                                                             NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                                No. 08-4377
                                ___________

                            JEFFREY R. FOGG,
                                         Appellant

                                      v.

                    *PERRY PHELPS, Warden;
          ATTORNEY GENERAL OF THE STATE OF DELAWARE

                    *(Pursuant to Rule 43(c), F. R. A. P.)
                        _______________________

               On Appeal from the United States District Court
                       for the District of Delaware
                    D.C. Civil Action No. 03-cv-00558
                      (Honorable Sue L. Robinson)
                             ______________

                         Argued November 2, 2010

          Before: SCIRICA, STAPLETON and ROTH, Circuit Judges.

                          (Filed: January 6, 2011)

PETER A. LEVIN, ESQUIRE (ARGUED)
1927 Hamilton Street
Philadelphia, Pennsylvania 19130
      Attorney for Appellant

ELIZABETH R. McFARLAN, ESQUIRE (ARGUED)
Deputy Attorney General
Delaware Department of Justice
Carvel Office Building, 6th Floor
820 North French Street
Wilmington, Delaware 19801
      Attorney for Appellees
                                   _________________

                               OPINION OF THE COURT
                                  _________________

SCIRICA, Circuit Judge.

       After a joint jury trial with co-defendant Daryl Andrus, Appellant Jeffrey Fogg

was convicted of murder in the first degree and conspiracy in the first degree for his role

in the April 5, 1995 death of James Dilley. The Delaware Superior Court sentenced him

to a mandatory term of life imprisonment without the benefit of parole or probation for

the murder conviction. Fogg unsuccessfully pursued post-conviction remedies in the

Delaware state court system, and the District Court denied his petition for a writ of

habeas corpus. We granted a certificate of appealability with regard to four issues raised

in Fogg‘s habeas petition. However, because Fogg cannot demonstrate an entitlement to

relief on any of these grounds, we will affirm.

                                             I.

       Fogg, Dilley, Cheryl Adams and John Cathell were among the guests at a party

hosted by Andrus on April 4, 1995.1 At some point that afternoon, Fogg provoked a fight


1
  The District Court relied on the facts section of its opinion directly from the Delaware
Supreme Court‘s order on direct appeal affirming Fogg‘s convictions and sentence. Fogg
v. State, 1998 Del. LEXIS 360 (Del. Oct. 1, 1998). Under 28 U.S.C. § 2254(d)(2), a
federal court may grant a petitioner habeas relief if the state court unreasonably
determined the facts based on the evidence adduced at trial. On appeal, Fogg has not
raised such a claim. Consequently, we will follow the District Court‘s lead and
                                             2
with Cathell by kicking his leg and knocking off his hat. The party later migrated to the

basement, where Fogg and Cathell recommenced their skirmish. Around 8:00 p.m.,

Andrus, Fogg and Adams rousted themselves and went to a bar, where they remained for

approximately 90 minutes. Adams described the two men as rowdy and excited from the

drinking and fighting. They stopped at a liquor store en route back to Andrus‘ residence,

and Dilley was still at that destination when they arrived there between 10:00 and 10:30

p.m. Andrus and Fogg were in the kitchen pouring glasses of sambucca when Adams

departed 20 minutes after their return. The three men were the only people remaining in

the dwelling.

       At approximately 7:30 a.m. the following morning, an ambulance from the local

fire company responded to a call at Andrus‘ address. Emergency medical technicians

found Dilley motionless on the floor. Fogg began mouth-to-mouth resuscitation efforts

while the EMTs began CPR compressions. Paramedics arrived shortly thereafter, and

Andrus directed them to the victim. The paramedics detected traces of rigor mortis in

Dilley‘s jaw and finger and could not locate a pulse. CPR was discontinued, and Dilley

was pronounced dead at 7:42 a.m.2

       Fogg told Detective Quinton Watson he had fallen asleep almost immediately after

returning home from the bar the previous night. He claimed to have been awakened in the



incorporate the germane facts from the Delaware Supreme Court‘s order into this
opinion.
2
  The viciousness of the beating to which Dilley was subjected is described in greater
detail in section III.B.3 infra.
                                             3
morning by Andrus calling his name from the hallway outside the bathroom where Dilley

was lying face-up in the bathtub, cold and bloodied. Fogg told Watson he and Andrus

lifted Dilley from the tub, dragged him to Andrus‘ bedroom, put blankets and a heater

next to him, and began to perform mouth-to-mouth resuscitation. According to Fogg‘s

account, Andrus went across the street to call for an ambulance while Fogg continued his

revival efforts.

       Fogg and Andrus were transported to police headquarters for further questioning.

In his final interview, Fogg admitted to police he had struck Dilley with his hand. Fogg

was then arrested and charged with both hindering prosecution and first-degree murder.

While Andrus and Fogg were in police custody, other officers canvassed the Andrus

residence for evidence. The living room and hallway walls, the floor, the refrigerator

door, and the blinds, sink and shower in the bathroom were stained with apparent blood

splatter. The bathtub was three-quarters filled with red-brown water and had several

items floating in it. A pair of black boots was discovered in the living room, and a pair of

cowboy boots and a single black boot were located in the bedroom a few feet away from

Dilley‘s body. Police found pieces of broken dentures in the bathtub, on the living room

floor, and on the bedroom floor next to the body; a tooth in the hallway; a pair of wet and

bloody jeans on the door handle of a second bedroom; and a wet shirt and sock outside

the basement on the ground.

       The day after the arrests, the Medical Examiner called police to ask whether any

jewelry had been confiscated from the scene or from the defendants‘ persons. Police

                                             4
provided the M.E. with a wizard ring belonging to Andrus and a ring bearing the image

of a skull‘s face wearing a Viking helmet belonging to Fogg. At trial, Dr. Adrienne

Perlman, the Assistant M.E., testified Dilley had distinct ―patterned injuries‖ on his body

that were caused by the defendants‘ rings and the cowboy boots and single black boot

recovered from Andrus‘ bedroom. The cowboy boots were later identified by a podiatrist

as matching casts of Andrus‘ feet. Police lifted palm prints from the reddish-brown

stains on the walls in the living room, hallway and master bedroom, and Corporal Ronald

Webb testified they were of value for identification purposes as belonging to Fogg and

Andrus.

                                            II.

       On May 1, 1995, Fogg and Andrus were jointly indicted on charges of Murder in

the First Degree and Conspiracy in the First Degree. Fogg filed a pre-trial motion to sever

the charges, which the Superior Court denied. On May 3, 1996, following a joint trial, a

Delaware Superior Court jury found Fogg and Andrus guilty on both charges. The court

sentenced Fogg to a mandatory term of life imprisonment without the benefit of

probation or parole for the murder conviction, and to five years in prison, suspended after

four years for probation, for the conspiracy conviction. See Fogg, 1998 Del. LEXIS 360,

at *1–*2.

       Fogg filed a direct appeal, claiming (1) his statements to police were obtained in

violation of his Fifth Amendment Miranda rights; and (2) the Superior Court mistakenly

concluded the statement to police was the product of a voluntary, knowing and intelligent

                                             5
waiver of his Miranda rights. The Delaware Supreme Court sua sponte identified a third

issue under Bruton v. United States, 391 U.S. 123 (1968), and requested supplemental

briefing regarding the Confrontation Clause implications of Andrus‘ statements as related

to and testified to by Robert Richmond, an inmate at a Delaware correctional facility. On

February 20, 1998, the Delaware Superior Court acknowledged admission of Andrus‘

statement via Richmond was inappropriate under Bruton but concluded redaction — and

not severance — would have been the proper remedy. State v. Fogg, 1998 Del. Super.

LEXIS 238, at *16 (Del. Super. Ct. Feb. 20, 1998). On October 1, 1998, the Delaware

Supreme Court affirmed Fogg‘s conviction and sentencing, holding the Bruton error

harmless beyond a reasonable doubt when considered in context of the admissible

evidence of his guilt. Fogg, 1998 Del. LEXIS 360, at *11.

      On September 30, 1999, Fogg filed a motion for state post-conviction relief

pursuant to Delaware Superior Court Criminal Rule 61. On August 1, 2000, the Superior

Court summarily dismissed several claims raised in the Rule 61 motion as procedurally

barred and denied the remaining ineffective assistance of counsel claims as meritless.

State v. Fogg, 2000 Del. Super. LEXIS 263 (Del. Super. Ct. Aug. 1, 2000). On appeal,

the Delaware Supreme Court remanded for further development of the record. The

Superior Court subsequently conducted an evidentiary hearing and concluded Fogg failed

to demonstrate counsel was ineffective. State v. Fogg, 2002 Del. Super. LEXIS 211 (Del.

Super. Ct. Sept. 10, 2002). On December 23, 2002, the Delaware Supreme Court

affirmed the Superior Court‘s decision. Fogg v. State, 817 A.2d 804 (Del. 2002).

                                            6
       The District Court for the District of Delaware denied Fogg‘s habeas petition on

September 30, 2008, and, concluding Fogg had failed to make a ―substantial showing of

the denial of a constitutional right‖ as mandated by 28 U.S.C. § 2253(c)(2), declined to

issue a certificate of appealability. 579 F. Supp. 2d 590, 616 (D. Del. 2008). Positing that

―jurists of reason‖ could conceivably disagree with the district court‘s resolution of

Fogg‘s constitutional claims, on June 22, 2009, we issued a certificate of appealability

with regard to the four issues outlined below. See Miller-El v. Cockrell, 537 U.S. 322,

327 (2003) (elucidating the standard to which a petitioner seeking a certificate of

appealability will be held).3, 4

                                            III.

                                             A.

       The first set of issues surrounds Richmond‘s trial testimony. Recounting

conversations he had with Andrus when both were incarcerated in Gander Hill Prison,


3
  As of oral argument in the instant case, Fogg was seeking post-conviction relief in the
Delaware Superior Court for an alleged violation of his constitutional rights under Brady
v. Maryland, 373 U.S. 83 (1963). In 2009, Fogg became aware that the prosecution failed
to disclose to defense counsel purported consideration furnished to Richmond in
exchange for his testimony. The Superior Court has already denied Andrus‘ motion for
post-conviction relief on account of the alleged Brady violation. State v. Andrus, 2010
Del. Super. LEXIS 309, at *4 (Del. Super. Ct. July 22, 2010).
4
  The District Court had subject matter jurisdiction to entertain Fogg‘s petition for a writ
of habeas corpus under 28 U.S.C. § 2254. We issued a certificate of appealability and
have jurisdiction to review the final judgment of the District Court under 28 U.S.C. §§
1291 and 2253. When the District Court denies a habeas petition based on its review of
the record and does not conduct an evidentiary hearing, our review is plenary.
Carrascosa v. McGuire, 520 F.3d 249, 255–56 (3d Cir. 2008). We review the District
Court‘s findings of fact for clear error and its legal conclusions de novo. Id.
                                             7
Richmond testified Andrus had implicated both himself and Fogg in Dilley‘s murder.

According to Richmond, Andrus told him he and Fogg kicked and stomped Dilley; Fogg

―got way out of hand with it and just went too far;‖ and the incident transpired in the

living room, after which the two men dragged Dilley to the bathroom. He also testified

Andrus told him he and Fogg had attempted to resuscitate Dilley when they placed him in

the bathtub and that the two had plans to dispose of the body but refrained because too

many people knew Dilley had been at the party and had been in a tiff with Andrus.

Richmond had provided a tape-recorded statement to the police and prosecution; the tape

was played before the jury, and a written transcript of the statement was entered into

evidence.

       The State has acknowledged the introduction of such evidence violated Fogg‘s

Confrontation Clause rights under Bruton, but the Delaware courts and the District Court

have concluded such error was harmless. Here, Fogg seeks habeas relief on the grounds

that (1) the Bruton violation had a ―substantial and injurious effect or influence‖ on the

jury‘s verdict; and (2) his trial counsel was constitutionally deficient for failing to object

to the Bruton violation or to request a limiting instruction. Because Fogg cannot prevail

on his ineffective assistance claim if counsel‘s dereliction did not actually prejudice him

at trial, the uniform finding of the lower courts that the Bruton violation constituted

harmless error has heretofore prevented Fogg from obtaining habeas relief on either of

these grounds. We find the reasoning employed by the Delaware courts and the District

Court sound, and we will deny Fogg‘s motion on these grounds.

                                               8
                                               B.

                                               1.

       In Bruton, the Supreme Court held a defendant is deprived of his rights under the

Confrontation Clause when a non-testifying co-defendant‘s confession naming the

defendant as a participant in the crime is introduced at their joint trial, even if the jury is

instructed to consider that confession only against the co-defendant. 391 U.S. at 136–37.

Subsequently, in Richardson v. Marsh, 481 U.S. 200, 211 (1987), the Court held the

Confrontation Clause is ―not violated by the admission of a nontestifying codefendant‘s

confession with a proper limiting instruction when . . . the confession is redacted to

eliminate not only the defendant‘s name, but any reference to his or her existence.‖

       Fogg did not object to Richmond‘s testimony as violating his Sixth Amendment

rights at trial, but the Delaware Supreme Court sua sponte raised the issue on direct

appeal and remanded the case to the Superior Court for reconsideration of its decision

against severance. On remand, the Superior Court concluded redaction was feasible and,

under Richardson, would have been a more appropriate remedy than severance. After

remand, the State acknowledged a Bruton violation had occurred but argued it amounted

to harmless error. The Delaware Supreme Court adopted the State‘s argument, opining

―the error in admitting into evidence Andrus‘s statement incriminating Fogg was contrary

to the holding of Bruton but was harmless beyond a reasonable doubt when it is

considered in the context of the admissible evidence of Fogg‘s guilt.‖ Fogg, 1998 Del.

LEXIS 360, at *11.

                                               9
                                               2.

       We assess the prejudicial impact of a constitutional error in a state-court criminal

trial under the harmless-error standard articulated in Brecht v. Abrahamson, 507 U.S. 619

(1993). Fry v. Pliler, 551 U.S. 112, 121–22 (2007). Under Brecht, a habeas petitioner

must demonstrate constitutional error resulted in ―actual prejudice‖ in order to obtain

relief from a federal court; he will be afforded habeas relief only if such error had a

―substantial and injurious effect or influence in determining the jury‘s verdict.‖ 507 U.S.

at 637–38. Critically, when constitutional error precipitates the admission of evidence

without which the State would be unable to maintain the ―necessary minimum evidence

legally sufficient to sustain [a] conviction,‖ such prejudice is ―necessarily . . .

substantial.‖ Kotteakos v. United States, 328 U.S. 750, 763–64 & n.18 (1946). However,

Brecht compels us to do more than merely query whether the State has adduced sufficient

evidence to support the conviction notwithstanding such error. Hassine v. Zimmerman,

160 F.3d 941, 955 (3d Cir. 1998). If, after reviewing the trial record, we are in ―grave

doubt‖ as to whether the error had a substantial and injurious effect or influence in

determining the jury‘s verdict, such error is not harmless irrespective of whether the State

could theoretically sustain a conviction without the erroneously admitted evidence.

O’Neal v. McAninch, 513 U.S. 432, 436 (1995).

                                               3.

       Fogg claims that, without Richmond‘s testimony implicating Fogg as Dilley‘s

primary assailant, the State would have been unable to sustain a conviction for either

                                               10
murder or conspiracy under a beyond-a-reasonable-doubt standard. Under Kotteakos,

Fogg argues, such prejudice necessarily rises beyond harmless error. See 328 U.S. at

763–64 & n.18. In particular, Fogg argues the Bruton violations provided the State with

non-duplicative evidence (1) signaling Fogg had formed the requisite mens rea for a first-

degree murder charge; (2) identifying Fogg as the cause of Dilley‘s death; and (3)

indicating Fogg and Andrus effectively conspired to cause Dilley‘s death. Only the first

of these claims warrants close inspection.5

       Under Delaware law, the prosecution must prove an individual intended to cause

the death of another to obtain a conviction of first-degree murder. Del. Code Ann. Tit. 11,

§ 636(a)(1) (2010). Richmond had taken notes of his conversation with Andrus, and his

handwritten scrawls indicated Fogg had told Dilley ―I‘ll kill your ass m-f.‖ Fogg claims

this evidence was indispensable to the jury‘s finding that Fogg possessed the requisite

mens rea to be convicted of first-degree murder. Critically, however, although the notes

were initially admitted for the limited purpose of refreshing Richmond‘s recollection,

they were stricken from evidence and from the trial record at Andrus‘ request prior to




5
  The District Court thoroughly debunked Fogg‘s contention that only Richmond‘s
testimony permitted the jury to conclude Fogg had donned Andrus‘ boots and
participated in the stomping that helped cause Dilley‘s death. See 579 F. Supp. 2d at 610.
On account of the voluminous properly-admitted evidence suggesting Fogg‘s complicity
in causing Dilley‘s death, the District Court properly ruled Fogg does not have a
persuasive claim under Brecht that Richmond‘s testimony necessarily had a substantial
influence on this jury determination. And Fogg‘s conspiracy argument does not pass
muster. Even without the Bruton violation, the jury would have been able to draw on
ample evidence in the record to determine Fogg ―agree[d] with [Andrus] that they or 1 or
                                              11
jury deliberations. Because neither Richmond‘s testimony nor his taped statement

touched on this ostensible statement of intent, this alleged insight into Fogg‘s state of

mind was never put before the jury. Without the notes, Fogg strains to torture a statement

about disproportionate force (Fogg ―got way out of hand with it and just went way too

far‖) into one speaking to intent.

       The State offered a wealth of evidence attesting to the grizzly nature of Dilley‘s

murder, evidence which was probative of the culprits‘ intent. When paramedics arrived at

the scene, they found Dilley lying prone in only his boxer shorts and socks. Blood was

splattered on the walls and carpets of the house. According to the testimony of the

Medical Examiner at trial, Dilley had suffered multiple severe injuries caused by

―kicking, punching, stomping and striking or being struck with blunt objects as well as

hands and shod feet.‖ The injuries to Dilley‘s face were so dramatic that his nose was

torn away from his cheek and his ears were torn away from the back of his head. A false

plate inside his mouth had been broken into multiple pieces, and the hyoid bone

underneath his chin was fractured. The Medical Examiner testified Dilley died as a result

of extreme blood loss complicated by the inhalation of blood and vomit into his airway.

Evidence of such ―directed and persistent brutality‖ is sufficient to support a finding of

intent for first-degree murder. See Smith v. Bradshaw, 591 F.3d 517, 525 (6th Cir. 2010);

Willingham v. Mullin, 296 F.3d 917, 927 (10th Cir. 2002).



more of them [would] engage in conduct constituting the felony.‖ See Del. Code Ann.
Tit. 11, § 513 (2010).
                                             12
                                             4.

       In sum, we agree with the District Court‘s conclusion that ―Richmond‘s statement

was cumulative of the other . . . evidence [properly] admitted during petitioner‘s trial.‖

579 F. Supp. 2d at 610. The Delaware courts, employing the ―harmless beyond a

reasonable doubt‖ standard from Chapman v. California, 386 U.S. 18, 24 (1967), also

denied Fogg post-conviction relief on account of the Bruton violations. The record does

not leave us in ―grave doubt‖ as to whether the error had a ―substantial and injurious‖

effect on the jury‘s verdict. Therefore, Fogg‘s Bruton claim fails under the Brecht

standard.

                                             C.

       Next, we must decide whether trial counsel‘s failure to object to the Bruton

evidence or to request limiting instructions constituted ineffective assistance of counsel in

violation of Fogg‘s constitutional rights. To prevail on an ineffective assistance claim, a

petitioner must demonstrate both that (1) counsel‘s performance fell below an objective

standard of reasonableness measured under prevailing professional norms; and (2)

counsel‘s deficient performance actually prejudiced the petitioner‘s case. Strickland v.

Washington, 466 U.S. 668, 687 (1984). The ineffective assistance claim is parasitic on

the substantive Sixth Amendment claim; to prevail under Strickland, Fogg must

necessarily prove the Bruton error was substantial and injurious. Thus far, each court

reviewing Fogg‘s ineffective assistance claim as it pertains to the Bruton violation has

held counsel‘s performance constitutionally sound because its predicate finding of

                                             13
harmless error has rendered Fogg incapable of proving ―prejudice‖ under the second

Strickland prong.

       The Delaware Superior Court considered the ineffective assistance claims to be

―merely refinements of the Bruton issue which was rejected by the Delaware Supreme

Court in Defendant‘s direct appeal. . . . The Supreme Court has already ruled that the

error in admitting Richmond‘s testimony was harmless error beyond a reasonable doubt.‖

Fogg, 2002 Del. Super. LEXIS 211, at *51. Therefore, with the Bruton error deemed

harmless, the court held Fogg could not satisfy the second prong of the Strickland test

because counsel‘s failure to object to Richmond‘s testimony did not actually prejudice

Fogg at trial. The Delaware Supreme Court affirmed, adopting the Superior Court‘s

reasoning. Fogg v. State, 817 A.2d 804 (Del. 2002).

       For a federal court to grant a petitioner‘s application for habeas relief with respect

to a claim ―that was adjudicated on the merits in State court proceedings,‖ the state

court‘s decision must have been ―contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United States.

. . .‖ 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, we

must determine whether the Delaware Supreme Court‘s application of Strickland was

unreasonable. The District Court, having similarly concluded the Bruton error constituted

harmless error, ratified the Delaware courts‘ conclusion that Fogg was not actually

prejudiced by counsel‘s failure to raise the violations or to request limiting instructions.

579 F. Supp. at 615.

                                              14
       As noted above, Richmond offered scant insight into Fogg‘s alleged intent apart

from his notes that were stricken from the record. Because the physical and

circumstantial evidence so convincingly pointed to Fogg‘s guilt, counsel‘s failure to

object to the Bruton violation cannot be said to have actually prejudiced Fogg at trial.

Both the Delaware courts and the District Court found the Bruton error harmless and

counsel‘s performance therefore secure under the Strickland prejudice prong. Because the

Delaware courts reasonably applied Strickland in finding counsel‘s errors relating to the

Bruton claim did not actually prejudice Fogg at trial, we will deny Fogg habeas petition

on this ground.

                                            IV.

                                             A.

       Fogg claims his Fourteenth Amendment rights to due process and a fair trial were

compromised by the introduction of evidence tending to depict him as having a bad

character and by the trial court‘s corresponding failure to issue appropriate limiting

instructions regarding use of character and prior bad acts evidence. Specifically, Fogg

points to evidence portraying him as having a penchant for alcohol consumption, an

occasional drug habit, and a tendency to engage in physical altercations (and to use his

legs and feet as weapons when partaking in such confrontations) when inebriated, as well

to testimony concerning his allegedly having drunkenly trashed a motel room days before

Andrus‘ party and having instigated two fights with Cathell the night before Dilley was

found dead. The District Court declined to assess this Fourteenth Amendment claim on

                                             15
its merits. First, it rejected Fogg‘s contention he properly presented the claim to the

Delaware state courts as an issue of federal law, and it therefore concluded Fogg had

failed to exhaust state remedies in violation of 28 U.S.C. § 2254(b). 579 F. Supp. 2d 611–

12 & n.5. Second, it held Fogg could not demonstrate adequate ―cause‖ for procedurally

defaulting on this claim because the Delaware courts had not unreasonably applied

Strickland in analyzing and denying Fogg‘s interrelated ineffective assistance of counsel

claim. Id. at 612. Because we agree with the District Court on both counts, we will not

reach the merits of Fogg‘s Fourteenth Amendment claim.

                                              B.

       As a threshold matter, we must scrutinize Fogg‘s contention that he fairly

presented his due process claim in the Delaware state courts and has therefore satisfied 28

U.S.C. § 2254(b)(1)(A), which stipulates an application for a writ of habeas corpus ―shall

not be granted unless it appears that . . . the applicant has exhausted the remedies

available in the courts of the State.‖ Fogg did not argue at the state-court level that

admission of this testimony violated his federal or state constitutional rights. Rather,

when Fogg filed a Rule 61 motion alleging ineffective assistance of counsel, he anchored

the motion — in part — on counsel‘s failure to object to or request a limiting instruction

as to this character evidence.

       ―[T]he federal claim must be fairly presented to the state courts,‖ and the state

prisoner must ―present the state courts with the same claim he urges upon the federal

courts.‖ Picard v. Connor, 404 U.S. 270, 275–76 (1971). To ―fairly present‖ a claim, a

                                              16
petitioner ―must present a federal claim‘s factual and legal substance to the state courts in

a manner that puts them on notice that a federal claim is being asserted;‖ that a

―somewhat similar state-law claim was made‖ will not suffice. McCandless v. Vaughn,

172 F.3d 255, 261 (3d Cir. 1999) (internal quotation omitted); see also Zicarelli v. Gray,

543 F.2d 466, 472–73 (3d Cir. 1976) (en banc) (―the method of analysis asserted in the

federal court must have been readily available to the state court,‖ and the petitioner ―must

give the state system the opportunity to resolve the federal constitutional issues before he

goes to the federal court for habeas relief‖) (internal quotations omitted).

       Fogg relies heavily on Lesko v. Owens, 881 F.2d 44 (3d Cir. 1989), for the

proposition that couching his due process claim within the guise of an ineffective

assistance of counsel claim is sufficient to satisfy the exhaustion prerequisite. His

argument is unavailing. In Lesko, we found exhaustion where the defendant‘s habeas

petition rested on a legal theory (balancing the probative value of evidence against its

prejudicial effect) and facts that had previously been submitted to the state courts. Id. at

50.6 Thus, although the appeal in the state courts was rooted in state evidentiary concerns,

the issue decided by those courts was the ―substantial equivalent‖ of the defendant‘s




6
  Here, the ultimate legal theory employed by the Superior Court upon Fogg‘s Rule 61
motion was the Strickland standard for ineffective assistance, not the balancing test used
to assess whether the evidence should have been excluded or limited on account of its
prejudicial value. Fogg, 2002 Del. Super. LEXIS 211, at *80–*89. The balancing test
was invoked only within the framework of analyzing Strickland’s ―prejudice‖ prong in
determining whether the court would likely have admitted certain evidence over
counsel‘s objection. The court did not have occasion to review the admission of this
                                              17
Fourteenth Amendment due process claim contained in his habeas petition. Id. While

Lesko does support the premise that the exhaustion doctrine permits a habeas petitioner to

include a constitutional claim that was pressed in the state courts merely as a violation of

state law, its rationale is not so expansive as to allow a petitioner to transmute an

ineffective assistance of counsel claim based on a violation of state law into a due process

claim. Because Fogg never presented his due process claim outside the confines of his

ineffective assistance claim and thus never put the state court on notice that he was

asserting a constitutional grievance, the District Court properly concluded Fogg had

failed to exhaust his Fourteenth Amendment claim in the state court system.

                                              C.

                                              1.

       Next, we must determine whether Fogg has successfully made a showing of

―cause and prejudice‖ to overcome the procedural default at the state court level.

Although failure to exhaust a claim ordinarily results in dismissal of the habeas petition,

Rose v. Lundy, 455 U.S. 509, 519 (1982), such failure will be excused if state law

―clearly forecloses review of the unexhausted claim,‖ see Werts v. Vaughn, 228 F.3d 178,

192 (3d Cir. 2000); see also Coleman v. Thompson, 501 U.S. 722, 732 (1991) (―A habeas

petitioner who has defaulted his federal claims in state court meets the technical

requirements for exhaustion; there are no state remedies any longer ‗available‘ to him.‖).



testimony as part of a freestanding claim that the evidence itself transgressed Fogg‘s
constitutional rights.
                                              18
The parties and the District Court agree that Delaware Superior Court Criminal Rules

61(i)(2) and 61(i)(3) would now preclude Fogg from obtaining review of this due process

claim in a state court proceeding.

       When a state prisoner ―has defaulted his federal claims in state court pursuant to

an independent and adequate state procedural rule, federal habeas review of the claims is

barred unless the prisoner can demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of justice.‖ Coleman, 501 U.S. at 750

(1991). The ―fundamental miscarriage of justice‖ standard requires a state prisoner to

demonstrate that he is ―actually innocent of the crime . . . by presenting new evidence of

innocence.‖ Keller v. Larkins, 251 F.3d 408, 415–16 (3d Cir. 2001). Because Fogg does

not ask us to consider new exculpatory evidence on appeal, we need only concern

ourselves with the ―cause and prejudice‖ exception to the procedural default rule.

                                              2.

       To demonstrate cause for procedural default, the petitioner must show that ―some

objective factor external to the defense impeded counsel‘s efforts to comply with the

State‘s procedural rule.‖ Murray v. Carrier, 477 U.S. 478, 488 (1986). Here, Fogg once

more turns to the allegedly defective performance of his counsel. See id. (establishing

that a criminal defendant whose attorney‘s assistance was constitutionally inadequate

under Strickland may use this deficiency to establish cause for procedural default).

Because the Superior Court denied this claim as meritless (and the Supreme Court

                                             19
affirmed the lower court‘s judgment ―for the reasons set forth in [its] decision‖), Fogg‘s

entitlement to habeas relief turns on whether the Delaware Supreme Court‘s decision

―involved an unreasonable application‖ of federal law. See 28 U.S.C. § 2254(d)(1).

       As to the first Strickland prong (objective reasonableness), Fogg alleges counsel

(1) failed to object to the prior bad acts evidence or request a limiting instruction; (2) was

unfamiliar with the principles embodied in certain seminal cases; and (3) lacked a

coherent trial strategy regarding whether to request redaction of certain evidence or how

to spin harmful evidence to Fogg‘s advantage. To provide the legal footing for his

reanimated ineffective assistance claim, Fogg cites Thomas v. Varner, 428 F.3d 491, 499,

501 (3d Cir. 2005), cert. denied sub nom. Palakovich v. Thomas, No. 06-130, 2007 U.S.

LEXIS 37 (Jan. 8, 2007) (Strickland’s presumption that challenged actions may have

been part and parcel of a ―sound trial strategy‖ can be overcome by a showing that such

actions ―could never be considered part of a sound strategy‖ or if counsel was ―unfamiliar

with clearly settled legal principles‖), and Albrecht v. Horn, 485 F.3d 103, 128 (3d Cir.

2007) (―Where evidence of a defendant‘s prior bad acts is admitted, a defendant‘s

interests are protected by a limiting instruction, which mitigates the possibility of

prejudice.‖).

       And as to the second Strickland prong (prejudice), Fogg claims there is a

―reasonable probability‖ that, had an objection been raised or a limiting instruction

issued, the jury would not have utilized propensity evidence to convict him. See Albrecht,

485 F.3d at 128. Moreover, he argues appellate counsel‘s failure to raise the evidentiary

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issue on direct appeal forced post-conviction counsel to broach it not as a self-contained,

discrete claim but as the underlying basis for an ineffective assistance claim which was

unlikely to succeed on account of Strickland’s tolerance of a ―wide range of

professionally competent assistance‖ and presumptions of efficacy. See 466 U.S. at 690.

                                              3.

       In state court, Fogg contended counsel should have endeavored to exclude (1)

references in Fogg‘s April 5, 1995 videotaped statement to his proclivity for becoming

belligerent when intoxicated, his tendency to use his feet as weapons when fighting, and

other generally unflattering habits; (2) Adams‘ testimony that Fogg had gotten drunk and

ravaged her motel room days before the murder; and (3) evidence Fogg had goaded

Cathell into a fight by kicking his leg and knocking his hat off. Fogg, 2002 Del. Super.

LEXIS 211, at *80–*89.

       As to the videotaped statement, the Superior Court concluded Fogg could not

satisfy the first Strickland prong because he had ―failed to show that trial counsel‘s

strategic choice . . . not to redact. . . was unreasonable,‖ and also failed to meet the

second prong because he could not prove redactions to the statement would have resulted

in a different outcome. Id. at *81–*83. With regard to the motel room fracas, the Superior

Court credited trial counsel‘s explanation that he had balanced the deleterious impact of

the incident against the salutary advantages of providing the jury with an alternative

explanation for Fogg‘s hand injuries. Because this was not objectively unreasonable, the

court held Fogg could not satisfy the first Strickland prong. Id. at *83–*84. And, as to the

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evidence of Fogg‘s altercations with Cathell, the court concluded (1) the evidence would

have been admissible over an objection raised by Fogg under Delaware Rule of Evidence

404(b) and Getz v. State, 538 A.2d 726, 734 (Del. 1988), because it tended to show

motive or state of mind, and the acts were not prohibitively remote in time; and (2)

counsel had made a calculated decision not to request limiting instructions in order to

avoid underscoring the issue. Fogg, 2002 Del. Super. LEXIS 211 at *84–*89; see also

Werts, 228 F.3d at 203 (―counsel cannot be deemed ineffective for failing to raise a

meritless claim‖). The Delaware Supreme Court affirmed. Fogg, 817 A.2d at 804.

       The District Court correctly concluded the Delaware courts reasonably applied

Strickland in denying this portion of Fogg‘s ineffective assistance claim. 579 F. Supp. 2d

at 615. Therefore, Fogg cannot use this claim of constitutionally ineffective assistance of

counsel to establish ―cause‖ for his procedural default in state court. Because the fate of

Fogg‘s exhortation to consider his unexhausted Fourteenth Amendment claim is

contingent on his ability to establish cause for his procedural default, we will affirm the

District Court‘s dismissal of Fogg‘s due process claims on this ground.

                                             V.

       For the foregoing reasons, we will affirm the judgment of the District Court

denying Fogg‘s petition for habeas relief.




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