of

Lewis’s alibi defense and whose testimony the jury discredited.

This is hardly a sufficient basis upon which to conclude that

Lewis’s counsel conducted no background investigation and that

counsel’s conduct was not reasonable under all of the

circumstances. Moreover, we are unwilling to conclude, as the

District Court did, that “[t]he fact that trial counsel failed to

present any evidence whatsoever in mitigation leads inexorably

to the conclusion that he failed to make any reasonable effort to

uncover such evidence.” Lewis, 2006 WL 2338409, at *11. The

record on this issue is too undeveloped for us to conclude that

Lewis’s counsel failed to conduct any background investigation

and did not act in a professionally reasonable manner in this

regard. Cf. Thomas v. Horn, 570 F.3d at 125 (noting that it

would be “premature” to decide if counsel’s performance was

deficient without first conducting an evidentiary hearing to

determine “the extent, if any, of [the defendant’s] counsel’s presentencing investigative efforts to obtain mitigating evidence,”

notwithstanding the fact that the defendant’s relative provided

a signed statement that she had not been contacted about the

defendant’s life and mental health and there was no affirmative

evidence of an investigation); Marshall v. Hendricks, 307 F.3d
48

36, 106 (3d Cir. 2002) (remanding to the district court to

conduct an evidentiary hearing before reevaluating whether

counsel’s performance was deficient where there was “no record

before us as to what preparation or investigation, if any, was

performed by counsel in anticipation of the penalty phase”).

In sum, that counsel did not present evidence relating to

Lewis’s mental health or his family background does not compel

the conclusion that counsel failed to conduct any investigation

into mitigating evidence, as the District Court reasoned, and

thereby failed to act in a professionally reasonable manner.

When deference is afforded to the state court’s underlying

factual determinations and when the presumption that counsel

performed adequately is given effect, we cannot conclude that

the Pennsylvania Supreme Court unreasonably applied Supreme

Court precedent in denying relief to Lewis on the basis of his

ineffective assistance claim.

3. Prejudice Resulting From Deficient Performance

Because we disagree with the District Court’s analysis of

the performance prong of Strickland, and this error alone

requires us to reverse the District Court’s grant of relief from

Lewis’s sentence, we do not need to provide an exhaustive

analysis of the prejudice prong at this time; however, we will

make two observations before moving on. First, the District

Court incorrectly determined that de novo review was

appropriate. As we have previously noted, “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.” Chadwick v. Janecka, 312 F.3d
49

597, 606 (3d Cir. 2002) (internal quotation marks omitted).

Thus, federal habeas courts must distinguish between the denial

of a claim without explanation and the failure to adjudicate a

claim on its merits; only the former triggers the application of

AEDPA’s deferential standard of review. Here, the

Pennsylvania Supreme Court’s decision can be interpreted as

concluding that Lewis was not prejudiced by his counsel’s

conduct just as easily as it can be interpreted as concluding that

his counsel’s conduct was not unreasonable. Therefore, the

District Court erred by not applying § 2254(d) to this aspect of

Lewis’s ineffective assistance claim.

Second, if it becomes necessary to reconsider whether

Lewis was prejudiced by any deficiencies in his counsel’s

performance, the District Court will need to engage in a

meaningful reweighing of the aggravating and mitigating

evidence in order to decide this issue. See Strickland, 466 U.S.

at 695 (“[T]he question is whether there is a reasonable

probability that, absent the errors, the sentencer . . . would have

concluded that the balance of aggravating and mitigating

circumstances did not warrant death.”); see also Marshall, 307

F.3d at 103 (“Given the unanimity requirement, the ‘reasonable

probability of a different outcome’ would mean that only one

juror need weigh the factors differently and find that the

aggravating factor did not outweigh” the mitigating factors).

Also relevant to the prejudice analysis is the issue of whether

Lewis would have allowed trial counsel to present disparaging

and negative information to show that he was mentally ill, brain

damaged, and abused, especially in light of his desire to portray

himself as a person of “superior intellect” and his attempts to

control the presentation of his case. (Supp. App. 6-7, 9, 11-18;
50

Tr. 6/16/83 at 12, 14-15; App. at 732-35.) Lewis has yet to

provide any statement that the decision not to present

background information in mitigation was other than his own

choice. See Schriro v. Landrigan, 550 U.S. 465, 478 (2007)

(addressing “a situation in which a client interferes with

counsel’s efforts to present mitigating evidence to a sentencing

court” and deferring to the state court’s conclusion that

prejudice could not be shown); Taylor v. Horn, 504 F.3d at 455

(reasoning that “whatever counsel could have uncovered, [the

defendant] would not have permitted any witnesses to testify,

and was therefore not prejudiced by any inadequacy in counsel’s

investigation or decision not to present mitigation evidence”); cf.

Thomas v. Horn, 570 F.3d at 123 (“At no time did my attorney

explain to me that evidence concerning my character could or

should be presented for the jury’s consideration at the penalty

hearing.”).

4. Developing Support for this

Claim in an Evidentiary Hearing

Notwithstanding our conclusions that Lewis has failed to

demonstrate that he is entitled to sentencing relief on his

ineffective assistance of counsel claim, we believe that Lewis

should be granted an evidentiary hearing to try to develop the

record in support of his claim. Section 2254(e)(2) provides that

if an 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 one of the enumerated

exceptions applies. The focus of this inquiry is on whether the

defendant was diligent in his efforts to provide the factual bases

for his claim during the state court proceedings. See Michael
51

Williams, 528 U.S. at 435 (“Diligence for purposes of the

opening clause [of § 2254(e)(2)] depends upon whether the

prisoner made a reasonable attempt, in light of the information

available at the time, to investigate and pursue claims in state

court . . . .”). Through each stage of his PCRA proceedings,

Lewis continued to supplement his claim with additional factual

support. While this piecemeal development of the factual basis

of a claim is not ideal, we conclude, on these facts, that it

suffices to meet the standard set forth in § 2254(e)(2).

Therefore, we will remand to the District Court to conduct an

evidentiary hearing, which provides Lewis with the opportunity

to rebut the presumption of correctness that applies to the

Pennsylvania Supreme Court’s determination that Lewis did not

demonstrate that he suffers from serious mental illness or brain

damage and to rebut the presumption that his counsel’s

performance was professionally reasonable by showing that no

sound strategy posited by the Commonwealth would support his

counsel’s decisions regarding the investigation and presentation

of mitigating evidence and that the totality of the circumstances

establish that his counsel’s conduct was unreasonable. The

burden is on Lewis to overcome these presumptions, which we

expect will be difficult to do if Lewis continues to remain silent.

Additionally, the District Court will need to determine the

credibility of Lewis’s witnesses, rather than simply relying on

unsworn statements, and the Commonwealth will have the

opportunity to present its own evidence as well. If necessary,

after the record is more fully developed, the District Court will

need to reweigh the mitigating and aggravating evidence in its

entirety in the course of determining if Lewis was prejudiced by

any deficiencies in his counsel’s performance.
52

Lastly, we note that both the Pennsylvania Supreme

Court and the District Court considered whether Lewis was able

to establish his ineffective assistance claim based on his

counsel’s failure to present available evidence of his mental

health issues. This is understandable in light of the way Lewis

framed his claim and his evidence in support of the claim.

Nonetheless, Lewis’s claim could also be interpreted to

encompass a challenge to his counsel’s failure to present

background information that may have been independently

mitigating, even if it did not demonstrate that Lewis suffers

from serious mental illness or brain damage. Under

Pennsylvania’s statute, in addition to several specifically

enumerated mitigating circumstances, a defendant may present

“[a]ny other evidence of mitigation concerning the character and

record of the defendant and the circumstances of his offense.”

42 Pa. Cons. Stat. Ann. § 9711(e)(8); cf. Terry Williams, 529

U.S. at 395-96 (concluding that “trial counsel did not fulfill their

obligation to conduct a thorough investigation of the defendant’s

background” where they failed to uncover and present

“extensive records graphically describing [the defendant’s]

nightmarish childhood,” including information that the

defendant’s “parents had been imprisoned for the criminal

neglect of [the defendant] and his siblings, and that [the

defendant] had been severely and repeatedly beaten by his

father”); see also Penry v. Lynaugh, 492 U.S. 302, 319 (1989)

(explaining that “evidence about the defendant’s background

and character is relevant because of the belief, long held by this

society, that defendants who commit criminal acts that are

attributable . . . to emotional and mental problems, may be less

culpable than defendants who have no such excuse” (internal

quotation marks omitted)). Because the Pennsylvania Supreme
53

Court did not consider whether Lewis’s counsel may have been

ineffective for failing to investigate or present independently

mitigating background evidence, on remand, the District Court

can review this aspect of Lewis’s claim under a de novo

standard.

IV.

For the reasons stated above, we will affirm the District

Court’s denial of relief as to Lewis’s conviction, we will vacate

its grant of relief as to Lewis’s sentence, and we will remand for

an evidentiary hearing consistent with this opinion.