Collins v. Secretary of the Pennsylvania Department of Corrections

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
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.

2
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

3
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.

4
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

5
 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.

6
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 passenger-
seat 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.)

7
 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

8
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

9
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:

10
 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.

11
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.

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 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

13
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

14
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.

15
 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?

16
 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).)

17
 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.

18
 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

19
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,

20
“[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)

21
 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.

22
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 procedural-
default 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).

23
 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)

24
(“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 long-
held 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.

25
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.

26
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

27
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

28
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).

29
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

30
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

31
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.”).

32
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 two-
pronged 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).

33
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 cross-
examined 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

34
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

35
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 –

36
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)

37
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.

38
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

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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.

40
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.

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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.

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