                                   PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 12-4333
                  _____________

                 LUTHER GLENN,
                         Appellant

                         v.

          SUPT. JAMES T. WYNDER;
   DISTRICT ATTORNEY OF THE COUNTY OF
                ALLEGHENY;
ATTORNEY GENERAL OF THE COMMONWEALTH
             OF PENNSYLVANIA

                  _____________

   On Appeal from the United States District Court
       for the Western District of Pennsylvania
           District Court No. 2-06-cv-00513
Chief Magistrate Judge: The Honorable Lisa P. Lenihan

             Argued November 21, 2013
     Before: AMBRO, SMITH, and CHAGARES,
                 Circuit Judges

              (Filed: February 20, 2014)


Adam B. Cogan [ARGUED]
Suite A
218 West Main Street
Ligonier, PA 15658
      Counsel for Appellant

Rusheen Pettit [ARGUED]
Rebecca D. Spangler
Allegheny County Office of
District Attorney
436 Grant Street
303 Courthouse
Pittsburgh, PA 15219
       Counsel for Appellees
                   ________________

                     OPINION
                 ________________


SMITH, Circuit Judge.

     Appellant Luther Glenn was tried and convicted of
the murder of William Anthony Griffin in the Court of
                          2
Common Pleas of Allegheny County (“Court of Common
Pleas”) and is currently a prisoner of the Commonwealth
of Pennsylvania. Glenn appeals the ruling of the United
States District Court for the Western District of
Pennsylvania (“District Court”) denying his Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He
argues that (1) the Court of Common Pleas violated his
rights under the Due Process Clause of the Fourteenth
Amendment by refusing to grant his motion for a mistrial
after an eyewitness proffered contradictory testimony,
opting instead to strike the entirety of this testimony and
provide cautionary jury instructions, and (2) after the
Court of Common Pleas struck this testimony, his trial
counsel was ineffective in not moving to strike other
evidence in the record that referred to this witness’s
identification of Glenn as the murderer. For the reasons
that follow, we will affirm the judgment of the District
Court.

                                I.
      On December 17, 1997, William Anthony Griffin
was shot and killed on Sterrett Street in the Homewood
neighborhood of Pittsburgh, Pennsylvania. Days later,
on December 22, 1997, Glenn was arrested after fleeing
from the police in a stolen vehicle. He was subsequently
charged with Griffin’s murder.
      Glenn’s trial in the Court of Common Pleas took
place in June of 1999. During that trial, Georgianna
                            3
Cotton testified that she witnessed Glenn murder Griffin.
Cotton originally testified that after leaving a bar at 5:00
AM, intoxicated to the point of staggering,1 she
encountered Griffin on Sterrett Street and engaged in a
brief conversation with him. As she made her way into a
nearby partially abandoned building to smoke marijuana
and crack cocaine, she saw Glenn standing on the corner
of Sterrett Street and Kelly Street, talking with some of
his friends. Cotton entered the building, climbed the
stairs to the second floor, and began smoking crack
cocaine on a balcony that overlooked the street.2 She
soon heard (and possibly saw) Glenn and Griffin arguing,
and then heard Glenn tell Griffin he was going to kill
him.3 Id. Shortly thereafter, Cotton saw Glenn walk
around the corner onto Kelly Street and saw Griffin enter
the first floor of the building she was in. Within a few
seconds, she saw Glenn return in a blue station wagon,
pull up in front of the building, and jump out of the car
brandishing a pistol sideways. She saw Glenn pull a

1
        Cotton originally testified that she drank “7 or 8”
Budweisers.       She later testified that she drank four
Budweisers, seven cans of St. Ides (malt liquor), and three
shots of Hennessy between 2:30 AM and 5:00 AM.
2
        Cotton admitted that she had used crack cocaine for
seven years prior to the night of the murder. She also
admitted that she was on probation for theft and other charges
at the time.
3
        Cotton first testified that she could not see the two men
arguing, but shortly thereafter testified she could see them.
                               4
hoodie over his head, run towards Griffin—who was then
standing in the doorway of the building—and shoot him
six times. She then saw Glenn return to the car and
leave. Finally, Cotton testified that, as she was running
down to check on Griffin, she encountered Dwayne
Youngblood (“Youngblood”), the occupant of a first-
floor apartment in the building in which Griffin was shot,
who told her not to say anything about the murder she
had just witnessed.
        On cross-examination, Cotton began to contradict
herself. She testified that she had not actually seen the
shooter’s face, but was able to identify Glenn based on
what people told her on the streets. On redirect, she
testified that she was present during the murder, but that
she “was also threatened.” At that point, the judge
declared a recess to address Cotton’s contradictory
testimony in his chambers. During this in camera
proceeding, Cotton at first told the judge that she had
indeed witnessed the murder, but that she had been
threatened “[b]y the defendant’s people on the street.”
After receiving promises that she would not be
prosecuted for perjury, she then said that she did not see
the murder, but that people told her Glenn was the
murderer. She went on to equivocate about whether
Youngblood (the first-floor resident) had asked her to
testify against Glenn or specifically asked her not to



                            5
testify against Glenn.4 Thereafter, the judge adjourned
the trial until the following day to provide the prosecutor
with an opportunity to assess his case and decide how to
proceed. In the interim, the Commonwealth granted
Cotton immunity from any potential perjury charges and
she received a court-appointed attorney.

       The next day, Cotton again took the stand. On
redirect-examination, she testified that during the
previous day’s in camera proceeding she had told the
attorneys and the trial judge that she had not seen Glenn
kill Griffin. When the Commonwealth asked her to
provide a truthful account of what, if anything, she saw
or heard, she claimed that she heard arguing and
gunshots, but did not see anything until after the
shooting, when she witnessed Glenn and “a couple other
guys” running away from the crime scene and jumping
into a car. When asked why she changed her story, she
claimed that she “was scared for somebody else’s life
that knew what happened.” On recross-examination,
however, Cotton testified that she did see shots being


4
       This testimony was a source of confusion between the
attorneys and the trial judge. See, e.g., J.A. 612 (Glenn’s trial
counsel explaining to the trial judge that “I really didn’t
understand what [Cotton] said yesterday in chambers even.
That’s why I asked you to have the court reporter transcribe
it. Maybe I’m stupid, but I couldn’t figure out what she was
saying.”).
                               6
fired, at which point Glenn’s counsel moved for a
mistrial. In response, the judge declared a recess.

       After some discussion between the court and
counsel, the judge denied the motion for a mistrial but
invited defense counsel to move to strike Cotton’s entire
testimony from the record. Glenn’s counsel promptly did
so. Thereafter, the judge returned the jury to the
courtroom and issued the following instructions:

      THE COURT: Good afternoon, ladies and
      gentlemen.       The Court has made the
      following ruling on its own motion: You are
      to completely [and] totally disregard the
      testimony of Ms. Cotton. Her testimony is
      not to play any part in your determination as
      to the facts in this case. It is as if she has not
      testified. Do you understand that, ladies and
      gentlemen?

      THE JURY: Yes.
J.A. 645.

      Cotton’s testimony was not the only incriminating
evidence offered at trial. The Commonwealth also
presented testimony from Jerry Pratt, an inmate who
shared a cell with Glenn in the Allegheny County Jail
after Glenn’s arrest. Pratt testified that, on January 28,
1998, Glenn told him that he had murdered Griffin in the

                              7
Homewood neighborhood of Pittsburgh, Pennsylvania
following an argument over “a bad drug deal.” Glenn
also told him that a female had witnessed the crime from
the balcony of an apartment building, but that her
testimony would not hold up in court because she was a
crack addict and because her view was obscured. When
Pratt opined that this testimony could still be damaging,
Glenn responded “I’m really not worried about it,
because I have a person out there who can take care of
her for me.” J.A. 706. Glenn identified that person as
Monte Blair.
      The Commonwealth then offered evidence that
two days before the alleged conversation between Glenn
and Pratt police had engaged in a vehicle pursuit of Blair,
in which Blair had crashed his vehicle but escaped on
foot. When police searched Blair’s wrecked vehicle,
they recovered a .45 caliber Glock semi-automatic
handgun loaded with 13 rounds of ammunition and
equipped with a laser sight. During summation, the
Commonwealth argued that when police engaged Blair’s
vehicle he was en route to murder Cotton in order to
prevent her from testifying.

       The Commonwealth also presented testimony from
Charina Johnson, who was involved in a sexual
relationship with Glenn prior to Griffin’s murder.
Johnson told the jury that Glenn had asked her to testify
that he was at her house at the time of the murder but that
she had refused to do so. She went on to testify that she
                            8
could not remember if he was there, though she was
impeached with a prior statement that Glenn was not
there and had asked her to lie.5

       Finally, the Commonwealth presented testimony
from Youngblood that Glenn had been at his residence
(located in the apartment building where Griffin was
shot) six to seven hours before the shooting occurred.
       At the close of the trial, the judge reiterated his
earlier instruction to disregard Cotton’s testimony:
      THE COURT: [Y]ou must not consider any
      testimony . . . which I have ordered stricken
      from the record. So that it is clear, Ladies
      and Gentlemen, I ordered st[r]icken from the
      record the testimony of Ms. Cotton. You
      must not, I repeat, must not, consider that
      testimony for any reason whatsoever. It
      should be as if that witness never took the
      stand.
J.A. 884.

       On June 11, 1999, the jury convicted Glenn of
first-degree murder and the judge sentenced him to life
imprisonment. Glenn then filed post-sentencing motions,
5
       Johnson signed this prior statement during an August
10, 1998 interview with the prosecutor in the presence of a
police officer.
                            9
which were denied on October 25, 1999. Thereafter, the
Pennsylvania Superior Court (“Superior Court”) affirmed
his conviction and the Supreme Court of Pennsylvania
denied his Petition for Allowance of Appeal.

       After unsuccessfully pursuing collateral relief in
the Pennsylvania courts, Glenn timely filed a Petition for
a Writ of Habeas Corpus with the District Court on April
18, 2006. On September 19, 2012, the District Court
denied his petition, but later granted a certificate of
appealability on the following issues: (1) whether the
Court of Common pleas violated Glenn’s due process
rights when it refused to grant a mistrial, opting instead
to strike Cotton’s testimony, and (2) whether, after
Cotton’s testimony was stricken, trial counsel was
ineffective in not moving to strike other evidence
referring to Cotton’s identification of Glenn as the
shooter. Glenn timely appealed.

                            II.
       We have jurisdiction over Glenn’s claims by virtue
of the District Court’s certificate of appealability and 28
U.S.C. §§ 1291 and 2253. The District Court had
jurisdiction pursuant to 28 U.S.C. §§ 1331, 2241, and
2254. We review the District Court’s decision de novo,
as it did not conduct an evidentiary hearing on these
claims. Duncan v. Morgan, 256 F.3d 189, 196 (3d Cir.
2001).

                            10
      Our review of Glenn’s habeas petition is governed
by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254, which provides:

      (d) An application for a writ of habeas
      corpus on behalf of a person in custody
      pursuant to the judgment of a State court
      shall not be granted . . . unless the
      adjudication of the claim [raised] –

            (1) 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
            (2) 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.
      Glenn pursues both of his present claims under
subsection (d)(1), and argues that the Superior Court’s
decision finding neither a due process violation nor a
Sixth Amendment violation involved “unreasonable
application[s]” of “clearly established Federal law.” Id.



                           11
                          III.
       Glenn’s first claim is that the Court of Common
Pleas violated his rights under the Due Process Clause of
the Fourteenth Amendment when it denied his motion for
a mistrial based on Cotton’s inconsistent testimony.
Importantly, this claim requires more than a showing that
the Court of Common Pleas erred under Pennsylvania
law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law
questions.”). Rather, the scope of our review is “the
narrow one of due process, and not the broad exercise of
supervisory power [we] would possess in regard to [our]
own trial court.” Donnelly v. DeChristoforo, 416 U.S.
637, 642 (1974).
       To prevail on his due process claim, Glenn must
prove that he was deprived of “fundamental elements of
fairness in [his] criminal trial.” Riggins v. Nevada, 504
U.S. 127, 149 (1992) (internal quotation marks and
citation omitted). Glenn must tread a steep hill. The
Supreme Court has “defined the category of infractions
that violate ‘fundamental fairness’ very narrowly, based
on the recognition that, beyond the specific guarantees
enumerated in the Bill of Rights, the Due Process Clause
has limited operation.” Medina v. California, 505 U.S.
437, 443 (1992). In order to satisfy due process, Glenn’s
trial must have been fair; it need not have been perfect.
See United States v. Hasting, 461 U.S. 499, 508 (1983).
                           12
       Glenn argues that Cotton’s unreliable testimony
rendered his trial fundamentally unfair. He insists that
the trial judge’s curative instructions could not purge the
record of the taint from this testimony and that a mistrial
was the only constitutionally adequate remedy. It is well
established that, absent extraordinary circumstances,
jurors are presumed to follow the instructions given them
by the court. See Greer v. Miller, 483 U.S. 756, 766 n.8
(1987); Richardson v. Marsh, 481 U.S. 200, 211 (1987);
United States v. Bornman, 559 F.3d 150, 156 (3d Cir.
2009). Glenn, however, urges us to abandon that
presumption because, in his view, most of the remaining
evidence in his case “directly or tangentially related to
Cotton’s identification of Glenn as the shooter” and,
accordingly, “no jury could render an impartial verdict
. . . without Cotton’s trial testimony on some level
seeping into the deliberations.” Appellant’s Br. 30.

       In support of this argument, Glenn relies upon
three cases wherein we concluded that curative
instructions were insufficient to purge the record of
inadmissible evidence because that evidence was too
difficult for the jury to ignore. Each of these cases is
distinguishable.
        In United States v. Lee, 573 F.3d 155, 160 (3d
Cir. 2009), the jury, during deliberations, discovered
handwriting on the back of a hotel room registration card
indicating that the defendant had extended his stay
through the date on which police found illegal narcotics
                            13
in his room. This information, which had never been
disclosed to the defense, “had much of the credibility of
properly admitted evidence” and “entirely defeat[ed]” the
defendant’s argument that he had checked out of the
room days earlier. Id. at 163. Though the jury was
instructed to ignore this evidence, on appeal we held that
“[u]nder these highly unusual circumstances” we would
not assume that the jury was able to ignore “the elephant
in the deliberation room.” Id. at 163-64. In contrast, the
jury in Glenn’s case was repeatedly instructed to ignore
testimony that had already been cast into doubt by
defense counsel’s successful cross-examination. This
testimony would have been far easier for Glenn’s jury to
disregard than the veritable smoking gun discovered by
Lee’s jury in the eleventh hour of his trial.
       We view Vazquez v. Wilson, 550 F.3d 270 (3d Cir.
2008), as similarly distinguishable. In Vazquez, the jury
was asked to ignore a non-testifying co-defendant’s
statement implicating the defendant in a murder because
the statement violated the defendant’s Sixth Amendment
Confrontation Clause rights under Bruton v. United
States, 391 U.S. 123 (1968). 550 F.3d at 272-75. The
statement there had not been revealed until closing
arguments and therefore had not been discredited in any
way. Here, Cotton’s testimony had been severely
discredited during cross-examination.        Further, in
Vazquez, the jury, after receiving instructions to ignore
the co-defendant’s statement, asked the judge during
                           14
deliberations whether it was “supposed to not consider
[the co-defendant’s] statement that Vazquez was the
shooter,” which we considered to be direct evidence that
the original instruction “was not completely effective, if
effective at all.” Id. at 275. The jury in Glenn’s case
never suggested any such misunderstanding.

       Finally, Glenn’s reliance on Moore v. Morton, 255
F.3d 95 (3d Cir. 2001), is likewise unavailing. In Moore,
we found curative instructions to be inadequate to purge
the record of three wildly inappropriate arguments made
by the prosecutor during summation that “asked the jury
to decide the case on bias and emotion rather than on the
evidence presented.” Id. at 118. Moore involved
prosecutorial misconduct, while no such issue is before
us in this case. Moreover, we relied heavily in Moore on
the weakness of the remaining evidence against the
defendant, which consisted primarily of testimony based
on hypnotically enhanced memory. See id. at 111-13,
119. Here, the Commonwealth offered ample evidence
of Glenn’s guilt, including, inter alia, evidence that he
had admitted guilt to a fellow inmate. Moore is simply
not analogous.6


6
       The District Court also held that Moore was not
“clearly established Federal law determined by the Supreme
Court” for purposes of AEDPA because it was decided by a
lower federal court and was decided after the Superior
Court’s judgment. This analysis is wrong. Glenn does not
                           15
       Because we presume that Glenn’s jury was able to
follow the instructions to disregard Cotton’s unreliable
testimony, this testimony did not render Glenn’s trial
“fundamentally unfair.”     Accordingly, the Superior
Court’s decision affirming his conviction was not error,
much less an “unreasonable application” of “clearly
established Federal law.” 28 U.S.C. § 2254(d)(1).

                             IV.

       Glenn also argues that his trial counsel was
ineffective in not moving to strike lingering references to
Cotton’s identification of the shooter after the trial judge
struck her testimony from the record. Glenn argues that
because of this failure “the trial court’s remedy of
striking Cotton’s testimony was largely meaningless.”
Appellant’s Br. 45.


argue that the Superior Court unreasonably applied Moore
itself, but that Moore, as factually analogous precedent, is
evidence that the Superior Court unreasonably applied
Supreme Court precedent concerning broader principles of
due process. See Matteo v. Superintendent, SCI Albion, 171
F.3d 877, 890 (3d Cir. 1999) (en banc) (“[W]e do not believe
federal habeas courts are precluded from considering the
decisions of inferior federal courts when evaluating whether
the state court’s application of the law was reasonable . . . .
[I]n certain cases it may be appropriate to consider [these
decisions] as helpful amplifications of Supreme Court
precedent.”).
                              16
       To prove ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), Glenn
must prove (1) that his trial counsel’s performance was
“deficient, that is, it fell below an objective standard of
reasonableness,” and (2) “that counsel’s deficient
performance prejudiced” him, i.e., that “there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Albrecht v. Horn, 485 F.3d 103,
127 (3d Cir. 2007) (citing Strickland, 466 U.S. at 689-92
(1984)). We have previously referred to these as the
“performance” and “prejudice” prongs of the Strickland
test. See, e.g., United States v. Booth, 432 F.3d 542, 546
(3d Cir. 2005).
        Glenn identifies six pieces of evidence that his
trial counsel should have moved to strike. With respect
to five of these pieces of evidence, Glenn’s claim is
procedurally defaulted. With respect to the remaining
piece of evidence, his claim lacks merit.
                            A.
        In his habeas proceeding in the District Court,
Glenn identified, for the first time, five pieces of
evidence that his trial counsel should have moved to
strike:

      1)     The Commonwealth’s opening discussing
             [sic] the testimony of Cotton,
                            17
      2)      Police testimony that Glenn’s photo was
              shown to Cotton because a confidential
              informant had identified Petitioner as the
              shooter,

      3)      Police testimony that Cotton had identified
              the shooter as “Ray-Ray,” Glenn having
              been identified at trial as going by the name
              “Ray-Ray,”

      4)      Police testimony that Cotton had identified
              the shooter as having short hair at the time
              of the shooting, Glenn having been
              identified at trial as having short hair a few
              days after the shooting, and
      5)      Police testimony that the shooter was
              identified by Cotton as having worn a blue
              jacket with yellow letters on it, Glenn
              having been identified at trial as having
              worn a blue jacket with yellow letters on it
              close to the time of the Griffin homicide.
J.A. 63-64.
      Because Glenn failed to identify these claims in his
Post Conviction Relief Act (“PCRA”) petition, he is now
time-barred from raising them in the Pennsylvania courts.
See 42 PA. CONS. STAT. § 9545(b). Ordinarily, this
procedural default would constitute an independent and

                             18
adequate state law ground for the Superior Court’s
decision and would bar our review. See Coleman v.
Thompson, 501 U.S. 722, 732 (1991). Glenn, however,
urges us to excuse this default under Martinez v. Ryan,
__ U.S. __, 132 S. Ct. 1309 (2012), because his PCRA
counsel’s failure to raise these claims itself constituted
ineffective assistance of counsel.

        Procedural default may be excused when the
petitioner can prove both “cause” for the default and
“actual prejudice” that resulted from the failure of the
state court to hear the claim. Coleman, 501 U.S. at 750.
Under Martinez, the failure of collateral attack counsel to
raise an ineffective assistance of trial counsel claim in an
initial-review collateral proceeding7 can constitute
“cause” if (1) collateral attack counsel’s failure itself
constituted ineffective assistance of counsel under
Strickland and (2) the underlying ineffective assistance of

7
       Martinez applies only to “initial-review” collateral
proceedings—collateral proceedings that provide the first
opportunity for a petitioner to pursue his ineffective
assistance of trial counsel claim. Id. at 1315. Because Glenn
was represented by the same attorney at trial and on direct
appeal, his PCRA proceeding provided the first opportunity to
pursue his ineffective assistance of trial counsel claim. See
Com. v. Williams, 732 A.2d 1167, 1177 n.6 (Pa. 1999)
(“[W]here a petitioner’s trial and appellate counsel are the
same, counsel would not generally be permitted to claim his
own ineffectiveness in . . . direct appeal proceedings.”).
                             19
trial counsel claim is “a substantial one,” which is to say
“the claim has some merit.” 132 S. Ct. at 1319.

       Because Glenn’s underlying ineffective assistance
of trial counsel claims are not “substantial,” we conclude
that default was not excused.

                            1.

       In four of Glenn’s five procedurally defaulted
claims, he argues that his trial counsel should have
moved to strike police testimony that referred to Cotton’s
identification of Glenn in order to explain the course of
Griffin’s homicide investigation. We hold that these
claims are not “substantial” and, therefore, that the
District Court correctly refused to excuse their default.
       First, any failure by Glenn’s trial counsel to move
to strike this evidence from the record was not
“objectively unreasonable” under Strickland because this
evidence was at least arguably admissible.              In
Pennsylvania, “certain out-of-court statements offered to
explain the course of police conduct are admissible on
the basis that they are offered not for the truth of the
matters asserted but rather to show the information upon
which police acted.” Commonwealth v. Jones, 658 A.2d
746, 751 (Pa. 1995). While Glenn is correct that not all
such statements are admissible, and that Pennsylvania
courts are required to “balance the prosecution’s need for
the statements against any prejudice arising therefrom,”
                            20
id., it is not clear that the Court of Common Pleas would
have assessed this balance in favor of Glenn, given the
minimal prejudicial value of this evidence, as discussed
below. Because a reasonable attorney could have
concluded that this testimony was admissible, we cannot
say that trial counsel’s failure to move to strike it from
the record was “objectively unreasonable” under
Strickland.
       Second, trial counsel’s failure to move to strike
this evidence was not prejudicial because the jury was
not likely to have attributed much, if any, weight to it.
The jury had little reason to trust Cotton after being
exposed to the various contradictions in her testimony,
defense counsel’s successful impeachment of her, and the
instructions from the trial judge to disregard her
testimony entirely. In fact, the police testimony referring
to Cotton’s identification of Glenn may well have been
prejudicial to the Commonwealth, insofar as it suggested
that the police investigation against Glenn was based in
part upon information received from an unreliable
informant. The other evidence presented, including
Pratt’s detailed and independently corroborated
testimony regarding Glenn’s jailhouse confession,
provided an ample basis for the jury’s verdict.
Accordingly, any lingering references to Cotton’s
identification of Glenn as the shooter were unlikely to
have a material effect on the jury’s ultimate finding of
guilt.
                            21
       Because there is no merit to Glenn’s underlying
ineffective assistance of trial counsel claims, we agree
with the District Court that the procedural default of
these claims is not excused under Martinez.

                           2.

       Glenn’s fifth procedurally defaulted claim is that
his trial counsel should have moved to strike references
to Cotton’s testimony in the prosecutor’s opening
statements. This claim, too, is insubstantial. These
statements were not prejudicial to Glenn because the jury
was repeatedly instructed not to consider the arguments
of counsel as evidence. In fact, considering that the
prosecution failed to produce the testimony it had
promised, these statements most likely prejudiced the
prosecution, not the defense.         See McAleese v.
Mazurkiewicz, 1 F.3d 159, 166-67 (3d Cir. 1993) (“The
failure of counsel to produce evidence which [sic] he
promised the jury during his opening statement that he
would produce is indeed a damaging failure . . . .”).
Accordingly, we agree with the District Court that the
procedural default of this claim is not excused under
Martinez.

                           B.

      Finally, we address Glenn’s claim that his trial
counsel should have moved to strike evidence “regarding
photo arrays in which the defendant’s photo was
                           22
identified by Georgina Cotton.” While this claim, unlike
the previous five claims, was preserved in Glenn’s PCRA
petition, we conclude that it lacks merit. We cannot say
that the failure of Glenn’s trial counsel to move to strike
this evidence was “objectively unreasonable” given that
the photo arrays, like the police testimony discussed
above, were arguably admissible to explain the course of
the investigation into Griffin’s death. Further, this
evidence was not prejudicial to Glenn given the vigorous
attack by the defense on Cotton’s credibility and the
strength of the other evidence against Glenn, including
Pratt’s testimony about the jailhouse confession.
                            V.

For the foregoing reasons, we will affirm the District
Court’s judgment and deny Glenn’s Petition for a
Writ of Habeas Corpus.




                            23
