2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-31-2014

Rodney Collins v. Secretary Pennsylvania Departm

Precedential or Non-Precedential: Precedential

Docket 12-3472

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3472

_____________

RODNEY COLLINS,

 Appellant

v.

SECRETARY OF THE PENNSYLVANIA DEPARTMENT 

OF CORRECTIONS; MICHAEL WENEROWICZ; 

DISTRICT ATTORNEY OF THE COUNTY OF 

PHILADELPHIA; ATTORNEY GENERAL OF THE 

STATE OF PENNSYLVANIA 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-10-cv-05950)

District Judge: Hon. Anita B. Brody

_______________

Argued

October 17, 2013
2

Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges.

(Filed: January 31, 2014 )

_______________

Kimberly M. Dolan [ARGUED]

Regional Housing Legal Services

2 S. Easton Road

Glenside, PA 19038

 Counsel for Appellant

Molly S. Lorber [ARGUED]

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

 Counsel for Appellees

_______________

OPINION OF THE COURT 

_______________

JORDAN, Circuit Judge.

Rodney Collins, a Pennsylvania prisoner convicted in 1993 of 

first-degree murder, appeals from an order of the United 

States District Court for the Eastern District of Pennsylvania 

denying his petition for a writ of habeas corpus. Although the 

District Court denied his petition, it certified two questions

_______________

 * Honorable Kermit V. Lipez, United States Court of 

Appeals Senior Judge for the First Circuit, sitting by 

designation.
3

for appeal: whether Collins was deprived of his Sixth 

Amendment right to effective assistance of counsel because 

his trial counsel “inadequately prepared for trial and 

completely failed to conduct any investigation, including into 

the ballistics evidence” (J.A. at A0004), and whether trial 

counsel’s alleged ineffective assistance, combined with 

alleged errors of the trial court, cumulatively caused him 

prejudice. Despite serious doubt that trial counsel conducted

an adequate investigation, we conclude that, given the 

uncontroverted evidence presented against Collins at trial, the 

state court determination that Collins failed to show he 

suffered prejudice was not an unreasonable application of the 

Supreme Court’s decision in Strickland v. Washington, 466 

U.S. 668, 687 (1984), which sets forth the standard for 

ineffective-assistance-of-counsel claims. See 28 U.S.C. 

§ 2254(d)(1). Collins also has not exhausted his claim of

cumulative error, which is therefore procedurally defaulted 

and not properly before us. Consequently, we will affirm the 

District Court’s ruling denying his habeas corpus petition. 

I. Factual Background and Procedural History

A. Factual Background

In the summer of 1992, a feud developed between, on 

one side, Collins, Andre Graves, and Kevin Cofer and, on the 

other, a West Philadelphia gang known as the “Boys from the 

Bottom.” On the night of July 12th of that year, Collins went 

to his girlfriend’s house and reported that the Boys from the 

Bottom were going to kill Graves, whom the gang members

had recently beaten. Collins told Graves of the threat, and 
4

Graves and Cofer then joined Collins in driving around 

Philadelphia in a station wagon, looking for the Boys from 

the Bottom. Cofer drove, Graves sat in the front passenger 

seat, and Collins sat in the backseat. After searching for 

several hours, they eventually returned to the neighborhood 

where they started, about a block from Collins’s girlfriend’s 

house. At that point, according to Cofer, while the three were 

still in the car, Collins suddenly drew a gun and shot Graves. 

Early the next morning, police found Graves’s body in 

the front seat of the station wagon with gunshot wounds as 

the apparent cause of death. Among the wounds were two 

bullet holes in Graves’s head, with exit wounds under his 

right eye and near his right ear. A bullet had also grazed his 

skull. Police found bullet casings in the rear passenger 

compartment, under the driver’s seat, and in the street behind 

the car. They also found two bullets in the passenger-side 

dashboard and in the passenger door, and two other bullets in 

the porches of nearby houses, as well as a fragment of a bullet 

in the street next to the car. Forensic testing established that 

all of the bullets were fired from the same .45 caliber gun. 

Homicide detectives interviewed Cofer, who told them 

that he saw Collins shoot Graves at point blank range from 

the backseat of the station wagon. Cofer said that, after the 

shooting, he followed as Collins ran to Collins’s girlfriend’s 

house. Once there, Collins told her that someone had driven 

by the station wagon and shot Graves. Cofer also said that he 

later returned to the station wagon to retrieve the car keys and 

a shotgun. 

Collins was eventually arrested for Graves’s murder,

and, in May 1993, he was tried and convicted of that crime. 
5

His trial counsel was Louis Savino. At the trial, the 

Commonwealth presented eye-witness testimony from Cofer; 

ballistics testimony from Police Officer John Finor and a 

chemist named Ronald McCoy; testimony from a medical 

examiner, Dr. Gregory McDonald, regarding the physical 

evidence from Graves’s body; and other testimony bearing on 

the events surrounding the murder. Collins testified in his 

own defense. He told the jury that, on the day in question, 

after he, Graves, and Cofer had searched the neighborhood,

Cofer dropped him off and, while walking to his girlfriend’s 

house, he heard gunshots. Collins stated that, after he heard 

the shots, Cofer ran up behind him and told him that some 

people “just got finished dumping on us,” i.e., shooting at the 

car. (J.A. at A0828.) Based on Collins’s testimony and 

proposed inferences from the evidence, Savino argued to the 

jury that the shots came from outside the car. He later 

described his trial strategy as attempting to create reasonable 

doubt by casting suspicion alternatively on the Boys from the 

Bottom and on Cofer as the possible shooters.

1

 

 

1 During post-conviction proceedings, Savino testified 

he had argued that “Kevin Cofer ... is the one who killed 

[Graves] by shooting from outside of the car” (J.A. at 

A1231), and that he also “stated ... with a lot of emphasis that 

the [B]oys from the [B]ottom might have been involved” (id. 

at A1245). The Pennsylvania Supreme Court characterized 

Savino’s trial strategy as “choosing to cast suspicion 

simultaneously on both Cofer and the supposed Boys from 

the Bottom.” Commonwealth v. Collins, 957 A.2d 237, 249 

(Pa. 2008). That court described Savino’s cross-examination 

of the Commonwealth’s experts as “elicit[ing] testimony... 

that the shots could have been fired by Kevin Cofer from the 

driver’s seat,” id.; however, we find no evidence in the record 
6

1. Ballistics Testing2

Much of the argument in this and earlier iterations of 

Collins’s battle for post-conviction relief has centered on the 

trial court’s admission of “last-minute” testing on the front 

passenger-seat headrest. (Appellant’s Opening Br. at 6.) 

Two days before trial, the Commonwealth told Savino that 

McCoy had conducted additional tests on the headrest, that 

the results were positive for lead residue from gun powder, 

and that McCoy would identify the residue and its

implications, while Officer Finor would opine on ballistics 

conclusions that could be drawn from the testing. During jury 

selection, Savino learned that the tests showed a particular 

pattern of lead residue on the headrest, but he did not see the 

actual test results until the trial had begun. 

On the first day of trial, Savino informed the court that 

he had recently been notified of the testing but had not seen a 

report. Savino said that the testing was a “complete surprise” 

and that the report “could be crucial in light of the case the 

shooter might have been outside of the car as compared to 

being inside of the car.” (J.A. at A0265.) Regarding the new 

evidence about the headrest, Savino also told the court “I am 

sure it will require great investigation on my part and possibly 

some work with experts to see if the tests are accurate.” (Id.

at A0266.) The court noted that “[Savino] might as well get 

 

that Savino varied from his insistence that the shots were 

fired from outside the car.

2 As do the parties, we use the term “ballistics testing”

broadly to include not only testing and conclusions about 

bullet trajectories and identification but also about chemical 

testing and related evidence. 
7

rolling on an expert now.” (Id.) Savino never consulted an 

expert. 

When the Commonwealth provided the testing report

to Savino, it showed a lead residue pattern on the passengerseat headrest “traversing from the left side and front to the 

middle of the headrest.” (Id. at A0508-09.) Savino moved to 

exclude the report, but the court denied the motion. He 

alternatively requested “a reasonable period to conduct 

whatever testing that we can do to try to refute” the evidence,

but that was likewise denied. (Id. at A0509-11.) The court 

entered into a discussion with Savino about ballistics testing 

for the defense, at one point asking “[w]hat kind of test do 

you want to make?” (J.A. at A510.) Savino responded, “I 

don’t know what kind of tests. The Commonwealth puts the 

defense in a very difficult position.” (Id.) Savino went on to 

argue that “[t]he question remains whether someone was in 

the car doing the shooting or outside the car,” to which the 

court confusingly responded “[i]t would be lead whether it 

came from the outside or the inside. The bullets were in the 

inside and that is where the lead was.” (Id. at A510-11.) 

At that point, the Commonwealth also told Savino that 

McCoy and Finor would testify about the lead residue and 

corresponding ballistics conclusions and that Savino could 

talk to Finor before the testimony. Savino, however, did not

interview Finor. In fact, he did not interview any of the

Commonwealth’s witnesses. He later said, “I interviewed no 

Commonwealth witnesses in Mr. Collins’[s] case, nor do I, 

with few exceptions, ever interview Commonwealth 

witnesses in homicides.” (J.A. at A1236.) 
8

As promised by the Commonwealth, Finor took the 

stand. Relying on the headrest testing, as well as ballistics

tests he performed that very morning, he testified that the 

murder weapon was fired no more than eighteen inches from 

the headrest. He also testified that the presence and shape of 

the bullet holes in nearby porches and in the dashboard, as 

well as the hole in the passenger door, were consistent with 

shots fired from behind Graves. McCoy testified in 

conformity with his report regarding the lead residue on the 

headrest. 

2. Cofer’s Testimony

Although Cofer was the Commonwealth’s key witness, 

at trial he recanted his prior statements and instead claimed

that, when initially interviewed by the police and at the 

pretrial hearing, he had lied about being present when Graves 

was shot because the police threatened to charge him with the 

homicide and told him that Collins had implicated him in the 

shooting. The prosecution thus decided to read into the 

record Cofer’s prior statements to police and his preliminary 

hearing testimony. The prosecutor went through every line of 

the prior statements, asking Cofer if he gave a specific 

answer, to which Cofer answered yes, and then asking if the

answer given was true, to which Cofer answered no. By this 

process, the prosecution highlighted details of Cofer’s 

original testimony that would have been difficult to fabricate. 

In addition, the prosecutor was able to point out that 

Cofer had earlier told detectives of Collins’s motive for the 

murder. According to Cofer, Collins had explained to him 

that he killed Graves because “[h]e could have got us 
9

rocked,” i.e., killed, in the feud with the Boys from the 

Bottom. (J.A. at A0307 (internal quotation marks omitted).) 

On the second day of his testimony, Cofer attempted to 

invoke his Fifth Amendment right against self-incrimination. 

Retaking the witness stand, after a weekend recess, Cofer 

stated, “[a]t this point, I will invoke my Fifth Amendment 

Right and plead the Fifth.” (J.A. at A0390.) The prosecutor

asked whether he had been threatened over the weekend and, 

after saying that he had not, Cofer continued to answer 

questions. Savino objected, stating his concern that Cofer had 

invoked the Fifth Amendment. To which the court replied,

“[h]ow can you invoke a Fifth Amendment privilege when 

you have been spilling it out for the last two days?” (Id. at 

A0393.) After more testimony, Savino again raised his

concern with the court, stating, “if this witness does invoke 

his Fifth Amendment privilege now,” there would be “no 

opportunity to cross examine him.” (Id. at A0412.) As it 

turned out, however, Savino was able to cross-examine Cofer

and to elicit the admission that Cofer had originally told 

detectives he was not present at the shooting but later 

changed his story. In addition, the cross-examination

established that Cofer had known Graves longer than Cofer 

had known Collins, and that Cofer was closer to Graves than 

to Collins. Savino also questioned Cofer regarding his 

possible implication in the homicide. Although Cofer was 

clearly a crucial witness, Savino did not try to interview him

before the cross-examination. 

To discredit Cofer’s changed testimony, the 

Commonwealth introduced two letters, which were given to 

the prosecutor during a lunch break on the second day of the 

trial by a woman identifying herself as Cofer’s mother. The 
10

letters were purportedly from Collins and asked Cofer not to 

testify against him. On the stand, Cofer refused to read the 

letters, so the prosecutor read them into the record over 

Savino’s objection. The first letter began: 

What’s up, Kev. (Kabir). In an effort to 

straighten out this (lie) that’s about to cost an 

innocent man his life, the necessary steps must 

be taken to clear us both. I prefer to do it this 

way cause (Louis Savino) is trying to turn the 

tables from one innocent man (me) to another. 

...[S]o to clear us both, you must sign and fill 

out this form, and return it to me cause I didn’t 

no [sic] anything to tell the police so there I 

refused to work with this lawyer to try and put 

you on the spot.

(Id. at A0537-38.)

The letter went on to ask that Cofer swear to a 

statement that read, in part, “I, (Kevin Cofer) have made a 

grave mistake and worked along with the police ... in an 

effort to commit and convict an [i]nnocent man of murder.” 

(Id. at A0539.) The proposed statement continued, “[a]ll 

these (lies) forced me into signing a false statement for fear 

that I would be charged with (murder).” (Id.) When the 

prosecutor asked Cofer whether “everything you told this jury 

about your not being involved ... [and] the police setting you 

up and threatening you was a result of this letter,” Cofer 

refused to answer. (Id. at A0539-40.) Savino objected and 

moved for a mistrial, neither of which succeeded. The 

prosecutor then read into the record the second letter, which 

stated in part:
11

Look Blood, you know from first hand 

experience about jail, so why is you putting me 

through this sucker ... . I mean if you going to 

straighten this out, and free an innocent black 

man, look, I know how them devils put they 

thing down when it comes to these bodies but 

that’s past and you hold the key to my release. 

(Id. at A0541.)

After another objection from Savino, the prosecutor 

finished reading the letter, which ended with: “Look, man, I 

know you ain’t that type of dude that want to be label a snitch 

and I know for real you ain’t built like that, so straighten this 

out as soon as possible.” (Id. at A0542.)

Savino once more objected to questioning a witness 

who had invoked his Fifth Amendment rights and moved for 

a mistrial. The court again overruled the objection.

3

 

3. The Medical Examiner

Dr. Gregory McDonald, the medical examiner who 

performed Graves’s autopsy, also testified at trial, specifically 

discussing the three gunshot wounds to Graves’s head. 

 

3

The prosecution also requested and received a 

handwriting exemplar from Collins. Collins asserts that the 

Commonwealth failed to prove that the letters were written by 

him and that “[a]n analysis at trial confirmed that they were 

not in [his] handwriting.” (Appellant’s Reply Br. at 18 n.6.) 

Collins, however, only directs our attention to sections of his 

own testimony where he denied writing the letters. 
12

McDonald found an “entrance wound in the left side of the 

head slightly above the left ear and slightly behind the left ear 

and that went through the skull ... and exit[ed] out of the 

right side of the head, slightly behind and slightly above the 

right ear.” (J.A. at A0674.) He summarized the trajectory of 

the shot that caused the wound as “rightward, slightly 

downward and forward.” (Id. at A0676.) He testified that 

another bullet went from “slightly above and slightly behind 

the left ear ... out the right side of the face just below the 

right eye.” (Id. at A0674-75.) McDonald said the trajectory 

of that shot was “forward, to the right, and slightly 

downward.” (Id. at A0678.) He also found a “graze wound 

of the left upper portion of the head going forward and to the 

right.” (Id. at A0674.) The Commonwealth argued that 

Graves’s wounds and the fact that the bullet trajectories were 

primarily forward and to the right were consistent with shots

fired from the backseat. On cross-examination, Savino 

elicited the admission that McDonald could not state exactly 

how far away from Graves’s head the shots were fired. 

4. Corroborating Witnesses

Other witnesses testified at trial that Collins had been 

trying to find Graves on the day of the murder; that Collins

owned a black .45 caliber handgun that he was carrying when 

he met with Cofer and Graves; that he had been in the 

backseat of the car, with Cofer and Graves in front; and that 

he later ran into his girlfriend’s apartment with blood on his 

knee and behaving nervously. 
13

5. Savino’s Theory of the Case

Notwithstanding the physical evidence and the expert 

testimony about it, Savino’s theory of the case was that the 

shooter was outside the car because there were bullet casings 

found outside and behind the car and because the Boys from 

the Bottom had a motive to kill Graves. Savino also wanted 

the jury to consider that Cofer had something to hide because 

he immediately fled the scene of the crime when his lifelong 

friend, Graves, was shot. The defense closing, therefore, 

pursued two different themes: that the Boys from the Bottom 

had a motive for murder and that Cofer was an unreliable

witness and perhaps was the actual shooter. Whoever the 

shooter was, Savino maintained, it was not Collins because 

the shots came from outside the car. Savino’s closing 

argument was almost evenly split between casting suspicion 

on Cofer and on the Boys from the Bottom. 

The jury evidently believed neither of those 

alternatives. It found Collins guilty, and he was sentenced to 

death. 

B. Procedural History

1. Direct Appeal

The Pennsylvania Supreme Court affirmed Collins’s 

conviction and sentence on direct appeal. See Commonwealth

v. Collins, 702 A.2d 540, 541 (Pa. 1997). It held that the 

evidence was sufficient to sustain a conviction for first-degree 

murder, and it rejected Collins’s three claims of error, 

namely: (1) that the Commonwealth’s tactics, specifically 

eliciting testimony from Cofer regarding his failure to testify 
14

in accordance with his prior statements, were inflammatory; 

(2) that trial counsel was ineffective for failing to object to 

those tactics; and (3) that trial counsel was ineffective for not 

requesting an alibi instruction related to Collins’s testimony 

that he left the car before the shots. Having concluded that 

Collins’s conviction for first-degree murder was sound, the 

court affirmed his death sentence. Id. at 546. The United 

States Supreme Court denied certiorari. Collins v. 

Pennsylvania, 525 U.S. 835 (1998). 

2. Post-Conviction Relief Proceedings 

Collins then collaterally attacked his conviction and 

sentence. See Commonwealth v. Collins, 2005 WL 6347804 

(Phila. Ct. Com. Pl., Feb. 15, 2005); Commonwealth v. 

Collins, 957 A.2d 237 (Pa. 2008). He filed a petition under 

Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa. 

Cons. Stat. Ann. § 9541 et seq., making 25 claims of error. 

The PCRA court granted a hearing as to six claims, which 

included the assertion that trial counsel was ineffective for 

failing to hire a ballistics expert. At the PCRA hearing, 

Savino testified that he had considered retaining a ballistics 

expert but decided not to, for strategic reasons. Specifically, 

he testified regarding his belief that, if he called an expert, the 

resulting report could have been discoverable by the 

Commonwealth and might have undermined Collins’s 

defense.

4

 In addition, Savino testified that his strategy was to 

 

4

Pennsylvania Rule of Criminal Procedure 305 

applied to pre-trial discovery at the time of Collins’s trial. 

Under Rule 305(C)(2)(a), a court could order the production 

of “results or reports ... of scientific tests ... that the 

defendant intends to introduce as evidence in chief, or were 
15

create a reasonable doubt in the jurors’ minds as to where the 

shots came from. He said he “argued to the jury that there 

was no proof that Mr. Collins fired any shots from the back

seat of that car. And in fact, Mr. Cofer, Kevin Cofer, the 

Commonwealth witness, is the one who killed the gentleman 

by shooting from outside of the car.” (J.A. at A1231.) 

Savino confirmed that he interviewed no witnesses and did 

not consult any experts in preparation for the guilt phase of 

Collins’s trial. 

William Welch, a ballistics expert, testified at the 

PCRA hearing on behalf of Collins. His testimony focused 

on the direction from which the shots were fired. Welch said

that Finor’s ballistics testing was unreliable because the test

shots had been fired directly into the test material. He also 

disputed the results because only one shot was fired in testing 

despite multiple shots having been fired in the actual murder, 

and because the testing was not done with the murder 

weapon. Welch testified that if the shooter had been sitting in 

the backseat of the car, it would have been awkward to reach 

around the headrest to fire in a way that was consistent with 

the physical evidence. He also stated that he would have 

been available to review the evidence at Collins’s trial, had he 

been called. 

 

prepared by a witness whom the defendant intends to call at 

the trial ... .” Pa. R. Crim. P. 305(C)(2)(a). Collins argues 

that if the expert report was not favorable for the defense, 

Savino never would have had to call the expert, and the report 

would not have been discoverable.
16

On cross-examination, however, Welch conceded that 

the physical evidence was consistent with a shooter inside the 

car – either in the driver’s seat or the backseat. As to physical 

evidence – particularly lead residue and bullet holes – counsel 

for the Commonwealth asked Welch if it was “consistent with 

a gun being fired in that car,” and Welch responded, “It is.” 

(Id. at A1194.) The questioning went on:

Q: Would you agree that the physical evidence 

in that car is, in fact, consistent with the 

testimony of Kevin Cofer [implicating Collins]?

A: Physical evidence, meaning the bullet holes?

Q: Yes.

A: It is consistent, but also consistent with that 

of the driver firing the shots.

(Id. at A1195.)

Q: Mr. Welch, your opinion that it would come 

from the driver’s side, you’re giving us your 

opinion it would be awkward physically to 

shoot someone from the back seat, but in order 

to explain a direct back-to-front shot in the 

dashboard, you would have to opine that there 

was a struggle between the driver and the victim 

of some sort and his hand was pushed in order 

to fire directly into the dash board; is that 

correct?

A: Yes.

Q: That’s not supported by any of the evidence 

that you’ve reviewed in this case; is that 

correct?
17

A: There doesn’t seem to be any physical 

evidence to that effect. No. 

(Id. at A1199-1200.) 

The PCRA court dismissed all of Collins’s claims 

except those regarding ineffective assistance of counsel at the 

sentencing phase. Regarding Savino’s failure to obtain a 

ballistics expert, the PCRA court held that Savino had a 

“reasonable strategy for not retaining a ballistics expert and 

no prejudice has been shown by his failure to do so.” (Id. at 

A0118.) Looking to the sentencing phase of the trial, 

however, the court held that Collins was entitled to relief 

because Savino was “ineffective for failing to investigate and 

present [mitigation] evidence,” and appellate counsel was 

ineffective for failing to raise Savino’s ineffectiveness with 

respect to sentencing.

5

 (Id. at A0135.) The court therefore 

vacated the death sentence and remanded for a new 

sentencing hearing. The Commonwealth decided not to seek 

the death penalty again, and Collins was resentenced to life in 

prison. 

 

5

The PCRA court stated: “If the jury was provided 

accurate information about defendant’s juvenile adjudications 

and available mitigation evidence, there is a reasonable 

probability that at least one juror would have struck a 

different balance and voted not to impose the death penalty. 

... Accordingly, trial counsel was ineffective for failing to 

investigate and present such evidence and appellate counsel 

was ineffective for failing to raise trial counsel’s 

ineffectiveness in this regard.” (J.A. at A0135 (citations 

omitted).)
18

Collins then appealed 15 claims to the Pennsylvania 

Supreme Court, which affirmed the PCRA court’s denial of a 

new trial. Collins, 957 A.2d at 243, 272. Relevant to the 

claims before us, the Pennsylvania Supreme Court noted that 

the issue of Savino’s failure to present expert ballistics 

testimony was properly layered with his claim that appellate 

counsel was ineffective for failing to raise Savino’s 

ineffectiveness. It also held that “[Savino] did not act in a 

constitutionally unreasonable fashion in choosing to cast 

suspicion simultaneously on both Cofer and the supposed 

Boys from the Bottom gang rather than attempt to find a 

competing defense ballistician to paint Cofer as the only 

possible perpetrator.” Id. at 249. The court determined that 

trial counsel made a strategic decision to not hire a ballistics 

expert but, instead, to create a reasonable doubt by casting 

suspicion on others, and, “because appellant failed to show 

that trial counsel lacked a reasonable strategic basis for 

choosing not to call a ballistics expert, his underlying claim 

fails.” Id. at 250. In his briefing before that court, Collins 

supported his claim that Savino had pursued a deficient trial 

strategy with, among other things, references to Savino’s 

general lack of preparation and inadequate investigation. The 

Pennsylvania Supreme Court, however, did not address the

lack of preparation or investigation that went into Savino’s

trial strategy, focusing instead on Savino’s decision not to 

hire a ballistics expert. 

Collins did not make a cumulative error claim during 

post-conviction proceedings. The Pennsylvania Supreme 

Court nevertheless reviewed his claims regarding each 

individual error that he now alleges cumulatively prejudiced 

him, and it rejected them all. See id. at 253-54, 259-60.
19

Collins subsequently filed in the District Court a 

petition for a writ of habeas corpus, pursuant to 28 U.S.C § 

2254, arguing that he is entitled to relief based on violations 

of his right to the effective assistance of counsel, his right to 

confront Cofer, and his right to due process of law. The 

District Court referred the case to a Magistrate Judge who, in 

a Report and Recommendation, recommended that the 

petition be denied and no certificate of appealability be 

issued. The Magistrate Judge determined that the 

Pennsylvania Supreme Court’s denial of Collins’s 

ineffectiveness claim was not an unreasonable application of 

federal law under 28 U.S.C § 2254 because it was based on

deference owed to Savino’s strategic decisions and that 

Savino did not “automatically lose[] the benefit of a 

presumption of reasonable strategic decisionmaking simply 

because he did not consult with a ballistics expert.” (J.A. at 

A0021.) Further, the Magistrate Judge noted that, given 

Welch’s concession on cross-examination that the shots could 

have been fired from the driver’s side or the backseat of the 

car, there was no “reasonable probability of an acquittal” 

even if Savino had consulted with an expert. (Id.) The 

Magistrate Judge also rejected Collins’s claim of cumulative 

error because, he said, there were no underlying errors. 

The District Court approved and adopted the 

Magistrate Judge’s Report and Recommendation as to each 

claim for relief, but it nevertheless stated that trial counsel 

was “clearly inadequate.” (Id. at A0003.) It thus certified 

two claims for appeal: (1) Collins’s claim that he was 

deprived of his Sixth Amendment right to effective assistance 

of counsel “because his attorney inadequately prepared for 

trial and completely failed to conduct any investigation, 

including into the ballistics evidence”; and (2) his claim of 
20

cumulative prejudice from various errors allegedly committed 

at trial. (Id. at A0003-04.) Those are the issues Collins 

brings to us now. 

II. Procedural Default

As a preliminary matter, we must consider the 

Commonwealth’s contention that we should affirm the 

District Court’s denial of Collins’s habeas petition on the 

basis of procedural default. “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 support the judgment.” 

Fahy v. Horn, 516 F.3d 169, 187 (3d Cir. 2008) (citing Nara 

v. Frank, 488 F.3d 187, 199 (3d Cir. 2007)). Procedural 

default occurs when a state court determines that “the 

prisoner ... failed to meet a state procedural requirement.” 

Coleman v. Thompson, 501 U.S. 722, 730 (1991).

The Commonwealth argues that the claims certified for 

appeal are not properly before us. It asserts that Collins 

raised only the issue of appellate counsel’s ineffectiveness 

before the Pennsylvania Supreme Court and, therefore, his 

claims against trial counsel were waived and thus 

procedurally defaulted. We reject that argument. 

Collins did raise his ineffective assistance claim as to 

trial counsel, and it was reviewed on the merits. The 

Pennsylvania Supreme Court found that the claim was 

properly layered with a claim of ineffective assistance from 

appellate counsel, consistent with Commonwealth v. Grant, 

813 A.2d 726, 733 (Pa. 2002). The court stated that, 
21

“[b]ecause [Collins] was represented by new counsel on 

direct appeal, and his appeal was pending on collateral review 

prior to our decision in [Grant], these [ineffective assistance 

of trial counsel] claims are cognizable only as ‘layered 

claims.’” Collins, 957 A.2d at 244. Under a layered-claim 

analysis, Collins had to plead and prove that trial counsel was 

ineffective. We have held that “[u]nder Pennsylvania law, 

where ineffectiveness claims are properly layered, there is no 

waiver and no procedural default.” Showers v. Beard, 635 

F.3d 625, 629 (3d Cir. 2011) (rejecting Commonwealth’s 

procedural default claims and finding them waived; 

proceeding to the merits where the state court addressed both 

effectiveness claims on the merits). Here, “the PCRA court 

and the [Supreme Court] addressed the ineffectiveness claims 

against both trial and appellate counsel on the merits.” Id. at

629 n.4. Likewise, the Magistrate Judge viewed the 

ineffectiveness of trial counsel as the main issue. Therefore, 

the Commonwealth’s procedural default arguments regarding 

ineffective assistance of counsel are unpersuasive.6 

 

6

 The Commonwealth also contends that Collins only 

raised claims of ineffective assistance of appellate counsel 

before the District Court and raises claims of ineffective 

assistance of trial counsel for the first time on appeal. This is 

inaccurate, as Collins’s habeas petition clearly indicates. See

Petition for Habeas Corpus at 9, Collins v. Beard, No. 10-

05950 (E.D. Pa. Aug. 1, 2012) (“A. Trial Counsel Adopted a 

Facially Implausible Defense.”). The Commonwealth may 

actually have waived its procedural default argument on this 

point, given that, in the District Court, it did not assert that 

Collins’s claims were waived as to everything except 

appellate counsel. See Showers v. Beard, 635 F.3d 625, 629 

(3d Cir. 2011) (citing Trest v. Cain, 522 U.S. 87, 89 (1997) 
22

As for Collins’s claim of cumulative error, the 

Commonwealth argues that it too is defaulted because it was 

not raised in state court and is therefore unexhausted.

7

 

Collins responds that “the cumulative error doctrine is a 

required method of conducting prejudice analysis,” not a 

standalone constitutional claim, and that the underlying errors 

were raised in state court and are therefore exhausted. 

(Appellant’s Reply Br. at 21.) We have not had occasion 

before to hold that a cumulative error argument constitutes a

standalone constitutional claim subject to exhaustion and 

procedural default, but, with the issue squarely presented 

now, we so rule. Collins’s cumulative error claim was not 

raised before the Pennsylvania Supreme Court and is 

therefore not properly before us. 

“Before seeking a federal writ of habeas corpus, a state 

prisoner must exhaust available state remedies, 28 U.S.C. § 

2254(b)(1), thereby giving the State the ‘opportunity to pass 

upon and correct alleged violations of its prisoners’ federal 

rights.’” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting 

Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). 

The Supreme Court has instructed that a claim is not “fairly 

presented” if the state court “must read beyond a petition or a 

 

(in habeas context, procedural default is normally a defense 

that the State is obligated to raise)).

7

The Magistrate Judge concluded that Collins had 

presented the underlying claims to the PCRA court, but did 

not know if the cumulative error claim had been presented to 

the Pennsylvania Supreme Court. Accordingly, the 

Magistrate Judge recommended that the claim be dismissed 

on the merits. 
23

brief ... in order to find material” that indicates the presence 

of a federal claim. Id. at 32. A claim is procedurally 

defaulted if the petitioner failed to exhaust that claim in state 

court and if state procedures prohibit the petitioner from later 

presenting the claim in state court. See Jimenez v. Walker, 

458 F.3d 130, 149 (2d Cir. 2006) ( “Under the proceduraldefault doctrine, when a prisoner has exhausted his state 

remedies but has not given the state courts a fair opportunity 

to pass on his federal claims, the prisoner has procedurally 

defaulted his claims ....”); Bridges v. Beard, 941 F. Supp. 2d 

584, 621 (E.D. Pa. 2013) (discussing exhaustion and 

procedural default requirements).

8

We thus do not agree with Collins’s assertion that 

cumulative error is only a method of conducting prejudice 

review. The cumulative error doctrine allows a petitioner to

present a standalone claim asserting the cumulative effect of 

errors at trial that so undermined the verdict as to constitute a 

denial of his constitutional right to due process. See Albrecht 

v. Horn, 485 F.3d 103, 139 (3d Cir. 2007) (holding that 

petitioner could not show that the cumulative prejudice of 

trial errors “undermined the reliability of the verdict”). 

Specifically, we have said that 

 

8 Collins does not attempt to show either cause and 

prejudice for the default or a fundamental miscarriage of 

justice and so we do not address those exceptions to the 

procedural default rule. See Jimenez v. Walker, 458 F.3d 130, 

149 (2d Cir. 2006) (citing Murray v. Carrier, 477 U.S. 478, 

495-96)(1986)) (holding petitioner ineligible for habeas relief 

on cumulative error claim when it was not exhausted and 

petitioner did not attempt to show cause and prejudice or a 

fundamental miscarriage of justice).
24

Individual errors that do not 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. 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. 

Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008) (internal 

quotation marks omitted) (citations omitted). Here, the

Pennsylvania Supreme Court reviewed each alleged 

underlying error and rejected each on its merits, but it was not 

presented with a separate claim of cumulative error. See 

Collins, 957 A.2d at 243-44 (listing the fifteen claims raised).

Although the Fifth Circuit Court of Appeals held in

Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir. 1992) (en 

banc), that cumulative error relief is available so long as the 

individual errors were themselves not procedurally defaulted,

several other circuits disagree and treat cumulative error 

claims as distinct claims subject to exhaustion and procedural 

default. See, e.g., Wooten v. Kirkland, 540 F.3d 1019, 1026

(9th Cir. 2008) (“[A] cumulative error claim must be clearly 

identified in a petitioner’s brief before a state court to be 

exhausted.”); Jimenez, 458 F.3d at 149 (holding that 

cumulative error claim must be fairly presented to state court 

to later be considered by federal courts on habeas review); 

Keith v. Mitchell, 455 F.3d 662, 679 (6th Cir. 2006) 
25

(“Because [the petitioner] did not raise his claim of 

cumulative error in the state courts, it is procedurally 

defaulted.”); Gonzales v. McKune, 279 F.3d 922, 925 (10th 

Cir. 2002) (finding default on habeas review because state 

court was not asked to consider cumulative error and 

therefore never had opportunity to consider it); Bridges, 941 

F. Supp. 2d at 621 (listing cases supporting the holding that

cumulative error claim, which was not presented to state 

court, was unexhausted and defaulted as an independent basis 

for habeas relief). Those decisions comport with the longheld view that in order to satisfy exhaustion, a state habeas 

petitioner must present the “substantial equivalent” of his 

federal claim to the state courts in order to give the state 

courts “an opportunity to apply controlling legal principles to 

the facts bearing upon his constitutional claim.” Picard v. 

Conner, 404 U.S. 270, 277-78 (1971). Because “[b]riefing a 

number of isolated errors that turn out to be insufficient to 

warrant reversal does not automatically require the court to 

consider whether the cumulative effect of the alleged errors 

prejudiced the petitioner,” Wooten, 540 F.3d at 1025, we now 

join those courts that hold that a claim of cumulative error 

must be presented to the state courts before it may provide a

basis for habeas relief. See 28 U.S.C. § 2254(b)(1)(A)

(exhaustion requirement). Collins’s cumulative error claim 

was not presented to the Pennsylvania Supreme Court as an 

individual claim for relief and, hence, was not exhausted in 

state court. It is now too late for him to return to the state 

courts to exhaust that claim, and it is therefore procedurally 

defaulted and not properly before us. 
26

III. Standard of Review

As is generally true in habeas corpus cases, this appeal 

is heavily influenced by a standard of review that dictates 

how much deference we must give to state court rulings. 

That standard, a function of the Anti-Terrorism and Effective 

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), 

does not “permit federal judges to ... casually second-guess 

the decisions of their state-court colleagues or defense 

attorneys.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013). Under 

AEDPA, habeas relief is not available for any “claim that was 

adjudicated on the merits” in state court unless that

adjudication either “resulted in a decision that was contrary 

to, or involved an unreasonable application of, clearly 

established federal law, as determined by the Supreme 

Court,” or was founded on an “unreasonable determination of 

the facts.” 28 U.S.C. § 2254(d)(1)-(2). Collins contends that 

“[t]he state court’s assertions are unreasonable applications” 

of federal law “and unreasonable in light of the state court 

record.” (Appellant’s Opening Br. at 28.) We focus on the 

“unreasonable application” clause of § 2254(d). A state court 

decision is an “unreasonable application” of federal law “if 

the state court identifies the correct governing legal principle 

from [the Supreme] Court’s decisions but unreasonably 

applies that principle to the facts of the prisoner’s case.” 

Williams v. Taylor, 529 U.S. 362, 413 (2000). 

Under the strictures of the “unreasonable application” 

clause, a federal court may not issue a writ of habeas corpus 

simply because it “concludes in its independent judgment that 

the state-court decision applied a Supreme Court case 

incorrectly.” Blystone v. Horn, 664 F.3d 397, 417 (3d Cir. 
27

2011) (internal quotation marks omitted). Instead, the 

petitioner must “show that the state court applied that case to 

the facts of his case in an objectively unreasonable manner.” 

Id. (internal quotation marks omitted). “It bears repeating 

that even a strong case for relief does not mean the state 

court’s contrary conclusion was unreasonable.” Harrington

v. Richter, 131 S. Ct. 770, 786 (2011). Section 2254(d) 

authorizes us to issue a writ of habeas corpus only “in cases 

where there is no possibility fairminded jurists could disagree 

that the state court’s decision conflicts with th[e Supreme] 

Court’s precedents.” Id. Under this highly deferential 

standard, “we will not surmise whether the state court reached 

the best or even the correct result in [a] case; rather, we will 

determine only ‘whether the state court’s application of 

[federal law] was unreasonable.’” Rountree v. Balicki, 640 

F.3d 530, 538 (3d Cir. 2011) (quoting Richter, 131 S. Ct. at 

785).

The clearly established law chiefly at issue in this case

is the Supreme Court’s landmark decision in Strickland v. 

Washington, which provides a two-pronged test for reviewing 

ineffective-assistance-of-counsel claims. 466 U.S. at 687-88. 

A petitioner must prove both (1) that “counsel’s 

representation fell below an objective standard of 

reasonableness” and (2) that petitioner was prejudiced by that 

subpar performance. Id. at 688, 694. But, before examining 

the state courts’ application of Strickland, we first have to 

determine whether Collins’s claims were adjudicated on the 

merits, since the distinction between claims that have been so 

adjudicated and claims that have not been means the 

difference between highly deferential review and de novo 

review. Cf. Porter v. McCollum, 130 S. Ct. 447, 452 (2009) 

(“Because the state court did not decide whether [the 
28

prisoner’s] counsel was deficient, we review this element of 

[his] Strickland claim de novo.”); Appel v. Horn, 250 F.3d 

203, 210 (3d Cir. 2001) (applying de novo review when 

Pennsylvania Supreme Court never considered petitioner’s 

constructive denial of counsel claim, and instead treated claim 

as one of ineffective assistance of counsel).9 

Here, the Pennsylvania Supreme Court focused its 

decision on Savino’s failure to present ballistics evidence. 

See Collins, 957 A.2d at 250. Collins, however, presents his 

Strickland claim as the broader assertion that Savino utterly 

failed to investigate and prepare for the case, which included, 

in part, the failure to present ballistics evidence. That broader 

claim is indeed the one that the District Court certified for 

appeal to us. We are therefore faced with the question of 

whether Collins “fairly presented” that broader claim to the 

state courts and if the state courts adjudicated it on the 

merits.

10

 We conclude that the broader claim was presented 

 

9

If there has been no adjudication on the merits of a 

claim, “the federal habeas court must conduct a de novo

review over pure legal questions and mixed questions of law 

and fact.” Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). 

State court factual determinations are “presumed to be 

correct,” absent clear and convincing evidence of error. Id. 

(citing 28 U.S.C. § 2254(e)(1)). 

10 Often, a question of this type is stated in terms of 

“exhaustion,” that is, whether the claim at issue was pursued 

in a manner that took advantage of all state court remedies. 

In looking at what claims were presented to state courts for 

the purposes of determining the applicable standard of 

review, we ask whether a court was given the opportunity to 

address a specific claim, regardless of whether the court
29

to and adjudicated on the merits by the state courts, and that 

the narrower focus of the Pennsylvania Supreme Court on 

ballistics evidence does not affect our standard of review. 

The record reveals that Collins presented to the PCRA 

court, and that the court reached, both the narrow claim that 

Savino failed to refute the ballistics evidence and the broader 

claim that he did not properly investigate and prepare for trial 

and retain expert testimony. The PCRA court denied both 

claims on the merits, explicitly ruling that Collins had not 

established that Savino’s performance was constitutionally 

deficient. As to the narrower claim, the PCRA court ruled 

that “no prejudice has been shown by [Savino’s] failure to 

[retain a ballistics expert].” (J.A. at A0118.) The PCRA 

court likewise decided that Collins had not demonstrated 

prejudice regarding his broader claim of lack of preparation 

and presentation of exculpatory evidence. (See J.A. at 

A0106-09.) On PCRA appeal, Collins challenged the PCRA 

court’s denial of both the narrower and the broader claims, 

and argued that the PCRA’s findings as to counsel’s 

representation and lack of prejudice were erroneous. The 

Pennsylvania Supreme Court acknowledged the PCRA 

court’s rulings on these claims, as well as Collins’s 

arguments, but affirmed on the ground that Savino’s 

 

actually addressed that claim. See Smith v. Digmon, 434 U.S. 

332, 333-34 (1978) (per curiam) (holding that habeas 

exhaustion requirement is not dependent on whether the state 

court’s opinion references a claim, which was raised in 

petitioner’s brief before that court, but rather if it was 

properly raised).
30

performance was not constitutionally deficient without ruling 

on prejudice. Collins, 957 A.2d at 248-50. 

We are persuaded that these state court decisions 

resulted in an adjudication on the merits of both Collins’s 

narrower and broader claims of ineffective assistance of 

counsel to which we must defer under AEDPA. Section

2254(d) deference applies to any claim that has been 

adjudicated on the merits in any state court proceeding, which 

“can occur at any level of state court” as long as the state 

court’s resolution has preclusive effect. Thomas v. Horn, 570 

F.3d 105, 117 (3d Cir. 2009) (holding that under § 2254(d) a 

claim has been adjudicated on the merits “when a state court 

has made a decision that finally resolves the claim based on 

its substance, not on a procedural, or other, ground”). In 

Collins’s case, there is no question that the PCRA court 

denied both the narrower and broader claims of 

ineffectiveness assistance on the merits and expressly ruled 

on each of the two prongs of the Strickland test. Although in 

affirming the PCRA court’s decision, the Pennsylvania 

Supreme Court discussed counsel’s performance in the 

context of the narrower claim only,11 nothing in its opinion 

 

11 An argument can be made that the Pennsylvania 

Supreme Court answered the question as it was put to it. In 

his briefing before that court, Collins presented what may be 

characterized as a single ineffective-assistance-of-counsel 

claim with two issues as supporting arguments: that Savino 

was ineffective for following a deficient “outside shooter” 

defense theory because of his inadequate preparation and 

investigation; and, more pointedly, that he was ineffective for 

failing to consult a ballistics expert. Even though the 

Pennsylvania Supreme Court focused on the ballistics 
31

questioned or undermined the PCRA court’s more specific 

rulings. The lack of an express ruling from the Pennsylvania 

Supreme Court on the question of prejudice does not negate 

the PCRA court’s decision that Collins was not prejudiced. 

Collins’s claim of ineffective assistance of counsel, framed 

both narrowly and broadly and tested under each of 

Strickland’s prongs, was adjudicated on the merits in state 

court, even if only at the PCRA court level. Therefore, under 

the circumstances presented in this case, the PCRA court’s 

determination as to prejudice is owed deference under 

AEDPA.

12 Cf. Bond v. Beard, 539 F.3d 256, 289 (3d Cir. 

 

evidence, it ultimately held that Savino’s trial strategy was 

not, in fact, limited to the outside shooter theory, but was 

more generally aimed at creating a reasonable doubt, and that 

he “cho[se] to cast suspicion simultaneously on both Cofer 

and the supposed Boys from the Bottom gang rather than 

attempt to find a competing defense ballistician to paint Cofer 

as the only possible perpetrator.” Collins, 957 A.2d at 249. 

Therefore, the Pennsylvania Supreme Court arguably 

adjudicated the claim as presented to it, determining that 

Savino, in fact, pursued a defense strategy to cast doubt on 

both Cofer and the Boys from the Bottom and rejecting 

Collins’s initial assertion about Savino’s strategy. 

12 We recognize that our approach in this case may 

seem at odds with the approach approved by the Seventh 

Circuit in Woolley v. Rednour, 702 F.3d 411, 421-22 (7th Cir. 

2012), cert. denied, Woolley v. Harrington, 134 S. Ct. 95 

(2013). In Woolley, the Seventh Circuit applied de novo 

review where the opinion of the state’s appellate court was 

“silent on defense counsel’s performance,” even though the 

state PCRA court had expressly ruled on both prongs of the 

Strickland test. Id. at 422. In the Seventh Circuit’s view, the 
32

2008) (reviewing the Pennsylvania Supreme Court’s decision 

for the first prong of the Strickland analysis, but the PCRA 

court’s ruling for the prejudice prong). 

 

opinion of the state’s appellate court was the “last reasoned 

opinion on the claim,” and thus the only decision entitled to 

AEDPA deference. Id. at 421-22. We think our approach is 

the better course in reviewing Collins’s claims of ineffective 

assistance of counsel. Our approach is especially appropriate 

in light of the United States Supreme Court’s repeated 

admonitions that AEDPA mandates broad deference to the 

decisions of the state courts. See, e.g., Titlow, 134 S. Ct. at 16 

(“We will not lightly conclude that a State’s criminal justice 

system has experienced the extreme malfunction for which 

federal habeas relief is the remedy.” (internal quotation marks 

omitted)); Richter, 131 S. Ct. at 786-88. In any event, even if 

we were to apply de novo review to the PCRA court’s 

prejudice rulings in Collins’s case, the result would be the 

same for the reasons discussed infra Part IV. See Richter, 

131 S. Ct. at 787-88 (stating that even under de novo review, 

prejudice is established only where counsel’s errors are “so 

serious as to deprive the defendant of a fair trial, a trial whose 

result is reliable.”).
33

IV. Discussion13

To summarize, we must decide whether, viewed with 

the deference required by AEDPA, the state courts’ denial of 

Collins’s ineffective-assistance-of-counsel claim was based 

on an “unreasonable application” of the Supreme Court’s 

decision in Strickland. 

Turning to the merits, we begin with the center of 

gravity in this case: the claim of ineffective assistance of 

counsel. As previously noted, Strickland provides a twopronged test for reviewing such claims. 466 U.S. at 687-88. 

First, the petitioner must show that “counsel’s representation 

fell below an objective standard of reasonableness” under

“prevailing professional norms.” Id. at 688. Second, the 

petitioner must show prejudice such that “there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different.” Id. at 694. On habeas review, we are “doubly 

deferential” in considering counsel’s performance: the state 

court was obligated on post-conviction review to view that 

performance deferentially, and, under AEDPA, we must give 

wide deference to the state court’s conclusions, disturbing 

them only if the state court unreasonably applied either of the 

 

13 The District Court had jurisdiction over Collins’s 

petition pursuant to 28 U.S.C. §§ 2241 and 2254. We have 

appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 

2253. The District Court did not conduct an evidentiary 

hearing, so our review of that Court’s decision is plenary. 

Blystone v. Horn, 664 F.3d 397, 416 (3d Cir. 2011). 
34

prongs of Strickland. Titlow, 133 S. Ct. at 13; Knowles v. 

Mirzayance, 556 U.S. 111, 123 (2009).

While we believe that the appropriate route to 

resolving this appeal is to consider whether the PCRA court 

correctly applied the prejudice prong – which we think it did 

in concluding that Collins was not prejudiced by Savino’s 

representation – we would be remiss if we did not comment 

briefly on trial counsel’s dismal preparation for a high stakes 

case. Under Strickland’s objective-reasonableness prong, the 

question of whether counsel had a reasonable strategy 

necessarily includes the question of whether that strategy was 

reasonably arrived at. See Strickland, 466 U.S. at 690-91 

(“[S]trategic choices made after less than complete 

investigation are reasonable precisely to the extent that 

reasonable professional judgments support the limitations on 

investigation.”); Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 

2006) (“Only choices made after a reasonable investigation of 

the factual scenario are entitled to a presumption of 

validity.”). Savino’s approach to this capital case was in 

many ways deeply troubling. It is not that he did everything 

wrong. He obtained useful information on cross-examination 

and he quite rightly, and vigorously, objected to the trial 

court’s determination to permit the last-minute ballistics 

evidence and other expert testimony. But it seems he 

conducted no investigation whatsoever. He interviewed no 

witnesses, including the one eye-witness, and instead crossexamined them cold at trial; he failed to interview the 

Commonwealth’s firearms expert or obtain his own; and he 

did not engage any other forensic expert. Cf. Siehl v. Grace, 

561 F.3d 189, 196 (3d Cir. 2009) (holding that a state-court 

ruling was not an objectively reasonable application of 

Strickland when trial counsel sought no forensic experts or 
35

evidence). His representation of Collins was so deficient at 

the sentencing phase that it was declared ineffective by the 

Pennsylvania courts. Collins’s assertion is not, as the 

Magistrate Judge concluded, that “Savino automatically loses 

the benefit of a presumption of reasonable strategic 

decisionmaking simply because he did not consult with a 

ballistics expert” (J.A. at A0021) but, rather, that Savino loses 

the presumption because he conducted no investigation and 

consulted with no one. During the PCRA hearing, Savino 

responded to the question “that’s the strategic decision that 

you made, to rely on yourself?” with the answer, “[y]es, sir.” 

(Id. at A1281.) It is hard to imagine why effective counsel in 

a capital case involving ballistics, chemical, and medical 

expert testimony would decline to seek the assistance of 

competent experts to advise the defense. So, while we do not 

rule on whether Savino’s performance fell below the 

constitutional minimum of effectiveness, it is not surprising 

that Judge Brody declared the performance to be “clearly 

inadequate.” (Id. at A0003.)

Our focus, though, is on the prejudice prong of 

Strickland. Again, to show prejudice under Strickland, a 

petitioner must demonstrate that there is a “reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceedings would have been different.” 466 

U.S. at 694. A reasonable probability is one “sufficient to 

undermine confidence in the outcome.” Id. Prejudice is 

reviewed in light of the totality of the evidence at trial and the 

testimony at the collateral review hearing. Rolan, 445 F.3d at 

682. The PCRA court held that “no prejudice has been 

shown by [Savino’s] failure to [retain a ballistics expert]” 

(J.A. at A0118); that the lack of preparation and inadequate 

pretrial consultation with Collins would not “change the 
36

verdict in this case” (id. at A0107); that Collins “suffered no 

prejudice” (id. at A0108) from Savino’s failure to interview 

additional witnesses; and that Collins did not “demonstrate

how he was prejudiced” by Savino’s lack of investigation of 

witnesses (id. at A0109). Although these are admittedly

cursory statements, AEDPA requires that we “determine what 

arguments or theories supported or ... could have supported, 

the state court’s decision.” Richter, 131 S. Ct. at 786.

The primary evidence before the jury consisted of 

Cofer’s eye-witness account and the damning physical 

evidence, especially Graves’s wounds, the bullet trajectories,

and lead residue. Therefore, Collins argues, he was 

prejudiced because Savino’s failure to investigate the forensic 

evidence affected his entire defense theory, and the jury was 

deprived of competing evidence on the main factual issue: 

where the shots originated. Collins claims that “[a] jury that 

was aware both of Cofer’s credibility problems and that the 

physical evidence favored Cofer as the shooter would likely 

have acquitted Collins.” (Appellant’s Opening Br. at 39.) 

The problem for Collins is that Cofer’s credibility was 

aggressively attacked and, more importantly, the physical 

evidence does not favor the defense. Especially when viewed 

through AEDPA’s deferential lens, the PCRA court’s

determination on prejudice – a determination that has 

preclusive effect, see supra Part III – was not an unreasonable 

application of federal law under § 2254(d)(1). 

Reviewing the arguments that “could have supported” 

that court’s holding, Richter, 131 S. Ct. at 786, we conclude

that the decision on prejudice reflects a reasonable application 

of Strickland, based on the totality of the available evidence –
37

both presented at trial and at the PCRA hearing. See

Williams, 529 U.S. at 398 (describing state prejudice 

determination as unreasonable for failing to evaluate the 

totality of the evidence). Given the medical examiner’s 

testimony, the damaging letters from Collins to Cofer,

Welch’s admission at the PCRA hearing that the shots could 

have come from a passenger in the backseat, the blood on 

Collins’s pants, and his ownership of a gun matching the 

caliber of the murder weapon, the state court was not 

objectively unreasonable in determining that there was no

reasonable probability that the result of the trial would have 

been different if Savino had prepared differently. “Although 

‘fairminded jurists could disagree’ with the way the state 

court weighed the evidence in this case,” Rountree, 640 F.3d.

at 544 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 

(2004)), it was not an unreasonable application of federal law

for the state court to say that Savino’s failures – whether 

described as a lack of preparation or confined to the ballistics 

evidence – did not raise a reasonable probability of a changed

outcome, for reasons we more fully consider next. 

First, the Commonwealth correctly asserts that the 

“uncontradicted and unequivocal testimony of the medical 

examiner,” Dr. McDonald, which would not have been 

refuted by an expert ballistician’s testimony, was of great 

importance in showing that the shooter was behind the victim. 

(Appellee’s Br. at 33.) At trial, McDonald testified that one 

of the gunshot wounds had a pattern that was “forward, to the 

right, and slightly downward.” (J.A. at A0678.) This was no 

doubt highly convincing evidence to the jury that a shot was 

fired from behind, especially given the exit wound under the 

eye. McDonald also testified that the other bullet went 

“rightward, slightly downward and forward” (id. at A0676) 
38

and that there was a “graze wound of the left upper portion of 

the head going forward and to the right” (id. at A0674). 

Those trajectories indicate a shot traveling forward rather 

than a shot directly to the right, and no alternative forensic 

explanation of that evidence was introduced. It is reasonable 

under Strickland to conclude that no amount of additional 

investigation on Savino’s part would have changed the 

physical evidence relied on by the medical examiner, which 

alone went far in establishing that the shots came from behind 

Graves. 

Second, although Welch testified at the PCRA hearing 

that he would have refuted Finor’s ballistics testing and 

proposed that the shots could not have come from the 

backseat, that testimony did not withstand cross-examination. 

As the Magistrate Judge noted, Welch “was forced to concede 

... that the physical evidence was consistent with the shooter”

inside the car – either in the driver’s seat or the backseat. (Id.

at A0021 n.7.) The claim that the shooter was in the driver’s 

seat rather than the backseat was substantially undermined by 

the bullets that went straight into the dashboard, as Welch 

effectively acknowledged. Welch also had to concede that 

“his principle reason for opining that the shooter did not sit in 

the rear of the car had nothing to do with specialized ballistics 

... but rather his belief that it would be awkward” to shoot 

around the headrest. (Id.)

14

 The Magistrate Judge was 

 

14 The Commonwealth contends that Collins told the 

police that he was sitting in the middle of the backseat and 

not directly behind the passenger. He thus would not have 

had to reach around the seat. However, at trial, Collins 

testified that there was a tire behind the driver’s seat and a 

radio in the middle of the backseat. 
39

therefore on firm ground in saying that Welch’s proposed 

expert testimony would not “have created a reasonable 

probability of an acquittal” (J.A. at A0021) because, at most,

it only showed another possible shooter, and Savino had 

already pointed to both Cofer and the Boys from the Bottom

to fill that role. Welch’s testimony on the whole adds only 

marginally to the defense Savino mounted, as it raises some 

suspicion about Cofer but gives no supporting physical 

evidence. This is not a case where, as Collins argues, 

“rebuttal testimony from a credible, objective expert witness 

... would have cast serious doubt on the prosecution’s case.” 

(Appellant’s Opening Br. at 40 (quoting Showers, 635 F.3d at 

634).) On the contrary, Welch’s cross-examination testimony 

at the PCRA hearing shows that he would have largely 

confirmed the Commonwealth’s case – namely that the shots 

were fired from inside the car and possibly from the rear seat. 

Had Savino more explicitly argued that Cofer shot Graves

from inside the car, as Collins claims Savino should have

argued, it would still be sheer speculation to conclude that 

Welch’s testimony would have changed the jury’s decision to 

believe that Cofer, not Collins, was the shooter. 

Third, the Commonwealth introduced letters from 

Collins to Cofer that hurt Collins’s credibility and supported

Cofer’s initial statements to police and his pretrial hearing 

testimony that Collins shot Graves. For example, one letter 

ended with the plea, “[l]ook, man, I know you ain’t that type 

of dude that want to be label [sic] a snitch and I know for real 

you ain’t built like that, so straighten this out as soon as 

possible.” (Id. at A0542.) It is true that the jury could have 

decided that those words from Collins were a sincere effort to 

persuade Cofer to recant lies that Cofer had earlier told when 

implicating him. But it is also true that the jurors could have 
40

viewed the letters as witness tampering by a guilty man, and 

it appears that that is indeed how they viewed them. 

Moreover, taken together with the letters, Cofer’s dodgy 

testimony at trial made his initial statements to the police all 

the more credible. What is important here is that no pretrial 

investigation or ballistics expert was going to make the letters 

disappear or explain them away. That conclusion is 

buttressed by the fact that the letters were given to the 

Commonwealth in the middle of trial, making any rebuttal 

preparation improbable. Although Savino’s choice not to

interview Cofer before cross-examination was highly 

questionable, we cannot say that it was objectively 

unreasonable for the state court to conclude that additional 

preparation for cross-examination would not have created a 

reasonable probability of an acquittal.

Finally, and though there is a disconcerting irony in it, 

the fact that the ballistics evidence and expert testimony were

introduced at such a late stage in the trial undercuts Collins’s 

prejudice claim. Because the headrest testing was a surprise, 

and despite Savino’s failure to promptly prepare when the 

prosecution first told him of it, the effect of anything he could 

have done to counter the evidence would have been limited 

by the short time that he had.

15

 It was not Savino’s fault that 

the Commonwealth introduced the testing so late. There was 

 

15 This is not a case where the Commonwealth is 

alleged to have withheld evidence or delayed in bad faith. 

The Pennsylvania Supreme Court noted that Collins “does not 

dispute the PCRA court’s finding that the Commonwealth 

disclosed the lead residue report on the very same day it was 

obtained, nor does he allege that the prosecutor was aware of 

the test results before that time.” Collins, 957 A.2d at 254.
41

no forewarning and little, if anything, he could have done 

before the trial to prepare for it. Thus, the timing of the

introduction of the ballistics evidence also weighs against a 

finding of prejudice. 

Our decision about the lack of prejudice is not made

lightly. Counterfactuals necessarily involve some 

speculation, and we cannot say with certainty that the result 

of Collins’s trial would have been the same even if Savino 

had been better prepared for trial and hired appropriate

experts. But that is not the standard we must apply. We look 

only far enough to determine if the state court reasonably 

applied federal law. See 28 U.S.C. § 2254(d)(1). We do not 

ask whether we “believe[] the state court’s determination 

under the Strickland standard was incorrect but whether that 

determination was unreasonable – a substantially higher 

threshold.” Knowles, 556 U.S. at 123 (citations omitted)

(internal quotation marks omitted). On the whole, it was not 

an unreasonable application of federal law for the state court 

to say that Savino’s failures – whether they be broadly 

described as a lack of preparation or confined to the ballistics 

evidence – did not raise a reasonable probability of a different 

outcome.

Therefore, the PCRA court, the highest state court to 

expressly address the question of prejudice, did not 

unreasonably apply Strickland in holding that Collins could 

not establish prejudice, and we are bound to uphold that 

conclusion.
42

V. Conclusion

Although the performance of Collins’s trial counsel

may well have been constitutionally deficient, fairminded 

jurists could agree with the PCRA court’s decision that 

Collins failed to show prejudice and so cannot establish 

ineffective assistance of counsel under Strickland. In 

addition, his cumulative error claim is procedurally defaulted. 

We will therefore affirm the decision of the District Court to

deny Collins’s petition for a writ of habeas corpus.