and 06-9008 REGINALD S. LEWIS v. COMMISSIONER MARTIN HORN, Pennsylvania Department of Corrections

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 06-9007 and 06-9008
REGINALD S. LEWIS,
Appellant, No. 06-9007
v.
COMMISSIONER MARTIN HORN,
Pennsylvania Department of Corrections;
CONNOR BLAINE, Superintendent of the
State Correctional Institution at Graterford;
JOSEPH P. MAZURKIEWICZ, Superintendent of the
State Correctional Institution at Rockview
Martin Horn, Connor Blaine and
Joseph P. Mazurkiewicz,
Appellants, No. 06-9008
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 00-cv-00802)
District Judge: Honorable Bruce W. Kauffman

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2
Argued August 4, 2009
Before: SMITH, FISHER and
VAN ANTWERPEN, Circuit Judges.
(Filed: September 14, 2009 )
Matthew C. Lawry
Billy H. Nolas (Argued)
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
Attorneys for Reginald Lewis
Joshua S. Goldwert (Argued)
Thomas W. Dolgenos
Ronald Eisenberg
Arnold H. Gordon
Lynne Abraham
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499
Attorneys for Martin Horn, Connor Blaine
and Joseph P. Mazurkiewicz
OPINION OF THE COURT
FISHER, Circuit Judge.

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3
In this appeal, we are presented with the difficult task of
considering a Pennsylvania death row inmate’s challenges to his
conviction and sentence, stemming from a trial that occurred
over twenty-five years ago. Appellant Reginald Lewis filed a
petition for a writ of habeas corpus in the District Court seeking
relief from his judgment of conviction and sentence. The
District Court denied Lewis relief from his conviction, rejecting
his arguments that the Commonwealth’s use of peremptory
strikes violated Batson v. Kentucky, 476 U.S. 79 (1986), that his
counsel was ineffective during the guilt phase of his trial, and
that the Commonwealth suppressed exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). But the
District Court was persuaded by Lewis’s arguments that his
counsel rendered constitutionally ineffective assistance at the
penalty phase of his trial and therefore granted relief to Lewis
from his death sentence. Because we conclude that the District
Court committed several errors in its analysis of this claim, we
will vacate its order granting sentencing relief, and remand for
further proceedings consistent with this opinion. We will affirm
the District Court in all other respects.
I.
At approximately 6:30 p.m. on November 21, 1982,
Christopher Ellis was brutally stabbed nine times by a man
wielding a butcher knife in the Oxford Bar, located on Oxford
and Sixth Streets in Philadelphia, Pennsylvania. The stabbing
was observed by all of the patrons of the bar, including the
group that accompanied Ellis to the bar to celebrate the birthday
of one of the members. Following the incident, the police
showed each of the witnesses a photo-array of eight pictures,

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4
one of which depicted Lewis, and each witness identified Lewis
as the person who committed the murder. Subsequently, when
the police arrested Lewis for shoplifting from a department
store, he had assumed the name of Booker T. Beatty, Jr. While
still in police custody on that charge, Lewis was arrested
pursuant to an outstanding warrant and charged with the murder
of Christopher Ellis.
A. Trial and Direct Appeal
Over the course of the trial in the Court of Common Pleas
of Philadelphia County, the prosecution produced six
eye-witnesses who identified Lewis as the individual they had
seen commit the murder. Each witness had been familiar with
Lewis as a person who “hung around” the neighborhood. They
all knew him by his first name only, “Reggie” or Reginald.
There was also testimony that frequently Lewis was seen
wearing clear lens, “schoolboy” glasses prior to the incident,
similar to the glasses dropped by the assailant at the scene of the
murder. One witness testified that immediately prior to the
stabbing Lewis and Ellis were arguing over a five dollar debt
Ellis allegedly owed Lewis. The bartender testified that the
assailant was a previous customer at the bar and had a girlfriend
named Stephanie, who was pregnant at the time and lived on the
1600 block of Marshall Street in Philadelphia. The
Commonwealth produced Lewis’s fiancée, Stephanie McCorey,
who testified she was pregnant at the time of the incident and
had previously resided at 1610 N. Marshall Street. The
bartender also testified that Lewis approached him the next day
and told him not to mention Lewis’s name with regard to the
incident. In defense, Lewis maintained he was in San Diego

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In a Pennsylvania jury trial, after a first-degree murder1
verdict “is recorded and before the jury is discharged, the court
shall conduct a separate sentencing hearing in which the jury
shall determine whether the defendant shall be sentenced to
death or life imprisonment.” 42 Pa. Cons. Stat. Ann.
§ 9711(a)(1).
5
visiting his brother, Michael, at the time of the incident. In
support of this claimed alibi defense, Lewis produced his
brother and other family members to corroborate the story.
On August 1, 1983, the jury found Lewis guilty of first-
degree murder and possession of an instrument of crime.
During the penalty phase, the Commonwealth sought to1
establish the aggravating circumstance of “a significant history
of felony convictions involving the use or threat of violence to
the person,” see 42 Pa. Cons. Stat. Ann. § 9711(d)(9), offering
evidence of Lewis’s 1973 aggravated assault conviction in
Philadelphia, and his 1976 first-degree murder and felony
assault convictions in Camden, New Jersey. Lewis in turn
testified in an attempt to downplay his culpability and minimize
the violence of his prior convictions, and his counsel, in closing
argument, emphasized Lewis’s youth at the time of the prior
offenses. After approximately one hour of deliberation, the jury
returned its verdict, finding one aggravating circumstance and
no mitigating circumstances, and sentencing Lewis to death on
the first-degree murder conviction.
Lewis, represented by new counsel, filed a direct appeal
to the Pennsylvania Supreme Court, which, on December 22,

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6
1989, affirmed his judgment of conviction and sentence.
Commonwealth v. Lewis, 567 A.2d 1376 (Pa. 1989) (Lewis I).
In his direct appeal, Lewis raised a number of arguments,
including a challenge to the Commonwealth’s use of peremptory
strikes during jury selection. Although Lewis did not cite
Batson v. Kentucky, 476 U.S. 79 (1986), which the United States
Supreme Court decided during the pendency of Lewis’s direct
appeal, he included a short argument in his brief under the
heading “Defendant Was Denied His Constitutional Right To A
Fair Trial By A Jury Of His Peers By The Improper Use of
Peremptory Challenges By The Commonwealth,” which stated
the following:
“Appellant wishes to preserve this argument and
alleges the Commonwealth unfairly and
improperly used its peremptory challenges to
exclude members of Appellant’s race (Black)
from the jury. Counsel requests this issue be
remanded for an evidentiary hearing to determine
the validity of the assertion.”
(App. at 1891.) In rejecting Lewis’s Batson claim, the
Pennsylvania Supreme Court noted Lewis’s “failure to identify
specific veniremen or specific parts of the record in support of
his allegation,” and reasoned that “absent a prima facie showing
of improper use of peremptory challenges by the
Commonwealth, this claim could not provide a basis . . . to
vacate the judgment of sentence.” Lewis I, 567 A.2d at 1381
n.3. The Pennsylvania Supreme Court rejected the remainder of
Lewis’s arguments, none of which is relevant to the current
appeal.

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Lewis’s PCRA petition was timely because he filed it2
before an amendment to the PCRA went into effect in January
1996, which created a one-year filing deadline from the date
judgment becomes final. See 42 Pa. Cons. Stat. Ann. § 9545(b);
see also Bronshtein v. Horn, 404 F.3d 700, 708 (3d Cir. 2005)
(discussing when the one-year filing deadline became a firmly
established and regularly followed rule).
7
B. State Post-Conviction Proceedings
On August 7, 1995, almost six years after the
Pennsylvania Supreme Court affirmed Lewis’s conviction and
sentence on direct appeal, Lewis filed a timely pro se petition
for post-conviction relief under Pennsylvania’s Post Conviction
Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. § 9541 et seq. In2
this petition, Lewis argued that his counsel was ineffective at the
guilt phase of his trial for failing to object during voir dire to
what he alleged was the Commonwealth’s discriminatory use of
peremptory strikes. Additionally, Lewis argued that his counsel
was ineffective at the penalty phase of his trial for conducting
“no investigation geared toward the penalty hearing” and for
presenting “no information regarding [his] mental illness.” On
November 20, 1995, counsel was appointed to represent Lewis
in his PCRA proceeding, and on April 10, 1996, Lewis’s
counsel filed an amended PCRA petition, followed by a
supplemental amended petition and memorandum of law filed
on June 18, 1996. On January 15, 1997, the PCRA court issued
a ten-day notice of dismissal of Lewis’s petition. In response,
Lewis’s current counsel, who had assumed representation of
him, filed objections to the proposed dismissal. In Lewis’s

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8
objections to the notice of dismissal, he expanded on his claim
of ineffective assistance of counsel at the penalty phase, and he
also argued that the Commonwealth violated Brady v.
Maryland, 373 U.S. 83 (1963), by not providing exculpatory
evidence of certain bus tickets allegedly located in a briefcase he
was carrying at the time of his arrest.
On February 7, 1997, the PCRA court denied Lewis’s
petition without conducting a hearing. Lewis appealed to the
Pennsylvania Supreme Court, elaborating on the arguments he
raised before the PCRA court and also adding to his arguments
a claim that his trial counsel was ineffective at the guilt phase of
his trial for failing to adequately prepare alibi witnesses and for
failing to investigate a defense of self defense. On January 19,
2000, the Pennsylvania Supreme Court affirmed the denial of
Lewis’s petition, holding: (1) the Batson claim was previously
litigated on direct appeal and could not be reconsidered; (2) the
ineffective assistance of counsel at the guilt phase claim was
waived because it was raised for the first time on appeal from
the PCRA court’s dismissal of Lewis’s petition; (3) the Brady
claim failed because the bus ticket did not support an alibi
defense as there was no indication of a date of travel and the
briefcase containing the ticket was not in the custody of the
police; and (4) the ineffective assistance of counsel at the
penalty phase claim failed because the record did not support
Lewis’s contention that he suffers from brain damage or serious
mental illness. Commonwealth v. Lewis, 743 A.2d 907 (Pa.
2000) (Lewis II). The Pennsylvania Supreme Court rejected
several other arguments raised by Lewis, none of which are
relevant to the instant appeal.

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We limit our discussion of the claims reached by the3
District Court to those which are relevant to the instant appeal.
9
C. Federal Habeas Proceedings
In September 2000, Lewis filed the present petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Eastern District of
Pennsylvania alleging sixteen separate grounds for relief, only
some of which the District Court reached. Lewis v. Horn, 20063
WL 2338409 (E.D. Pa. Aug. 9, 2006). In reviewing Lewis’s
Batson claim, the District Court applied the deferential standard
set forth in § 2254(d) and concluded that “the Pennsylvania
Supreme Court reasonably applied Batson in determining that
[Lewis] failed to make a prima facie claim of discriminatory
jury selection.” Id. at *13. The District Court also rejected
Lewis’s argument that his appellate counsel was ineffective for
failing to raise the Batson claim in a professionally reasonable
manner on direct appeal, concluding that “[b]ecause [Lewis]
cannot establish a prima facie case under Batson, his claim of
ineffective assistance of counsel for failure to raise this claim
must also fail.” Id. at *12 n.12. The District Court also denied
Lewis’s request for an evidentiary hearing on the Batson claim
under § 2254(e)(2) because of Lewis’s failure to develop the
factual record necessary to support this claim. Id. at *14. In
support of these conclusions, the District Court observed that
Lewis had “failed to object to any of the Commonwealth’s
peremptory challenges on the basis that they were being
exercised in a racially discriminatory manner,” and also noted
that there was “no record of the racial make-up of the venire,”

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10
and no “record of the race of those stricken jurors nor any
indication as to the racial composition of the jury that tried and
sentenced [Lewis].” Id. at *13-14.
Turning to Lewis’s claim of ineffective assistance of
counsel at the guilt phase of his trial, the District Court
exercised de novo review, reasoning that the Pennsylvania
Supreme Court’s refusal to reach the issue because of waiver
was not an independent and adequate ground for declining to
address the merits of the claim in light of Pennsylvania’s relaxed
waiver doctrine in capital cases, which was in effect at the time
of Lewis’s alleged procedural default. Id. at *4, *14 n.14. The
District Court determined that Lewis’s “contention that the
failure of the alibi defense was the result of trial counsel’s lack
of preparation is not supported by the record,” and therefore
concluded that his counsel’s presentation of the alibi defense
“did not fall below an objective standard of reasonableness as
defined by Strickland [v. Washington, 466 U.S. 668 (1984)].”
Id. at *15. The District Court also concluded that Lewis’s
counsel did not perform deficiently by making a strategically
reasonable choice “not to present a theory of self-defense that
would be factually inconsistent with and thereby undermine the
credibility of [Lewis’s] alibi defense.” Id. at *16.
Next, the District Court reviewed Lewis’s Brady claim,
applying § 2254(d)’s deferential standard to the Pennsylvania
Supreme Court’s decision on the merits of this issue. Id. at *16
n.15. The District Court denied the claim, explaining that “this
Court cannot conclude that the Pennsylvania Supreme Court
unreasonably applied the principals [sic] of Brady to this claim”
and that Lewis “has not demonstrated that the state court

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11
unreasonably determined the facts based on the evidence.” Id.
at *17. Notwithstanding its conclusions, the District Court
granted a certificate of appealability to Lewis as to these three
guilt phase claims. Id. at *19.
As for Lewis’s ineffective assistance of counsel at the
penalty phase claim, the District Court stated that “the
Pennsylvania Supreme Court reached the merits of this claim,”
and consequently it would “apply [§ 2254(d)’s] deferential
standard of review.” Id. at *5 n.6. The District Court
determined: “The evidence that [Lewis] has presented, both in
the PCRA courts and in his habeas proceedings, reveals that he
does in fact suffer from a host of mental health issues, many of
which may be attributable to his deeply troubled family
background.” Id. at *6. Consequently, the District Court
concluded that “there can be no reason, strategic or otherwise
for trial counsel’s failure to investigate and present mitigating
evidence.” Id. at *11. Because of this, the District Court held
that the Pennsylvania Supreme Court unreasonably applied the
Strickland and Terry Williams v. Taylor, 529 U.S. 362 (2000)
standards in assessing whether Lewis’s “trial counsel rendered
constitutionally ineffective assistance at the sentencing phase.”
Id. While noting that “[t]he Pennsylvania Supreme Court did
not reach the prejudice inquiry,” id. at *12 n.10, the District
Court determined that Lewis was prejudiced by his counsel’s
performance at the penalty phase of his trial, reasoning that
“[h]ad the jury heard the evidence regarding [Lewis’s] life
history and the conclusions reached by some of the mental
health experts, there is a reasonable probability that at least one
juror would have found the mitigating circumstances to
outweigh the aggravating circumstances.” Id. at *12. As a

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12
result of these conclusions, the District Court granted Lewis’s
writ of habeas corpus and “direct[ed] that he either be given a
new sentencing hearing or sentenced to life imprisonment.” Id.
Because the District Court granted relief to Lewis on this
ground, it declined to reach his other claims for relief from his
sentence.
Following the District Court’s decision, Lewis timely
appealed and the Commonwealth cross-appealed.
II.
The District Court had jurisdiction under 28 U.S.C.
§§ 2254 and 2241, and we have jurisdiction under 28 U.S.C.
§§ 1291 and 2253. Because the District Court ruled on Lewis’s
habeas petition without conducting an evidentiary hearing, our
review of its legal conclusions is plenary. Duncan v. Morton,
256 F.3d 189, 196 (3d Cir. 2001). Accordingly, we will “review
the state courts’ determinations under the same standard that the
District Court was required to apply.” Thomas v. Horn, 570
F.3d 105, 113 (3d Cir. 2009). Following the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), habeas relief cannot be granted by a federal court on
a claim that was “adjudicated on the merits” in state court unless
the adjudication “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). “[F]or the purposes of
[§] 2254(d), a claim has been ‘adjudicated on the merits in State

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13
court proceedings’ when a state court has made a decision that
finally resolves the claim based on its substance, not on a
procedural, or other, ground.” Thomas v. Horn, 570 F.3d at 117.
But when “the state court has not reached the merits of a claim
thereafter presented to a federal habeas court, the deferential
standards provided by AEDPA . . . do not apply.” Appel v.
Horn, 250 F.3d 203, 210 (3d Cir. 2001). “In such an instance,
the federal habeas court must conduct a de novo review over
pure legal questions and mixed questions of law and fact, as a
court would have done prior to the enactment of AEDPA.” Id.
Additionally, regardless of whether a state court reaches the
merits of a claim, a “federal habeas court must afford a state
court’s factual findings a presumption of correctness and . . . the
presumption applies to factual determinations of state trial and
appellate courts.” Fahy v. Horn, 516 F.3d 169, 181 (3d Cir.
2008).
III.
A. Batson Claim
Lewis argues that he should be granted relief from his
conviction, or at least receive an evidentiary hearing, based on
his claim that the prosecutor’s jury selection was racially
discriminatory in violation of the Equal Protection Clause as
articulated in Batson v. Kentucky, 476 U.S. 79 (1986). More
specifically, Lewis contends that he has established a prima
facie case of racial discrimination and that the Commonwealth
has not offered race-neutral reasons for the prosecutor’s
peremptory strikes. He alleges that the facts of this case
demonstrate a pattern of discriminatory strikes because the

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14
prosecutor used eight peremptory challenges against African
American venire members and only four against white venire
members, which resulted in an empaneled jury that consisted of
all-white jurors. He also makes allegations about the
discriminatory culture of the Philadelphia District Attorney’s
Office at the time of his trial.
Lewis raised this claim for the first time on direct appeal
to the Pennsylvania Supreme Court. At that time, he did not
provide any factual support for his claim, but merely asserted
that “the Commonwealth unfairly and improperly used its
peremptory challenges to exclude members of [Lewis’s] race
(Black) from the jury.” (App. 1891.) The Pennsylvania
Supreme Court observed that Lewis failed to “identify specific
veniremen or specific parts of the record in support of his
allegation,” and denied relief from conviction on this ground
because of Lewis’s failure to make “a prima facie showing of
improper use of peremptory challenges by the Commonwealth.”
Lewis I, 567 A.2d at 1381 n.3. Lewis reiterated the Batson
claim in his amended PCRA petition, but he did not provide any
factual support for this claim until he submitted objections to the
PCRA court’s notice of dismissal, at which time he asserted that
the Commonwealth struck eight African American venire
members. On appeal to the Pennsylvania Supreme Court, Lewis
also added allegations about a culture of discrimination in the
Philadelphia District Attorney’s Office, as demonstrated by the
infamous McMahon juror selection training tape. The
Pennsylvania Supreme Court concluded that Lewis’s Batson
claim was previously litigated on direct appeal and could not be
revisited. Lewis II, 743 A.2d at 908. Lewis presented the same
Batson arguments to the District Court, which reviewed the

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Additionally, Lewis contends that the Pennsylvania4
Supreme Court’s conclusion during the PCRA appeal that the
previous litigation rule barred reconsideration of the Batson
claim is not an independent and adequate ground to foreclose
review in federal court at this time. We agree. At the time
when Lewis’s Batson claim was first litigated – during his direct
appeal – the Pennsylvania Supreme Court had a practice of
reaching the merits of claims in capital cases, despite the
existence of procedural defects. See Banks v. Horn, 126 F.3d
206, 212-14 (3d Cir. 1997). Therefore, the fact that Lewis’s
claim may have been previously litigated in his first appeal is an
inadequate state procedural rule that does not bar our review of
15
claim under the deferential standard of § 2254(d) and concluded
that the Pennsylvania Supreme Court’s adjudication of the issue
on direct appeal was not an unreasonable application of Batson.
Lewis, 2006 WL 2338409, at *13. The District Court also
rejected Lewis’s request for an evidentiary hearing on his
Batson claim, reasoning that Lewis failed in the state courts to
develop the factual record necessary to support his claim. Id. at
*14.
Lewis now argues that the District Court erred by
applying § 2254(d) and that de novo review is appropriate
because the Batson claim that he raised on direct appeal is not
the same Batson claim as he raised in the PCRA and federal
habeas proceedings, and, therefore, the refusal of the state courts
to reach the issue did not constitute an adjudication on the merits
of the instant claim to which the District Court and this Court
owe deference. While we do not find particularly persuasive4

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the claim at this time.
16
Lewis’s argument that the various iterations of his Batson claim
actually constituted two distinct claims, we need not resolve
whether the Pennsylvania Supreme Court’s decision on direct
appeal is entitled to AEDPA deference because we conclude
that, even if we exercise de novo review, his claim fails for
several reasons.
The first shortcoming with respect to this claim is the
absence of a timely objection to the prosecutor’s exercise of
peremptory strikes during jury selection. Although Batson was
not decided until after Lewis’s trial and during the pendency of
his direct appeal, Lewis did not make any objections to the
prosecutor’s use of peremptory challenges under the then-
prevailing standard of Swain v. Alabama, 380 U.S. 202, 223-24
(1965). As the Supreme Court explained, an objection to the
jury selection process under Swain “necessarily states an equal
protection violation subject to proof under the Batson standard,”
Ford v. Georgia, 498 U.S. 411, 420 (1991), and therefore serves
to preserve such a claim for further review. Because Batson
relies on trial judges “to decide if the circumstances concerning
the prosecutor’s use of peremptory challenges creates a prima
facie case of discrimination,” 476 U.S. at 97, we have held that
a timely objection is a prerequisite to raising a Batson claim.
Abu-Jamal v. Horn, 520 F.3d 272, 284 (3d Cir. 2008); see Allen
v. Lee, 366 F.3d 319, 327-28 (4th Cir. 2004) (en banc); Thomas
v. Moore, 866 F.2d 803, 804 (5th Cir. 1989). In Abu-Jamal, we
explained that

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The procedural posture of Abu-Jamal’s Batson claim is5
similar to that of Lewis’s claim. Although Abu-Jamal, like
Lewis, was convicted prior to the Supreme Court’s decision in
Batson, his direct appeal was still pending when the Supreme
Court decided Batson, and therefore Batson applied
retroactively to his case. See Griffith v. Kentucky, 479 U.S. 314,
328 (1987). Moreover, similarly to Lewis, “Abu-Jamal did not
object to the prosecutor’s use of peremptory challenges at any
point during voir dire or at his 1982 trial. Abu-Jamal first raised
the argument that the prosecutor used peremptory strikes in a
racially discriminatory manner on direct appeal to the
Pennsylvania Supreme Court, which issued its opinion in 1989.”
520 F.3d at 283-84 (footnote omitted).
17
“[e]ven before Batson, a timely objection of racial
bias involving jury composition would have
alerted the judge to errors that might be corrected
in the first instance and given the judge the
opportunity to develop a complete record of the
jury selection process for appellate review.”
520 F.3d at 282. Therefore, we concluded that the existence of
a timely objection to the use of peremptory strikes is not merely
a matter of state procedural law; instead, “a timely objection is
required to preserve” a claimed Batson violation for appeal and
failing to do so will result in forfeiture of the claim. Id. at 284.5
Lewis contends that his pro se comments during jury
selection were sufficient to preserve his Batson claim. In the
course of voir dire, Lewis spoke out in response to the

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18
prosecutor’s use of peremptory strikes on two occasions, at one
point stating, “So prejudiced. So prejudiced,” and at another
point stating, “I knew he would do that.” (App. 217, 439.)
Because one of the primary reasons for requiring a timely
objection to the exercise of peremptory strikes is to alert the trial
judge to the purported misconduct and to allow the trial judge to
remedy the discrimination, we must assess whether either or
both of Lewis’s comments should have put the trial judge on
notice of the alleged racially discriminatory use of peremptory
challenges. The statement “I knew he would do that” carries
with it so many neutral and even benign implications that it is
too ambiguous of an utterance to expect that it would alert the
trial judge to an allegation of racial discrimination. On the
contrary, the statement “So prejudiced. So prejudiced” is not
subject to the same neutral or harmless interpretation. Yet even
though it is accusatory, this single remark, uttered by Lewis
himself, and not his counsel, provided insufficient notice to the
trial judge of a claim that the prosecution was striking venire
members in a racially discriminatory manner.
Nonetheless, even assuming Lewis properly preserved
this claim, he has failed to establish a prima facie showing of a
Batson violation. Batson claims are analyzed under a three-part
burden shifting framework:
“First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race. Second, if that
showing has been made, the prosecution must
offer a race-neutral basis for striking the juror in
question. Third, . . . the trial court must determine

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19
whether the defendant has shown purposeful
discrimination.”
Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (citations
omitted). “A prima facie case will be found if, after considering
the[] facts and all relevant circumstances, the ‘evidence [is]
sufficient to permit the trial judge to draw an inference that
discrimination has occurred’ in the prosecutor’s exercise of
peremptory challenges.” Abu-Jamal, 520 F.3d at 288 (quoting
Johnson v. California, 545 U.S. 162, 170 (2005)). In Batson,
the Supreme Court identified “a ‘pattern’ of strikes against black
jurors included in the particular venire” and “the prosecutor’s
questions and statements during voir dire examination and in
exercising his challenges” as two of the “relevant
circumstances” courts may consider in deciding whether a
defendant has established a prima facie case of racial
discrimination, 476 U.S. at 96-97, and we have identified
several additional relevant factors, including “‘how many
members of the cognizable racial group are in the venire panel;
the nature of the crime; and the race of the defendant and the
victim.’” Abu-Jamal, 520 F.3d at 288 n.16 (alterations omitted)
(quoting United States v. Clemons, 843 F.2d 741, 748 (3d Cir.
1988)); see Simmons v. Beyer, 44 F.3d 1160, 1167 (3d Cir.
1995) (listing the relevant factors at the first step of the Batson
analysis as “(1) the number of racial group members in the
panel, (2) the nature of the crime, (3) the race of the defendant
and the victim, (4) a pattern of strikes against racial group
members, and (5) the prosecution’s questions and statements
during the voir dire”).

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In Abu-Jamal, we explained the difference between the6
strike rate and the exclusion rate: “The strike rate is computed
by comparing the number of peremptory strikes the prosecutor
used to remove . . . potential jurors [of the defendant’s race]
with the prosecutor’s total number of peremptory strikes
exercised,” whereas the “exclusion rate . . . is calculated by
comparing the percentage of exercised challenges used against
. . . potential jurors [of the defendant’s race] with the percentage
of . . . potential jurors [of the defendant’s race] known to be in
the venire.” 520 F.3d at 290.
20
In Abu-Jamal, we emphasized the importance (although
not necessity) of supplying information about the strike rate and
the exclusion rate in order to demonstrate a prima facie violation
of Batson, noting that “[t]he Supreme Court has found prima
facie Batson cases based on a pattern of discrimination, but only
where the trial record has indicated both the strike rate and the
racial composition of the venire.” Abu-Jamal, 520 F.3d at 290.6
Despite the fact that the record revealed that “the prosecution
used ten peremptory strikes to remove black venirepersons from
the petit jury out of a total of fifteen peremptory strikes
exercised, resulting in a strike rate of 66.67%,” we were unable
to conclude that Abu-Jamal had demonstrated a prima facie case
of racial discrimination in the absence of “evidence from which
to determine the racial composition or total number of the entire
venire” – information that “would permit the computation of the
exclusion rate and would provide important contextual markers
to evaluate the strike rate.” Id. at 291-92.

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21
The evidence in support of a prima facie violation of
Batson is weaker in the present case than it was in Abu-Jamal.
Here, Lewis alleges that the prosecutor exercised eight
peremptory strikes against African American potential jurors
and four against white potential jurors, and that Lewis was tried
and convicted by an all-white jury. However, Lewis does not
cite to any record support, nor does he offer other support
outside the record, to substantiate this bare allegation, and
therefore we cannot rely on this information to evaluate whether
he has demonstrated a prima facie Batson violation. See id. at
292 n.18. Additionally, Lewis acknowledges that the racial
composition of the entire venire remains unknown and instead
posits that “the venire likely was statistically similar to the
overall population of Philadelphia.” Without information about
the number and racial composition of the entire venire, we
cannot calculate the exclusion rate and we lack the “contextual
markers” to analyze the significance of the strike rate. Thus,
even if we were to accept as true Lewis’s bald assertion that
eight of the twelve venire members whom the prosecutor struck
were African American, a strike rate of 66.67% is insufficient
information to establish a prima facie case of racial
discrimination in the exercise of peremptory strikes. See id. at
293 (“As noted, here the prosecution used ten of fifteen
peremptory strikes against black potential jurors. We have
never found a prima facie case based on similar facts.”).
In an attempt to bolster his claim, Lewis points to the
McMahon training tape, created in 1987 and featuring Assistant
District Attorney Jack McMahon, as evidence that a culture of
discrimination existed throughout the Philadelphia District
Attorney’s Office at the time Lewis was prosecuted. Although

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22
many of the practices advocated in the McMahon tape flout the
principles outlined in Batson, the tape was created four years
after Lewis’s trial and fails to provide any information about the
routine practices of the particular prosecutor in Lewis’s case or
the practices actually utilized at Lewis’s trial. This type of
general information, while not inconsequential, will not do as a
substitute for the concrete, case specific information that is
necessary to demonstrate a prima facie Batson violation.
Thus, the only reliable information we have to assess this
claim is evidence of the fact that Lewis is African American and
that the victim, Ellis, was African American. This does not
support an inference that the crime was racially motivated, nor
is there any indication that the crime was racially charged.
Moreover, there is no evidence of the racial composition of the
venire, and there is nothing more than unsupported allegations
about the racial composition of the empaneled jury and the race
of the venire members whom the prosecution excluded with its
peremptory strikes. As a result, we simply cannot conclude that
Lewis has met his burden, at the first step of Batson, “to develop
a record sufficient to establish a pattern of discrimination that
gives rise to an inference of discrimination.” See id. at 291.
Because we do not find Lewis’s Batson claim meritorious, we
also reject his argument that his appellate counsel was
ineffective for failing to make an adequate proffer in support of
his Batson claim on direct appeal. Lastly, we deny Lewis’s
request for an evidentiary hearing on this claim for similar
reasons as explained by the District Court; that is, we conclude
that he has failed at every stage of his state court proceedings to

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Despite Lewis’s repeated requests for an evidentiary7
hearing, he failed to make any efforts to provide reliable
evidence in support of his Batson claim, such as by providing
affidavits of the stricken venire members attesting to their race,
obtaining voter registration cards identifying the stricken venire
members’ race, or submitting exhibits of Lewis’s notes from
jury selection, the notes of his counsel, or the notes of the
prosecutor. Because Lewis has not availed himself of these
means of substantiating his allegations, we fail to see how an
evidentiary hearing would be beneficial.
23
develop the factual basis necessary to support this claim. 287
U.S.C. § 2254(e)(2) (“If the applicant has failed to develop the
factual basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim unless the
applicant shows that (A) the claim relies on . . . (ii) a factual
predicate that could not have been previously discovered
through the exercise of due diligence”); see Michael Williams v.
Taylor, 529 U.S. 420, 435 (2000) (explaining that the purpose
of § 2254(e)(2) is “to ensure the prisoner undertakes his own
diligent search for evidence”); Taylor v. Horn, 504 F.3d 416,
437 (3d Cir. 2007) (“‘Federal courts sitting in habeas are not an
alternative forum for trying facts and issues which a prisoner
made insufficient effort to pursue in state proceedings.’”
(quoting Michael Williams, 529 U.S. at 437)).

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24
B. Ineffective Assistance of Counsel
at the Guilt Phase Claim
Lewis argues that he is entitled to relief from his
conviction because his trial counsel rendered ineffective
assistance by failing to properly investigate and present his alibi
defense and by not presenting a theory of self defense. More
specifically, Lewis contends that his trial counsel failed to
investigate documentary evidence – namely bus tickets – which
supported his alibi defense, failed to contact and secure the
attendance of certain alibi witnesses, and failed to properly
prepare the alibi witnesses who did testify. Lewis asserts that he
was prejudiced by his counsel’s lack of preparation because the
presentation of a weak alibi defense suggested consciousness of
guilt and bolstered the Commonwealth’s case.
Lewis raised this ineffectiveness claim for the first time
before the Pennsylvania Supreme Court on appeal from the
denial of his PCRA petition. The Pennsylvania Supreme Court
determined that this claim was waived because “[t]he version of
the PCRA in effect at the time [Lewis] filed the instant petition
provided that an issue is waived ‘if it could have been raised . . .
in a prior proceeding,’” Lewis II, 743 A.2d at 909 (quoting 42
Pa. Cons. Stat. Ann. § 9544(b)). It also explained that this
particular claim was “not raised before the PCRA court in
[Lewis’s] PCRA petition or any amendments nor in [Lewis’s]
Objection to the PCRA court’s notice of intent to dismiss,” id.
at 909 n.2, and the doctrine of “‘relaxed waiver’ does not apply
to claims made in capital PCRA petitions.” Id. at 909.

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25
Although the Pennsylvania Supreme Court declined to
reach the merits of Lewis’s claim on grounds that it was waived,
we cannot conclude that this decision was based on an
independent and adequate state procedural rule such that it
would bar our review of the claim. Federal habeas courts “‘will
not review a question of federal law decided by a state court if
the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the
judgment.’” Lambrix v. Singletary, 520 U.S. 518, 522 (1997)
(quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). A
state procedural rule is adequate if it was “firmly established and
regularly followed” at the time of the alleged procedural default.
Ford, 498 U.S. at 424. To be considered firmly established and
regularly followed, “(1) the state procedural rule [must] speak[]
in unmistakable terms; (2) all state appellate courts [must have]
refused to review the petitioner’s claims on the merits; and
(3) the state courts’ refusal in this instance [must be] consistent
with other decisions.” Doctor v. Walters, 96 F.3d 675, 683-84
(3d Cir. 1996).
In 1998, the Pennsylvania Supreme Court announced that
it would no longer “decline to apply ordinary waiver principles
. . . in PCRA appeals.” Commonwealth v. Albrecht, 720 A.2d
693, 700 (Pa. 1998). But for two decades prior to this decision,
the Pennsylvania Supreme Court maintained a “practice of
reaching the merits of claims in PCRA petitions in capital cases
regardless of the failure of the petition to meet the appropriate
procedural criteria.” Banks v. Horn, 126 F.3d 206, 214 (3d Cir.
1997). Therefore, notwithstanding the fact that the
Pennsylvania Supreme Court ruled on Lewis’s PCRA appeal
after its decision in Albrecht, for purposes of determining

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The District Court also concluded that at the time of8
Lewis’s purported procedural default, the Pennsylvania Supreme
Court utilized the doctrine of relaxed waiver to review all capital
claims. See Lewis, 2006 WL 2338409, at *4. However, the
District Court considered 1984 to be the relevant time for
assessing the adequacy of Pennsylvania’s waiver rules because
this was the year in which Lewis filed his direct appeal. See id.
Because the Pennsylvania Supreme Court focused on Lewis’s
failure to raise his ineffective assistance claim in his PCRA
petition or any subsequent amendments to the petition, we
consider this to be the relevant time for assessing Lewis’s
waiver.
26
whether there is a procedural bar to our review of Lewis’s claim,
we must look to the time at which his procedural default
supposedly occurred. See Doctor, 96 F.3d at 684 (explaining
that the relevant time for determining whether a rule was firmly
established and regularly applied is not when the state court
relied on it, “but rather . . . the date of the waiver that allegedly
occurred”). Although Lewis had the opportunity to raise his
claim of ineffective assistance of counsel in his PCRA petition,
the petition was filed in 1995 (and amended in 1996) at a time
when the Pennsylvania Supreme Court still applied the doctrine
of relaxed waiver to PCRA appeals in capital cases. Therefore,8
the Pennsylvania Supreme Court’s refusal to reach Lewis’s
ineffective assistance of counsel claim because of his failure to
raise it in his PCRA petition does not bar our review as it was
not an independent and adequate procedural rule.

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27
Because the Pennsylvania courts did not reach the merits
of Lewis’s claim of ineffective assistance of counsel at the guilt
phase of his trial, we review this claim de novo. The test for
ineffective assistance of counsel contains two components:
“First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show
that the deficient performance prejudiced the
defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. To establish deficient performance,
a “defendant must show that counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. In
analyzing this first prong of the Strickland test, there is a strong
presumption that counsel performed reasonably. Id. at 689. To
establish prejudice, the defendant “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. Under this standard, we
are unable to conclude that the conduct of Lewis’s counsel was
objectively unreasonable, and even if it were, we would be
unable to conclude that the result of Lewis’s trial would have
been different but for his counsel’s error.

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28
None of Lewis’s arguments persuade us that he has
overcome the presumption that his counsel performed
reasonably. Despite Lewis’s complaint that his trial counsel did
not sufficiently prepare his alibi witnesses, the record indicates
otherwise. In the middle of trial, Lewis’s counsel discussed
with the court the difficulties he was having in presenting the
alibi defense. (App. at 1163.) He mentioned that he had $2,500
to bring witnesses in from California but he wanted to make sure
the witnesses would be beneficial and have material testimony
before they came to court. He also stated that he had only
received the address for Lewis’s brother, Michael, a week
before and that he was having difficulty contacting him, adding
that the phone number for Michael’s wife had been
disconnected. Lewis’s counsel suggested that he could not go
forward with the defense until he reached Michael Lewis. (App.
at 1164-65.) The prosecutor commented that based on his
investigator’s discussions with Michael Lewis and his wife, they
appeared reluctant to come to Philadelphia and serve as alibi
witnesses. (App. at 1166-67.)
Despite these difficulties, Lewis’s counsel was able to
present Michael Lewis as an alibi witness. Michael’s testimony
– that he met Lewis at the Trailways bus station in California on
November 19 – was uncomplicated and therefore undermines
Lewis’s argument that he was inadequately prepared. (App. at
1425.) Similarly, although Clarence Edwards stated that the
first time he was contacted to be an alibi witness was the day
before he testified at the trial, he also stated that Lewis’s trial
counsel was trying to get in touch with him, (App. at 1307-08),
and his testimony – that Lewis asked for a ride to the Trailways
bus station around November 14 – was straightforward as well.

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Although Lewis asserts that McCorey’s testimony was9
important to show that the Commonwealth destroyed evidence
of his bus tickets to California, we reject this argument – as well
as the argument that trial counsel was ineffective for not
requesting the bus tickets from the Commonwealth – for reasons
explained in Part III.C.
29
(App. at 1285-88.) As for Lewis’s contention that his counsel’s
failure to recognize his fiancée, Stephanie McCorey, when she
entered the courtroom in violation of a sequestration order
caused him to lose a crucial witness, McCorey admitted that she
did not know anything about the case and that, upon entering the
courtroom, she told a court officer that she was not a witness.
(App. at 1090, 1094.) Lewis’s counsel stated that he had met
with McCorey for a few minutes the previous week and that he
had listed her as a possible witness only because Lewis had
given him her name. (App. at 1090, 1094.) Additionally, Lewis
has not offered any affidavit from McCorey as to what
testimony she could have provided at trial. Likewise, with9
respect to potential alibi witnesses who did not testify, Lewis
has not presented any affidavits describing what those witnesses
would have testified about.
For all of these reasons, we cannot agree with Lewis that
his trial counsel’s investigation and presentation of the alibi
defense was objectively unreasonable. Moreover, even if we
were to conclude that his counsel’s performance was deficient,
in light of the overwhelming evidence against him – including
six eyewitnesses who knew Lewis and identified him as the
assailant and the eyeglasses left at the crime scene which

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Similarly, there is no statement from Lewis that his10
counsel failed to investigate or discuss with him a possible
theory of self defense.
30
resembled ones that Lewis had been photographed wearing – we
would not be able to conclude that there is a reasonable
probability that the outcome of Lewis’s trial would have been
different in the absence of his counsel’s errors.
Nor can we conclude that Lewis has demonstrated that
his counsel performed unreasonably by failing to present a
theory of self defense in addition to, or instead of, the alibi
defense. As Lewis emphasizes elsewhere in his appeal, he has,
from the time of his arrest, relied upon an alibi, and he has not
provided any indication that he would have allowed his counsel
to present a theory of self defense. Instead, Lewis’s statements10
during pre-trial hearings reveal an insistence on maintaining an
alibi defense and, as the District Court noted, it would have been
factually inconsistent to present a theory of self defense in the
alternative. Moreover, the testimony of the only witness who
observed the entire altercation between Lewis and Ellis would
have directly contradicted a theory of self defense. (App. 1113.)
Therefore, Lewis has not overcome the presumption that his
counsel’s decision not to present a theory of self defense was a
strategically reasonable one, and we reject his arguments to the
contrary.

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31
C. Brady Claim
Lewis argues that he is entitled to relief from his
conviction because the Commonwealth violated Brady v.
Maryland, 373 U.S. 83 (1963), by suppressing evidence of a bus
ticket from Philadelphia to San Diego, contained in a briefcase
he was carrying at the time of his arrest, that he alleges
supported his alibi defense. Lewis contends that the
Pennsylvania Supreme Court, on PCRA review, unreasonably
determined the facts relevant to this claim by crediting the
testimony of Detective Kane, the arresting officer, that the
Greyhound bus ticket contained in Lewis’s briefcase did not
indicate the date, origin, or destination of travel and that the
briefcase as well as its contents were turned over to Lewis’s
fiancée. Lewis maintains that the briefcase contained stubs of
his bus tickets from his trip to San Diego, which would have
placed him outside of Philadelphia on the night of the murder.
He contends that Detective Kane took “active” steps to conceal
the tickets by failing to inventory the briefcase, preserve the
tickets, or disclose them to the defense.
In Brady, the Supreme Court held that “the suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 373 U.S. at 87. The Supreme
Court has outlined a three-part test to determine if a Brady
violation has occurred: “‘The evidence at issue must be
favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and

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32
prejudice must have ensued.’” Banks v. Dretke, 540 U.S. 668,
691 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82
(1999)); see Lambert v. Blackwell, 387 F.3d 210, 252 (3d Cir.
2004).
Because Lewis’s Brady claim was adjudicated on the
merits in state court during his PCRA proceedings, we review
it under the deferential standard set forth in § 2254(d). In doing
so, we cannot conclude that the Pennsylvania Supreme Court’s
decision “involved an unreasonable application” of Brady or
“was based on an unreasonable determination of the facts.” The
Pennsylvania Supreme Court determined that the evidence did
not support Lewis’s claim because the bus ticket would not have
corroborated his alibi defense and the ticket was not seized by
the police. It noted that Lewis testified “that he took a
Trailways bus to San Diego and a Greyhound bus for the return
trip to Philadelphia” and that Detective Kane testified “that he
only recalled seeing a Greyhound ticket in the briefcase and
specifically recalled seeing the Greyhound logo on the ticket.”
Lewis II, 743 A.2d at 910-11. Moreover, the Pennsylvania
Supreme Court observed that, according to Detective Kane’s
testimony, the Greyhound ticket “did not contain any
information regarding date of travel or the point of origin of the
travel,” and that “[t]he ticket, along with the briefcase and its
other contents, was transported with [Lewis] to prison on the
day of his arrest and later turned over to [Lewis’s] fiancée.” Id.
at 911. Consequently, the Pennsylvania Supreme Court
concluded that “[t]here can be no Brady violation where the
prosecution did not have custody of the ticket and where it
would not have provided exculpatory evidence.” Id. Although
Lewis challenges Detective Kane’s credibility, he has not

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Lewis is not entitled to an evidentiary hearing on either11
his ineffective assistance at the guilt phase claim or his Brady
claim because he failed to develop the factual bases for these
claims in his state court proceedings. See § 2254(e)(2).
Moreover, even if § 2254(e)(2) did not prohibit an evidentiary
hearing on these claims, we would still conclude that a hearing
would be inappropriate because Lewis would not be able to
establish the facts needed to demonstrate that relief should be
granted on either claim. See Schriro v. Landrigan, 550 U.S.
465, 474 (2007) (“In deciding whether to grant an evidentiary
hearing, a federal court must consider whether such a hearing
could enable an applicant to prove the petition’s factual
allegations, which, if true, would entitle the applicant to federal
habeas relief.”).
33
proffered clear and convincing evidence to overcome the
presumption of correctness that attaches to the state court’s
factual determinations. See § 2254(e)(1). For these reasons, we
must reject Lewis’s arguments and conclude that he is not
entitled to relief on the basis of this claim.11
D. Ineffective Assistance of Counsel
at the Penalty Phase Claim
In its cross-appeal, the Commonwealth argues that the
District Court erred in granting Lewis sentencing relief based on
his claim that his counsel rendered ineffective assistance at the
penalty phase of his trial by failing to investigate and present
mitigating evidence. The Commonwealth argues that the
District Court failed to afford deference to the Pennsylvania

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34
Supreme Court’s reasonable factual findings, instead
substituting its own view of the evidence, and that the District
Court failed to apply the presumption that counsel performed in
a professionally reasonable manner. The Commonwealth also
argues that the District Court improperly evaluated the prejudice
prong of this claim under a de novo standard of review rather
than applying AEDPA’s deferential standard. We will address
each of these arguments in turn.
1. Deference to State Court Factual Determinations
Lewis first challenged his counsel’s effectiveness at the
penalty phase of his trial during his PCRA proceedings. The
PCRA court denied relief on this claim and, on appeal from that
decision, the Pennsylvania Supreme Court addressed and
rejected the claim on its merits. See Lewis II, 743 A.2d at 909-
10. Therefore, under these circumstances, the role of a federal
habeas court is to review the state court’s disposition through
the lens of § 2254. Although the District Court recognized as
much when it stated that “the Pennsylvania Supreme Court
reached the merits of this claim” and it was thus obligated to
“apply AEDPA’s deferential standard of review,” Lewis, 2006
WL 2338409, at *5 n.6, the District Court nonetheless went on
to determine the facts for itself and, in doing so, failed to give
appropriate deference to the state court’s decision.
In Lewis II, the Pennsylvania Supreme Court determined
that the record did not support Lewis’s claim that he suffered
from serious mental illness and brain damage. 743 A.2d at 909.
The Pennsylvania Supreme Court provided the following
analysis of this claim:

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35
“In his PCRA petition, appellant contended that
his trial counsel was ineffective for failing to
investigate, discover and present evidence at the
penalty phase of appellant’s trial that appellant
was mentally ill. In support of this claim,
appellant offered affidavits from a psychiatrist
who examined him nearly fifteen years after the
murder and concluded that he suffered from brain
damage and mental illness at the time of the
murder and from family members claiming that
appellant was ‘different’ as a child and that he
suffered abuse at the hands of his father.
Negating appellant’s claim, however, is the
presentencing mental health evaluation conducted
on August 18, 1983, less than one year after the
murder, in which the evaluator found that
appellant did not manifest any major mental
illness that could be a factor in the disposition of
his case and that appellant appeared to be
competent for sentencing.
Appellant’s claim that he suffers from brain
damage or serious mental illness is also simply
not supported by the record. Appellant played a
very active role in his trial and in pre-trial
proceedings. At a conference before the court on
M ay 19, 1983, at w hich appellant’s
then-appointed counsel sought leave to withdraw,
appellant stated that he was ‘legally astute and
legally competent to represent’ himself. N.T.
5/19/83 at 6. Throughout the conference, he

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36
spoke in a coherent and cogent manner,
displaying a good command of language and
vocabulary as well as knowledge of the legal
process and his constitutional rights. Id. at 6-16.
Further, appellant testified at a suppression
hearing on July 27, 1983, where he also
demonstrated clarity of thought and intelligence.
N.T. 7/27/83 at 182-220. Appellant also testified
at length at his trial regarding his alibi defense,
once again showing no signs of brain damage or
mental illness but rather appearing intelligent and
well-spoken. N.T. 8/10/83 at 1054-1113.
Because appellant gave no indication at the time
of his trial that he suffered from brain damage or
serious mental illness, his trial counsel and
subsequent appellate counsel cannot be
ineffective for failing to investigate, discover and
present evidence of such brain damage or mental
illness.”
Id. at 909-10 (footnote omitted). As this passage makes clear,
the Pennsylvania Supreme Court evaluated the evidence that
Lewis presented in support of his claim that counsel was
ineffective at the penalty phase of trial and compared it to the
record as a whole in the course of determining that Lewis had
not demonstrated that at the time of his trial he was suffering
from brain damage or mental illness. However, when the
District Court analyzed this claim, it stated that “[t]he evidence
that [Lewis] has presented, both in the PCRA courts and in his
habeas proceedings, reveals that he does in fact suffer from a
host of mental health issues, many of which may be attributable

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37
to his deeply troubled family background.” Lewis, 2006 WL
2338409, at *6. The District Court reached this conclusion
without mentioning the Pennsylvania Supreme Court’s finding
to the contrary.
Under AEDPA, factual determinations made by state
courts – such as the one at issue here – are entitled to deference:
“[A] determination of a factual issue made by a
State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the
presumption of correctness by clear and
convincing evidence.”

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Additionally, under § 2254(d)(2), relief cannot be12
granted on a claim that was adjudicated on the merits in state
court proceedings unless the adjudication “resulted in a decision
that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
We have previously explained that “‘the language of
§ 2254(d)(2) and § 2254(e)(1) implies an important distinction:
§ 2254(d)(2)’s reasonableness determination turns on a
consideration of the totality of the ‘evidence presented in the
state-court proceeding,’ while § 2254(e)(1) contemplates a
challenge to the state court’s individual factual determinations,
including a challenge based wholly or in part on evidence
outside the state trial record.’” Taylor v. Horn, 504 F.3d at 429
(quoting Lambert, 387 F.3d at 235). Here, the District Court did
not grant relief to Lewis on the basis that the Pennsylvania
Supreme Court’s decision resulted in an unreasonable
determination of the facts but rather that the decision amounted
to an unreasonable application of federal law to the facts of
Lewis’s case. See Lewis, 2006 WL 2338409, at *11.
38
§ 2254(e)(1). This presumption of correctness applies to12
factual determinations of both state trial and appellate courts.
See Rolan v. Vaughn, 445 F.3d 671, 679 (3d Cir. 2006);
Duncan, 256 F.3d at 196. Implicit factual findings are entitled
to § 2254(e)(1)’s presumption of correctness as well. Campbell
v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000). Additionally,
while § 2254 does not condition deference to state court factual
findings on whether the state court held a hearing, Fahy, 516
F.3d at 182, the procedures used in the state court’s adjudication
of a claim may impact whether the petitioner has rebutted the

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39
presumption of correctness, see Lambert, 387 F.3d at 239. Thus
“state fact-finding procedures may be relevant when deciding
whether . . . a petitioner has adequately rebutted a fact, but the
procedures are not relevant in assessing whether deference
applies to those facts.” Rolan, 445 F.3d at 679.
In light of this standard, the District Court was not free
to determine anew the underlying facts of this claim; rather, the
Pennsylvania Supreme Court’s factual determination that Lewis
had not demonstrated that he suffered from mental illness or
brain damage was entitled to a presumption of correctness and
the burden was on Lewis to rebut this presumption with clear
and convincing evidence. Because the District Court did not
address whether Lewis rebutted the presumption of correctness
that attached to the state court’s factual determinations, and
instead arrived at its own interpretation of the facts without
conducting an evidentiary hearing, we will engage in a plenary
review of this issue. See Slutzker v. Johnson, 393 F.3d 373, 378
(3d Cir. 2004) (“[O]ur review of the District Court’s factual
findings is . . . plenary, because [the District] Court relied solely
on the state court record, and did not conduct an evidentiary
hearing.”).
Upon review of the evidence that Lewis provides in
support of his claim that information was available to his trial
counsel pertaining to his mental illness and brain damage, we
cannot conclude that he has rebutted the presumption of
correctness that attaches to the state court’s factual
determination. As even a brief summary of the mental health
evaluations reveals, the evidence that Lewis relies on to
establish his mental illness and brain damage is in large part

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40
contradictory. For example, in a psychiatric evaluation
conducted shortly after trial in August 1983, Dr. Camiel
reported that Lewis was more intelligent than previous testing
had shown; that Lewis’s “thoughts progressed in a normal
associative manner without evidence of an underlying thought
disorder or rambling pattern of speech”; and he diagnosed Lewis
as having an Antisocial Personality Disorder, with his grandiose
thoughts constituting a narcissistic component to his disorder.
(App. at 2162-66.) Similarly, a psychiatric evaluation conducted
by Dr. Canals in 1993 provided the following information:
Lewis appeared to be very intelligent; “during the interview he
did not show any symptoms of being psychotic, he appeared to
be in good contact with reality, he was somewhat grandiose,
admitted to episodes of feeling high without the use of
chemicals and his conversation was well organized”; he had
Polysubstance Abuse Severe, Explosive Disorder, Antisocial
Personality Disorder, Paranoid Personality Disorder, and
Hypomanic Personality Disorder; and Lewis was not suffering
from any major mental illness. (App. at 2156-61.)
In contrast, a psychological evaluation conducted by Dr.
Wellman in 1984 revealed that tests placed Lewis’s IQ at 77,
considered borderline mentally retarded; mentioned brain
damage and a head injury inflicted by his father; and described
Lewis’s self-image as “inflated to the point of mild grandiosity,”
noting that those persons with this profile type often have
paranoid mental activity and disordered thinking. (App. at
2168-69.) Likewise, Lewis was evaluated in 1997 by a forensic
psychologist, Dr. Berland, who observed that a test put Lewis’s
IQ at 86, the bottom of the average range; testing indicated a
serious psychotic disturbance involving delusional paranoid

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41
thinking, psychotic mood disturbance, and perceptual
disturbance including hallucinations; testing suggested diffuse
or widespread damage to Lewis’s cerebral cortex, which may
have been congenital; and Lewis suffered from brain damage
and chronic, serious, mental illness. (App. at 2171-72, 2186.)
In combination, this evidence is far from conclusive with respect
to establishing that Lewis suffers from mental illness or brain
damage.
In addition to these professional evaluations, Lewis offers
declarations from various family members and friends in support
of his claim that evidence of his mental illness and brain damage
was available to his trial counsel. For example, Lewis’s mother
stated that she drank turpentine while pregnant with Lewis and
that he had suffered a head injury as a young boy when his
father slammed Lewis’s head into the bathtub. (App. 1968-70.)
But Lewis himself has never acknowledged any abuse – he
informed Dr. Canals that he was raised by “very good” parents
who were “decent law-abiding citizens” and that he was never
abused (App. 2156) – nor has he submitted reports from any
doctors specializing in neurological issues. Other evidentiary
problems include that Lewis has not submitted medical records
of psychiatric treatment from before or during his incarceration,
he has not submitted any school records showing learning or
emotional problems, and he has not addressed the possibility
that his allegedly delusional behavior was actually caused by his
heavy drug use. Further undermining Lewis’s attempt to show
that he suffers from mental illness and brain damage is the
affirmative evidence of his active and engaged conduct at trial
and during pre-trial hearings. (App. at 739-772.) Therefore, at
best, the evidence of record with respect to Lewis’s mental

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42
health and brain damage is in conflict and we cannot conclude
that Lewis rebutted, with clear and convincing evidence, the
state court’s factual determination that the record did not support
his claim of mental illness or brain damage. Moreover, the
District Court’s mistake in disregarding the Pennsylvania
Supreme Court’s factual determinations in favor of its own
infected the remainder of its analysis.
2. Reasonableness of Counsel’s Performance
Based on its own determination of the underlying facts of
this claim, the District Court concluded that “trial counsel failed
to present any evidence whatsoever in mitigation [which] leads
inexorably to the conclusion that he failed to make any
reasonable effort to uncover such evidence,” and “there can be
no reason, strategic or otherwise for trial counsel’s failure to
investigate and present mitigating evidence.” Lewis, 2006 WL
2338409, at *11. Thus the District Court concluded that the
Pennsylvania Supreme Court unreasonably applied the Supreme
Court’s precedents in Strickland and Terry Williams. Id.
However, in reaching these conclusions, the District Court failed
to apply the presumption that Lewis’s counsel performed in a
professionally reasonable manner.
To reiterate, in order to establish deficient performance,
a “defendant must show that counsel’s representation fell below
an objective standard of reasonableness.” Strickland, 466 U.S.
at 688. The courts, in turn, must make “every effort . . . to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.” Id. at 689.

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43
Therefore, in evaluating the first prong of the Strickland test,
courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. The presumption can be
rebutted by showing “that the conduct was not, in fact, part of a
strategy or by showing that the strategy employed was
unsound.” Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir.
2005) (footnote omitted). Consequently,
“[i]n cases in which the record does not explicitly
disclose trial counsel’s actual strategy or lack
thereof (either due to lack of diligence on the part
of the petitioner or due to the unavailability of
counsel), the presumption may only be rebutted
through a showing that no sound strategy posited
by the Commonwealth could have supported the
conduct.”
Id. at 500 (footnote omitted) (citing Yarborough v. Gentry, 540
U.S. 1, 8 (2003), in which the Supreme Court explained that the
presumption of reasonableness “has particular force where a
petitioner bases his ineffective-assistance claim solely on the
trial record, creating a situation in which a court may have no
way of knowing whether a seemingly unusual or misguided
action by counsel had a sound strategic motive” (internal

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In contrast, where the government “can show that13
counsel actually pursued an informed strategy (one decided upon
after a thorough investigation of the relevant law and facts),”
Varner, 428 F.3d at 500, the initial presumption that counsel
performed reasonably becomes “virtually unchallengeable,”
Strickland, 466 U.S. at 690.
44
quotation marks omitted)). Nonetheless, even if the13
presumption is rebutted, a court must still “‘determine whether,
in light of all the circumstances, the identified acts or omissions
[of counsel] were outside the wide range of professionally
competent assistance.’” Jacobs v. Horn, 395 F.3d 92, 106 (3d
Cir. 2005) (quoting Strickland, 466 U.S. at 690).
In his PCRA proceedings, Lewis framed his ineffective
assistance argument as a challenge to his trial counsel’s failure
to conduct any “investigation geared toward the penalty
hearing” and to present “information regarding [his] mental
illness.” The District Court was persuaded that there was “no
reason, strategic or otherwise for trial counsel’s failure to
investigate and present mitigating evidence.” Lewis, 2006 WL
2338409, at *11. However, as we have already discussed, the
District Court did not apply the presumption of correctness to
the Pennsylvania Supreme Court’s finding that the record did
not support Lewis’s claim that, at the time of trial, he suffered
from mental illness or brain damage. Thus, the District Court’s
statement that “no reason, strategic or otherwise” existed for
trial counsel’s “failure to . . . present mitigating evidence” of
Lewis’s “mental health issues” is incorrect for at least two
reasons.

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Of course, this is different than saying that such14
evidence existed but counsel was merely unaware of it or failed
to discover it. We discuss the reasonableness of trial counsel’s
investigation into mitigating evidence separately.
45
First, if evidence of Lewis’s mental illness and brain
damage was lacking because he did not in fact suffer from either
condition – as the Pennsylvania Supreme Court found – it
cannot be said that “no reason” existed for failing to present
such evidence. A valid reason for not presenting evidence is
that it does not exist. Second, even if the state court’s factual14
determination that Lewis had not established that he was
suffering from mental illness or brain damage could be
disregarded, it was error for the District Court not to employ the
presumption that Lewis’s counsel acted in a professionally
reasonable manner. Instead of applying this presumption, the
District Court jumped to the conclusion that counsel’s failure to
present mitigating evidence was unreasonable. However, under
our caselaw, where, as here, the record is silent as to counsel’s
strategy or lack thereof, the defendant bears the burden of
proving that no sound strategy offered by the Commonwealth
would have supported the conduct. See Varner, 428 F.3d at 500.
Because the District Court did not engage in this analysis, we
consider it best not to do so in the first instance at this time.
In addition to Lewis’s claim that his counsel was
ineffective for failing to present evidence of his mental illness
and brain damage, Lewis also premised his ineffective
assistance claim on grounds that his counsel failed to conduct
any investigation in preparation for the penalty phase of his trial.

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46
While counsel’s failure to present mitigating evidence of
Lewis’s mental health may have come within the wide range of
reasonable professional assistance – either because the evidence
to support this claim did not exist or a sound strategy supported
the decision not to present the evidence – we must still
determine whether counsel’s efforts to investigate any
mitigating evidence were reasonable. In Strickland, the
Supreme Court instructed that “counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary,” and therefore,
“[i]n any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to
counsel’s judgments.” 466 U.S. at 691. The Supreme Court
further explained that “what investigation decisions are
reasonable depends critically on” information supplied by the
defendant, noting that “when a defendant has given counsel
reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” Id.
To this end, “inquiry into counsel’s conversations with the
defendant may be critical to a proper assessment of counsel’s
investigation decisions, just as it may be critical to a proper
assessment of counsel’s other litigation decisions.” Id.
Accordingly, before we can assess the reasonableness of
counsel’s investigatory efforts, we must first determine the
nature and extent of the investigation that took place as well as
the nature and extent of the communications that occurred
between Lewis and his counsel on this issue. This task is made
difficult by the fact that Lewis’s trial counsel is deceased,

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47
having died shortly after the conclusion of Lewis’s trial, and
Lewis himself has not offered any statements on his own behalf.
On this record, Lewis has not established that his counsel in fact
failed to undertake any investigation of his family background
or failed to consult with him regarding the decision to
investigate. Although Lewis offers declarations from his mother
and siblings that they were not contacted by Lewis’s trial
counsel, as the Commonwealth points out, these were unsworn
statements not tested by the adversary method, and were offered,
in large part, by witnesses who testified at trial in support of
Lewis’s alibi defense and whose testimony the jury discredited.
This is hardly a sufficient basis upon which to conclude that
Lewis’s counsel conducted no background investigation and that
counsel’s conduct was not reasonable under all of the
circumstances. Moreover, we are unwilling to conclude, as the
District Court did, that “[t]he fact that trial counsel failed to
present any evidence whatsoever in mitigation leads inexorably
to the conclusion that he failed to make any reasonable effort to
uncover such evidence.” Lewis, 2006 WL 2338409, at *11. The
record on this issue is too undeveloped for us to conclude that
Lewis’s counsel failed to conduct any background investigation
and did not act in a professionally reasonable manner in this
regard. Cf. Thomas v. Horn, 570 F.3d at 125 (noting that it
would be “premature” to decide if counsel’s performance was
deficient without first conducting an evidentiary hearing to
determine “the extent, if any, of [the defendant’s] counsel’s pre-
sentencing investigative efforts to obtain mitigating evidence,”
notwithstanding the fact that the defendant’s relative provided
a signed statement that she had not been contacted about the
defendant’s life and mental health and there was no affirmative
evidence of an investigation); Marshall v. Hendricks, 307 F.3d

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48
36, 106 (3d Cir. 2002) (remanding to the district court to
conduct an evidentiary hearing before reevaluating whether
counsel’s performance was deficient where there was “no record
before us as to what preparation or investigation, if any, was
performed by counsel in anticipation of the penalty phase”).
In sum, that counsel did not present evidence relating to
Lewis’s mental health or his family background does not compel
the conclusion that counsel failed to conduct any investigation
into mitigating evidence, as the District Court reasoned, and
thereby failed to act in a professionally reasonable manner.
When deference is afforded to the state court’s underlying
factual determinations and when the presumption that counsel
performed adequately is given effect, we cannot conclude that
the Pennsylvania Supreme Court unreasonably applied Supreme
Court precedent in denying relief to Lewis on the basis of his
ineffective assistance claim.
3. Prejudice Resulting From Deficient Performance
Because we disagree with the District Court’s analysis of
the performance prong of Strickland, and this error alone
requires us to reverse the District Court’s grant of relief from
Lewis’s sentence, we do not need to provide an exhaustive
analysis of the prejudice prong at this time; however, we will
make two observations before moving on. First, the District
Court incorrectly determined that de novo review was
appropriate. As we have previously noted, “the Supreme Court
clearly held that the § 2254(d) standards apply when a state
supreme court rejects a claim without giving any indication of
how it reached its decision.” Chadwick v. Janecka, 312 F.3d

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49
597, 606 (3d Cir. 2002) (internal quotation marks omitted).
Thus, federal habeas courts must distinguish between the denial
of a claim without explanation and the failure to adjudicate a
claim on its merits; only the former triggers the application of
AEDPA’s deferential standard of review. Here, the
Pennsylvania Supreme Court’s decision can be interpreted as
concluding that Lewis was not prejudiced by his counsel’s
conduct just as easily as it can be interpreted as concluding that
his counsel’s conduct was not unreasonable. Therefore, the
District Court erred by not applying § 2254(d) to this aspect of
Lewis’s ineffective assistance claim.
Second, if it becomes necessary to reconsider whether
Lewis was prejudiced by any deficiencies in his counsel’s
performance, the District Court will need to engage in a
meaningful reweighing of the aggravating and mitigating
evidence in order to decide this issue. See Strickland, 466 U.S.
at 695 (“[T]he question is whether there is a reasonable
probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.”); see also Marshall, 307
F.3d at 103 (“Given the unanimity requirement, the ‘reasonable
probability of a different outcome’ would mean that only one
juror need weigh the factors differently and find that the
aggravating factor did not outweigh” the mitigating factors).
Also relevant to the prejudice analysis is the issue of whether
Lewis would have allowed trial counsel to present disparaging
and negative information to show that he was mentally ill, brain
damaged, and abused, especially in light of his desire to portray
himself as a person of “superior intellect” and his attempts to
control the presentation of his case. (Supp. App. 6-7, 9, 11-18;

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50
Tr. 6/16/83 at 12, 14-15; App. at 732-35.) Lewis has yet to
provide any statement that the decision not to present
background information in mitigation was other than his own
choice. See Schriro v. Landrigan, 550 U.S. 465, 478 (2007)
(addressing “a situation in which a client interferes with
counsel’s efforts to present mitigating evidence to a sentencing
court” and deferring to the state court’s conclusion that
prejudice could not be shown); Taylor v. Horn, 504 F.3d at 455
(reasoning that “whatever counsel could have uncovered, [the
defendant] would not have permitted any witnesses to testify,
and was therefore not prejudiced by any inadequacy in counsel’s
investigation or decision not to present mitigation evidence”); cf.
Thomas v. Horn, 570 F.3d at 123 (“At no time did my attorney
explain to me that evidence concerning my character could or
should be presented for the jury’s consideration at the penalty
hearing.”).
4. Developing Support for this
Claim in an Evidentiary Hearing
Notwithstanding our conclusions that Lewis has failed to
demonstrate that he is entitled to sentencing relief on his
ineffective assistance of counsel claim, we believe that Lewis
should be granted an evidentiary hearing to try to develop the
record in support of his claim. Section 2254(e)(2) provides that
if an applicant “has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an
evidentiary hearing on the claim,” unless one of the enumerated
exceptions applies. The focus of this inquiry is on whether the
defendant was diligent in his efforts to provide the factual bases
for his claim during the state court proceedings. See Michael

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51
Williams, 528 U.S. at 435 (“Diligence for purposes of the
opening clause [of § 2254(e)(2)] depends upon whether the
prisoner made a reasonable attempt, in light of the information
available at the time, to investigate and pursue claims in state
court . . . .”). Through each stage of his PCRA proceedings,
Lewis continued to supplement his claim with additional factual
support. While this piecemeal development of the factual basis
of a claim is not ideal, we conclude, on these facts, that it
suffices to meet the standard set forth in § 2254(e)(2).
Therefore, we will remand to the District Court to conduct an
evidentiary hearing, which provides Lewis with the opportunity
to rebut the presumption of correctness that applies to the
Pennsylvania Supreme Court’s determination that Lewis did not
demonstrate that he suffers from serious mental illness or brain
damage and to rebut the presumption that his counsel’s
performance was professionally reasonable by showing that no
sound strategy posited by the Commonwealth would support his
counsel’s decisions regarding the investigation and presentation
of mitigating evidence and that the totality of the circumstances
establish that his counsel’s conduct was unreasonable. The
burden is on Lewis to overcome these presumptions, which we
expect will be difficult to do if Lewis continues to remain silent.
Additionally, the District Court will need to determine the
credibility of Lewis’s witnesses, rather than simply relying on
unsworn statements, and the Commonwealth will have the
opportunity to present its own evidence as well. If necessary,
after the record is more fully developed, the District Court will
need to reweigh the mitigating and aggravating evidence in its
entirety in the course of determining if Lewis was prejudiced by
any deficiencies in his counsel’s performance.

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52
Lastly, we note that both the Pennsylvania Supreme
Court and the District Court considered whether Lewis was able
to establish his ineffective assistance claim based on his
counsel’s failure to present available evidence of his mental
health issues. This is understandable in light of the way Lewis
framed his claim and his evidence in support of the claim.
Nonetheless, Lewis’s claim could also be interpreted to
encompass a challenge to his counsel’s failure to present
background information that may have been independently
mitigating, even if it did not demonstrate that Lewis suffers
from serious mental illness or brain damage. Under
Pennsylvania’s statute, in addition to several specifically
enumerated mitigating circumstances, a defendant may present
“[a]ny other evidence of mitigation concerning the character and
record of the defendant and the circumstances of his offense.”
42 Pa. Cons. Stat. Ann. § 9711(e)(8); cf. Terry Williams, 529
U.S. at 395-96 (concluding that “trial counsel did not fulfill their
obligation to conduct a thorough investigation of the defendant’s
background” where they failed to uncover and present
“extensive records graphically describing [the defendant’s]
nightmarish childhood,” including information that the
defendant’s “parents had been imprisoned for the criminal
neglect of [the defendant] and his siblings, and that [the
defendant] had been severely and repeatedly beaten by his
father”); see also Penry v. Lynaugh, 492 U.S. 302, 319 (1989)
(explaining that “evidence about the defendant’s background
and character is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are
attributable . . . to emotional and mental problems, may be less
culpable than defendants who have no such excuse” (internal
quotation marks omitted)). Because the Pennsylvania Supreme

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53
Court did not consider whether Lewis’s counsel may have been
ineffective for failing to investigate or present independently
mitigating background evidence, on remand, the District Court
can review this aspect of Lewis’s claim under a de novo
standard.
IV.
For the reasons stated above, we will affirm the District
Court’s denial of relief as to Lewis’s conviction, we will vacate
its grant of relief as to Lewis’s sentence, and we will remand for
an evidentiary hearing consistent with this opinion.

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