                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 10-4440
                                  _____________

                                 LEROY THOMAS
                                 a/k/a John Wayne

                                          v.

  *SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; DAVID
  DIGUGLIELMO, Superintendent of the State of Correctional Institute at Graterford;
 JOSEPH P. MAZURKIEWICZ, Superintendent of the State Correctional Institution at
         Rockview; THE DISTRICT ATTORNEY OF PHILADELPHIA

                                   Leroy Thomas,
                                        Appellant

                      *(Pursuant to Rule 43(c), Fed. R. App. P.)
                          __________________________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                           (D.C. Civil No.2- 07-cv-01067)
                     District Judge: Honorable J. Curtis Joyner
                          __________________________

                              Argued on June 21, 2012

           Before: AMBRO, VANASKIE and ALDISERT, Circuit Judges

                             (Filed: September 5, 2012)

Leigh M. Skipper, Esq.
Chief Federal Defender
James Moreno, Esq.
Victor J. Abreu, Esq.
David W. Wycoff, Esq. [ARGUED]
Assistant Federal Defenders
Federal Community Defender for the Eastern District of Pennsylvania
Suite 545 West – The Curtis Center
Philadelphia, PA 19106
       Counsel for Appellant

Anne Palmer, Esq. [Argued]
Assistant District Attorney
Thomas W. Dolgenos, Esq.
Chief, Federal Litigation
Ronald Eisenberg, Esq.
Deputy District Attorney, Law Division
Edward McCann, Esq.
First Assistant District Attorney
R. Seth Williams, Esq.
District Attorney
3 South Penn Square
Philadelphia, PA 19107-3499
       Counsel for the Appellees
                                   _____________

                                       OPINION
                                     _____________

VANASKIE, Circuit Judge.

       This is an appeal from the denial of a habeas corpus petition challenging the first-

degree murder conviction of Appellant Leroy Thomas, a/k/a ―John Wayne‖ (―Wayne‖).1

We granted Wayne a certificate of appealability with respect to whether trial counsel

rendered ineffective assistance by 1) failing to investigate and present the testimony of

known eyewitnesses, and 2) promising during opening argument at trial to present certain




       1
         We refer to the Appellant Leroy Thomas as ―Wayne‖ to be consistent with the
parties‘ briefs, Appellant‘s counsel‘s presentation of the case at oral argument, and to
avoid confusion with the victim and his brother, who are also named Thomas but are
unrelated to the Appellant.
                                             2
evidence but then failing to do so. For the reasons stated below, we will affirm the

District Court‘s denial of Wayne‘s habeas petition.2

                                            I.

       We write primarily for the parties, who are familiar with the factual context and

legal history of this case. While the procedural history underlying Wayne‘s appeal is

somewhat complex, we will set forth only those matters necessary to our analysis.

                                            A.

       During the night of June 28, 1994, Wilbert Thomas (―Wilbert‖) was fatally shot.

Earlier that day, Wayne, co-defendant Rohn Vidal, and an unidentified female had

allegedly abducted and threatened the victim‘s brother, Carlton Thomas (―Carlton‖), in

connection with money that was supposedly owed to the assailants‘ associate, Clinton

Fishley. All of the men had grown up together in Jamaica and were well-known to each

other. Carlton testified that the three abductors drew guns and demanded a ride in his car.

Carlton stated that Wayne‘s gun looked like a nine millimeter. The three abductors

searched Carlton‘s car and found about $300 before leaving him handcuffed to the

gearshift.

       Shortly before 11:00 p.m. that same evening, Wilbert was standing on the porch of

a Philadelphia row home with Carlton and another childhood friend, Courtney Ellison

(―Ellison‖). Carlton saw Wayne and Vidal pass by in a car driven by Fishley. Carlton

warned Wilbert and Ellison that he feared for his safety based on the incident that

       2
        The District Court had jurisdiction over Wayne‘s habeas petition pursuant to 28
U.S.C. §§ 2241(a) and 2254(a). We have appellate jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253.
                                             3
occurred earlier in the day, and then fled the area. Soon afterward, two gunmen stormed

the porch on which Wilbert was standing from different directions, each firing guns.

       Ellison managed to escape and was the only witness who testified to have seen the

shooting. Ellison identified Wayne and Vidal as the gunmen. He testified that Wayne

and Vidal arrived at the house at the same time. The two repeatedly fired three guns,

Wayne firing two and Vidal firing one, with Wayne reloading and continuing to fire after

reloading. As Wilbert attempted to enter the home, Wayne continued to shoot at him

from the sidewalk and ultimately shot Wilbert multiple times. Ballistics evidence

corroborated Ellison‘s eyewitness account of the paths taken by Wayne and Vidal as they

converged on the house. The medical examiner testified that Wilbert died of gunshot

wounds from three bullets. A Criminal Evidence Specialist and a Police Officer testified

that the cartridges and projectiles collected around the scene were nine millimeter, as

were the projectiles recovered from the victim‘s body. The cartridges were found on the

sidewalk and street; the projectiles were found on the porch.

       Wayne and Vidal were jointly tried in the Philadelphia Court of Common Pleas.

Wayne‘s counsel delivered a brief opening statement. Counsel informed the jury that the

defense would demonstrate that Wayne ―was not involved in [the homicide]‖ at all. (A.

51.) Defense counsel asserted that Wayne‘s innocence would be shown through Wayne‘s

own testimony and through some of the ―many, many people‖ who witnessed the

shooting. (A. 50.) Trial counsel did not follow through with either promise. The jury

deliberated over the course of two days and found Wayne guilty of first-degree murder of

Thomas, Vidal guilty of third-degree murder, and found both guilty of conspiracy and

                                             4
possessing an instrument of crime.3 Wayne received a sentence of life imprisonment.

The Pennsylvania Superior Court affirmed. Commonwealth v. Wayne, 723 A.2d 238 (Pa.

Super. Ct. 1998) (unpublished memorandum) (―Wayne-1‖).

                                             B.

       Wayne then sought relief under Pennsylvania‘s Post-Conviction Relief Act

(―PCRA‖). See 42 Pa. Con. Stat. § 9541 et seq. In an amended petition, he raised three

claims, including that trial counsel was ineffective for failing to present testimony from

Raygina Fearon (―Raygina‖), Diana Fearon and Dominique Long, who were known

eyewitnesses to the shooting.4 The centerpiece of Wayne‘s bid for post-conviction relief

was Raygina‘s alleged eyewitness account of the shooting and counsel‘s failure to pursue

this aspect of Wayne‘s defense. Wayne advanced this argument, in part, by referencing

counsel‘s opening statement at trial that he would present witnesses to attest to Wayne‘s

innocence.

       Attached as an exhibit to the PCRA petition was the statement Raygina gave to

police within hours of the shooting, which was provided to counsel before trial. Raygina

told police she lived at the address where the shooting occurred and that she was on the

porch along with Diana Fearon and Dominique Long when Wilbert was shot. Raygina


       3
          Wayne and Vidal were both acquitted of kidnapping, robbery, conspiracy, and
possessing an instrument of crime in connection with events that allegedly occurred
earlier that day with Carlton.
       4
         Wayne‘s other claims concerned the trial court‘s allowance of evidence of and
jury instructions on Wayne‘s effort to evade arrest, and the jury charge on conspiracy and
reasonable doubt.

                                             5
stated that she saw the shooter, whom she merely described as a ―[b]lack guy.‖ (A. 491.)

Raygina did not see anyone else shooting or possessing a gun.

       Also attached to the PCRA petition was a signed declaration, given under penalty

of perjury, that Raygina provided to PCRA counsel in 2001 – over six years after

Wilbert‘s murder.5 Raygina reiterated that she was taken to the police station a few hours

after the shooting and confirmed that she provided a statement to the police describing

her account of the crime. Raygina declared that, after giving her statement to the police,

she was not shown photographs, asked to view a lineup, questioned by the police again,

visited by a defense attorney, or called to testify about what she saw. Raygina also stated

that, after watching an episode of Crime Fighters, which featured a picture of Wayne as

being wanted for the murder that occurred on her porch, she realized that Wayne was not

the man whom she saw shoot the victim. Raygina also repeated that she only saw a

single shooter with one gun that night. 6

       The PCRA court dismissed the petition without holding a hearing, concluding that

none of Wayne‘s claims had merit. Wayne appealed to the Pennsylvania Superior Court,

where he expanded his three discrete claims into eight issues. Commonwealth v. Thomas,


       5
        Wayne erroneously refers to Raygina‘s written statement as an ―affidavit.‖
Although signed under penalty of perjury, the document was not notarized. Pennsylvania
law defines an ―[a]ffidavit‖ as a document ―sworn to or affirmed before an officer
authorized by the laws of th[e] Commonwealth to take acknowledgments of deeds, or
authorized to administer oaths.‖ See 1 Pa. Cons. Stat. § 1991.
       6
        Also attached to the PCRA petition were statements attributed to Diana Fearon
and Dominique Long. However, these statements were not considered as evidence
because Diana Fearon and Dominique Long did not sign the documents.

                                             6
839 A.2d 1164 (Pa. Super. Ct. 2003) (unpublished memorandum) (―Wayne-2‖). Among

the issues presented on appeal were whether the PCRA court had erred in failing to hold a

hearing on trial counsel‘s alleged failure to investigate the three eyewitnesses and

whether trial counsel rendered ineffective assistance by failing to furnish evidence of

Wayne‘s innocence, as he said he would do in his opening statement. The Superior Court

found that the claim based upon the failure to present promised evidence of innocence

had been waived because it had not been presented as a separate claim in the PCRA

petition. As to the ineffective assistance claim pertaining to the purported eyewitnesses,

the Superior Court remanded the matter for an evidentiary hearing.

       On remand, the PCRA court scheduled an evidentiary hearing for October 18,

2004. However, six days before the hearing, counsel for Wayne informed the PCRA

court that he had just learned that Raygina had died – although she had passed away over

a year earlier on March 2, 2003, while the previous PCRA appeal was pending in the

Superior Court. Counsel for Wayne asked the PCRA court to postpone the hearing and

allow the parties to provide briefs concerning the admissibility of Raygina‘s statement.

In his brief, Wayne argued that Raygina‘s statement should be admitted as substantive

evidence. On October 18, 2005, the PCRA court declined to admit Raygina‘s statement

as substantive evidence and dismissed the matter without holding a hearing.

       Wayne again appealed to the Pennsylvania Superior Court. Commonwealth v.

Thomas, 908 A.2d 351 (Pa. Super. Ct. 2006) (―Wayne-3‖). He raised four separate

issues. First, Wayne asserted that the PCRA court had erred in failing to conduct a

hearing on ineffective assistance of counsel with respect to the failure to investigate and

                                             7
present testimony from Raygina. Second, Wayne contended that the PCRA court had

erred in refusing to admit Raygina‘s declaration as substantive evidence. The third and

fourth issues concerned the PCRA court‘s failure to hold an evidentiary hearing. The

Superior Court rejected Wayne‘s arguments and affirmed. It held that Raygina‘s

statement was inadmissible hearsay under Pennsylvania evidentiary rules and its

admission was not required by due process. Id. at 355-56. The Superior Court also

deemed the other issues waived because Wayne did not properly present argument on

these discrete questions in accordance with Pennsylvania Rule of Appellate Procedure

2119(a). Id. at 353-54.

       Wayne then filed the habeas petition in the Eastern District of Pennsylvania,

raising, inter alia, the ineffective-assistance-of-counsel claims for failing to investigate

Raygina and not following through with promises made in the opening statement about

the testimony of Wayne and other witnesses. The District Court adopted the Magistrate

Judge‘s Report and Recommendation that the habeas petition be dismissed and a

certificate of appealability be denied. Wayne filed a notice of appeal.

       We granted a certificate of appealability with respect to Wayne‘s claims that trial

counsel rendered ineffective assistance by 1) failing to interview and present the

testimony of Raygina Fearon, Diana Fearon and Dominique Long, and 2) promising

during the opening statement to present certain evidence but then failing to do so.

                                              II.

       Before reaching the merits of Wayne‘s ineffective assistance argument, we must

address the threshold question of whether Wayne is procedurally barred from pursuing

                                              8
his claims by virtue of state court rulings predicated upon Wayne‘s failure to comply with

state court procedural requirements. A federal court may not grant 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). To do so, ―the petitioner must fairly present all

federal claims to the highest state court before bringing them in federal court.‖ Stevens v.

Del. Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002) (internal quotation marks and citation

omitted). Even when a petitioner asserts a claim in state court, however, a federal court

may not review it on the merits where a state court‘s denial of relief rests on a violation

of a state procedural rule, provided that the state rule ―is independent of the federal

question [presented] and adequate to support the judgment.‖ Nara v. Frank, 488 F.3d

187, 199 (3d Cir. 2007) (citations omitted). The requirements of ―independence‖ and

―adequacy‖ are distinct. See Johnson v. Pinchak, 392 F.3d 551, 557-59 (3d Cir. 2004).

State procedural grounds are not independent, and will not bar federal habeas relief, if the

state law ground is so ―interwoven with federal law‖ that it cannot be said to be

independent of the merits of a petitioner‘s federal claims. See Coleman v. Thompson,

501 U.S. 722, 739-40 (1991).

       A state rule is ―adequate‖ for procedural default purposes if it was ―firmly

established, readily ascertainable, and regularly followed at the time of the purported

default.‖ Szuchon v. Lehman, 273 F.3d 299, 327 (3d Cir. 2001) (citations omitted).

These requirements ensure that ―federal review is not barred unless a habeas petitioner

had fair notice of the need to follow the state procedural rule,‖ Bronshtein v. Horn, 404

F.3d 700, 707 (3d Cir. 2005), and that ―review is foreclosed by what may honestly be

                                              9
called ‗rules‘ . . . of general applicability[,] rather than by whim or prejudice against a

claim or claimant.‖ Id. at 708.

                                              A.

       Because it is evident that Wayne‘s failure to comply with state law procedural

requirements resulted in the Pennsylvania Superior Court deciding that Wayne had

waived his ineffective-assistance-of-counsel claims based upon an alleged failure to

investigate and an alleged failure to deliver promised testimony, we must determine

whether adjudication of those claims on the merits is now foreclosed in this federal

habeas corpus proceeding. Our consideration of this issue is plenary. See Levya v.

Williams, 504 F.3d 357, 363 (3d Cir. 2007) (citation omitted).

       In Wayne-2, the Pennsylvania Superior Court held that Wayne waived the claim

that trial counsel provided ineffective assistance by breaking his promise to provide

evidence of Wayne‘s innocence because Wayne had failed to argue the claim separately

in his first counseled PCRA petition. Instead, Wayne embedded this argument within the

larger ineffective assistance claim as it related to counsel‘s failure to interview known

eyewitnesses. Pennsylvania procedural rules make clear that arguments not explicitly

raised in the PCRA petition are waived. See Pa. R. Crim. P. 902(B) (―Each ground relied

upon in support of the relief requested shall be stated in the [PCRA] petition. Failure to

state such a ground in the [PCRA] petition shall preclude the defendant from raising that

ground in any proceeding for post-conviction collateral relief.‖); Pa. R. App. P. 302(a)

(―Issues not raised in the lower court are waived and cannot be raised for the first time on

appeal.‖). Accordingly, Pennsylvania courts routinely decline to consider on appeal an

                                              10
argument that was not explicitly raised in the PCRA petition. See, e.g., Commonwealth v.

Edmiston, 851 A.2d 883, 889 (Pa. 2004) (citations omitted) (stating that ―[c]laims not

raised in the PCRA court are waived and cannot be raised for the first time on appeal‖);

Commonwealth v. Bond, 819 A.2d 33, 39 (Pa. 2002) (citations omitted) (finding

appellant‘s claims were ―separately and independently waived because, as appellant

admit[ed], he failed to raise them in the PCRA court‖); Commonwealth v. Bracey, 795

A.2d 935, 940 n.4 (Pa. 2001) (citation omitted) (declining to consider on appeal an issue

that was not properly presented in the post-conviction petition). Relying on

Commonwealth v. Abu-Jamal, 720 A.2d 79, 114 (Pa. 1998), the Superior Court observed

in Wayne-2 that trial counsel‘s failure to present evidence promised in the opening

statement was mentioned in the PCRA petition ―only as a constituent element of a

broader claim concerning counsel‘s failure to investigate and present exculpatory

eyewitness testimony.‖ (A. 587.) Wayne‘s failure to raise and argue this issue discretely

before the PCRA court precluded him from raising it subsequently on appeal before the

Pennsylvania Superior Court. Consequently, the claim was dismissed on procedural

grounds and not considered on the merits.

       In the federal habeas proceeding, the District Court concluded that the Superior

Court‘s waiver ruling constituted an independent and adequate state ground for denying

habeas relief. We agree with the District Court‘s comprehensive analysis. Wayne‘s

ineffective assistance claim based on trial counsel‘s failure to present evidence that was

promised during opening statements is procedurally defaulted because Wayne did not

comply with the clear and unambiguous Pennsylvania rules that require each claim to be

                                            11
separately and explicitly asserted in the PCRA petition. See Pa. R. Crim. P. 902(B); Pa.

R. App. P. 302(a).

                                            B.

      For similar reasons, Wayne is also barred from raising the ineffective assistance

claim as it relates to the failure to investigate known eyewitnesses. The Pennsylvania

Superior Court in Wayne-2 remanded the matter for an evidentiary hearing predicated

entirely on the prospect of Raygina‘s potential testimony.7 Raygina‘s death nullified the

sole basis for granting the hearing. Accordingly, Wayne asked the PCRA court to

postpone the evidentiary hearing and then submitted a memorandum of law regarding the

admissibility of Raygina‘s statement as substantive evidence. The PCRA court

subsequently denied Wayne‘s request to admit Raygina‘s declaration as substantive

evidence and dismissed the petition without holding an evidentiary hearing. Wayne

appealed this decision to the Pennsylvania Superior Court (Wayne-3).



      7
         Wayne-2 did not remand for an evidentiary hearing to investigate the
representations made by Diana Fearon and Dominique Long because their statements
were explicitly excluded from consideration for failing to adhere to the PCRA affidavit
requirement. In an ineffective assistance claim for failing to interview a witness,
Pennsylvania requires a valid affidavit and ―will not grant relief based on an allegation
that a certain witness may have testified in the absence of an affidavit from that witness
to show that the witness would, in fact, testify.‖ Commonwealth v. Khalil, 806 A.2d 415,
422-23 (Pa. Super. Ct. 2002) (citation omitted). Pennsylvania‘s ―affidavit rule‖ was
firmly established in Khalil, which was issued on August 2, 2002. Id. Wayne filed his
appellate brief with the Pennsylvania Superior Court in Wayne-2 on April 7, 2003,
approximately eight months after the Khalil decision. Therefore, Wayne had proper
notice of Pennsylvania‘s ―affidavit rule.‖ Accordingly, Diane Fearon and Dominique
Long‘s statements were procedurally barred based on firmly established Pennsylvania
law.

                                            12
       In his submission to the Pennsylvania Superior Court in Wayne-3, Wayne‘s one

argument section was devoted entirely to the admissibility of Raygina‘s hearsay

statement. Wayne‘s other arguments – including the ineffective-assistance-of-counsel

claim for failure to investigate Raygina – were not properly ―followed by such discussion

and citation of authorities as are deemed pertinent.‖ Thomas, 908 A.2d at 353 (quoting

Pa. R. App. P. 2119(a)). Thus, Wayne did not set forth counsel‘s alleged ineffectiveness

as a stand-alone basis for relief. The Superior Court dismissed this ineffective assistance

claim because it did not comply with Rule 2119(a) of the Pennsylvania Rules of

Appellate Procedure. See Pa. R. App. P. 2119(a) (stating that ―[t]he argument shall be

divided into as many parts as there are questions to be argued; and shall have at the head

of each part—in distinctive type or in type distinctively displayed—the particular point

treated therein, followed by such discussion and citation of authorities as are deemed

pertinent‖); see also Berg v. Georgetown Builders, Inc., 822 A.2d 810, 815 (Pa. Super.

Ct. 2003) (citation omitted) (failing to comply with the mandate of Rule 2119(a) results

in a waiver of issues); Boutte v. Seitchik, 719 A.2d 319, 326 n.7 (Pa. Super. Ct. 1998)

(stating that improperly commingling a claim in an argument pertaining to an appellant‘s

other issues on appeal violates Rule 2119(a)); Estate of Lakatosh, 656 A.2d 1378, 1381

n.2 (Pa. Super. Ct. 1995) (finding the appellant‘s ―brief violate[d] Rule 2119(a) because it

[was] not divided into as many parts as there [were] questions to be argued, nor [was] the

particular point to be addressed set out at the head of each part in distinctive type or

distinctively displayed‖).



                                             13
       Wayne‘s ineffective-assistance-of-counsel claim as it relates to the failure to

investigate Raygina is barred from habeas review on adequate and independent state law

grounds because Wayne did not comply with Rule 2119(a) of the Pennsylvania Rules of

Appellate Procedure.

                                             C.

       Thus, both of Wayne‘s ineffective assistance claims were defaulted in successive

proceedings because Wayne did not comply with clearly established Pennsylvania

procedural rules. We may excuse Wayne‘s procedural defaults only upon a showing of

―cause and prejudice‖ or a ―fundamental miscarriage of justice.‖ Lines v. Larkins, 208

F.3d 153, 166 (3d Cir. 2000) (citation omitted). To establish cause and prejudice, Wayne

―must demonstrate some objective factor external to the defense that prevented

compliance with the state‘s procedural requirements.‖ Cristin v. Brennan, 281 F.3d 404,

412 (3d Cir. 2002) (citation omitted).

       Both of Wayne‘s claims were barred on procedural grounds because of his failure

to comply with Pennsylvania procedural requirements. Raygina‘s death did not, and

could not, cause Wayne to violate the applicable Pennsylvania rules of procedure. See

Murray v. Carrier, 477 U.S. 478, 488-90 (1986) (explaining that counsel‘s ignorance or

inadvertence is not ―cause‖ and the petitioner must bear the risk of attorney error).

       To establish a ―fundamental miscarriage of justice,‖ Wayne must show ―actual

innocence.‖ Cristin, 281 F.3d at 420 (citation omitted). A habeas petitioner must

persuade the court ―that, in light of the new evidence, no juror, acting reasonably, would

have voted to find him guilty beyond a reasonable doubt.‖ Id. (citation omitted); see also

                                             14
Sweger v. Chesney, 294 F.3d 506, 523 (3d Cir. 2002) (stating that ―[n]ew reliable

evidence is almost always required to establish actual innocence‖). New reliable

evidence could consist of ―exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence – that was not presented at trial.‖ Sweger, 294

F.3d at 523 (citations omitted). Raygina‘s hearsay declaration falls short of this standard

and Wayne cannot establish actual innocence based on the hearsay evidence of a

deceased witness alone.

                                             D.

       In the absence of Raygina‘s anticipated testimony, there was no direct evidentiary

support for the failure to investigate claim. Thus, we directed the parties to address the

question of whether the Pennsylvania Superior Court‘s ruling barring Raygina‘s

declaration constitutes an ―adequate and independent‖ state-law ground for denying the

claim. 8 We hold that the decision to deny admission of Raygina‘s hearsay declaration is

an ―adequate and independent‖ state-law ground for denying the claim and is not eligible




       8
         We also directed the parties to address whether Wayne ―failed,‖ by reason of
waiver or otherwise, to develop the factual basis for the failure to investigate claim in
state court, such that the District Court was precluded from holding an evidentiary
hearing on the issue. See 28 U.S.C. § 2254(e)(2). The decision to grant an evidentiary
hearing is left to the sound discretion of district courts. See Goldblum v. Klem, 510 F.3d
204, 220-221 (3d Cir. 2007) (citations omitted). Accordingly, district courts ―focus on
whether a new evidentiary hearing would be meaningful, in that a new hearing would
have the potential to advance the petitioner‘s claim.‖ Campbell v. Vaughn, 209 F.3d 280,
287 (3d Cir. 2000). A hearing on Wayne‘s claim would not be meaningful because there
is no direct evidence to advance his position in the absence of Raygina‘s testimony.
Therefore, the District Court acted well within its discretion when it denied Wayne‘s
request for a hearing.
                                             15
for federal habeas review because it does not rise to the level of constitutional error. See,

e.g., Bisaccia v. Att’y Gen. of N. J., 623 F.2d 307, 312 (3d Cir. 1980).

       Wayne also presented the denial of the hearsay declaration as a due process

violation based on Chambers v. Mississippi, 410 U.S. 284 (1973), and its statement that

―where constitutional rights directly affecting the ascertainment of guilt are implicated,

the hearsay rule may not be applied mechanistically to defeat the ends of justice.‖ Id. at

302. Chambers is readily distinguishable. Raygina‘s declaration was inadmissible based

on traditional concerns associated with hearsay evidence. Raygina‘s death made her

―unavailable‖ under Rule 804(a)(4) of the Pennsylvania Rules of Evidence, and her

statement did not bear ―adequate indicia of reliability, such as when the statement falls

within a firmly rooted hearsay exception or is supported by a particularized guarantee of

trustworthiness.‖ Thomas, 908 A.2d at 354 (internal quotation marks and citation

omitted). The Superior Court noted that ―if the Declaration was admitted as substantive

evidence, the Commonwealth would not have the opportunity to test [Raygina‘s]

eyewitness account of the incident and her identification of the man who murdered the

victim as not being [Wayne] on cross-examination.‖ Id. at 355. (citation omitted).

Moreover, even though the statement was signed subject to the penalty of perjury, it did

not qualify as an affidavit because Raygina ―did not swear her statements before an

officer authorized to administer oaths.‖ Id. at 354 (citations omitted). As the Superior

Court observed, ―the statement of a witness taken by the defense under circumstances

privy only to the defense does not establish the requisite trustworthiness that is necessary

for admissibility.‖ Id. (citation omitted). In sum, the Pennsylvania Superior Court‘s

                                             16
sound reasoning for denying the hearsay declaration is in no way contrary to or an

unreasonable application of Chambers.

                                           IV.

      For the foregoing reasons, we will affirm the District Court‘s decision to deny

Wayne‘s habeas petition.




                                           17
