Williams v. Beard

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 07-9002
_____________

TERRANCE WILLIAMS,

Appellant

v.

JEFFREY BEARD, Commissioner, Pennsylvania Department
of Corrections; LOUIS B. FOLINO, Superintendent of the
State Correctional Institution at Greene; FRANK TENNIS,
Acting Superintendent of the State Correctional Institution at
Rockview; THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA; THE ATTORNEY
GENERAL OF THE STATE OF PENNSYLVANIA

___________________________________

On appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 05-cv-03486
District Judge: The Honorable Michael M. Baylson
___________________________________

Argued December 7, 2010
 Before: SMITH, CHAGARES, and ALDISERT, Circuit
Judges

(Filed: March 9, 2011)

Helen Marino
Michael Wiseman (argued)
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
Counsel for Appellant

John W. Goldsborough (argued)
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107
Counsel for Appellees

________________

OPINION
________________

SMITH, Circuit Judge.

Twenty-five years ago, petitioner Terrance Williams
was tried and convicted of first degree murder for the killing
of Amos Norwood. A jury then returned a sentence of death.

2
After two decades of appeals in the Pennsylvania state courts,
Williams filed a petition for federal habeas review pursuant to
28 U.S.C. § 2254. The District Court denied the petition but
certified two questions for our review, to wit: (1) whether trial
counsel was constitutionally ineffective during the penalty
phase of trial, and (2) whether the Commonwealth exercised
its peremptory strikes in a racially discriminatory manner in
violation of Batson v. Kentucky, 476 U.S. 79 (1986). We
permitted Williams to expand the certificate of appealability
to include a question regarding the constitutional propriety of
the trial court’s accomplice liability instructions. We
conclude that each issue is without merit and will affirm.

I

The story of Terrance Williams is reminiscent of Dr.
Jekyll and Mr. Hyde. As Dr. Jekyll, Williams was a local
football star, the quarterback of the Germantown High School
team that won the Philadelphia Public League championship
in 1982. He was presented with the sportsman of the year
award by the Philadelphia Board of Sports Officials, and he
was recruited by at least eight different collegiate institutions.
Nearly all of Williams’ coaches and teachers described him as
mild-mannered, law-abiding, and honest. In 1983, Williams
graduated from Germantown High and matriculated to
Cheney State College in Philadelphia. In the estimation of
one of his instructors, Williams was “highly respected and
admired by his teacher[s] and all of his classmates.” He was
“[n]ot only . . . the star of the school’s football team, but
[was] also . . . a classmate and student who showed respect
for others and accepted his popularity with modesty.”
3
 But apparently Terrance Williams had a sinister side.
In the dead of night on Christmas Eve in 1982, a sixteen-year-
old Williams broke into the Philadelphia residence of Don
and Hilda Dorfman, aged sixty-nine and sixty-four,
respectively. He entered Mrs. Dorfman’s bedroom, wakened
her by pressing a .22 caliber Winchester rifle to her neck, and
then pulled a bedsheet over her face. When Mrs. Dorfman
attempted to remove the sheet, Williams ordered her to stop
“or her fucking head would be blown off.” Williams then
fired the rifle three times into the wall to show the victims he
was serious. Williams and an accomplice ransacked the
home before making off with cash, jewelry, and the
Dorfmans’ automobile.

It was not long before Williams was apprehended and
criminally charged for robbing and terrorizing the Dorfmans.
Although his age placed him under the jurisdiction of the
juvenile court, the Commonwealth moved to certify Williams
as an adult. In an attempt to avoid certification, Williams
produced no fewer than eight witnesses who attested to his
stable home life, loving parents, and supportive extended
family. Every character witness interviewed by the
Commonwealth believed Williams to be innocent. Even his
own attorney would testify years later, “I didn’t feel in my
own mind of mind[s] and heart of hearts that [Williams] was
involved in the matter.” Such was the nature of Williams’
dual existence.

In spite of the efforts to avoid it, Williams was
certified to stand trial as an adult. He was released pending
trial, however, and in January of 1984, he embarked in
4
earnest on a crime spree that would continue for the better
part of six months. Williams’ next victim was a fifty-one-
year-old man named Herbert Hamilton, an individual from
whom Williams had been receiving money in exchange for
sex. This relationship, like much else in Williams’ life, was
kept hidden from most who knew him. Hamilton apparently
threatened to publicize the secret, so Williams took action.

On January 26, 1984, Williams called on Hamilton at
his home. The two eventually retired to the bedroom and, as
they proceeded toward the bed, Williams withdrew a
concealed ten-inch butcher knife and attempted to stab
Hamilton. Hamilton fought back, wrestled the knife from
Williams, and stabbed Williams in the chest. Hamilton then
dropped the knife and ran into the kitchen to telephone for
assistance. Meanwhile, Williams retrieved a nearby baseball
bat, chased after Hamilton, and beat him with the bat until
Hamilton was bloody and severely wounded. Williams then
recovered the butcher knife and stabbed Hamilton
approximately twenty times—twice in the head, ten times in
the back, once in the neck, four times in the chest, and once
each in the abdomen, arm, and thumb. Finally, Williams
drove the butcher knife through the back of Hamilton’s neck
until it protruded through the other side. He then doused
Hamilton’s body with kerosene and unsuccessfully attempted
to set fire to it. When police officers later entered the
apartment, they found Hamilton’s kerosene-soaked body with
the knife jammed through his neck; on the bathroom mirror,
the phrase “I loved you” was scrawled in toothpaste.
Williams was then seventeen.

5
 The Hamilton murder remained unsolved at the time
that Williams went to trial for the Dorfman robbery in
February of 1984. Williams maintained his innocence of the
robbery throughout trial. He and his counsel mustered at least
nine character witnesses who testified that Williams was a
peaceful, law-abiding, and honest young man. The jury was
not persuaded. They returned a conviction for two counts of
robbery as felonies of the first degree, one count of burglary,
one count of simple assault, one count of unauthorized use of
an automobile, and one count of conspiracy. Williams was
nevertheless released pending sentencing. Tragically, his
crime spree continued.

On June 11, 1984, Williams and a friend, Marc Draper,
were gambling with several others on a street corner in the
West Mount Airy neighborhood of Philadelphia. It was not
long before both young men lost all of their money. While
brainstorming potential means by which to recoup their
losses, Williams said that he knew a man who lived nearby
from whom they could extort cash. 1 According to Williams,

1
Approximately one month before this date, Williams and Draper
were arrested for the armed robbery of fifty-three-year-old Robert
Hill, an acquaintance of the late Herbert Hamilton. The
Commonwealth discontinued the prosecution for this offense after
Williams was sentenced to death for the Norwood killing.
Evidence of the crime was not presented to the Norwood jury
during the trial’s penalty phase and was not offered by the
Commonwealth during the PCRA proceeding. Given these
circumstances, we have not considered the facts relating to this
offense for purposes of our present inquiry.

6
this individual—fifty-six-year-old Amos Norwood—was a
closeted homosexual. With a plan that they would threaten to
reveal Norwood’s secret to his wife, Draper and Williams set
off for Norwood’s apartment.

When they arrived at Norwood’s residence, Williams
told Draper to wait outside. Williams emerged with $10 in
cash approximately twenty minutes later. Williams and
Draper were apparently satisfied with this amount because
they returned to the street corner to resume gambling. A
short time later, Norwood drove by the corner in his blue
Chrysler LeBaron. When he spotted the vehicle, Williams
said, “There goes my uncle,” flagged down the car, and
entered via the passenger side door. Norwood then drove
away.

The blue LeBaron returned to the intersection several
minutes later, whereupon Williams exited the vehicle,
approached Draper, and said quietly, “Play it off like you
going home, like you want a ride home, and we gonna take
some money.” Draper understood Williams to be proposing a
robbery. The two then got inside Norwood’s automobile and
Draper began to provide false directions to his “home.” In
reality, Draper’s directions led Norwood to a secluded area
adjacent to the Ivy Hill Cemetery. Once there, Draper
reached over the backseat, grabbed Norwood from behind and
ordered him “to be quiet and get out of the car.” Norwood
stopped the vehicle and complied.

Williams and Draper then led Norwood into the
cemetery and ordered him to lie facedown near a tombstone.
7
A quick search of Norwood’s person revealed $20 hidden in
his sock. At this point, Norwood began to plead for his life.
The two assailants responded by removing Norwood’s
clothing and tying him up; Norwood’s hands were bound
behind his back with his shirt, his legs were bound together
with his pants, and his socks were forcefully jammed into his
mouth. Once Norwood was bound, Williams said to Draper,
“Wait, I’m going to the car. We’re getting ready to do
something.” And he walked off.

Williams returned with a tire iron and a socket wrench,
the latter of which he gave to Draper. Draper, seemingly
having second thoughts, urged Williams to leave. Williams
replied, “I know what I’m doin, I know what I’m doin. Don’t
worry about it, I know what I’m doin.” He then began
battering Norwood’s head with the tire iron. When he noticed
that Draper was frozen in place, Williams said, “Man, you
with me[?] We got to do this together.” Draper then sprung
into action himself, striking Norwood repeatedly with the
socket wrench. This violent scene continued until Norwood
lay motionless and dead. Draper later recalled that there was
blood everywhere. On the day of his second murder,
Williams was four months past his eighteenth birthday.

Williams and Draper soon parted ways. Draper
reported to work, while Williams took Norwood’s automobile
downtown to meet a friend, Ronald Rucker. Rucker noticed
that Williams was “hyper” and asked him if everything was
okay. Williams then disclosed that he had just “offed a guy”
named Amos. Although Rucker initially did not believe his
friend, he began to reconsider after observing blood stains on
8
Williams’ shoes. Later that night, Williams told Rucker he
was “going to get some gas from a gas station to go back to
the scene of the crime.” Rucker surmised that Williams
intended to burn Norwood’s body. That is precisely what
Williams did.

Williams and Draper were eventually undone by their
use of a credit card and telephone calling card—both in
Norwood’s name—that they had taken from Norwood’s
automobile. Philadelphia police traced use of the calling card
back to Rucker; upon questioning, he implicated Williams
and Draper. When his interview with law enforcement
concluded, Rucker informed Williams that he had provided
police with Williams’ last name. Panicked, Williams boarded
a bus bound for San Francisco. In the meantime, Draper was
arrested and promptly confessed. He also told police about
the Herbert Hamilton killing. With this information, officers
proceeded to obtain a warrant for Williams’ arrest.

Approximately halfway through his cross-country bus
ride, Williams telephoned his girlfriend, Marlene Rogers.
Rogers informed him about the outstanding arrest warrant,
and urged her boyfriend to return to Philadelphia so that he
could defend the charges against him. Her entreaty was
apparently convincing, for Williams promptly boarded an
airplane and returned east. On July 23, 1984, he arranged to
be arrested in the Philadelphia office of his attorney, Ronald
White. Williams’ mother notified a reporter from the Daily
News that her son would surrender to authorities in White’s
office. Before his arrest, Williams told the newspaper, “I
wanted to come back and clear my name.” The reporter
9
snapped photographs as Williams was led out of White’s
office in handcuffs.

Two days later, Williams was sentenced to twelve-
and-a-half to twenty years’ imprisonment for his participation
in the Dorfman robbery. In February 1985, he was tried and
convicted of third degree murder for the Hamilton killing.
Finally, a jury trial for the Norwood murder commenced in
January of 1986 in the Philadelphia Court of Common Pleas.
Draper testified for the Commonwealth and detailed the
manner in which he and Williams guided Norwood to the Ivy
Hill Cemetery, robbed and bound him, and then beat him to
death. Williams later took the stand in his own defense and
pinned the murder on Draper and another individual, Michael
Hopkins. The jury rejected Williams’ testimony and returned
a conviction for first degree murder, robbery, and conspiracy.

The trial’s penalty phase began immediately after the
jury announced its verdict. 2 The Commonwealth introduced
evidence that Williams was recently convicted of armed
robbery and third degree murder. Williams, in turn, presented
three witnesses in mitigation. His mother, Patricia Kemp,
described her son’s athletic success and testified that he was
well-liked and respected by those who knew him. She also
2
At the time of Williams’ trial and conviction, Pennsylvania law
required that “[a]fter a verdict of murder of the first degree is
recorded and before the jury is discharged, the court shall conduct
a separate sentencing hearing in which the jury shall determine
whether the defendant shall be sentenced to death or life
imprisonment.” 42 Pa. Cons. Stat. § 9711(a)(1).

10
characterized Williams’ stepfather as a verbally abusive
alcoholic who routinely berated her son and once pushed him
down a flight of stairs. Ms. Kemp denied participating in any
abuse herself. Marlene Rogers, Williams’ girlfriend and the
mother of his thirteen-month-old child, said that Williams
was a “very supportive father” and had never been violent
towards her or anyone she knew. The defendant’s last
mitigation witness added little, rambling that “we all have
sinned and come short of the glory of God . . . . We all have
committed murder. We all have stolen some things that we
should not have done. We all have committed adultery. I
don’t believe you should kill another person. Blood will be
on your hands.”

After witness testimony was complete, Williams’ trial
counsel, Nicholas Panarella, closed by emphasizing the
defendant’s youth at the time of the murder and by urging the
jury to find that age was a mitigating factor in the offense.
He then asked that they consider any residual doubt
remaining from the guilt phase and argued that a sentence of
life imprisonment was sufficiently severe, for it would subject
Williams to “all of the brutalities that are associated with
prison life.” Panarella concluded by pleading for mercy. His
plea was rejected. The jury found two aggravating
circumstances, namely (1) that the murder occurred during
commission of a felony (robbery), 42 Pa. Cons. Stat. §
9711(d)(6), and (2) that Williams had a significant history of
felony convictions involving the use or threat of violence, 42
Pa. Cons. Stat. § 9711(d)(9). The jury found that there were
no mitigating circumstances present in the case. They
returned a sentence of death.
11
 II

Williams has been contesting the jury’s death sentence
almost from the moment it was announced on February 4,
1986. Shortly after trial, he dismissed Panarella and obtained
new counsel, Norris Gelman. Gelman promptly filed a
motion for a new trial on ineffective assistance of counsel
grounds. On April 24 and July 1, 1987, the trial court held
hearings on the motion during which Panarella was called to
the stand to provide testimony on his mitigation strategy. He
indicated that his central focus was Williams’ youth, which
he believed to be the mitigating factor most applicable under
§ 9711 of the Pennsylvania Consolidated Statutes. Panarella
also explained that Williams provided him little, if any,
assistance, which frustrated efforts to present a strong cadre
of character witnesses on the defendant’s behalf. Finally,
when asked why he did not proffer evidence that Williams
was psychologically damaged, Panarella was frank:

My own personal observations of Mr. Williams
were and are that he is a very cold, calculating
person. I did not discern any area where there
was any doubt in my mind or that would have
caused me to consider the fact that he was either
not qualified or incapable of standing trial or
facing punishment.

At the conclusion of the hearing on July 1, 1987, Williams’
motion for a new trial was denied. The trial court thereafter
sentenced him to death on the first degree murder conviction.

12
 On February 8, 1990, the Pennsylvania Supreme Court
affirmed the trial court’s judgment and conviction. See
Commonwealth v. Williams (Williams I), 570 A.2d 75 (Pa.
1990). Williams did not petition for certiorari in the United
States Supreme Court. He did, however, timely file a pro se
petition for relief under Pennsylvania’s Post Conviction
Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541 et seq. 3 New
counsel was appointed and filed an amended petition raising
twenty-three separate claims for relief. 4 Among them,
Williams argued that the Commonwealth exercised its
peremptory strikes in a racially discriminatory manner, in
violation of Batson v. Kentucky, 476 U.S. 79 (1986), and that
Panarella provided constitutionally ineffective assistance
during the trial’s penalty phase. The Court of Common Pleas
denied relief on October 20, 1998, and on December 22,
2004, the Pennsylvania Supreme Court affirmed over the
dissent of two justices. 5 See Commonwealth v. Williams
3
Williams’ PCRA petition was timely because he filed it before
the post-conviction statute was amended to require petitioners to
seek collateral relief within one year of the date that judgment
becomes final. See 42 Pa. Cons. Stat. § 9545(b); see also Lewis v.
Horn, 581 F.3d 92, 97 n.2 (3d Cir. 2009).
4
For a comprehensive compilation, see the May 8, 2007 order
filed by the District Court. Williams v. Beard, 2007 U.S. Dist.
LEXIS 41310, at *7–10 (E.D. Pa. May 8, 2007).
5
Williams filed a second PCRA petition on February 18, 2005.
The Common Pleas Court dismissed the petition as untimely under
42 Pa. Cons. Stat. § 9545, and the Pennsylvania Supreme Court
affirmed on September 27, 2006.

13
(Williams II), 863 A.2d 505 (Pa. 2004).

In July of 2005, Williams filed a timely petition for a
writ of habeas corpus in the United States District Court for
the Eastern District of Pennsylvania. He therein raised a total
of twenty-one claims, most of them not pertinent to the
instant appeal. The District Court denied the petition in a
thorough memorandum dated May 8, 2007, but granted
Williams a certificate of appealability on two issues: (1)
whether the Commonwealth exercised its peremptory strikes
in a racially discriminatory manner, and (2) whether trial
counsel was constitutionally ineffective during the penalty
phase. We later granted Williams’ motion to expand the
certificate of appealability, permitting him to contest the
constitutionality of the trial court’s jury instructions on
accomplice liability. 6 We address each of these issues in
turn.

III

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

6
We also granted Williams’ motion to certify a fourth issue for
review, namely: whether the aggravating circumstance set forth at
42 Pa. Cons. Stat. § 9711(d)(6) was improperly applied by the jury
in violation of due process and the Eighth Amendment. Williams
later abandoned this issue, stating, “Since the jury found another
valid aggravating circumstance and no mitigating factors,
Petitioner does not believe he can show prejudice resulting from
this error and will not pursue this claim.” Appellant Br. at 1 n.1.
Accordingly, we do not address this contention.

14
2241 and 2254. We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. The District Court did not conduct an
evidentiary hearing in this case, instead limiting itself to the
evidence contained in the state court record. Our review of
the District Court’s legal conclusions is therefore plenary, and
we evaluate “‘the state courts’ determinations under the same
standard that the District Court was required to apply.’”
Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (quoting
Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009)).

Review of the instant petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2241 et seq. Hardcastle v. Horn, 368
F.3d 246, 254 (3d Cir. 2004) (petitions filed after April 1996
subject to AEDPA standards). For inmates such as Williams,
who are incarcerated by the state, AEDPA prohibits federal
court relief on claims which have not been presented to the
state’s tribunals. See 28 U.S.C. § 2254(b). If a petitioner’s
claim has been adjudicated on the merits in state court, habeas
relief is precluded unless the state court’s decision was (1)
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” § 2254(d).
Thus, AEDPA erects “‘a substantially higher threshold’ for
obtaining relief than de novo review.” Renico v. Lett, --- U.S.
---, 130 S. Ct. 1855, 1862 (2010) (quoting Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)). “[A] federal habeas
court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-
15
court decision applied clearly established federal law
erroneously or incorrectly,” Williams v. Taylor, 529 U.S. 362,
411 (2000); relief instead requires a determination that the
state court’s application was unreasonable, Renico, --- U.S. --
-, 130 S. Ct. at 1862.

In addition, AEDPA endows a state tribunal’s findings
of fact with a “presumption of correctness,” and this
presumption extends “to the factual determinations of state
trial and appellate courts.” Duncan v. Morton, 256 F.3d 189,
196 (3d Cir. 2001) (citing 28 U.S.C. § 2254(e)(1) and
Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). To
overcome the presumption, a habeas petitioner must proffer
clear and convincing evidence to show that a factual
determination is “objectively unreasonable in light of the
evidence presented in the state-court proceeding.”7 Miller-El

7
Section 2254(e)(1) refers to a state court’s specific factual
determinations—in other words, the discrete findings that “are
subsidiary to the ultimate decision.” Lambert v. Blackwell, 387
F.3d 210, 235 (3d Cir. 2004). These findings may be set aside
only upon a showing that there is clear and convincing evidence to
the contrary. A challenge to the state courts’ ultimate factual
determination proceeds under § 2254(d)(2). That section, which
refers to “an unreasonable determination of facts in light of the
evidence presented in the State Court proceeding,” requires a
federal habeas court to “assess whether the state court’s
determination was reasonable or unreasonable” given the totality
of the evidence adduced in the state tribunal. Lambert, 387 F.3d at
235. A challenge to the state court’s individual findings of fact
under § 2254(e)(1) may be based “wholly or in part on evidence
outside the state trial record.” Id. However, “even if a state
16
v. Cockrell, 537 U.S. 322, 340 (2003). Our review proceeds
under this AEDPA rubric.

A Batson Claim

Williams, who is an African American male, argues
that the Commonwealth’s use of peremptory challenges
during jury selection violated Batson v. Kentucky, 476 U.S.
79 (1986). In Batson, the Supreme Court held that deliberate
or purposeful exclusion of African Americans from jury
service violates the Equal Protection Clause. Batson, 476
U.S. at 84. The decision set forth a three-step procedure for
evaluating claims of discrimination in the jury selection
process:

First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race. Second, if that
showing has been made, the prosecution must
offer a race-neutral basis for striking the juror in
question. Third, in light of the parties’
submissions, the trial court must determine
whether the defendant has shown purposeful
discrimination.

court’s individual factual determinations are overturned, what
factual findings remain to support the state court decision must still
be weighed under the overarching standard of section 2254(d)(2).”
Id. at 235–36.

17
Miller-El, 537 U.S. at 328–29 (discussing three-step inquiry
and citing Batson, 476 U.S. at 96–98). Batson was handed
down in April 1986—four months after the jury was
empaneled to hear the Norwood murder trial. However,
because Williams’ conviction was pending on direct review at
the time Batson was decided, its holding applies retroactively
to jury selection in the Norwood case. See Griffith v.
Kentucky, 479 U.S. 314, 328 (1987). We thus begin our
review of Williams’ Batson claim by reconstructing the voir
dire, which commenced on January 6, 1986.

Each party was afforded a total of twenty peremptory
challenges. The Commonwealth exercised its first two strikes
on African American venirepersons; this prompted Panarella
to object and led to the following exchange:

MR. PANARELLA: Your Honor, I’m not sure
of the case but there was a recent case which
dealt with an attempt by the State or the
Commonwealth to systematically exclude
blacks from the jury. I think it would be
appropriate if we were to ask the
Commonwealth on what basis they exercised
the peremptory challenge.

THE COURT: Anything you want to say?

[PROSECUTOR]: No, your Honor, and I
might point out that the defense has exercised
its peremptory challenges. I believe that this
may be only the first challenge that I have
18
 exercised at all.

THE COURT: So far, the defense has
challenged peremptorily two persons who,
incidentally, both of whom were white. The
Commonwealth has peremptorily challenged
two persons who, incidentally, both of whom
are black. The Court is very cognizant of the
law in that area; however, at this point, I can see
nothing that suggests that the peremptory
challenges are being based on race alone. I’m
not going to ask the Commonwealth to set forth
the reason; however, I will ask Miss Foulkes if
the peremptory challenges are being based on
race alone?

[PROSECUTOR]: Absolutely not, your Honor.
I might suggest they are not being based on race
at all.

THE COURT: Thank you very much. The
record will reflect your objection.

The Commonwealth then used its next two peremptory
challenges to strike two more African American members of
the venire. Panarella objected a second time, stating, “I have
raised an objection with respect to how she has raised her

19
peremptory challenges.” 8 The trial judge then stated,

With respect to your objection concerning the
use of peremptory challenges, that is your right
and if there’s anything you want to say further
regarding that, you are free to say it. . . . You
made your position plain the last time, Miss
Foulkes, and I continue to accept that you are
challenging people without respect to race but
with respect to what other determinations you
choose to make which you believe to be right
under the law.

In response, the prosecutor, Andrea Foulkes, simply noted
that “the record will speak for itself.”

The Commonwealth thereafter struck ten additional
African American venirepersons. Panarella did not object to
the exercise of any of these strikes. In sum, fourteen of the
sixteen peremptory challenges exercised by the prosecutor
were utilized to dismiss African Americans. She struck
fourteen of the nineteen African American venire members
that she had the opportunity to peremptorily dismiss. In
contrast, Foulkes struck only two of the twenty-one white
individuals she had the opportunity to peremptorily excuse.

8
The Commonwealth argues that Panarella’s statement does not
constitute an objection. This assertion is belied by the record. The
trial judge himself characterized the statement as an “objection,”
and certainly responded in a manner indicating that he was ruling
on a formal objection.
20
At the conclusion of voir dire, the trial court empaneled a jury
composed of five black jurors and seven white jurors.

Williams did not advance a Batson challenge on direct
appeal. He did, however, raise the issue in his PCRA
petition. Williams’ petition also asserted that his trial counsel
was ineffective “for failing to insist that [the prosecutor]
provide race neutral reasons for her challenges,” and that
appellate counsel was ineffective for neglecting to raise a
Batson claim on direct appeal. In April 1998, twelve years
after jury selection in the Norwood murder trial, the PCRA
court held an evidentiary hearing on the issue.

At the outset of the hearing, the PCRA court provided
Williams with several pages of notes that the judge had taken
during voir dire. 9 The court summarized its notes for the
record:

There were 111 prospective jurors called.
That’s [the] total composition of the jury panel
from which the jury was selected. Of those
111, 68 were white and 43 were black. The
composition of the jury, the 12 principal jurors,
was 7 white and 5 black. Total perempts—

9
Williams was tried in the Philadelphia Court of Common Pleas
before the Honorable David N. Savitt, Jr. Pursuant to 42 Pa. Cons.
Stat. § 9545, jurisdiction over a PCRA proceeding lies in the
Common Pleas court. Accordingly, Judge Savitt also presided
over Williams’ petition for collateral relief.

21
 neither side used the full quota of 20 perempts.
The total perempts were 35, 18 of which were
applied to white prospective jurors, 17 to black
prospective jurors.

The Commonwealth utilized 16 peremptory
challenges, 2 of white jurors, 14 of black jurors.
The defense used 19 peremptory challenges, 16
of white jurors, 3 of black jurors.

Williams then called Foulkes to the stand. She provided an
explanation for each of her peremptory challenges and stated
that she “categorically did not” strike any venireperson on the
basis of race. Foulkes also testified that in order to prepare
for the PCRA hearing, she reviewed a transcript of voir dire
as well as the handwritten notes that she took during jury
selection. After reviewing both the transcript and the notes,
Foulkes created a one-page document that summarized, to the
best of her recollection, the rationale behind each peremptory
challenge. She used this summary to aid her PCRA
testimony, though she acknowledged that she was unable to
remember each of her reasons for exercising a strike.
Williams’ counsel was provided a copy of the one-page
summary and used it to question Foulkes during the hearing.

In addition, Williams moved for production of the
handwritten notes that Foulkes took contemporaneous with
voir dire. He argued that production of the notes was
necessary so that he could discover whether Foulkes recorded
the race of each potential juror, and to check the veracity of
her testimony. The PCRA court reviewed the
22
contemporaneous notes in camera and thereafter denied
Williams’ request. According to the court, the notes
contained

nothing [] that needs to be supplied to defense
counsel or to be made part of the record. Miss
Foulkes was called by the defense and testified
fully and completely using, in a very limited
way, the notes that are the subject of this
inquiry to refresh her recollection. Under the
circumstances, . . . no further discovery is
warranted.

In a written order dated January 13, 1999, the PCRA
court denied Williams’ Batson challenge, concluding that he
had failed to make out a prima facie case at step one of
Batson’s three-step analytical framework. 10 Williams
appealed, and the Pennsylvania Supreme Court ruled that the
Batson claim was waived because it was not presented on
direct appeal. It then turned to the derivative ineffective
assistance of counsel claims. To assess these claims, the
court looked to the underlying Batson challenge. Under
Pennsylvania law, as set forth in Commonwealth v. Uderra,
862 A.2d 74 (Pa. 2004), the failure to raise a Batson objection
during voir dire deprives a petitioner of Batson’s three-step
burden-shifting procedure. A petitioner so deprived must
instead shoulder the burden to prove actual, purposeful

10
The PCRA court did not address Williams’ derivative claims of
trial and appellate counsel’s ineffectiveness.

23
discrimination by a preponderance of the evidence. The
Pennsylvania Supreme Court found that Williams’ “trial
counsel did not raise a Batson objection during voir dire,” and
thus the Uderra rule applied. Williams II, 863 A.2d at 514. It
then determined that Williams had not marshaled evidence
sufficient to prove actual, purposeful discrimination. Id. at
515. In other words, the Pennsylvania Supreme Court held
that the underlying Batson claim was without merit. Because
the Batson claim was meritless, Williams’ trial and appellate
counsel could not have been ineffective for failing to raise it.
Finally, the court rejected Williams’ contention that he was
entitled to production of Foulkes’ contemporaneous
handwritten notes, concluding that he had “fail[ed] to
demonstrate exceptional circumstances existed which
required production of the actual notes.” Id. at 515 n.10
(citing 42 Pa. Cons. Stat. § 9545(d)(2) (“No discovery, at any
stage of proceedings under this subchapter, shall be permitted
except upon leave of court with a showing of exceptional
circumstances.”)).

Williams’ federal habeas petition presented both his
Batson claim and the derivative claims of ineffective
assistance of counsel. He also requested an evidentiary
hearing and an opportunity to discover Foulkes’ handwritten
notes. The District Court denied Williams’ request for
discovery, addressed the Batson claim on its merits, 11 and
11
The District Court correctly held that Williams did not
procedurally default his Batson claim by failing to raise it on direct
appeal. See Wilson v. Beard, 589 F.3d 651, 658 (3d Cir. 2009)
(“As we have held on numerous occasions, in capital cases where
the waiver occurred before the Pennsylvania Supreme Court made
24
held that the PCRA court unreasonably applied clearly
established federal law when it concluded that Williams had
not made a prima facie showing of racial discrimination at
step one of the Batson analysis. Even so, the District Court
found that the Commonwealth proffered clear and reasonably
specific race-neutral reasons for its peremptory strikes and
that, in the face of such a proffer, Williams was unable to
show purposeful discrimination in the Commonwealth’s
selection of jurors. Therefore, the Court held that Williams’
Batson challenge was without merit.

Williams contends that the District Court erred in three
respects: first, it should have compelled production of the
handwritten notes; second, it should have conducted an
evidentiary hearing to allow Williams to question Foulkes
regarding the content of the notes; and third, it should have
concluded that the Commonwealth’s use of peremptory
challenges contravened Batson. The Commonwealth offers
rejoinders to each of these arguments and identifies two
alleged errors of its own. Specifically, the Commonwealth
claims that (1) the Pennsylvania Supreme Court’s application
of the rule announced in Commonwealth v. Uderra, 862 A.2d
74 (Pa. 2004), is reasonable and governs the analysis of
Williams’ Batson challenge; and (2) even if the Uderra rule
does not apply, the PCRA court reasonably concluded that
Williams failed to make a prima facie showing of purposeful

it clear that it would no longer apply the relaxed waiver rule, the
waiver rule was not ‘firmly established and regularly followed’
and, therefore, the waiver is not an adequate basis for a finding of
procedural default.”). The Commonwealth does not contest this
aspect of the District Court’s opinion.
25
discrimination. 12 We address each of these competing claims
below.

1 Production of Prosecutor’s Notes &
Evidentiary Hearing

Williams argues that the PCRA court denied him a full
and fair opportunity to litigate his Batson claim when it

12
The Commonwealth also claims that under our recent decision
in Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir. 2008), Williams may
only challenge the prosecutor’s second peremptory strike, for this
is the only strike to which he contemporaneously objected. In
Abu-Jamal, we held that a timely, contemporaneous objection is
required in order to preserve a Batson issue for appeal. 520 F.3d at
284. We explained that the failure to object during voir dire
prevents the trial court from fulfilling responsibilities that are
critical to the Batson framework, namely: evaluating the
prosecutor’s credibility and demeanor and, if necessary, promptly
remedying defects in the selection process. See id. at 281–82. In
this case, there is no question that Williams raised an objection
after the Commonwealth exercised its second peremptory strike.
Williams then objected again following the prosecutor’s fourth
peremptory challenge. By raising two objections during jury
selection, Williams satisfied the contemporaneous objection
requirement. See Lewis, 581 F.3d at 102 (requiring “a timely
objection” to preserve a Batson claim under Abu-Jamal (emphasis
added)). He unequivocally put the trial court on notice of his equal
protection challenge and he allowed the court to inquire as
necessary. The court had an opportunity to evaluate the prosecutor
and, if it deemed appropriate, to investigate the reasons underlying
the strikes. This is all that Abu-Jamal requires. The
Commonwealth’s arguments to the contrary are without merit.
26
rejected his request to produce Foulkes’ contemporaneous
voir dire notes. He does not ask us to review the state court’s
evidentiary decision, but instead argues that under federal
law, he is entitled to production of the notes so that he may
pursue his § 2254 claims in federal court. Williams
petitioned the District Court for production of the notes and
for an evidentiary hearing in which to probe the rationale
underlying the Commonwealth’s exercise of peremptory
challenges. The District Court denied both requests.
Williams claims that this ruling was in error.

Discovery in § 2254 litigation proceeds according to
Rule 6 of the Rules Governing § 2254 Cases. That provision
states, “A judge may, for good cause, authorize a party to
conduct discovery under the Federal Rules of Civil Procedure
and may limit the extent of discovery.” Accordingly, habeas
petitioners are entitled to discovery only upon a showing of
“good cause,” and even then, the scope of discovery is subject
to a district court’s sound discretion. See Harris v. Nelson,
394 U.S. 286, 299–300 (1969) (discussing pre-Rule 6
discovery standard); Bracy v. Gramley, 520 U.S. 899, 909
(1997) (explaining that Rule 6 was meant to be consistent
with Harris); see also Deputy v. Taylor, 19 F.3d 1485, 1493
(3d Cir. 1994) (“A district court sitting in a habeas case
retains the discretion to permit additional discovery if the
petitioner presents ‘good cause’ to do so.”). A habeas
petitioner may satisfy the “good cause” standard by setting
forth specific factual allegations which, if fully developed,
would entitle him or her to the writ. See Harris, 394 U.S. at
300; see also Lave v. Dretke, 416 F.3d 372, 380 (5th Cir.
2005). The burden rests upon the petitioner to demonstrate
27
that the sought-after information is pertinent and that there is
good cause for its production. R. 6(b) R. Gov. § 2254 Cases;
Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004);
Murphy v. Johnson, 205 F.3d 809, 814–15 (5th Cir. 2000).

We review the District Court’s denial of a discovery
request for abuse of discretion. Smith v. Mahoney, 611 F.3d
978, 997 (9th Cir. 2010); Teti v. Bender, 507 F.3d 50, 60 (1st
Cir. 2007); Williams, 380 F.3d at 974; United States v. Roane,
378 F.3d 382, 403 (4th Cir. 2004); Newton v. Kemna, 354
F.3d 776, 783 (8th Cir. 2004); see also Bracy, 520 U.S. at
909. A district court abuses its discretion when discovery is
“‘essential for the habeas petitioner to develop fully his
underlying claim.’” Mahoney, 611 F.3d at 997 (quoting
Dung The Pham v. Terhune, 400 F.3d 740, 743 (9th Cir.
2005)).

The PCRA court afforded Williams considerable
latitude to develop the facts underlying his Batson challenge
during collateral proceedings. Williams was granted a six-
day evidentiary hearing; he called Foulkes to the stand and
conducted an extensive examination; he was provided with a
one-page document, created by Foulkes, summarizing her
concerns with each of the venire members that she struck; and
he was given several pages of the trial court’s voir dire-
related notes. What is more, although Williams was not
supplied with Foulkes’ handwritten voir dire notes, he was
expressly permitted to question the prosecutor regarding that
which she recorded in those notes.

On direct examination, Foulkes described the content
28
of her handwritten notes as follows:

I took notes with respect to each individual
prospective venire person as they came up and
as they spoke. My process of thinking requires
contemporaneously writing. It’s just something
that I do. And what I wrote down were
principally what it was that they said. It’s that
simple. If there was something overtly
extraordinary about the witness that I observed,
I would also write that down, but not always,
and that was not always necessary, and
whatever I didn’t write down would also be
reflected on the record.

Foulkes later explained that she “mostly wrote down things
like location, age, whether they had children, where they
worked, the things that we ask in voir dire routinely.” Thus,
according to Foulkes, much of what she recorded in her notes
was also reflected in the record; in other words, the
information was readily available for Williams to use as he
mounted his collateral attack.

When Williams queried whether Foulkes recorded
each prospective juror’s race, the prosecutor replied that she
generally did not, stating

No, I don’t believe I did. I would record both
black and white jurors in the couple of
occasions that I recorded race at all. I recorded
them more or less equally for black and white
29
 jurors, and I don’t think I did it beyond the first
few prospective jurors, and then I just stopped
doing it. It wasn’t necessary, certainly, to do it.

Of course, the PCRA judge heard Foulkes’ testimony and her
description of the notes’ contents. When he later examined
the notes in camera, he was aware of the prosecutor’s
representations, as well as Williams’ specific concerns
regarding the veracity of those representations. Yet, the court
stated on the record that it found “nothing [in the notes] that
needs to be supplied to defense counsel or to be made part of
the record.” Furthermore, the court characterized Foulkes’
testimony regarding her notes as “full” and “complete,” and
ruled that “no further discovery is warranted.” 13

13
Prior to the PCRA court’s in camera review, Williams’ counsel
made several oral requests for production of the notes. His
arguments in favor of production were clear and well stated.
Foremost, he was concerned that Foulkes was not disclosing the
complete contents of the notes. Thus, counsel argued, “I should
not be in a position, with all due respect to the witness and her high
office, of taking her word for it. She’s got notes; I should be
allowed to look at her notes. She’s just like any other witness.
And I can’t—as my client’s attorney, I’m charged with a
responsibility to not take her word for it. My job is to get the notes
so I can check the veracity of her answers, and that’s why I’ve
sought the notes.” Counsel was also interested in evidence of
Foulkes’ thought process. He argued, “She may have a pattern of
what she recorded that could reflect what she thought at the time
she exercised her strikes.” Both of these contentions were
proffered directly prior to the PCRA court’s in camera review.
30
 Williams now essentially asks that we disbelieve the
PCRA court, yet he presents us with no fact-based reason to
do so. Instead, he argues that the notes are imperative so that
he may inquire into the prosecutor’s state of mind. His
argument proceeds as if he has never had such an opportunity.
But Williams has subjected Foulkes to cross examination on
precisely this point. He has also discovered a summary
compilation of the motives underlying her strikes. The PCRA
judge compared this summary, in camera, to Foulkes’ raw
notes, and pronounced it a “full” and “complete” disclosure.
Thus, Williams has already been afforded significant
opportunity to discover the prosecutor’s state of mind; he fails
to set forth, in a colorable manner, exactly what he lacks.

Ultimately, Williams’ request amounts to an entreaty
to engage in a fishing expedition. The law is clear, however,
that such speculative discovery requests should be rejected.
See Murphy, 205 F.3d at 814 (“Simply put, Rule 6 does not
authorize fishing expeditions.”); see also Mayberry v.
Petsock, 821 F.2d 179, 185 (3d Cir. 1987). The District
Court reviewed the record of collateral proceedings, remarked
upon the significance of both the PCRA court’s in camera
review and subsequent characterization of the notes, and ruled
that Williams “received all the information he is
constitutionally entitled to in order to proceed with his Batson

When the PCRA court subsequently described the testimony as
“full” and “complete,” it was implicitly indicating that Foulkes
testified truthfully about the notes’ contents and that they
contained no relevant, undisclosed indicator of her subjective
motivation.

31
claim.” The District Court did not abuse its discretion in
reaching this conclusion.14 See Mahoney, 611 F.3d at 997
(stating that a district court abuses its discretion when it
denies discovery that is essential to development of the
petitioner’s claim).

In addition, the District Court did not abuse its
discretion by denying Williams’ motion for an evidentiary
hearing. District courts have discretion to grant such hearings
under § 2254(e)(2). Palmer v. Hendricks, 592 F.3d 386, 393
(3d Cir. 2010); Campbell v. Vaughn, 209 F.3d 280, 287 (3d
Cir. 2000). We have set forth two considerations to guide a
district court when confronted with such requests: first, it
“should determine whether the petition presents a prima facie
showing which, if proven, would enable the petitioner to
prevail on the merits of the asserted claim,” and second, even

14
The District Court incorrectly applied 28 U.S.C. § 2254(d) to
Williams’ request for production, holding that the PCRA court’s
“refusal to turn over the notes was not contrary to or an
unreasonable application of clearly established federal law,” and
that the decision was “not based on an unreasonable determination
of the facts in light of the evidence presented in the state court
proceedings.” Section 2254(d) applies only to a “substantive
request for habeas relief” and not a discovery request. Fahy v.
Horn, 516 F.3d 169, 180 (3d Cir. 2008). Application of § 2254(d)
to a habeas discovery request surely imposes an overly stringent
burden, one that a petitioner is unlikely to meet. The District
Court’s error is not fatal, however, for we exercise plenary review
over the Court’s legal conclusions, see Lewis, 581 F.3d at 100, and
ultimately reach the same result under Rule 6.

32
if the petitioner satisfies this first criterion, the court “may
decline to convene an evidentiary hearing if the factual
allegations are ‘contravened by the existing record.’” 15
Palmer, 592 F.3d at 393 (quoting Schriro, 550 U.S. at 474);
see also Morris v. Beard, --- F.3d ---, 2011 U.S. App. LEXIS
1551, at *28 (3d Cir. Jan. 26, 2011) (“‘[I]f the record refutes
the applicant’s factual allegations or otherwise precludes
habeas relief,’ no evidentiary hearing is required.” (quoting
Schriro, 550 U.S. at 474)). Moreover, we have stressed that
“courts [should] focus on whether a new evidentiary hearing
would be meaningful, in that a new hearing would have the
potential to advance the petitioner’s claim.” Campbell, 209
F.3d at 287.

The District Court held that an evidentiary hearing
would not advance Williams’ Batson inquiry. Williams was
afforded a full and complete hearing in the PCRA court. He
was provided with the trial court’s voir dire notes, as well as a
document summarizing the motivation for each of the
Commonwealth’s peremptory strikes. The prosecutor
appeared for several hours of testimony, almost all of which

15
“Under § 2254(e)(2), ‘a habeas court is barred from holding an
evidentiary hearing unless the petitioner was diligent in his attempt
to develop a factual basis for his claim in the state court.’” Morris
v. Beard, --- F.3d ---, 2011 U.S. App. LEXIS 1551, at *19 (3d Cir.
Jan. 26, 2011) (quoting Palmer v. Hendricks, 592 F.3d 386, 392
(3d Cir. 2010)). Williams diligently pursued—and obtained—an
evidentiary hearing in the PCRA court, during which his Batson
claim was explored in detail. He is therefore not barred from
seeking an evidentiary hearing in federal court.

33
centered upon her voir dire strategy and state of mind. She
proffered an explanation for each of her challenges and
supported most of these explanations by reference to the
record. The racial composition of the venire and jury was
clearly established. In short, the PCRA proceeding was
comprehensive. Williams identifies no potential facts which
a second evidentiary hearing is likely to unearth. The District
Court quite accurately observed that “[n]o additional, relevant
information would be gained from a federal hearing that
cannot be gleaned from the state court record.” We agree.
See Morris, --- F.3d ---, 2011 U.S. App. LEXIS 1551, at *29–
30 (explaining that an evidentiary hearing is warranted only if
there are “critical issues of material fact” that remain
unresolved). The District Court’s rejection of Williams’
discovery requests will be affirmed.

2 Application of the Uderra Rule

On collateral appeal, the Pennsylvania Supreme Court
determined that Williams waived his Batson claim because,
as a matter of fact, “trial counsel did not raise a Batson
objection during voir dire.” Williams II, 863 A.2d at 514.
This was an unreasonable determination of facts in light of
the evidence presented in the state court proceeding. The trial
record is plain—and both parties agree—that Williams
objected after the Commonwealth used its second peremptory
challenge to dismiss an African American venireperson.
Williams objected a second time after Foulkes exercised her
fourth strike. Thus, the Pennsylvania Supreme Court’s fact-
finding is clearly contradicted by the record. As a result of its
mistake of fact, the Court did not address the Batson claim on
34
its merits.

The Pennsylvania Supreme Court did, however,
indirectly address the Batson claim through its ineffective
assistance inquiry. Specifically, Williams argued that trial
counsel was ineffective for failing to insist that the
Commonwealth provide race-neutral reasons for its
challenges, and that appellate counsel was ineffective for
neglecting to raise a Batson challenge on direct appeal. To
assess the ineffective assistance claims, the Supreme Court
queried whether Williams’ underlying Batson challenge was
meritorious. It ultimately answered in the negative after
applying its then-recent precedent, Commonwealth v. Uderra,
862 A.2d 74 (Pa. 2004). Uderra held that when a post-
conviction petitioner fails to raise an adequate Batson
challenge at trial, he or she is not entitled to rely upon
Batson’s burden-shifting framework in a collateral attack;
rather, the petitioner must prove actual, purposeful
discrimination by a preponderance of the evidence. Uderra,
862 A.2d at 86–87. In Williams’ case, the Pennsylvania
Supreme Court held that the evidence did not meet the
threshold mandated by Uderra. The court thus determined
that the underlying Batson challenge lacked merit and,
accordingly, rejected both ineffective assistance claims.
Williams II, 863 A.2d at 514–15. Neither ineffective
assistance claim is before us today.

The Commonwealth argues that the Pennsylvania
Supreme Court’s application of the Uderra rule is reasonable
and must therefore guide our inquiry into the merits of
Williams’ Batson challenge. In other words, the
35
Commonwealth argues that we should not apply the three-
step Batson framework, but should instead simply ask
whether Williams proved racial discrimination by a
preponderance of the evidence. We disagree. As explained
above, the Pennsylvania Supreme Court determined that
Williams waived his Batson claim; thus, it did not apply
Uderra to the claim. In fact, it did not address the claim at
all. See Laird v. Horn, 414 F.3d 419, 424 (3d Cir. 2005)
(critiquing contention that a state court implicitly addresses
the merits of a claim when it rules on a derivative ineffective
assistance of counsel claim). What is more, the Pennsylvania
Supreme Court’s waiver holding is premised on an
unreasonable determination of facts, namely: the faulty
finding that Williams failed to raise a Batson objection during
voir dire. Given these circumstances, we need not assess the
appropriateness of the Uderra rule, nor will we express an
opinion on whether it represents an unreasonable application
of Batson. We now turn to the merits of this equal protection
challenge.

3 Batson Merits

The PCRA court denied Williams’ Batson claim on the
merits: it held that there was insufficient evidence from which
to infer that the Commonwealth exercised its peremptory
challenges in a racially discriminatory manner. As noted
above, the Pennsylvania Supreme Court did not address this
substantive determination, but instead resolved Williams’
Batson claim on procedural grounds. The Supreme Court’s
procedural resolution is the only decision entitled to
preclusive effect. See Thomas, 570 F.3d at 115. Thus, for
36
purposes of AEDPA, the Pennsylvania state courts have not
adjudicated the Batson claim on the merits. See id. at 114–
15; see also Lewis, 581 F.3d at 100 (explaining that when a
state court’s final resolution of a claim is based on procedural
grounds, that claim has not been “adjudicated on the merits”
for purposes of § 2254(d)). No AEDPA deference is due by
this Court. 16 Lewis, 581 F.3d at 100.

A Batson challenge presents a mixed question of law
and fact on federal habeas review. Hardcastle, 368 F.3d at
254; Holloway v. Horn, 355 F.3d 707, 719 (3d Cir. 2004).
When AEDPA deference does not apply, we review a mixed

16
The District Court incorrectly afforded AEDPA deference to the
PCRA court’s substantive resolution of the Batson claim. The
District Court concluded that, although the Pennsylvania Supreme
Court did not adjudicate the claim on the merits, the state courts—
in this case, the PCRA court—had resolved the claim on
substantive grounds, and thus there was an “adjudication on the
merits” under § 2254(d). An “adjudication on the merits” can, of
course, occur at any level of the state courts. See Thomas v. Horn,
570 F.3d 105, 115 (3d Cir. 2009). When the state supreme court
finally resolves a claim on procedural grounds, however, the
substantive determination of a lower state court is stripped of its
preclusive effect. Id. A substantive determination that lacks
preclusive effect is not an “adjudication on the merits.” Id. at 114
(explaining that an “adjudication on the merits” is “a decision
finally resolving the parties’ claims, with res judicata effect, that is
based on the substance of the claim advanced, rather than on a
procedural, or other, ground” (quoting Sellan v. Kuhlman, 261 F.3d
303, 311 (2d Cir. 2001))). As a result, the PCRA court’s Batson
ruling was not an “adjudication on the merits.”

37
question of law and fact de novo. Lewis, 581 F.3d at 100.
However, any of the state courts’ pure factual determinations,
whether explicit or implicit, retain the presumption of
correctness mandated by AEDPA. See id.; see also §
2254(e)(1); Simmons v. Beard, 590 F.3d 223, 231 (3d Cir.
2009). Batson announced a three-step burden-shifting
framework for judges to employ in order to determine
whether racial discrimination is at work in jury selection.
That procedure, which we have set forth above, requires a
defendant to make out a prima facie case of purposeful
discrimination before the prosecutor must articulate race-
neutral justifications for her strikes. Miller-El, 537 U.S. at
328 (citing Batson, 476 U.S. at 96–98). After the parties have
satisfied their respective burdens of production in these first
two steps, the defendant must prove purposeful
discrimination by a preponderance of the evidence. See id. at
328–29 (citing Batson, 476 U.S. at 98).

Establishment of a prima facie case requires the
defendant to show that “the totality of the relevant facts gives
rise to an inference of discriminatory purpose.” Johnson v.
California, 545 U.S. 162, 168 (2005) (quoting Batson, 476
U.S. at 93–94). This step is not intended to be particularly
onerous, and “the defendant is entitled to rely on the fact . . .
that peremptory challenges constitute a jury selection practice
that permits those to discriminate who are of a mind to
discriminate.” Abu-Jamal v. Horn, 520 F.3d 272, 288 (3d
Cir. 2008) (quoting Batson, 476 U.S. at 96). That said, we
have emphasized that “peremptory strikes are presumptively
valid” and “need not be supported by any reason” so long as
they are not “exercised on an unconstitutional basis, such as
38
race or gender.” United States v. DeJesus, 347 F.3d 500, 505
(3d Cir. 2003).

The Supreme Court has identified at least two
examples of circumstances relevant to step one’s totality
inquiry. First, the defendant may proffer evidence that the
government exercised a “‘pattern’ of strikes against black
jurors included in the particular venire, [which] might [then]
give rise to an inference of discrimination.” Batson, 476 U.S.
at 97. Second, “the prosecutor’s questions and statements
during voir dire examination and in exercising his challenges
may support or refute an inference of discriminatory
purpose.” 17 Id. In the instant matter, the venire was 39%
African American. The Commonwealth exercised a total of
sixteen peremptory challenges; fourteen of those were used to
remove African American members of the venire. Thus, the
prosecutor struck African Americans at a rate of 87.5%, but
struck white venirepersons at a rate of 12.5%. The District
Court called this pattern “stark” and held that these statistics
alone were sufficient to make out a prima facie case. That
ruling is consistent with our precedents.

Statistical evidence may be sufficient by itself to make
out a prima facie case of racial discrimination. See, e.g.,

17
Jurisprudence in this circuit has “identified several additional
relevant factors, including how many members of the cognizable
racial group are in the venire panel; the nature of the crime; and the
race of the defendant and the victim.” Lewis, 581 F.3d at 103
(internal quotations omitted).

39
Jones v. Ryan, 987 F.2d 960, 971 (3d Cir. 1993); Overton v.
Newton, 295 F.3d 270, 278 & n.9 (2d Cir. 2002) (citing cases
and stating “statistics, alone and without more, can, in
appropriate circumstances, be sufficient to establish the
requisite prima facie showing under Batson”). In Holloway v.
Horn, we had “little difficulty” finding a prima facie case
when the prosecutor used eleven of twelve strikes to remove
African American venirepersons. 355 F.3d at 722. Similarly,
we found a prima facie showing in Brinson v. Vaughn, where
the Commonwealth used thirteen of its fourteen strikes to
remove African Americans. 398 F.3d 225, 234–35 (3d Cir.
2005). Additionally, our decision in Hardcastle v. Horn
strongly implies that a prosecutor who removes twelve of
fourteen African American venire members exhibits a pattern
of strikes sufficient to raise an improper inference. See 368
F.3d at 256.

In each of these decisions, however, we were unable to
fully reconstruct the racial composition of the venire.
Reconstruction of the venire often provides crucial context to
a prosecutor’s strike rate. See Abu-Jamal, 520 F.3d at 291–
92. For example, a strike rate of 90% looks less stark when
the venire is 90% African American. When the record does
not illuminate the composition of the venire, there may be
insufficient evidence with which to mount a successful
collateral attack. Indeed, we rejected the petitioner’s
challenge in Abu-Jamal when he established that ten of the
prosecutor’s fifteen peremptory strikes were used to remove
African Americans, but was unable to reconstruct the
composition of the venire. See id. at 291–92.

40
 What is telling about Holloway, Brinson, and
Hardcastle—in contrast to Abu-Jamal—is that the pattern of
strikes in these cases was sufficient to satisfy the prima facie
threshold even without evidence of the venire’s racial
makeup. In each case, the strike rate exceeded 85%, whereas
the rate in Abu-Jamal was 66.7%. Here, the strike rate also
exceeded 85%; consistent with Holloway, Brinson, and
Hardcastle, we find that evidence of the strike rate alone
satisfies Williams’ prima facie showing. After all, the
Commonwealth exercised fourteen of its sixteen peremptory
challenges on African Americans. In a venire that was less
than 40% black, it is hardly a leap to conclude that a strike
rate of 87.5% raises an inference of discrimination.

Although the strike rate data is sufficient by itself to
make a prima facie showing in this case, we need not rely
exclusively on the Commonwealth’s strike rate. Evidence
contrasting the rate at which the prosecution accepts black
and white jurors may also raise an inference of
discrimination. In Bond v. Beard, 539 F.3d 256 (3d Cir.
2008), the prosecutor accepted between 41% and 47% of the
black venirepersons that he had the opportunity to strike; his
acceptance rate for white members of the venire was 83%.
We held that the disparity between these acceptance rates was
sufficient to make out a prima facie case at step one of the
Batson analysis. Bond, 539 F.3d at 270. In this case, Foulkes
accepted five of the nineteen African Americans she had the
opportunity to strike. Her acceptance rate was thus 26.3%.
By contrast, she accepted nineteen of the twenty-one white
venirepersons she had the opportunity to strike. Her
acceptance rate for white venire members was therefore 90%.
41
Under Bond, this disparity raises an inference of
discrimination.

In sum, Williams has proffered statistical evidence
sufficient to suggest that the Commonwealth’s peremptory
challenges were based upon an improper motive. We must
therefore proceed to step two and three of the Batson inquiry.
The government’s burden of production at step two is
“relatively low,” Hardcastle, 368 F.3d at 257; “[u]nless a
discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race neutral,”
Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam)
(quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)).
At the PCRA hearing, Foulkes provided an explanation for
each of her strikes. Williams does not contend that any of
Foulkes’ reasons were facially illegitimate. Nonetheless, we
have reviewed the record and conclude that the proffered
reasons, some of which are discussed in more detail below,
are facially race-neutral. The burden therefore rests upon
Williams to prove that the explanations offered by Foulkes
are not persuasive and are instead pretextual. See Miller-El,
537 U.S. at 338–39 (stating that step three of the Batson
framework centers upon “the persuasiveness of the
prosecutor’s justification”).

At step three of the Batson analysis, the petitioner
must show that “it is more likely than not that the prosecutor
struck at least one juror because of race.” Bond, 539 F.3d at
264. To determine whether the petitioner has carried his or
her burden, the court must evaluate “all evidence introduced
by each side (including all evidence introduced in the first
42
and second steps) that tends to show that race was or was not
the real reason” for each strike. Hardcastle, 368 F.3d at 259
(quoting Riley v. Taylor, 277 F.3d 261, 286 (3d Cir. 2001) (en
banc)); see also Snyder v. Louisiana, 552 U.S. 472, 478
(2008) (explaining that “all of the circumstances that bear
upon the issue of racial animosity must be consulted”). Step
three ultimately focuses upon the prosecutor’s subjective
motivation, which ideally includes an assessment of the
demeanor and credibility of the various voir dire participants.
See Snyder, 552 U.S. at 477 (“Step three of the Batson
inquiry involves an evaluation of the prosecutor’s credibility,
and the best evidence [of discriminatory intent] often will be
the demeanor of the attorney who exercises the challenges.”
(alteration in original) (internal citations and quotation marks
omitted)). To the extent that such assessments factor into the
court’s final ruling, they must be accorded significant
deference on appeal. See id. at 477; DeJesus, 347 F.3d at
507.

As we have stated, the PCRA court made no step-three
findings. The parties nonetheless developed a significant
record at the PCRA hearing and, while this is a very
imperfect substitute for a trial judge’s findings of fact, it
permits sufficient—though hardly ideal—collateral review.
In the District Court, Williams proceeded by method of
comparing stricken members of the venire to individuals the
Commonwealth deemed acceptable. We have previously
authorized such an evaluative procedure, explaining, “A
comparison between a stricken black juror and a sitting white
juror is relevant to determining whether the prosecution’s
asserted justification for striking the black juror is pretextual.”
43
Riley, 277 F.3d at 282; Holloway, 355 F.3d at 724; see also
Snyder, 552 U.S. at 479–86 (performing comparative
analysis); Miller-El v. Dretke, 545 U.S. 231, 241–52 (2005)
(finding Batson violation based in part on juror comparison).
An explanation that appears race neutral at step two may
betray an improper motive if it is invoked to strike African
Americans but not other non-black venirepersons exhibiting
the same characteristic. Williams focuses upon five stricken
members of the venire, all of whom were African American.
We will confine our comparative inquiry accordingly.

Lucille Dozier. Ms. Dozier was asked whether she
had any beliefs which would prevent her “from being able to
impose the death penalty in an appropriate case.” She
answered, “I would have to be absolutely certain, sure that
this person really deserves that.” After the prosecutor
rephrased the question, Dozier stated that she could impose
the death penalty if appropriate. At the PCRA hearing,
Foulkes testified that she struck Dozier on the basis of her
initial hesitancy. Foulkes explained, “[I]t appeared to me
from her answers [that it would be] very difficult for her to
apply the law in this case.”

Williams names two comparators, both of whom were
white: Debra Pagano, seated as juror number seven, and
Virginia Feo, who was accepted by the Commonwealth but
stricken by the defense. When Foulkes asked Pagano
whether she would have any difficulty imposing the death
penalty in an appropriate case, Pagano answered, “No.” Feo
was posed the same question and stated that although it would
not be “easy,” she “did not think” she would have any
44
difficulty imposing a penalty of death. Neither of these
comparators expressed a sentiment close to that exhibited by
Dozier; specifically, neither Pagano nor Feo required
“absolute certainty” in order to recommend the death penalty.
The comparative evidence thus fails to suggest that Foulkes’
reason for striking Ms. Dozier was pretext.

Shawn Kimble. Mr. Kimble was employed as a
purchasing agent, graduated from Central High School in
west Philadelphia, and studied business at Drexel University.
Foulkes observed that he was approximately the same age as
Williams and, in her opinion, he exhibited a “hostile affect.”
Foulkes testified that she struck Kimble due to concerns about
his attitude, his age, and because Williams asked Kimble no
questions during voir dire. Furthermore, Foulkes explained
that none of these factors alone moved her to exercise a
challenge; rather, it was the combination of concerns that
together led to the strike.

Because the PCRA court resolved the Batson claim at
step one, it did not assess Foulkes’ reasons for striking
Kimble and, consequently, made no finding with respect to
Kimble’s alleged hostility. We cannot presume that the
PCRA court credited Foulkes’ assertion that Kimble
displayed a hostile affect. See Snyder, 552 U.S. at 479
(declining to credit prosecutor’s justification that stricken
venireperson was excessively nervous when the state court
did not make an on-the-record determination regarding
venireperson’s demeanor). As a result, we will not consider
the prosecutor’s demeanor-based reason for striking Kimble
and will instead focus upon Foulkes’ remaining justifications:
45
age and the defendant’s decision not to question Kimble on
voir dire.

Williams attacks these rationales by proffering two
comparators to whom Williams posed no questions during
voir dire, and who were nonetheless accepted by the
Commonwealth. These two individuals—Isabelle Edmonson
and Robert Eberle—do not constitute true comparators for
purposes of our inquiry. Although Williams did not ask any
questions of either Edmonson or Eberle, both were
significantly older than the defendant. Therefore, neither can
be said to exhibit the same characteristics as Kimble (age and
lack of questioning). In a comparison analysis, it is
insufficient to proffer venire members who lack one or more
of the characteristics upon which the prosecutor exercised a
strike. This is not to erect an unreasonable roadblock; rather,
it ensures accuracy in an area often guided by guesswork and
hunches. See DeJesus, 347 F.3d at 505 (explaining that a
peremptory challenge “is usually based on educated guesses
about probabilities based on the limited information available
to an attorney about prospective jurors”). Because the focus
in step three is to uncover a prosecutor’s subjective
motivation, it is imperative to account for the complete
combination of factors that caused the prosecutor to exercise
a strike. Here, it was Kimble’s proximity to the defendant’s
age and the fact that defense counsel asked him no questions.
Williams identifies no comparators that meet these criteria;
therefore, his comparative evidence is unpersuasive.

Geraldine Hill. Ms. Hill was a married mother of five
living in southwest Philadelphia. During voir dire, Foulkes
46
asked Hill, “would you surrender your belief merely because
of the fact that other members of the jury, even a majority of
the jury, would believe contrary to what you believe?” Hill
replied, “Either way I believe, no one, and I mean no one[,]
would change my mind.” At the PCRA hearing, Foulkes
explained her dismissal of Hill as follows:

I have to say I can almost remember her saying
this, I know that’s rather remarkable, but she
said that no one would change her mind if she
came to a certain conclusion in the jury. Again,
the way she put it, the language that she used,
was such that it was not sufficient to challenge
her for cause, but the emphasis that she gave
that response indicated to me that if she came to
a conclusion, that she was not someone who
was responsive to deliberating further with her
fellow jurors. And again, this is something that
is a matter of affect and emphasis in the tone of
how she delivered her answers.

Williams contends that Hill subsequently clarified her
response, and that Foulkes’ concerns were thus unreasonable.
In particular, Foulkes later asked Hill, “So when you say that
you make up your mind and that’s it, that doesn’t mean that
you wouldn’t be able to deliberate with your fellow jurors?”
Hill answered, “No. You will have to show me where I am
wrong, either way. As long as I can be shown.”

There is no question that as a result of Hill’s
clarification, she could not be stricken for cause. However,
47
Foulkes’ lingering concern was not unreasonable. Hill’s
initial assertion that “no one, and I mean no one[,] would
change my mind” is emphatic and suggests that she may have
difficulty deliberating with other jurors. This is not to say
that she would, in fact, have had difficulty participating in
deliberations; but a peremptory strike is often no more than a
guess about future behavior, see DeJesus, 347 F.3d at 505. A
prosecutor—indeed, any trial advocate—has every reason to
hedge against empaneling an individual who might prove
unduly obstinate. What is more, Williams proffers no
comparators for Hill, rendering our post-hoc comparative
evaluation of little use. Given the guesswork inherent in the
jury selection process, Hill’s removal does not suggest
improper motives.

Lillie Moore & Dwayne Kitchen. Ms. Moore was
married, worked as a keypunch operator, and lived in the
Logan section of Philadelphia. Mr. Kitchen was twenty-two,
resided in north Philadelphia, and was employed as a
construction worker. Foulkes asked both of these venire
members whether they would require the Commonwealth to
prove Williams’ guilt “beyond all doubt.” Both answered
“Yes.” 18 After the prosecutor posed the question to Kitchen,
the court interjected: “I don’t think that’s an appropriate
question, and I think that you ought to not ask it anymore.” It
is undisputed that Foulkes posed a question to several African
American and white jurors that used similar “beyond all

18
Subsequent clarifications by both Moore and Kitchen prevented
each from being stricken for cause.

48
doubt” phrasing.

At the PCRA hearing, Foulkes testified that she struck
Moore and Kitchen because it appeared to her that both
individuals would “require[] proof beyond all doubt in a
serious matter like this.” The court pressed Foulkes on her
explanation, asking, “[I]f a juror adhered to the fact that they
couldn’t follow the Court’s instructions concerning
reasonable doubt, then [wouldn’t they] be available to be
challenged for cause?” Foulkes indicated that although
Moore and Kitchen were rehabilitated to the court’s
satisfaction, she believed both “were trying very hard to
satisfy the Court in their answers, that in their heart [they]
really simply couldn’t hold the government to a different
standard than [certainty beyond all doubt].”

By way of comparison, Williams proffers juror
number 176, Gloria Mastronardo. Foulkes did not ask
Mastronardo a question using the “beyond all doubt”
phrasing; however, Williams argues that Mastronardo’s
opinions regarding the death penalty are comparable to those
Foulkes attributed to Moore and Kitchen. The record does
not support such a contention. If anything, Mastronardo
expressed views that were somewhat more receptive to
imposition of the death penalty. When asked whether she had
any beliefs that might prevent her from recommending death,
she stated, “I used to think I would never be against capital
punishment but perhaps—it would depend on the nature of
the crime, to be honest” (emphasis added). Foulkes later
asked if Mastronardo was capable of “impos[ing] the death
penalty.” She answered, “I believe so.” In short,
49
Mastronardo articulated none of the reservations that Moore
and Kitchen expressed. Furthermore, while Foulkes posed an
improperly phrased question to both Moore and Kitchen, she
posed similar questions to several other individuals of each
race. Williams cannot point to any venireperson who
answered the “beyond all doubt” question like Moore and
Kitchen, yet who Foulkes failed to strike. We thus find no
value in the comparative evidence.

Although Williams’ juror-by-juror comparison
evidence falls short, we are mindful that we must consider the
totality of the available evidence, including that which was
proffered at steps one and two of the Batson inquiry. See
Hardcastle, 368 F.3d at 259. Here, Williams presents fairly
strong strike-rate evidence: the prosecutor exercised fourteen
of sixteen strikes to remove African Americans from a venire
that was 39% black. The rate at which she struck African
Americans was 87.5%, compared to a strike rate of 12.5% for
white venire members. There are also less revealing
statistics. The Commonwealth accepted black venire
members at a rate of 26.3%. In Bond v. Beard, we held that
at step three, an acceptance rate of 41-47% (compared to 83%
for whites) was “reasonably high,” and was evidence that the
prosecutor was not racially motivated. 539 F.3d at 270.
While the acceptance rate in Williams’ case is not equivalent
to Bond’s, it is much higher than the 9% rate criticized by the
Supreme Court in Miller-El v. Dretke, 545 U.S. at 240–41.
We find the acceptance rate data inconclusive at best.

The statistical data is but one portion of the totality
that we must consider at step three. Williams was tried by a
50
jury of five African Americans and seven white individuals.
Both defendant and victim were African American and there
was no racial component to the crime. See Lewis, 581 F.3d at
103 (explaining that the race of the defendant and victim, and
the nature of the crime, may be relevant circumstances to
consider); Abu-Jamal, 520 F.3d at 288 n.16 (same). These
facts cut in the Commonwealth’s favor. Furthermore,
Williams’ comparative evidence was exceedingly weak.
Foulkes provided plausible reasons for each of her strikes,
and supported her reasons by recourse to the record. More
importantly, she was consistent in the application of her
reasons; she did not, for example, accept white venire
members who articulated a refusal to deliberate or who would
require proof beyond all doubt to return a verdict of guilt. On
the totality of the record before us, the evidence offered by
Williams is simply insufficient to overcome the evidence that
favors the Commonwealth. 19 Accordingly, Williams’ Batson
19
Williams makes passing reference to the infamous Jack
McMahon training videotape, created in 1987 and featuring former
Philadelphia Assistant District Attorney Jack McMahon. In the
tape, which was intended as an educational tool for young
prosecutors in the Philadelphia District Attorney’s Office,
McMahon makes several comments suggesting that he made
conscious efforts to strike qualified African Americans from the
venire. See Wilson v. Beard, 426 F.3d 653, 656–58 (3d Cir. 2005)
(recounting in detail several of McMahon’s more inflammatory
comments). Since its public disclosure in 1997, many defendants
have sought to bolster a Batson claim by recourse to the tape. See,
e.g., Lewis, 581 F.3d at 104; Wilson, 426 F.3d at 653; Brinson v.
Vaughn, 398 F.3d 225 (3d Cir. 2005). In Lewis, we found the tape
to be of little significance where the petitioner was unable to show
that the district attorney responsible for his prosecution had seen
51
challenge fails on its merits.

B Accomplice Liability Instructions

Williams’ second claim sounds in due process: he
contends that the trial court’s accomplice liability instructions
permitted the jury to find that he was an accomplice to first
degree murder without finding that he possessed the specific
intent to kill. Intent to kill is an element of first degree
murder under Pennsylvania law. 18 Pa. Cons. Stat. § 2502(a).
This element must be proved whether the defendant is the
principal or merely an accomplice to the homicide. Everett v.
Beard, 290 F.3d 500, 513 (3d Cir. 2002) (explaining that
“since the legislature drafted the law on first-degree murder,
Pennsylvania law has clearly required that for an accomplice
to be found guilty of first-degree murder, s/he must have
intended that the victim be killed” (internal citations
omitted)). If, as Williams argues, the charge allowed the jury
to find that he was an accomplice to first degree murder
without finding that he possessed the mens rea required for
that offense, then the instructions were constitutionally
infirm, for due process requires that each element of the

the tape or followed its recommendations. See 581 F.3d at 104.
Similarly here, Williams cannot argue that Foulkes viewed the
tape, for it was created at least one year after Williams’ trial.
There is no evidence that Foulkes was aware of McMahon-like
practices which pre-dated the tape’s creation or that she utilized
such practices in any of her trials, let alone the Norwood murder
trial. Thus, we find the tape to be of no significance in the instant
matter.

52
charged offense be proved beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 364 (1970); see also Smith v. Horn,
120 F.3d 400, 410 (3d Cir. 1997) (holding that petitioner
stated a due process claim when he successfully argued that
the trial court’s jury instructions “had the effect of relieving
the Commonwealth of its burden of proving beyond a
reasonable doubt one of the elements of first-degree murder
under Pennsylvania law”).

Williams did not object to the accomplice liability
instructions at trial, nor did he question this aspect of the
charge in post-trial motions to set aside the verdict. He also
did not raise the issue on direct appeal or in his PCRA
petition. It was not until November 2001, when the collateral
proceeding was pending before the Pennsylvania Supreme
Court, that Williams filed a motion to remand to the PCRA
court so that he might challenge the accomplice liability
instructions. The Pennsylvania Supreme Court denied this
motion. Williams raised the issue again in a second PCRA
petition filed in 2005. The PCRA court dismissed this
petition as untimely. See 42 Pa. Cons. Stat. § 9545 (requiring
any PCRA petition, including a second or subsequent
petition, to be filed within one year of the date that judgment
becomes final). The Pennsylvania Supreme Court affirmed.

Williams then petitioned the District Court for habeas
relief. The District Court held that Williams’ claim was not
time-barred because the PCRA’s one-year statute of
limitations was not firmly established and regularly applied at
the time the default occurred. The Court proceeded to the
merits and rejected Williams’ accomplice liability claim. It
53
concluded that even if the charge contained constitutional
error, it was harmless in light of the overwhelming evidence
adduced at trial.

We begin by considering whether Williams
procedurally defaulted his accomplice liability claim. The
Commonwealth argues that the claim was untimely under
state law and may not be reviewed by this Court. A federal
habeas court cannot review a claim rejected by the state
courts “‘if the decision of [the state] court rests on a state law
ground that is independent of the federal question and
adequate to support the judgment.’” Beard v. Kindler, ---
U.S. ---, 130 S. Ct. 612, 614 (2009) (alteration in original)
(quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
State procedural rules, such as the PCRA’s statute of
limitations, are not an adequate bar to federal habeas review
unless they were “‘firmly established and regularly
followed’” at the time the rule was contravened. Wilson v.
Beard, 589 F.3d 651, 658 (3d Cir. 2009) (quoting Bronshtein
v. Horn, 404 F.3d 700, 707 (3d Cir. 2005)). Williams ran
afoul of the PCRA’s statute of limitations when he failed to
raise the accomplice liability claim in his initial petition for
PCRA relief in 1996. See Commonwealth v. Albrecht, 994
A.2d 1091, 1093 n.2 (Pa. 2010). This default occurred well
before October 20, 1998, the date by which the PCRA statute
of limitations was firmly established and regularly followed.
See Morris, --- F.3d ---, 2011 U.S. App. LEXIS 1551, at *12–
13 (explaining that prior to October 20, 1998, Pennsylvania
courts “refused to enforce procedural rules—such as the
PCRA’s one-year statute of limitations—in capital cases”);
Bronshtein, 404 F.3d at 707–09 (same). Because the
54
procedural rule under which the state courts dismissed
Williams’ accomplice liability claim was not firmly
established and regularly followed at the time of his default, it
is an inadequate bar to federal habeas review. We will
therefore proceed to the merits and consider the claim de
novo. See Lewis, 581 F.3d at 100.

The propriety of the court’s charge is closely
intertwined with the evidence and argument brought forth at
trial. Williams was tried alone. The Commonwealth argued
that Williams and Draper perpetrated the killing together.
Williams was portrayed as the principal. According to
Draper, Williams hatched the plan to rob Norwood and
recruited Draper to assist. Once the robbery was complete, it
was Williams who decided to kill Norwood. To that end, he
retrieved a tire iron and socket wrench with which to
bludgeon Norwood’s skull. Williams implored Draper to join
him in this endeavor, and the two beat Norwood until he was
bloody and lifeless. Simply put, Draper’s account left no
ambiguity regarding Williams’ role as the principal in the
offense.

This account was consistent with testimony supplied
by other Commonwealth witnesses. Williams was seen
driving Norwood’s vehicle approximately one hour after the
murder occurred. He told his friend Rucker that he “offed a
guy” named Amos earlier that evening. Rucker observed
blood stains on Williams’ shoes. Before they parted ways on
the night of the murder, Williams told Rucker that he was
“going to get some gas from a gas station to go back to the
scene of the crime.” Police officers later discovered
55
Norwood’s body in the cemetery, charred beyond recognition.

The Commonwealth’s narrative sharply conflicted
with Williams’ account. He claimed that on the day of the
murder, he had seen Norwood, Draper, and an acquaintance
named Michael Hopkins riding in Norwood’s blue Chrysler
LeBaron. They apparently pulled up alongside Williams, and
Draper indicated that they were headed to Draper’s mother’s
residence on Roumfort Road. Williams asked for a ride
because he happened to be going to a party in the same
vicinity. When the foursome neared the cemetery, Draper
and Hopkins—but not Williams—allegedly assaulted
Norwood. Williams stated that he was unaware that his
friends intended Norwood any harm. But when they initiated
the assault, Williams allegedly became agitated, demanded
that Draper and Hopkins abandon their criminal endeavor,
and then exited the vehicle when they refused. Williams
claimed that he then walked to the residence of an
acquaintance and borrowed bus fare to return home. As
Williams told it, he was not part of the robbery and was not
present when Norwood was killed.

The jury was thus presented with a stark choice: either
Williams was the principal in a first degree murder or he was
ignorant of his friends’ plans and nowhere near the cemetery
when the killing occurred. Neither party argued that
Williams was an accomplice to robbery or murder. Rather,
both the prosecutor and defense counsel stressed their
contrasting narratives. Foulkes was blunt: she called
Williams “a person who commits atrocious, murderous,
malicious acts and then spends the rest of his days lying,
56
covering up, . . . trying to make things seem as they’re not.”
And she emphasized, over and over again, that Williams was
a murderer who intended to kill. Defense counsel, by
contrast, urged the jury to adopt Williams’ version of events
and attempted to demonize Draper as a liar. Several times he
succinctly summarized the all-or-nothing proposition facing
the jury: “If you believe Mr. Williams, you will acquit him of
all charges.” Accomplice liability was simply not in play.

In light of these conflicting accounts, the trial court’s
decision to provide an accomplice liability charge is rather
curious. 20 Nevertheless, after charging the jury on the
elements of various degrees of murder (and accompanying
mens rea requirements), voluntary manslaughter, robbery,
and criminal conspiracy, the court stated, in pertinent part,

You may find a defendant guilty of a crime
without finding that he personally engaged in
the conduct required for commission of that
crime or even that he was personally present
when the crime was committed.

An accomplice is one who either plans,
cooperates, assist[s], counsels or otherwise aids
in the perpetration of the crime.

A defendant is guilty of a crime if he is an

20
During oral argument before the District Court, the parties were
asked why the accomplice liability instruction was given. Neither
could provide an answer.
57
 accomplice of a person who commits that
crime. The defendant does not become an
accomplice merely by being present at the scene
or knowing about the crime. He is an
accomplice if, with the intent of promotion or
facilitating commission of the crime, he solicits,
commands, encourages or requests the other
person to commit it or aids, or agrees to aid or
attempts to aid the other person in planning or
committing it.

However, a defendant is not an accomplice if
before the other person commits the crime, he
stops his own efforts to promote or facilitate the
commission of the crime, and wholly deprives
his previous efforts of effectiveness or gives
timely warning to the law enforcement authority
or otherwise makes a proper effort to prevent
the commission of the crime.

You may find the defendant guilty of a crime on
the theory that he was an accomplice as long as
you are satisfied beyond a reasonable doubt that
the crime was committed, and that the
defendant was an accomplice of the person who
committed it.

Williams argues that this instruction “unconstitutionally
broadened the scope of accomplice liability” because it
permitted the jury to find that he was an accomplice to first
degree murder without finding that he possessed the specific
58
intent to kill. If the theory of accomplice liability were a
viable one in this case, Williams might have a point. But it is
not. Accordingly, the trial court’s charge reveals no
deficiency of constitutional dimension.

To show that a jury instruction violates due process, a
habeas petitioner must demonstrate both (1) that the
instruction contained “some ‘ambiguity, inconsistency, or
deficiency,’” and (2) that there was “‘a reasonable likelihood’
that the jury applied the instruction in a way that relieved the
State of its burden of proving every element of the crime
beyond a reasonable doubt.” Waddington v. Sarausad, 555
U.S. 179, 129 S. Ct. 823, 831 (2009) (quoting Middleton v.
McNeil, 541 U.S. 433, 437 (2004) and Estelle v. McGuire,
502 U.S. 62, 72 (1991)). Satisfaction of this two-part inquiry
requires a federal habeas court to “focus initially on the
specific language challenged,” Smith, 120 F.3d at 411
(citation and internal quotation marks omitted), and then to
review the challenged instruction in the context of the entire
charge and in light of the evidence and arguments presented
at trial. Estelle, 502 U.S. at 72 (“[T]he instruction ‘may not
be judged in artificial isolation,’ but must be considered in the
context of the instructions as a whole and the trial record.”
(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)));
Waddington, 555 U.S. 179, 129 S. Ct. at 833 (analyzing
accomplice liability charge in light of parties’ closing
arguments). In this fashion, a due process analysis depends
as much on the language of the court’s charge as it does on
the particularities of a given case. In other words, the inquiry
requires careful consideration of each trial’s unique facts, the
narratives presented by the parties, the arguments counsel
59
delivered to the jurors before they retired to deliberate, and
the charge as a whole. See Waddington, 555 U.S. 179, 129 S.
Ct. at 831–33; Estelle, 502 U.S. at 72.

Here, even if the trial court’s accomplice liability
charge was in some respect ambiguous, there is no reasonable
likelihood that the jury applied the instruction in a manner
that relieved the Commonwealth of its burden of proof with
respect to first degree murder. The trial record makes this
point plain: all of the evidence and argument indicated either
that Williams was the principal killer—with the specific
intent to kill—or that he played no role in the robbery and
murder. There simply was no viable third option. The charge
as a whole reflected this stark choice. The court mentioned
the concept of accomplice liability sparsely. Its first degree
murder instructions did not mention the concept of
accomplice liability at all. 21 Instead, the charge (rightly)

21
The first degree murder instruction explained that the jury must
first determine whether Williams participated in the murder and, if
he did so, whether he acted with a mens rea sufficient to meet the
first degree murder standard:

If you find the defendant guilty of murder; that is,
an unlawful killing with malice, you must then
determine whether he is guilty of murder of the first
degree, murder of the second degree, or murder of
the third degree.

Murder of the first degree is a criminal homicide
committed with a specific intent to kill. . . .

60
focused on Williams’ actions and mental state. Thus,
although the court provided instruction on the theory of
accomplice liability, it appears to have done so out of
oversight or, perhaps, carelessness. In either event, the mere
provision of this stray instruction does not alter the fact that
accomplice liability was a theory for which there was no
evidentiary support. By including the instruction in the final
charge, the court did not violate Williams’ right to due
process. 22

Therefore, in order to find the defendant guilty of
murder in the first degree, you must find that the
killing was a willful, deliberate and premeditated
act.

(emphasis added). The prosecutor’s closing argument was
consistent with these instructions. She repeatedly highlighted
evidence of Williams’ intent, stating, for example, “That, ladies
and gentlemen, is murder in the first degree, because . . . his
actions supply the inference that the defendant intended to take
life[.] . . . [H]e expressed, by his action, a specific intention, above
and beyond the robbery, to kill [Norwood], to kill him for the
purpose whatever, for whatever purpose.” In a due process
challenge, a strong consistency between argument and charge
makes it more likely that the jury understood the requirements of
the law and applied those requirements correctly. Cf. Smith v.
Horn, 120 F.3d 400, 404–05 (3d Cir. 1997) (finding infirmity
when prosecutor urged jury to apply erroneous theory of
accomplice liability).
22
Williams suggests that even if provision of the accomplice
liability instruction was unnecessary, we must nonetheless
61
 Finally, Williams contends that the trial court’s
instruction was nearly identical to the accomplice liability
instruction that we held to be constitutionally deficient in
Laird v. Horn, 414 F.3d 419 (3d Cir. 2005). In Laird, co-
defendants Laird and Chester left a bar along with a third
individual named Milano. Milano’s body was discovered the
following evening in a nearby wooded area. Laird and
Chester were tried together for, inter alia, murder,
kidnapping, aggravated assault, false imprisonment, and
conspiracy. Both took the stand and admitted that they
participated in the kidnapping and were present for Milano’s
death. Id. at 422, 426. Each denied that he intended for
Milano to be killed. Id. at 422. Laird accused Chester of
killing Milano and vice versa. Id. at 422, 426. The jury
convicted both defendants of an array of offenses, including
first degree murder, kidnapping, aggravated assault, and
conspiracy.

The trial court in Laird provided an accomplice
liability instruction that was almost identical to the instruction
given in Williams’ case, but the similarities between the two
proceedings essentially end there. Laird was a two-defendant
trial wherein both of the accused admitted their participation

acknowledge the fact that the theory was presented to the jury. As
such, the jury may have concluded that Williams was an
accomplice to first degree murder. On habeas review, we do not
deal in “may haves.” The appropriate question is whether the
outcome proposed by Williams was reasonably likely. See
Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 831–32
(2009). Our answer to this question is a resounding No.

62
in some aspect of the crime—i.e., the kidnapping. See id. at
426. Neither co-defendant, however, admitted he was an
accomplice to the actual homicide. It was therefore
imperative for the charge to distinguish between Laird’s
acknowledged role as an accomplice to kidnapping and his
disputed role as accomplice to first degree murder. Yet the
trial court failed to make such a distinction, and failed to
explain that an accomplice to kidnapping is not necessarily an
accomplice to murder. Given the circumstances present in
the case, it was incumbent upon the trial court to ensure that
the jury understood “that an accomplice for one purpose is
[not] an accomplice for all purposes.” Id. at 427 (quoting
Smith, 120 F.3d at 414). To put it differently, under the Laird
charge, the jury reasonably could have concluded that
because Laird was an accomplice to kidnapping, he must also
have been an accomplice to murder.

The problem in Laird was not the accomplice liability
instruction’s linguistic imprecision per se. Rather, the
instructional ambiguity worked a critical error when viewed
in the context of the trial record as a whole. Williams does
not acknowledge this aspect of the holding. Instead, he
argues that the similarity of both instructions demonstrates
constitutional error. But as we indicated above, a rote
comparison of the two instructions is insufficient in a due
process inquiry. See Waddington, 555 U.S. 179, 129 S. Ct. at
831–33; Estelle, 502 U.S. at 72. Although the trial judge in
Laird provided an accomplice liability instruction that was
nearly identical to that rendered here, there was a profound
difference between each proceeding’s evidence, argument,
and the charges as a whole. That difference is dispositive. In
63
Laird, the ambiguity in the charge, coupled with the balance
of pertinent considerations, made it reasonably likely that the
jury applied the instruction in a manner which relieved the
Commonwealth of its burden of proof. There is no such
likelihood here. Williams’ testimony—unlike that provided
by the co-defendants in Laird—attempts to exculpate him
completely. Accomplice liability is simply not in play.

In sum, we find that the trial court’s accomplice
liability instruction was not constitutionally infirm.
Williams’ arguments to the contrary are without merit. 23

C Ineffective Assistance of Counsel

Williams’ final claim invokes the Sixth Amendment
right to effective counsel. Under Strickland v. Washington,
466 U.S. 668 (1984), criminal defendants are entitled to
effective representation at both the guilt and penalty phases of
trial. To establish a constitutional violation under Strickland,
a defendant must demonstrate that counsel’s performance was
deficient, and that it prejudiced the defense. Id. at 687–88.
Where a Strickland claim is raised on federal habeas review,
however, the petitioner must not only show deficient

23
Williams also claims that both his trial counsel and his counsel
on direct appeal were ineffective for neglecting to challenge the
accomplice liability instruction. Because this claim lacks merit,
neither counsel was ineffective for failing to pursue it. See Premo
v. Moore, --- U.S. ---, 131 S. Ct. 733, 741 (2011); Werts v. Vaughn,
228 F.3d 178, 203 (3d Cir. 2000).

64
performance and prejudice; in addition, he or she must show
that “the state court’s rejection of [the] claim of ineffective
assistance of counsel was ‘contrary to, or involved an
unreasonable application of’ Strickland, or it rested ‘on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’” Porter v.
McCollum, --- U.S. ---, 130 S. Ct. 447, 452 (2009) (per
curiam) (quoting § 2254(d)).

Williams contends that he received deficient legal
representation during the trial’s penalty phase. Specifically,
he claims that Panarella—his trial counsel—failed to conduct
a reasonable investigation into his background. Such an
inquiry would have revealed extensive evidence of physical
and sexual abuse, as well as sundry concerns with Williams’
mental health. This evidence, in turn, could have been
presented to the jury to mitigate the brutality of Williams’
offense, or so the argument goes. 24 Panarella instead opted to

24
Mitigating circumstances are set forth by statute under
Pennsylvania law. See 42 Pa. Cons. Stat. § 9711(e). Had
Panarella presented the evidence described above, Williams argues
that the jury could have found either that he “was under the
influence of extreme mental or emotional disturbance,” §
9711(e)(2), or that his “capacity . . . to appreciate the criminality of
his conduct or to conform his conduct to the requirements of the
law was substantially impaired,” § 9711(e)(3). Williams also
contends that the jury could have found that the “catch-all”
mitigation provision set forth in § 9711(e)(8) was applicable. See
§ 9711(e)(8) (“Any other evidence of mitigation concerning the
character and record of the defendant and the circumstances of his
offense.”).
65
portray the defendant as a capable young man for whom the
crime was but an aberration. He did not present evidence of
sexual abuse or mental impairment, and there was only a
passing reference to Williams’ physically abusive stepfather.
The jury evidently rejected Panarella’s characterization, for it
concluded that there were no circumstances that mitigated the
severity of the offense. 25

Williams raised this ineffective assistance of counsel
claim in his petition for PCRA relief. Prior to ruling on the
petition, the PCRA court heard several days of testimony.
Three mental health experts testified that Williams was
psychologically damaged at the time of the offense. At least
eight additional witnesses took the stand and detailed the
physical and sexual abuse to which Williams was subjected
throughout his youth. Finally, Panarella testified concerning
his performance at trial. At the conclusion of these
proceedings, the PCRA court denied the ineffective assistance
of counsel claim on its merits. The Pennsylvania Supreme
Court affirmed, holding that Williams did not meet “his
burden of demonstrating there was [a] reasonable probability
the presentation of [prior abuse and mental health] evidence
would have resulted in a life sentence instead of the death
penalty.” Williams II, 863 A.2d at 521 n.12.

25
Most notably, the jury did not find that Williams’ age was a
mitigating factor in the offense. This finding is significant, and we
address it in more detail below.

66
 On federal habeas review, the District Court concluded
that Panarella’s penalty-phase performance was
constitutionally deficient. The Court explained: “Panarella’s
efforts fell far short of . . . prevailing professional norms, and
the explanations he provided during post-trial and PCRA
hearings reflected inattention to the penalty phase rather than
tactical decision making.” On step two of the Strickland
inquiry, however, the Court concluded that under AEDPA’s
deferential standard of review, it could not find that
Panarella’s performance was prejudicial to the defense.
Accordingly, the District Court denied Williams’ claim. We
exercise plenary review over this decision. See Lewis, 581
F.3d at 100.

We will not revisit the District Court’s determination
that Panarella was constitutionally ineffective during the
trial’s penalty phase. We instead accept this finding for
purposes of our present analysis and proceed to the prejudice
inquiry. See Wong v. Belmontes, --- U.S. ---, 130 S. Ct. 383,
386 (2009) (per curiam) (assuming, for purposes of analysis,
that counsel’s performance was deficient when prejudice
inquiry was dispositive). The Pennsylvania state courts
resolved Williams’ ineffective assistance claim on the merits;
our review of the issue is thus governed by principles of
AEDPA deference. See Lewis, 581 F.3d at 100. We apply
these principles to the holding of the Pennsylvania Supreme
Court because it provides “the ‘last reasoned decision’ of the
state courts” on the Strickland claim. Simmons, 590 F.3d at
231–32 (quoting Bond, 539 F.3d at 289–90). Under § 2254,
“[t]he pivotal question is whether the state court’s application
of the Strickland standard was unreasonable.” Harrington v.
67
Richter, --- U.S. ---, 131 S. Ct. 770, 785 (2011). This means
that a habeas petitioner “must do more than show that he
would have satisfied Strickland’s test if his claim were being
analyzed in the first instance”; to prevail, the petitioner must
demonstrate that the state court “applied Strickland to the
facts of his case in an objectively unreasonable manner.” Bell
v. Cone, 535 U.S. 685, 698–99 (2002); see also Harrington --
- U.S. ---, 131 S. Ct. at 786 (“A state court’s determination
that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004))).

To establish prejudice, the petitioner “must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. A “reasonable
probability” is one “sufficient to undermine confidence in the
outcome.” Id. The Strickland prejudice standard is not
“stringent”—it is, in fact, “less demanding than the
preponderance standard.” Jermyn v. Horn, 266 F.3d 257, 282
(3d Cir. 2001) (quoting Baker v. Barbo, 177 F.3d 149, 154
(3d Cir. 1999)); see also Woodford v. Visciotti, 537 U.S. 19,
22 (2002) (explaining that Strickland “specifically rejected
the proposition that the defendant had to prove it more likely
than not that the outcome would have been altered”). In a
capital case arising from the Pennsylvania state courts,
prejudice exists if there is a reasonable probability that, but
for counsel’s deficient performance, “one juror [would have]
voted to impose a sentence of life imprisonment rather than
the death penalty.” Bond, 539 F.3d at 285 (citing 42 Pa.
68
Cons. Stat. § 9711(c)(1)(iv)).

A careful prejudice inquiry requires that we “consider
all the relevant evidence that the jury would have had before
it if [counsel] had pursued [a] different path.” Wong, --- U.S.
---, 130 S. Ct. at 386. This includes evidence that was
adduced at trial as well as that which was not presented until
postconviction review. See Porter, --- U.S. ---, 130 S. Ct. at
454. Stated differently, we must reconstruct the record and
assess it anew. In so doing, we cannot merely consider the
mitigation evidence that went unmentioned in the first
instance; we must also take account of the anti-mitigation
evidence that the Commonwealth would have presented to
rebut the petitioner’s mitigation testimony. See Wong, --- U.S
---, 130 S. Ct. at 390 (stating that “the reviewing court must
consider all the evidence—the good and the bad—when
evaluating prejudice”). Once we have reconstructed the
record, we must “reweigh the evidence in aggravation against
the totality of available mitigation evidence.” Wiggins v.
Smith, 539 U.S. 510, 534 (2003). Only then may we ask
whether there is a reasonable probability that, but for
counsel’s ineffectiveness, the result of the proceeding would
have been different.

Accordingly, we begin by reconstructing the record.
We will then reweigh the totality of the evidence and assess
whether Panarella’s deficient performance prejudiced the
defense.

1 Reconstructing the Record

69
 The trial’s penalty phase was a brief affair. For the
Commonwealth, assistant district attorney Jeffrey Kolansky
took the stand and supplied the basic facts regarding the
Dorfman robbery. He stated that the incident occurred on
December 24, 1982; that the victims were Don and Hilda
Dorfman, aged sixty-nine and sixty-four, respectively; that
Williams was sixteen years of age at the time of the offense;
that Williams entered the Dorfmans’ home carrying a .22
caliber Winchester rifle, pointed it at Mrs. Dorfman and fired
it three times above Mr. Dorfman’s head; and that Williams
was convicted of two counts of first degree robbery, one
count of burglary, one count of simple assault, one count of
unauthorized use of an automobile, and one count of
conspiracy. Next, Philadelphia police detective Lawrence
Gerrard provided testimony pertaining to the Hamilton
murder. He explained that the incident occurred on January
26, 1984; that Hamilton was stabbed approximately twenty
times; that the murder weapon was left lodged in the back of
Hamilton’s neck; that Williams was seventeen years of age at
the time of the offense; and that Williams was convicted of
third degree murder, theft by unlawful taking, and possession
of an instrument of a crime. Finally, Philadelphia Quarter
Sessions court clerk Margie Frazier described the sentences
imposed for each of these offenses.

Williams presented three witnesses: his mother,
Patricia Kemp; his girlfriend, Marlene Rogers, and his first
cousin, Willie Dino James. Each witness testified to
Williams’ general good nature and athletic success. In
something of an understatement, the Pennsylvania Supreme
Court found that this rather generic testimony was “not
70
compelling.” Williams II, 863 A.2d at 520.

Kemp did provide limited evidence on cross
examination regarding her son’s childhood abuse. She denied
abusing Williams herself—a point she would contradict ten
years later at the postconviction proceeding—but she stated
that Williams’ stepfather, Ernest Kemp, was “abusive to my
son.” She continued:

He [Ernest Kemp] didn’t care about [Williams].
He accused my son of doing things, having girls
in the room. That was a lie.

My son would be asleep at night, and he
[Ernest] would be drunk and he would come in
and bust in the room and say he [Williams] has
somebody in there, and my son had called my
job, and I had told Terry to go down to Mom’s.
That’s a lady on the street that helped me raise
my son, Mrs. Easton, and I would send him
down there with her because my husband
[Ernest], that I am married to now, yes, was
very abusive to Terry, was very nasty to Terry.

He pushed Terry down a flight of steps because
Terry was on the phone that I paid for.

Kemp was not asked to elaborate on these statements on
redirect examination and no additional abuse testimony was
elicited by either party.

71
 In her closing argument, the prosecutor emphasized
Williams’ prior convictions and his predilection for violence.
She underscored that Williams “has taken two lives, two
innocent lives of persons who were older and perhaps unable
certainly to defend themselves against the violence that he
inflicted upon them.” According to the Commonwealth,
Williams was a violent individual whose behavior would
have continued escalating had he not been apprehended.

Panarella’s closing focused on his client’s youth. He
stressed the fact that Williams was only four months past his
eighteenth birthday at the time he committed the offense and
he explicitly asked the jury to find that age was a
circumstance that mitigated Williams’ culpability for the
crime. Additionally, Panarella argued that Williams’ life
sentence would be one of extreme hardship; Williams would
be deprived of the privileges of fatherhood, and he would be
exposed to “all of the brutalities that are associated with
prison life.” Panarella concluded by appealing to the jury’s
sense of justice. He stated, “I ask you to spare Mr. Williams’
life. I can say to you that justice is always tempered with
mercy but let me say to you that inflicting the death sentence
in this case, I believe, is inappropriate.”

The jury rejected this plea. It determined that two
aggravating circumstances were applicable: (1) the murder
occurred during the commission of a felony (robbery), 42 Pa.
Cons. Stat. § 9711(d)(6), and (2) Williams had a significant
history of felony convictions involving the use or threat of
violence, 42 Pa. Cons. Stat. § 9711(d)(9). It also found that
Williams was not entitled to any of the statutory mitigating
72
circumstances set forth in 42 Pa. Cons. Stat. § 9711(e),
including the provision that accounts for a defendant’s age at
the time of the offense, § 9711(e)(4). The jury then weighed
the aggravating factors and returned a sentence of death.

At the PCRA hearing approximately twelve years
later, a very different picture of Williams emerged. No fewer
than eight witnesses came forward to describe a childhood
plagued by frequent physical and sexual abuse. Kemp
testified (in direct contradiction to her penalty phase
testimony) that she “would beat Terry very often because he
was smart mouthed.” When Williams was in the sixth grade,
Kemp met her son at school, publicly “beat him like
Muhammad Ali,” and then threw him down a flight of stairs.
One of Williams’ teachers, James Villareal, confirmed that
Kemp frequently beat her son, often in public when she
would retrieve him from school. Villareal said that Kemp
would hit her son “in a fierce way” and typically for no
apparent reason.

Kemp was not the only source of Williams’ physical
abuse. His brother Thomas, some ten years Williams’ senior,
testified that he physically “disciplined” his younger sibling.
He once threw Williams down a flight of stairs and, on a
separate occasion, attempted to shoot him with a rifle.
Williams’ older sister, Theresa, was also beaten on a routine
basis by her mother. Kemp enlisted Williams’ assistance in
this endeavor; on more than one occasion, Williams was told
to hold his sister while Kemp beat her with an electrical cord.

Williams was approximately ten years old when Kemp
73
married Ernest Young. Several witnesses described Young as
a “drunk” who became physically violent in the throes of
intoxication. Kemp said that her husband was “very cruel,
very nasty,” and that he often “tr[ied] to fight my children.”
Young typically directed his anger toward his wife; when she
was not around, however, he fought with Williams. In order
to escape this environment, it was not uncommon for
Williams to flee the home and stay with neighbors,
sometimes for days on end.

There was also sexual abuse. When Williams was
very young, perhaps around the age of six, he was sodomized
by a neighbor boy five years his senior. In his early teens, he
was repeatedly molested by a teacher. At thirteen, Williams
met and began a relationship with Norwood. Norwood was
cruel and physically abusive at times; he once allegedly beat
Williams with a belt. When Williams was approximately
fifteen, he was attacked by an older male while staying in a
boys’ home. The assailant held a weapon to Williams’ neck
and forced him to perform fellatio. 26

Three mental health experts testified on Williams’
behalf. First, Dr. Julie Kessel, a forensic psychiatrist,
26
The Commonwealth assails these allegations of sexual abuse by
pointing out that not one of the purported incidents was
contemporaneously reported to medical or law enforcement
officials. In fact, all of the sexual abuse testimony is based upon
statements provided in anticipation of the PCRA hearing. As such,
the Commonwealth’s point is well taken and we factor it into our
prejudice analysis accordingly.

74
explained that she conducted a mental health evaluation
during a four-hour interview with Williams in 1998. She
diagnosed Williams with an array of chronic impairments:
major depression with periods of recurrent psychosis and
paranoia; post-traumatic stress disorder; polysubstance abuse;
and borderline personality disorder. According to Dr. Kessel,
each of these conditions was present in 1984. She therefore
opined that Williams was suffering from extreme mental or
emotional disturbance when he killed Norwood, and that he
was substantially impaired in his capacity to appreciate the
criminality of his conduct and to conform his actions to the
requirements of the law.

The second mental health expert presented by the
defense was Dr. Patricia Fleming, a clinical psychologist who
interviewed Williams in 1996 for a period of seven hours and
administered a battery of psychological tests. Dr. Fleming
explained that Williams was “mentally ill”—among other
afflictions, he suffered from post-traumatic stress disorder
and was extremely passive-aggressive. Williams’ personality
was marked by its impulsivity; Dr. Fleming repeatedly
described him as “rageful” and testified that Williams “tended
to keep his anger repressed until it exploded.” In the year
before he murdered Norwood, Williams’ “behavior was out
of control” and getting worse. This rage was accompanied by
a “high level of paranoia,” depressive symptoms, suicidal
ideation, and sleep disorder. In sum, Dr. Fleming was of the
opinion that Williams killed Norwood under the influence of
extreme mental or emotional disturbance, and that at the time
of the offense, he was unable to appreciate the criminality of
his conduct or conform his conduct to the requirements of the
75
law.

The final mental health expert for the defense was Dr.
Ralph Kaufman, a clinical psychiatrist. Dr. Kaufman
interviewed Williams on three separate occasions in 1996 for
approximately ten hours in total. Dr. Kaufman echoed the
findings of Drs. Kessel and Fleming: he stated that Williams
exhibited symptoms of depression, suicidal ideation, anxiety,
hypervigilance, identity difficulties, and psychotic
decompensation. Furthermore, Williams suffered from post-
traumatic stress disorder and was prone to impulsivity. As a
result of these afflictions, Dr. Kaufman opined that Williams
was under the influence of extreme mental or emotional
disturbance when he killed Norwood. Dr. Kaufman could not
say, however, whether Williams was unable to conform his
conduct to the requirements of the law.

These three defense experts were generally consistent
in tracing the origins of Williams’ mental impairment. All
identified recurrent childhood abuse—especially sexual
abuse—as a principal cause of Williams’ later psychological
disorders. There was unanimous agreement that the assault at
the boys’ home was a “major” or “acute” trauma, one which
contributed significantly to the onset of post-traumatic stress
disorder. Dr. Fleming testified that it caused Williams to
suffer a “psychological breakdown.” He began to self-
mutilate and to fantasize about suicide. He also started to
experience nightmares in which he was sexually assaulted by
older men wielding dangerous weapons. Williams developed
an intense anger toward males who “he felt were [sexually]
interested in him, whether they made advances or not.” Dr.
76
Kessel summarized the end result of this abuse: “Every act of
sexual behavior with a man would further sort of humiliate
him personally and would increase his rage, which he
described had been increasing. He has intense rage towards
male homosexuals.” Dr. Fleming called the boys’ home
assault “a true break.” Afterwards, Williams “couldn’t
control himself” or contain his anger.

Not every mental health professional agreed with the
opinions set forth above. In fact, Williams was subjected to
several psychiatric evaluations contemporaneous with his
crime spree in the mid-1980s; these evaluators uniformly
concluded that Williams was mentally competent and, while
perhaps somewhat maladjusted, he was not cognitively
impaired. Had these evaluations been presented at the trial’s
penalty phase—in rebuttal to mitigation testimony offered by
Williams—they surely would have bolstered the
Commonwealth’s depiction of a mentally competent,
calculated murderer. This is not to say that the conclusions in
these reports were unassailable. However, the reports dilute
the strength of the mental health characterization proffered by
Williams at the PCRA hearing, and they therefore constitute
important anti-mitigation evidence. We must consider such
evidence as part and parcel of the prejudice inquiry. See
Wong, --- U.S. ---, 130 S. Ct. at 390.

On February 27, 1985, Williams was examined by Dr.
Edwin Camiel. At the time, then-nineteen-year-old Williams
had been incarcerated for eight months on charges that he
murdered Norwood. Williams was “obviously anxious and
his behavior was characterized by agitation and hand
77
[w]ringing.” Williams told Dr. Camiel, “I can’t cope with
this.” He reported a sensation of pressure throughout his
body. Dr. Camiel recorded several clinical observations. He
stated that Williams “appeared to be developing a paranoid
delusional system”; that he could “detect no gross
abnormalities in [Williams’] cognitive functioning”; and that
Williams’ “[j]udgment making capacity appeared to be
somewhat impaired and his responses to social judgment
questions indicated a tendency to respond impulsively to a
stressful situation in a self-centered manner without regard to
the consequences of his behavior for others.” In Dr. Camiel’s
opinion, Williams’ condition revealed “evidence of a
developing Psychotic Disorder of a paranoid type. . . . This is
the first evidence of psychiatric illness in this Defendant and
the clinical picture is consistent with a diagnosis of a
Schizophreniform Disorder or a briefly active psychosis
secondary to the stress of his present incarceration.”

Dr. Camiel’s evaluation is notable because it observed
the early stages of Williams’ psychological difficulties and
attributed their onset to circumstances subsequent to
Norwood’s murder. The report stated that Williams is
developing a psychotic disorder. It portrays this turn of
events as “the first evidence of psychiatric illness in this
Defendant.” Dr. Camiel explained that this developing
impairment is consistent with a diagnosis of schizophreniform
disorder, which by its very nature connotes a short-term
ailment lasting from one to six months. 27 This time frame is

27
Williams’ experts acknowledged as much. Dr. Kessel stated
that “schizophreniform psychosis [refers to] overt symptoms
78
important, for it suggests that the disorder described by Dr.
Camiel did not manifest itself until after Williams killed
Norwood. Furthermore, it indicates that eight months after
the murder, Dr. Camiel detected no permanent abnormalities
in Williams’ cognitive function. According to Dr. Camiel,
Williams’ newfound psychological complications were
secondary to “the stress of his present incarceration.” 28 Dr.
Camiel therefore recommended immediate psychiatric
treatment “in order to prevent the progression of symptoms to
the development of a full blown psychotic disorder.”

In spite of the apparent discord between the Camiel
report and the mental health narrative offered by the defense,
Drs. Kessel and Fleming testified that Dr. Camiel’s findings
were consistent with the opinion that Williams was severely
mentally impaired when he committed the crime. 29 Dr.

lasting under six months. . . . If it is longer than six months, we
tend to call it schizophrenia.” Dr. Fleming agreed, explaining that
to be diagnosed with schizophreniform disorder, “the symptoms
have to have lasted from one month to six months.”
28
Dr. Camiel examined Williams two days after he was convicted
of third degree murder for the Hamilton killing. It was also
Williams’ nineteenth birthday.
29
Drs. Kessel, Fleming, and Kaufman each criticized aspects of
Dr. Camiel’s report as well. Dr. Fleming stated that Dr. Camiel
“didn’t have the luxury . . . of having a lot of background
information.” Dr. Kessel testified that Dr. Camiel’s report was
“not particularly in depth.” None of the defense doctors agreed
that Williams’ psychological difficulties were caused by stress
79
Kessel explained, “The kind of paranoia he’s demonstrating
[in the Camiel Report] and the anxiety level and his agitation
would certainly be consistent with a post-traumatic stress
disorder [patient] who has also got an underlying tendency to
become psychotic.” In Dr. Kessel’s view the appearance of
the symptoms was simply the latest complication for a long-
suffering victim of psychological disorder.

But Dr. Camiel was not the only professional to find
Williams mentally competent around the time of the offense.
On January 14, 1983, Dr. Anthony Zanni examined Williams
in anticipation of his certification hearing for the Dorfman
robbery. Williams was sixteen years of age. Dr. Zanni stated
that Williams’ “contact with reality was good”; he “has never
had persecutory delusions”; and he “has never had visual or
auditory hallucinations.” In addition, Williams’ “[i]nsight
and judgment are not impaired.” Dr. Zanni diagnosed
Williams with conduct disorder and concluded that he was
certifiable to stand trial as an adult.

Williams was examined again on March 14, 1984 by
Dr. Melvin S. Heller. He was eighteen. According to Dr.
Heller, Williams “show[ed] no evidence of mental
impairment” and was “[w]ithout psychosis.” Williams
exhibited “no signs of psychotic thought disorder, delusions,
hallucinations, inappropriate affect, inadequate attention span
or bizarre behavior.” Moreover, there was “no indication that

related to incarceration. According to Dr. Fleming, the symptoms
were too serious to be caused by incarcerative stress.

80
[Williams was] operating under any undue mental or
emotional stress,” and Dr. Heller indicated that Williams’
“prospects for community adjustment would appear to be
most favorable.” Three months after Dr. Heller’s evaluation,
Williams murdered Norwood. He had killed Hamilton just
two months prior. Thus, the Heller report captured Williams
in the midst of his crime spree. Its contents are difficult to
reconcile with the testimony of Drs. Kessel, Fleming, and
Kaufman.

One additional category of anti-mitigation evidence
bears consideration: during Williams’ certification proceeding
in January 1984, approximately ten to fifteen witnesses—
Williams’ family and friends—provided testimony portraying
Williams’ home life as stable, loving, and supportive.
Williams was, for example, engaged in “honest” pursuits; he
was a football star with pending scholarship offers; he was a
“bright young man” with a “wonderful future.” Marlene
Rogers and Lucille Rogers (mother of Marlene and
grandmother of Williams’ child), echoed this theme in 1984.
Both returned for the PCRA hearing in 1998 and changed
their tune, characterizing Williams’ home life as a “terrible
situation” permeated by “abusive behavior.”

There was additional evidence, contemporaneously
provided, suggesting that Williams’ home life was not as
nightmarish as that which he depicted on collateral review.
Williams’ mother repeatedly told probation officers that her
relationship with her son was “satisfactory.” At trial, she
flatly denied inflicting any abuse. She certainly never
mentioned a single instance of sexual abuse. What is more,
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Williams himself echoed these sentiments, telling at least one
probation officer that “he had a happy childhood,” and was
“inspired” by his family, neighbors, and coaches. Williams
never provided contrary testimony under oath.

To acknowledge testimony portraying Williams’
upbringing in a positive light is not to reject the PCRA
narrative of lifelong physical and sexual abuse. However, the
parade of witnesses who testified at the certification
proceeding described Williams’ home life very differently
than those who appeared at the PCRA hearing. Similarly, the
testimony provided by Williams’ mother could scarcely have
been more contradictory. For purposes of our prejudice
inquiry, it is the fact of inconsistency that is important. If
nothing else, the Commonwealth could have used the
certification testimony to considerable advantage by
impeaching the PCRA narrative. The opportunities for
attacking the credibility of those who depicted Williams’ life
of near-constant abuse would have been legion, thereby
diluting the effectiveness of the proffered mitigation
evidence. Our consideration of the reconstituted record
simply cannot ignore such pointed anti-mitigation evidence.

2 Assessing the Evidence

In order to show prejudice, Williams must establish
that there is a reasonable probability that but for Panarella’s
deficient performance, “one juror would have voted for life
imprisonment rather than the death penalty.” Bond, 539 F.3d
at 289. Even if he successfully makes such a showing,
however, Williams must then demonstrate that the
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Pennsylvania Supreme Court’s contrary holding was
unreasonable. See Harrington, --- U.S. ---, 131 S. Ct. at 786
(stating that “even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable”).
Overcoming this hurdle is no simple undertaking; as the
Supreme Court has recently stressed, the “standards created
by Strickland and § 2254(d) are both ‘highly deferential,’ and
when the two apply in tandem, review is ‘doubly’ so.” Id. at
788 (quoting Knowles v. Mirzayance, --- U.S. ---, 129 S. Ct.
1411, 1420 (2009)).

In reviewing Williams’ mitigation evidence, the
Pennsylvania Supreme Court held that Panarella’s failure to
present this information at the penalty phase did not prejudice
Williams’ defense. 30 On federal habeas review, the District
30
Williams argues that the Pennsylvania Supreme Court
unreasonably applied Strickland because it “articulated an
incorrect prejudice standard.” He is wrong. The Court’s opinion
twice sets forth its prejudice standard: in the first instance, the
Court states that a petitioner cannot prevail on an ineffective
assistance claim “where there is no showing that [mitigating]
testimony . . . would have been beneficial in terms of altering the
outcome of the penalty phase hearing,” Commonwealth v. Williams
(Williams II), 863 A.2d 505, 519 (Pa. 2004) (internal quotation
omitted); in the second instance, the Court concluded that
“appellant has not met his burden of demonstrating there was [a]
reasonable probability the presentation of this evidence would have
resulted in a life sentence instead of the death penalty,” id. at 521
n.12. Both articulations are reasonable under Strickland; the latter
parrots language of the decision itself. See Strickland v.
Washington, 466 U.S. 668, 694 (1984). Nonetheless, Williams
fixates upon the Pennsylvania Supreme Court’s lone reference to a
83
Court concluded that the Pennsylvania Supreme Court’s
decision was not an unreasonable application of Strickland.
We agree.

The mitigation evidence elicited by Williams on
collateral review is no doubt sympathetic. It portrays a much
more complicated and troubled individual than the one
depicted during the trial’s penalty phase. But the evidence is
not unequivocally mitigating. Some of the evidence is even
contradictory. Had Williams offered Drs. Kessel, Fleming,

petitioner’s “heavy” burden when attempting to establish
prejudice. See Williams II, 863 A.2d at 519 (“Appellant has not
met this heavy burden.”). Williams argues that by using such a
descriptor, the Court actually imposed a burden much more
stringent than the “reasonable probability” requirement set forth in
Strickland. We cannot agree. Although the Pennsylvania Supreme
Court’s choice of words was imprecise, there is no indication that
the Court in fact held Williams to an incorrect prejudice standard.
It twice articulated a standard consistent with Strickland, and it is
clear from the Court’s opinion that it did not consider the
mitigation evidence to be the least bit persuasive. We find that by
describing Williams’ burden as “heavy,” the Pennsylvania
Supreme Court was merely recognizing the difficulty of prevailing
on an ineffective assistance of counsel claim. To accept the
contrary argument is to disobey “§ 2254(d)’s highly deferential
standard for evaluating state-court rulings, which demands that
state court decisions be given the benefit of the doubt.” Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (internal citations and quotation
marks omitted). Such “readiness to attribute error is inconsistent
with the presumption that state courts know and follow the law,”
id., and we accordingly reject it.

84
and Kaufman at the penalty phase, the Commonwealth could
have countered with an abundance of evidence suggesting
that Williams was not mentally ill and that he did not suffer
psychological impairment. After all, Williams was examined
by at least three professionals in and around the time of
Norwood’s murder; not one thought him seriously mentally
impaired. Dr. Zanni stated that Williams’ “[i]nsight and
judgment are not impaired”; Dr. Heller reported that Williams
“show[ed] no evidence of mental impairment” and was
“[w]ithout psychosis.” According to Dr. Camiel, Williams’
symptoms of psychosis were recent and they appeared after
Norwood was murdered and Williams was incarcerated. Not
one of these doctors thought Williams was suffering from
psychosis on or around the time of the offense; indeed, the
record is devoid of contemporaneous evidence of
psychological impairment. This final point is critical, for it
distinguishes the instant matter from decisions such Thomas
v. Horn, 570 F.3d 105 (3d Cir. 2009), where evidence that the
petitioner was mentally ill at the time of the offense was clear
and undisputed. See id. at 126 (stating that “the
Commonwealth does not dispute that even the most cursory
search would have yielded evidence of Thomas’ long history
of mental illness”).

The conflicting nature of the mental health testimony
is, in fact, reminiscent of our recent decision in Lewis v.
Horn, 581 F.3d 92 (3d Cir. 2009). There, we found that
evidence purporting to show that petitioner was mentally ill
and brain damaged was “in large part contradictory.” Id. at
112. Evaluations conducted contemporaneous to petitioner’s
crime revealed a mentally competent young man, while those
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performed in anticipation of the PCRA proceeding portrayed
an individual riddled with psychological difficulty. Id. at
112–13. The contradictory nature of the evidence undercut
the effectiveness of Lewis’ mitigation testimony, and
precluded us from overturning the state courts’ determination
that Lewis was mentally competent at the time of the offense.
Williams’ mental health evidence is similarly undercut in the
instant matter.

Furthermore, even the testimony offered by Williams’
mental health experts was not uniformly sympathetic. Drs.
Kessel and Fleming spoke of Williams’ inner “rage,”
especially with respect to “males who behaved sexually
toward him.” Dr. Fleming explained that Williams
suppressed this rage “until it exploded.” She described him
as extremely impulsive, and opined that Williams gave “less
consideration to the consequences of his actions than a
normal person would.” Dr. Kaufman echoed this sentiment,
testifying that Williams redirected his inner pain onto others
“without regard to the consequences.” Such evidence is not
necessarily mitigating, even if all three doctors rationalized
this conduct by linking it to Williams’ post-traumatic stress
disorder. Their explanation was obviously insufficient for the
Pennsylvania Supreme Court, which found that the mitigating
evidence offered by Drs. Kessel, Fleming, and Kaufman was
neutralized by Williams’ predilection to “direct[] his hurt
onto other people and . . . to respond to stressful situations in
a manner without regard to the consequences.” Williams II,
863 A.2d at 520 (quoting PCRA decision and adopting its
findings). The Court therefore rejected the collective opinion
that Williams was acting under extreme mental disturbance at
86
the time of the offense and that his capacity to appreciate the
criminality of his conduct or to conform it to the requirements
of the law was substantially impaired. Given the conflicting
evidence of psychological damage, we cannot say that this
finding was an unreasonable determination of facts under §
2254(d)(2).

The testimony concerning Williams’ home life is also
in tension with itself. On the one hand, several witnesses
appeared at the PCRA hearing to describe years of physical
beatings and sexual molestation. Their narrative was one of
serious, long-term abuse. On the other hand, ten to fifteen
witnesses took the stand at Williams’ certification proceeding
and provided a much different characterization. According to
this account, provided six months prior to the Norwood
murder, Williams’ family and friends were loving,
supportive, stable, and certainly not abusive. Some of this
anti-mitigation evidence was offered by the very witnesses
who later described Williams’ home life in a negative light.
Williams himself described his upbringing in positive terms.
He told Dr. Heller (three months before he murdered
Norwood) that “his family relationships are close and
meaningful.” He never acknowledged any physical or sexual
abuse in or around the time of the murder. Williams’ only
statements to the contrary were elicited ten years after his
conviction, in preparation for PCRA review. The
contradictory nature of the abuse testimony seriously dilutes
its mitigating effect.31 See Lewis, 581 F.3d at 112–13

31
Williams suggests that we should overlook the contradictory
nature of the abuse testimony. In support of this assertion, he cites
87
(remarking that petitioner never acknowledged physical abuse
and suggesting that his failure to do so was anti-mitigation
evidence).

In addition to the evidence set forth above, we cannot
lose sight of the aggravating factors present in this case,
which were significant and afforded considerable weight by
the state court. The Pennsylvania Supreme Court highlighted
the manner in which Williams “planned and carried out the
killing, as well as his subsequent attempts to cover up the
murder by burning the body.” Williams II, 863 A.2d at 520.
On top of this, Williams “had a significant history of violent
felony convictions,” id. at 521 n.12; “this was not his first

to our recent decision in Bond v. Beard, 539 F.3d 256 (3d Cir.
2008). His citation is inapposite. In Bond, the petitioner offered
evidence during the PCRA proceeding that depicted “an extremely
troubled and deprived childhood.” Id. at 280. Such evidence
differed significantly from that offered at the petitioner’s trial,
where there was general testimony of childhood difficulty but not
of anywhere near the magnitude described during postconviction
proceedings. See id. at 279–81. We found that the mitigation
evidence offered during collateral review was highly persuasive
and its omission from trial was prejudicial. In Bond, however, we
explained that the evidence of childhood abuse and neglect “would
not contradict earlier testimony, but rather provide details not
uncovered by trial counsel at the penalty phase hearing.” Id. at
291. This is not the case in the present matter; the testimony of
Williams’ childhood abuse contradicts that set forth at the
certification hearing and provided by his mother at the trial’s
penalty phase. As such, the mitigating effect of the evidence is
seriously undercut.

88
murder,” id. For the Pennsylvania Supreme Court, the brutal
facts of the murder, combined with Williams’ criminal
history, strongly counseled against a finding of prejudice.

In Woodford v. Visciotti, 537 U.S. 19 (2002), the
United States Supreme Court considered a petition that was in
some respects similar to that presented in the instant matter.
Visciotti shot and murdered one victim and seriously maimed
a second before he was arrested and later convicted of first
degree murder. On collateral review in the state courts,
Visciotti argued that he received ineffective assistance of
counsel during the trial’s penalty phase because his attorney
failed to present evidence that Visciotti grew up in a
“dysfunctional family in which he suffered continual
psychological abuse.” Id. at 26 (internal quotations omitted).
This troubled past, in turn, purportedly led to myriad
psychological difficulties in Visciotti’s adult life. Id. The
state supreme court rejected Visciotti’s petition, concluding
that

the circumstances of the crime (a cold-blooded
execution-style killing of one victim and
attempted execution-style killing of another,
both during the course of a preplanned armed
robbery) coupled with the aggravating evidence
of prior offenses (the knifing of one man, and
the stabbing of a pregnant woman as she lay in
bed trying to protect her unborn baby) was
devastating.

Id. (describing state supreme court decision). These
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aggravating factors were so severe, the state supreme court
concluded, that they completely overwhelmed the evidence
proffered in mitigation. Therefore, trial counsel’s failure to
present the mitigating evidence in the first instance was not
prejudicial. Id. On federal habeas review, the Ninth Circuit
granted the writ, but the Supreme Court reversed. According
to the Supreme Court, AEDPA endows the state courts with
primary responsibility for weighing aggravating and
mitigating factors in a prejudice inquiry. Id. at 27.
Furthermore, it was not objectively unreasonable for the state
supreme court to attribute significant weight to the
aggravating circumstances in a situation such as this—the
crime was particularly heinous and, more importantly,
Visciotti had a pronounced history of violent felony
convictions. By downplaying the weight of the aggravating
factors, the Ninth Circuit had inappropriately substituted its
own judgment for that of the state supreme court. Id. at 26–
27. Woodford makes clear that such second-guessing is
unwarranted on federal habeas review.

Woodford’s reasoning is particularly apt here. The
Pennsylvania Supreme Court found that Williams’ brutal
crimes and record of violent convictions overwhelmed the
evidence proffered in mitigation. The Court took especial
note that “this was not [Williams’] first murder conviction,”
Williams II, 863 A.2d at 521 n.12, and it specifically adopted
the reasoning of the PCRA court, which found that the
aggravating evidence “outweighed” the mitigating testimony
offered by Williams’ mental health experts, see id. at 520. In
other words, the state supreme court concluded that given the
nature of the aggravating circumstances, Williams could not
90
meet “his burden of demonstrating there was a reasonable
probability [that] the presentation of [mitigating] evidence
would have resulted in a life sentence instead of the death
penalty.” Id. at 521 n.12. In light of the totality of the
reconstituted record—the nature of the offense and Williams’
history as a convicted murderer, as well as the equivocal
nature of the mitigation evidence—we cannot say that this
determination was unreasonable.

The Pennsylvania Supreme Court’s decision is further
bolstered by the fact that the jury did not find Williams’ youth
to be a circumstance that mitigated the severity of the offense.
If ever a capital defendant qualified for the mitigating
circumstance set forth in 42 Pa. Cons. Stat. § 9711(e)(4),
Terrance Williams did. He was four months past his
eighteenth birthday. According to Williams’ brief, he is one
of the youngest men ever placed on Pennsylvania’s death
row. Williams’ trial counsel built his closing argument
around his client’s youth and begged the jury to find that age
was a mitigating factor. But to no avail. The jury’s rejection
of this mitigation argument is telling; it strongly suggests that
the jurors’ collective evaluation of Williams’ character would
have led them to reject other, less clear-cut mitigating
evidence. See, e.g., Wiggins, 539 U.S. at 535 (indicating that
characteristics which reflect the defendant’s “moral
culpability” are relevant at the penalty phase); see also
Jermyn, 266 F.3d at 310 (explaining that at the penalty phase,
jury appraises defendant’s “moral culpability”). This is but
another factor that points away from a finding of prejudice.

In sum, the Pennsylvania Supreme Court found that
91
Williams was not prejudiced by Panarella’s failure to present
the mitigating evidence set forth in postconviction
proceedings. This determination was not an unreasonable
application of Strickland. In reaching our conclusion, we are
mindful of the Supreme Court’s recent admonition that “even
a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Harrington, --- U.S.
---, 131 S. Ct. at 786. That “‘fairminded jurists could
disagree’ on the correctness of the state court’s decision,” is,
by itself, a sufficient basis for rejecting federal habeas relief.
Id. (quoting Yarborough, 541 U.S. at 664). The reconstituted
record consists of conflicting mental health evaluations,
contradictory depictions of Williams’ home life, and
unequivocal evidence regarding the brutality of the crime and
Williams’ history of violent offense conduct. Strickland was
not unreasonably applied on this record. Habeas relief is
therefore unwarranted.

IV

In 1986, a Pennsylvania jury convicted Terrance
Williams of first degree murder and recommended a sentence
of death. Williams’ conviction was upheld by the state courts
on direct appeal, and his attempts to obtain collateral relief
were likewise unavailing. On federal habeas review, the
District Court denied Williams’ petition for relief. Today we
affirm that judgment for the reasons set forth above. In so
doing, we are mindful of the gravity of our decision. We are
bound, however, to respect the lawful decisions of the state
courts. Thus, twenty-five years after the jury returned its
verdict, we deny Williams’ request for habeas relief.
92