                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 09-2189
                                     _____________

                                     JOHN MOORE,
                                              Appellant

                                            v.

                    DAVID DIGUGLIELMO; THE DISTRICT
                ATTORNEY OF THE COUNTY OF PHILADELPHIA;
                 THE ATTORNEY GENERAL OF THE STATE OF
                             PENNSYLVANIA
                              _____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                  (No. 2:05-cv-02796)
                      District Judge: Honorable Louis H. Pollak

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   March 22, 2012
                                   ____________

            Before: RENDELL, FISHER, and CHAGARES, Circuit Judges.

                                  (Filed: July 19, 2012)
                                      ____________

                                       OPINION
                                      ___________

CHAGARES, Circuit Judge.

       John Moore appeals the District Court‘s denial of his 28 U.S.C. § 2254 petition for

a writ of habeas corpus. Moore avers that his trial counsel in Pennsylvania state court
provided ineffective assistance of counsel by failing to investigate properly a potential

witness, Lapricia Jessup. We conclude that Moore‘s ineffective assistance of counsel

claim is meritless and we will affirm the order of the District Court.

                                           I.

       We write solely for the parties‘ benefit and, as such, we set forth only the facts

essential to our disposition. This habeas petition arose out of an incident on July 7, 1996.

On that day, Sam Cedano and two friends were walking down the street in Philadelphia

when two men approached them and proceeded to beat and rob them. As Cedano

attempted to resist, he was shot in the back and fatally wounded. Another victim was

shot in the back and permanently injured. Moore and his co-defendant, James Lamb,

were arrested and charged with, among other things, the murder of Cedano. Lamb pled

guilty to third-degree murder and testified at Moore‘s trial that Moore shot Cedano. On

May 9, 2000, after a bench trial in the Pennsylvania Court of Common Pleas, Moore was

convicted of second-degree murder, three counts of robbery, two counts of aggravated

assault, possession of an instrument of a crime, and criminal conspiracy.

       The post-conviction procedural history is lengthy. The Pennsylvania Superior

Court affirmed Moore‘s conviction on direct appeal and the Pennsylvania Supreme Court

denied allowance of appeal on November 21, 2001. On June 10, 2002, Moore filed a pro

se Pennsylvania Post Conviction Relief Act (―PCRA‖) petition, arguing that his trial

counsel, Nino Tinari, was ineffective for various reasons. In July 2002, the Court of

Common Pleas appointed Barbara McDermott to represent Moore in his PCRA

proceedings.

                                                2
       Attorney McDermott subsequently filed a letter pursuant to Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), stating that there were no meritorious issues

to appeal and moving to withdraw from the case. She reported in her motion that Moore

claimed that Attorney Tinari was ineffective for failing to investigate and present the

testimony of Jessup, the mother of Moore‘s child and the sister of the prosecution‘s key

witness, James Lamb. Attorney McDermott interviewed Jessup, who told her that,

shortly after his arrest, Lamb had told her that he did not remember who was present with

him during the robbery. Jessup also told Attorney McDermott that Attorney Tinari never

interviewed her. Jessup declined, however, to sign an affidavit or testify at a hearing.

Attorney McDermott provided Jessup with her contact information and asked her to

contact her if she changed her mind. Jessup did not contact Attorney McDermott

thereafter. Attorney McDermott concluded that Jessup did not want to testify and that,

even if Jessup was forced to testify at a hearing or provide an affidavit, Moore would be

unable to show that her absence at his trial prejudiced him because her testimony would

have been inculpatory. Jessup would have testified that Moore and Lamb spent time

together daily and that she had counseled Lamb to cooperate with the Commonwealth by

identifying his coconspirator.

       In response to the Finley letter, the Court of Common Pleas issued a notice of

intent to deny Moore‘s PCRA petition. Moore responded, arguing that Attorney

McDermott was ineffective for refusing to present his ineffective assistance of counsel

claim in a PCRA petition. Over Moore‘s objection, the Court of Common Pleas denied

the PCRA petition on December 20, 2002. Moore appealed that denial, maintaining,

                                             3
inter alia, that Attorney McDermott was ineffective for failing to obtain an affidavit from

Jessup or subpoenaing her to testify and for refusing to present his ineffective assistance

of counsel claim in his PCRA petition. On May 12, 2003, the Court of Common Pleas

issued an opinion explaining that it denied Moore‘s petition because Moore did not meet

his burden of showing that Attorney Tinari was ineffective for failing to investigate

Jessup as a witness. On August 27, 2004, the Superior Court affirmed the denial of

Moore‘s PCRA petition. The Superior Court explained that Attorney McDermott was

not ineffective because Moore had failed to allege facts that would support a finding that

Attorney Tinari was ineffective.

       Meanwhile, on May 3, 2004, Moore filed a motion for a new trial based on newly

discovered evidence. He submitted an affidavit from Lamb attesting that he swore falsely

at Moore‘s trial that Moore was with him during the robbery. The Court of Common

Pleas treated the motion as a second PCRA petition and denied it because Moore‘s first

PCRA petition was still on appeal at that time.

       On May 17, 2005, Moore filed a third PCRA petition. Along with a number of

other exhibits, he submitted a notarized written statement from Jessup, dated September

22, 2005, stating that no lawyer questioned her on Moore‘s behalf at the trial phase, that

she attended Moore‘s trial, and that she was willing to testify. Finally, Moore included

letters he sent to Attorney Tinari on March 22, April 10, and October 14, 1999, advising

him that Jessup could testify. He attached the receipts for certified mail indicating that

the letters had reached Attorney Tinari‘s office.



                                              4
       The Court of Common Pleas appointed Attorney Barnaby C. Wittels as counsel

for Moore. In February 2006, Attorney Wittels filed an amended, and then second

amended third PCRA petition premised solely on Lamb‘s recantation of his trial

testimony. The Court of Common Pleas denied the petition because it found that the new

evidence was not credible and, therefore, Moore could not avail himself of the after-

discovered evidence exception to the PCRA statute of limitations. Once again, the

Superior Court affirmed the denial of Moore‘s PCRA petition, agreeing that Lamb‘s

affidavit was not credible.

       On June 10, 2005, while his third PCRA petition was still pending, Moore filed

the habeas petition that is the subject of this appeal. The District Court stayed the

petition until Moore‘s third PCRA petition was fully adjudicated. On September 26,

2008, the District Court lifted the stay and appointed Attorney Wittels as counsel.

Attorney Wittels filed a supplemental habeas corpus petition on March 4, 2008, seeking

an evidentiary hearing and raising claims for, inter alia, ineffective assistance of trial and

PCRA counsel based on the failure to present Jessup‘s alleged testimony.

       On October 20, 2008, a Magistrate Judge recommended that the District Court

deny the petition without an evidentiary hearing because the ineffective assistance of trial

counsel claim was procedurally defaulted and that, even if it was not, Moore could not

prevail because he had not satisfied the elements of a claim for ineffective assistance of

trial counsel. With respect to Attorney McDermott‘s effectiveness, the Magistrate Judge

noted that there is no constitutional right to counsel in a post-conviction proceeding and,

hence, there can be no claim for constitutionally ineffective assistance of PCRA counsel.

                                              5
The Magistrate Judge went on to conclude that Moore failed to demonstrate prejudice as

required for his ineffective assistance of counsel claims because factual findings by the

Court of Common Pleas — that Jessup was not willing to testify, did not speak with

defense counsel, and if called would have given highly prejudicial testimony — were

entitled to a presumption of correctness that he had not rebutted. The Magistrate Judge

opined that Moore‘s other grounds for relief were also meritless.

       The District Court adopted the Magistrate Judge‘s Report and Recommendation

on March 27, 2009 over Moore‘s objection. Moore filed a motion for reconsideration

and a notice of appeal shortly thereafter. This Court stayed the appeal until the District

Court adjudicated the motion for reconsideration. In response to the motion for

reconsideration, the District Court corrected an error in the Report and Recommendation

with respect to exhaustion — clarifying that Moore had presented his ineffective

assistance of trial counsel claim to the PCRA court, but not the Superior Court. Then, on

September 24, 2010, this Court issued a certificate of appealability with respect to

Moore‘s claim that his trial counsel rendered ineffective assistance by failing to interview

Jessup or to call her as a witness at trial. Thus, that is the sole issue before us in this

appeal.

                                               II.

       The District Court had jurisdiction over this habeas petition pursuant to 28 U.S.C.

§ 2254 and we have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

Because the District Court ruled on the habeas petition without holding an evidentiary

hearing, our review is de novo. Blystone v. Horn, 664 F.3d 397, 416 (3d Cir. 2011).

                                               6
                                             III.

                                             A.

       The District Court held that Moore‘s ineffective assistance of trial counsel claim

was inexcusably procedurally defaulted. On appeal, however, Moore waived the

procedural default issue by failing to discuss it in his opening brief, or even his reply

brief. Skretvedt v. E.I. DuPont DeNemours, 372 F.3d 193, 202–03 (3d Cir. 2004) (―[A]n

issue is waived unless a party raises it in its opening brief, and for those purposes a

passing reference to an issue will not suffice to bring that issue before this court.‖). Thus,

we need not address it here. Nevertheless, we exercise our discretion to review the

District Court‘s finding of procedural default. See Sweger v. Chesney, 294 F.3d 506, 520

(3d Cir. 2002) (―This Court has ruled that we may, in our discretion, consider whether a

claim is procedurally defaulted sua sponte.‖); Szuchon v. Lehman, 273 F.3d 299, 321 &

n.13 (3d Cir. 2001) (reaching the procedural default question despite concluding that ―the

Commonwealth may well have waived its procedural-default defense‖).

       This Court may not grant a petition for a writ of habeas corpus unless the

petitioner ―has exhausted the remedies available in the courts of the State.‖ 28 U.S.C.

§ 2254(b)(1)(A). ―In order for a claim to be exhausted, it must be ‗fairly presented‘ to

the state courts ‗by invoking one complete round of the State‘s established appellate

review process.‘‖ Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting

O‘Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999)). The petitioner must present the

claim to the state courts in a recognizable way so that the court is not required to ―read

beyond a petition‖ to understand the claim. Baldwin v. Reese, 541 U.S. 27, 32 (2004).

                                              7
The exhaustion requirement ―ensures that state courts have an initial opportunity to pass

upon and correct alleged violations of prisoners‘ federal rights.‖ Leyva v. Williams, 504

F.3d 357, 366 (3d Cir. 2007) (quotation marks omitted). Where a petitioner is clearly

foreclosed from bringing an unexhausted claim in state court, the claim is procedurally

defaulted. Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001). We review the District

Court‘s finding of procedural default de novo. Fahy v. Horn, 516 F.3d 169, 179 (3d Cir.

2008).

         The question of exhaustion in this case is thorny, but we ultimately conclude that

the Pennsylvania Superior Court adjudicated Moore‘s ineffective assistance of trial

counsel claim on the merits such that we can review its holding. Technically, Moore

failed to exhaust his ineffective assistance of trial counsel claim by failing to request new

counsel and raise it on direct appeal. He (and his counsel) compounded that error by

failing to plead that claim in his first or his third PCRA petitions. Moore did, however,

discuss Jessup‘s purported testimony at length in his response to the notice by the Court

of Common Pleas of its intention to deny his first PCRA petition. In response to Moore‘s

contentions, both the Court of Common Pleas and the Superior Court analyzed and ruled

on Moore‘s ineffective assistance of trial counsel claim when they adjudicated his first

PCRA petition. The Court of Common Pleas held that Moore failed to meet the

requirements under Pennsylvania law for an ineffective assistance of trial counsel claim.

In its opinion on August 27, 2004, the Superior Court agreed, holding that Moore had

failed to establish the first prong of his ineffective assistance of PCRA counsel claim

because he did not ―allege facts which would support a finding that trial counsel was

                                              8
ineffective for failing to call Jessup as a witness.‖ Appendix (―App.‖) 570. Specifically,

he did not allege that Attorney Tinari knew or should have known about Jessup as a

potential witness. Nor did he allege that Jessup was prepared to cooperate with the

defense or that she would have testified on Moore‘s behalf. Due to the absence of those

allegations, the Superior Court affirmed the denial of his PCRA petition by the Court of

Common Pleas. Notably, the Superior Court held that Moore had properly layered his

ineffectiveness claim and preserved the issue for its review. On May 24, 2005, the

Pennsylvania Supreme Court denied Moore‘s petition for allowance of appeal.

       We conclude that the Superior Court adjudicated Moore‘s ineffective assistance of

trial counsel claim on the merits on August 27, 2004 when it affirmed the denial by the

Court of Common Pleas of Moore‘s PCRA petition. Although Moore did not directly

raise his ineffective assistance of trial counsel claim in his first PCRA petition, both the

Court of Common Pleas and the Superior Court addressed his claim and assessed whether

he had pled sufficient facts to prevail on such a claim. While the Superior Court did not

rule on Moore‘s ineffective assistance of trial counsel claim directly in the usual manner,

its decision was based on the substance of that claim.

       The Superior Court‘s disposition of Moore‘s claim is analogous to the state court‘s

adjudication in Albrecht v. Horn, 485 F.3d 103, 116 (3d Cir. 2007). In Albrecht, we held

that the state Supreme Court had adjudicated petitioner‘s claim for relief on the merits

where it addressed the merits ―in the context of the prejudice prong of an ineffective

assistance of post-conviction counsel claim.‖ Id. The same is true here, where the

Superior Court addressed the merits of Moore‘s claim in the context of the ―arguable

                                              9
merit‖ prong of his ineffective assistance of PCRA counsel claim. App. 569. As the

Superior Court explained, in order to move forward on his ineffective assistance of

PCRA counsel claim, Moore had to show that he had a meritorious claim for ineffective

assistance of trial counsel and he had not done so.

       In these circumstances, where the state courts recognized that Moore was making

a constitutional argument, overlooked the failure to exhaust, and addressed the merits of

his claim, it would be hollow to hold that Moore‘s claim is nevertheless procedurally

defaulted. See, e.g., Hull v. Kyler, 190 F.3d 88, 97 (3d Cir. 1999) (―A petitioner with a

defaulted claim may nonetheless raise this claim in federal habeas proceedings if . . . the

state has waived (or declined to rely on) the procedural default[.]‖ (citations omitted));

Walton v. Caspari, 916 F.2d 1352, 1356 (8th Cir. 1990) (―A habeas [p]etitioner need not

actually have raised a claim in a state petition in order to satisfy the exhaustion

[requirement], if a state court with the authority to make final adjudications actually

undertook to decide the claim on its merits in petitioner‘s case.‖ (quotation marks

omitted)); Cooper v. Wainwright, 807 F.2d 881, 886 (11th Cir. 1986) (―One instance in

which a federal court may reach the merits of a habeas claim, notwithstanding procedural

default, is when the state court ignores the default and decides the merits of the claim.‖).

In this situation, the purpose of the exhaustion doctrine — to give state courts the first

word on a claim — has been satisfied. See Cooper, 807 F.2d at 886–87 (―When a state

court decides a constitutional question, even though it does not have to, it necessarily

holds that the policies underpinning its procedural rule are unworthy of vindication under



                                              10
the particular circumstances of the case before it.‖). As a result, we conclude that we

may address the merits of Moore‘s habeas petition.1

                                              B.

       In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act

(―AEDPA‖), which substantially changed federal habeas corpus law. In particular,

AEDPA created § 2254(d), which provides that:

       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 with respect
       to any claim that was adjudicated on the merits in State court proceedings
       unless the adjudication of the claim —

       (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.

28 U.S.C. § 2254(d). ―This is a difficult to meet and highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given the

benefit of the doubt[.]‖ Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (quotation

marks and citations omitted). ―To determine whether a particular decision is contrary to

then-established law, a federal court must consider whether the decision applies a rule

that contradicts [such] law and how the decision confronts [the] set of facts that were

before the state court.‖ Id. at 1399 (quotation marks omitted). ―If the state-court decision

identifies the correct governing legal principle in existence at the time, a federal court

1
  See also 28 U.S.C. § 2254(b)(2) (―An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.‖).
                                             11
must assess whether the decision unreasonably applies that principle to the facts of the

prisoner‘s case.‖ Id.2

       In order for § 2254(d) deference to apply, the state court must have adjudicated

petitioner‘s claim on the merits. A state court decision is an ―adjudication on the merits‖

for the purposes of applying the deferential standard of § 2254(d) where it is ―a decision

finally resolving the parties‘ claims, with res judicata effect, that is based on the

substance of the claim advanced, rather than on a procedural, or other, ground.‖

Simmons v. Beard, 590 F.3d 223, 232 (3d Cir. 2009) (quotation marks omitted). Res

judicata prevents a party from commencing a second suit based on the same cause of

action as a prior lawsuit against that same adversary. Duhaney v. Att‘y Gen., 621 F.3d

340, 347 (3d Cir. 2010). In order for a decision to have res judicata effect, there must be

a final judgment on the merits. Id. If a petitioner‘s claims were not adjudicated on the

merits in state court, they do not fall under § 2254(d) and we apply the pre-AEDPA

standard of review, ―reviewing pure legal questions and mixed questions of law and fact

de novo.‖ Simmons, 590 F.3d at 231.

       In this case, the District Court applied the deferential AEDPA standard set forth in

§ 2254(d). We review de novo the District Court‘s legal conclusion as to whether

AEDPA deference applies to this petition. Id. In considering whether § 2254(d) applies,


       2
         In some cases, this Court has indicated that an ―‗unreasonable application‘‖ of
Supreme Court precedent might also be found where ―‗the state court either unreasonably
extends a legal principle from our precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.‘‖
Appel v. Horn, 250 F.3d 203, 209 (3d Cir. 2001) (quoting Williams v. Taylor, 529 U.S.
362, 407 (2000)).
                                              12
we review the ―last reasoned decision‖ of the state courts on the petitioner‘s claims. Id.

at 231–32. As we explained above, the Superior Court‘s August 27, 2004 assessment of

the merits of Moore‘s ineffective assistance of trial counsel claim was a final decision on

the merits that has preclusive effect. As such, it was an adjudication on the merits for the

purposes of applying the deferential standard in § 2254(d).3 We turn, therefore, to

consideration of whether Moore is entitled to relief under § 2254(d) and hold that he is

not.

       First, the Superior Court‘s adjudication of Moore‘s ineffective assistance of trial

counsel claim did not result in a decision that ―was contrary to, or involved an

unreasonable application of, clearly established Federal law[.]‖ 28 U.S.C. § 2254(d)(1).

Under federal law, to succeed on an ineffective assistance of counsel claim, a petitioner

must show that (1) counsel‘s performance was deficient, i.e., ―counsel‘s representation

fell below an objective standard of reasonableness,‖ and (2) the deficiency prejudiced

petitioner, i.e., ―there is a reasonable probability that, but for counsel‘s unprofessional


       3
         The Superior Court‘s refusal to grant Moore an evidentiary hearing on his
claims does not mean that its decision was not an adjudication on the merits. See
Pinholster, 131 S. Ct. at 1402 (―Section 2254(d) applies even where there has been a
summary denial.‖); Rolan v. Vaughn, 445 F.3d 671, 679 (3d Cir. 2006) (―AEDPA, unlike
prior law, has no requirement that the state court hold a hearing or comply with other
prerequisites to deference listed in the previous habeas statute.‖).

       Moore argues that the District Court erred in refusing to hold an evidentiary
hearing pursuant to 28 U.S.C. § 2254(e)(2). In Cullen v. Pinholster, however, the
Supreme Court limited the possibility of an evidentiary hearing in district court to cases
where § 2254(d)(1) does not bar federal habeas relief. 131 S. Ct. at 1401. Because we
agree with the District Court that Moore is not entitled to relief under § 2254(d), we
conclude that an evidentiary hearing was not warranted.

                                              13
errors, the result of the proceeding would have been different.‖ Strickland v.

Washington, 466 U.S. 668, 688 & 694 (1984). ―[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary.‖ Id. at 691. ―[T]rial counsel [i]s not bound by an inflexible constitutional

command to interview every possible witness. Instead, counsel [i]s simply required to

exercise reasonable professional judgment in deciding whether to interview [a witness].‖

Lewis v. Mazurkiewicz, 915 F.2d 106, 113 (3d Cir. 1990).

       The Superior Court found that Moore had not pled facts that would satisfy the

Pennsylvania standard for a claim of ineffective assistance of counsel based on failure to

call a witness, which requires a showing

       (1) that the witness existed; (2) that the witness was available; (3) that
       counsel was informed of the existence of the witness or should have known
       of the witness‘s existence; (4) that the witness was prepared to cooperate
       and would have testified on appellant‘s behalf; and (5) that the absence of
       the testimony prejudiced appellant.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). While the Superior Court did

not apply the federal Strickland v. Washington test for ineffective assistance of counsel,

the Pennsylvania test is not contrary to the test set forth in Strickland. The five

requirements set forth by the Pennsylvania Supreme Court would necessarily need to be

shown to prevail under Strickland on a claim of this nature. See Rolan, 445 F.3d at 683

(affirming the District Court‘s grant of writ of habeas corpus in part because the state

court‘s finding that a witness was unwilling to testify was objectively unreasonable).

       Nor would the Superior Court‘s decision be an unreasonable application of the

Strickland standard because it did not result ―in an outcome that cannot reasonably be

                                             14
justified under Strickland.‖ Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). While

there is certainly evidence here that Attorney Tinari was deficient for failing to

investigate a potentially exculpatory witness, Moore did not meet his burden of showing

that Attorney Tinari‘s error prejudiced his case. In order to show that the absence of a

witness prejudiced his or her case, a petitioner must show that ―there is a reasonable

probability that, but for counsel‘s unprofessional errors, the result of the proceeding

would have been different.‖ Strickland, 466 U.S. at 694. ―A reasonable probability is a

probability sufficient to undermine confidence in the outcome.‖ Id. In considering

whether a petitioner suffered prejudice, ―[t]he effect of counsel‘s inadequate performance

must be evaluated in light of the totality of the evidence at trial: ‗a verdict or conclusion

only weakly supported by the record is more likely to have been affected by errors than

one with overwhelming record support.‘‖ United States v. Gray, 878 F.2d 702, 710–11

(3d Cir. 1989) (quoting Strickland, 466 U.S. at 696).

       In his response to the notice by the Court of Common Pleas of its intention to deny

his PCRA petition, Moore alleged that Jessup told Attorney McDermott that Lamb told

her that he did not remember who was with him during the robbery. That assertion lacks

critical information, such as when that conversation took place and the circumstances

surrounding the conversation. This bare-bones statement is insufficient to show a

reasonable probability that, had Jessup testified, the result of the proceeding would have

been different. Moreover, Lamb was extensively cross-examined about his memory of

the events on the day of the murder. On cross-examination, Lamb admitted that he had

smoked marijuana before meeting Moore and used other drugs on the day of the murder,

                                              15
including angel dust and codeine. He remembered many other details from that day. For

instance, he recalled spending time with a number of friends that afternoon, that he

carried a gun that he owned for approximately one week or one week-and-a-half, the

streets he and Moore had walked down, that he and Moore had had Chinese food for

dinner at a store for which they paid about $5 or $6, that Moore left the store because

Lamb said something was wrong with his eyes, who the other people in the Chinese food

store were, and how many shots were fired during the robbery and in what sequence.

With all of this evidence demonstrating Lamb‘s memory of the day in question, a

statement by Lamb at some unknown time to Jessup that he did not remember who was

with him does not create a reasonable probability that, had Jessup testified, the result of

the proceeding would have been different. Thus, Moore has not convinced us that

Attorney Tinari‘s error prejudiced his case and the Superior Court‘s decision did not

amount to an unreasonable application of the Strickland standard.

       We also conclude that the Superior Court‘s decision was not ―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)(2). The state court‘s factual determinations are

presumed to be correct, and the petitioner bears the burden of rebutting that presumption

by clear and convincing evidence. Appel, 250 F.3d at 209.

       The Superior Court‘s finding that Moore did not allege that Attorney Tinari knew

or should have known about Jessup as a potential witness is admittedly troublesome.

With his answer to the notice by the Court of Common Pleas of its intent to deny the first

PCRA petition, Moore submitted a letter that he sent to Attorney Tinari on October 14,

                                             16
1999 stating: ―Im (sic) requesting Lapricia Jessup gets subpoena to testify. She has

information that is essential in proving my innocence.‖ App. 970–71. Thus, there was

evidence in the state court record at the time the Superior Court ruled on Moore‘s first

PCRA petition that Attorney Tinari knew about Jessup as a potential witness and yet

failed to interview her. Despite the Superior Court‘s questionable conclusion on this fact,

the Superior Court‘s holding was also based on the reasonable determination that Moore

had not alleged other, critical facts.

       In particular, it was not unreasonable for the Superior Court to find that Moore

failed to demonstrate that Jessup would have cooperated with the defense and testified in

Moore‘s favor. Jessup‘s reluctance to sign an affidavit or to testify at a hearing for

Attorney McDermott indicates that she would have refused to testify. More importantly,

Moore did not at that time provide the Court with an affidavit from Jessup stating that she

was willing to testify or what she would testify about.4 Thus, we conclude that the

Superior Court‘s holding was supported by a reasonable determination of key facts.




       4
          Moore later submitted a notarized statement from Jessup stating that she was
willing to testify at Moore‘s trial. Because we hold that § 2254(d) applies, however, we
are bound by the United States Supreme Court‘s holding in Cullen v. Pinholster that
―review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.‖ 131 S. Ct. at 1398. Although Moore filed a later
PCRA petition, he did not raise Jessup‘s alleged testimony as grounds for relief in that
petition. Thus, the Superior Court‘s August 27, 2004 decision was the last state decision
on that claim and we must consider only the evidence that was before the Superior Court
when it issued that ruling. In any event, consideration of Jessup‘s notarized statement
does not alter our conclusion.

                                             17
       For these reasons, we hold that Moore is not entitled to relief under § 2254(d) and

we will affirm the District Court‘s denial of Moore‘s petition for a writ of habeas corpus.5

                                             IV.

       For the foregoing reasons, we will affirm the District Court‘s denial of Moore‘s

petition for a writ of habeas corpus.




       5
           Although Moore presents some arguments in his brief regarding the other two
claims in his habeas petition, we did not issue a certificate of appealability with respect to
those claims and, therefore, they are not before us on appeal. We also note that, although
it is not at issue on appeal, Moore‘s ineffective assistance of PCRA counsel claim is
unavailing, as there is no constitutional right to counsel in a post-conviction proceeding.
In a recent opinion, Martinez v. Ryan, 132 S. Ct. 1309, 1319 (2012), the United States
Supreme Court established a ―limited qualification‖ to its holding in Coleman v.
Thompson, 501 U.S. 722, 752–54 (1991), that an attorney‘s error in a post-conviction
proceeding does not establish cause to excuse a procedural default. The Court left
standing, however, its long-established principle that there is no right to counsel in post-
conviction collateral proceedings. See id. at 1315; Pennsylvania v. Finley, 481 U.S. 551,
555 (1987); Dunn v. Colleran, 247 F.3d 450, 467 (3d Cir. 2001).

                                             18
