                                        PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 12-9002
                   _____________

             DANIEL M. SARANCHAK,
                              Appellant
                        v.

 SECRETARY, PENNSYLVANIA DEPARTMENT OF
                  CORRECTIONS;
   DAVID DIGUGLIELMO, Superintendent of the
     State Correctional Institution of Graterford;
       FRANK TENNIS, Superintendent of the
     State Correctional Institution at Rockview;
   ATTORNEY GENERAL OF PENNSYLVANIA;
  SCHUYLKILL COUNTY DISTRICT ATTORNEY
                   _____________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
            District Court No. 1-05-cv-00317
    District Judge: The Honorable Sylvia H. Rambo

                 Argued July 16, 2015

Before: SMITH, VANASKIE, and ROTH, Circuit Judges
            (Opinion Filed: September 14, 2015)


Matthew C. Lawry
Stuart B. Lev               [ARGUED]
Shawn Nolan
Federal Community Defender Office for
 the Eastern District of Pennsylvania
Trial Unit
601 Walnut Street
The Curtis Center
Suite 540 West
Philadelphia, PA 19106

      Counsel for Appellant

James P. Barker
Jennifer A. Peterson       [ARGUED]
Office of Attorney General of Pennsylvania
Appeals & Legal Services
Strawberry Square
16th Floor
Harrisburg, PA 17120

      Counsel for Appellee




                              2
                      ________________

                          OPINION
                      ________________


SMITH, Circuit Judge.

        This is the second appeal from District Court action on
Daniel Saranchak’s petition for writ of habeas corpus
following his conviction on first degree murder charges of
killing both his grandmother, Stella Saranchok,1 and his
uncle, Edmund Saranchak. The first issue Saranchak raises in
this appeal is whether the District Court erred when it rejected
Saranchak’s claim that the degree-of-guilt phase of his trial in
the Court of Common Pleas of Schuylkill County,
Pennsylvania was suffused with prejudice from the
cumulative errors arising out of his counsel’s performance at
trial. Second, Saranchak appeals from the denial of his claim
that his attorney was constitutionally ineffective at the penalty
phase of his trial. For the reasons we explain below, we will
affirm the District Court’s denial of Saranchak’s claims
pertaining to trial counsel’s conduct at the degree-of-guilt
phase. We will reverse, however, the District Court’s
judgment as to penalty and vacate Saranchak’s sentence of
death. If the Commonwealth still seeks the death penalty for
Saranchak, the Commonwealth must conduct a new
sentencing hearing.


1
  As we noted in our first opinion, Saranchak’s grandmother
spelled her surname differently from her grandson.
                               3
                             I.

       Because this is the second time we have reviewed
Saranchak’s degree-of-guilt hearing, we will assume
familiarity with our opinion in Saranchak v. Beard
(Saranchak I), 616 F.3d 292 (3d Cir. 2010), and recount only
that factual and procedural background necessary to this
appeal. This case comes to us following Saranchak’s open
plea of guilty to murdering his grandmother and uncle, his
conviction on two counts of first-degree murder following a
nonjury degree-of-guilt hearing conducted pursuant to Pa. R.
Crim. P. 803(A), and a jury’s subsequent determination that
Saranchak should be sentenced to death for his crimes. The
Pennsylvania Supreme Court affirmed Saranchak’s
conviction and sentence on direct appeal. Saranchak then
sought state postconviction relief pursuant to the
Pennsylvania Post-Conviction Relief Act (“PCRA”), 42 Pa.
Cons. Stat. Ann. §§ 9541–9546, asserting that his attorney at
trial, Kent Watkins, had been constitutionally ineffective.
The PCRA court—the same judge who presided over both
phases of Saranchak’s trial—held an evidentiary hearing but
denied relief. Commonwealth v. Saranchak (Saranchak-
PCRA), No. 889, 889A-1993 (Pa. Ct. Com. Pl. July 8, 2003).
The Pennsylvania Supreme Court ultimately2 affirmed the
denial of Saranchak’s PCRA claims. Commonwealth v.
Saranchak (Saranchak-Pa.), 866 A.2d 292 (Pa. 2005).

2
  For reasons not relevant to this appeal, the Pennsylvania
Supreme Court initially vacated the denial of Saranchak’s
PCRA petition so that Saranchak could file an amended
petition. After the PCRA court denied the amended PCRA
petition, the Pennsylvania Supreme Court affirmed.
                             4
       Saranchak then petitioned for habeas corpus in the
District Court, again arguing that his trial counsel’s
ineffectiveness had deprived him of a fair trial. The District
Court granted habeas relief on the grounds that trial counsel
had unreasonably “fail[ed] to investigate, discover, and
present evidence to support a diminished capacity defense,”
and had unreasonably failed to litigate suppression issues
related to Saranchak’s confessions both to law enforcement
following his arrest as well as to a Schuylkill County
Children and Youth Services (“CYS”) caseworker.
Saranchak v. Beard, 538 F. Supp. 2d 847, 891 (M.D. Pa.
2008). The District Court left unresolved several alternative
grounds for relief, including counsel’s ineffectiveness during
the penalty phase of Saranchak’s trial. The Commonwealth
appealed, and we reversed the District Court’s judgment.
Saranchak I, 616 F.3d at 314. We also remanded the case for
consideration of Saranchak’s remaining claims.

       On remand, considering all of Saranchak’s remaining
arguments, the District Court denied relief. Pursuant to 28
U.S.C. § 2253(c)(2), Federal Rule of Appellate Procedure
22(b), and Third Circuit Local Appellate Rule 22.2, the
District Court granted a certificate of appealability (“COA”)
regarding “whether the court properly resolved the issues of
whether Saranchak was denied effective assistance of counsel
at his capital sentencing.” Saranchak v. Beard (Saranchak
II), Civil No. 1:05-CV-0317, 2012 WL 1414344, at *35
(M.D. Pa. Apr. 24, 2012).3 We also granted in part

3
  The District Court also granted a COA as to its resolution of
Saranchak’s claim regarding “whether the trial court failed to
instruct the jury on the mitigating circumstance of extreme
                              5
Saranchak’s motion to expand the COA to include “whether,
at the penalty phase, the trial court unconstitutionally
deprived [Saranchak] of the use of a mental health expert and
whether counsel was ineffective for failing to secure the
appointment of such an expert” under Ake v. Oklahoma, 470
U.S. 68 (1985), as well as “whether the cumulative
prejudicial effect of any errors in this case undermines
confidence in the outcome of the trial.” App. 53–54.

       Regarding the degree-of-guilt hearing, Saranchak
focuses on the cumulative impact of three alleged errors by
trial counsel.     According to Saranchak, these errors
collectively undermine the trial court’s finding of
premeditated intent in the commission of the murders. First,
Saranchak argues that his trial counsel failed to move to
suppress Saranchak’s confession to Pennsylvania State Police
officers made after his arrest. In that confession, Saranchak
admitted to killing his uncle. As we explained in Saranchak
I, testimony during Saranchak’s degree-of-guilt hearing
revealed that during his interrogation

      Saranchak [had] acted as if the officers
      questioning him were drill sergeants,
      responding to their questions with formal ‘Yes,
      Sir’ or ‘No, Sir’ answers. He soon admitted
      that he had been present at Stella’s house, but
      then rebuffed the officers’ follow-up questions

mental or emotional disturbance and counsel’s failure to
object.” Saranchak II, 2012 WL 1414344, at *35. In his
opening brief in this court, Saranchak abandoned this claim,
so we need not consider it further. Appellant’s Br., at 5 n.1.
                              6
      by explaining that he was part of a classified
      military mission. After further questioning, he
      characterized the scene at Stella’s house as ‘not
      a pretty sight.’ Saranchak eventually admitted
      to the state trooper interrogating him that he had
      shot Edmund.

Saranchak I, 616 F.3d at 298. But Saranchak did not confess
to killing his grandmother, instead “maintaining firmly that
such information was classified.” Id. We noted that “the
State Police probably did violate Saranchak’s Miranda rights”
when they continued to question Saranchak, despite his
“probably sufficient” invocation of his right to remain silent
through his “assertions that the information was classified.”
Id. at 306.

       But this was not Saranchak’s only confession.
Saranchak also separately described the killings, including his
motive, to Laurie Garber, a Children and Youth Services
caseworker with whom Saranchak met to discuss his three
children while he was awaiting trial. Garber testified that
Saranchak “admitted to killing his uncle” and that Saranchak
“had killed him because of years of being talked about and
greed.” App. 190. Indeed, Saranchak complained that his
uncle’s children had received an inheritance upon his
grandfather’s passing, yet Saranchak and his siblings
inherited nothing. Further, Saranchak told Garber that his
grandmother had been “very sick with cancer,” from which
Garber received the impression that Saranchak believed “he
was doing [his grandmother] a favor because she was so
sick.” App. 192. Garber also reported that Saranchak had
claimed he was not intoxicated on the night of the killings,
                              7
yet he had nevertheless “snapped.” App. 190. But Saranchak
denied robbing his uncle and his grandmother. Although
Saranchak had previously challenged the admission of this
confession to Garber as violating his Fifth Amendment rights,
we concluded that Saranchak’s responses to Garber’s
questions did not implicate his privilege against self-
incrimination because their conversation did not amount to an
interrogation. Saranchak I, 616 F.3d at 305.

        In his second claim of error, Saranchak contends that
trial counsel was ineffective in failing to seek suppression of
testimony from a cooperating witness, Roy Miles. Miles,
testifying pursuant to a plea agreement, was the only
eyewitness to the killings and testified in depth as to
Saranchak’s behavior that evening. According to Miles, he
and Saranchak were drinking at a bar on the night of the
murders when their conversation turned to where they might
get some money. Saranchak volunteered that he knew of a
source, but they “might have to shoot someone.” App. 162. 4


4
  Miles would later recant this statement, admitting that he
and Saranchak had never planned to steal any money from
Saranchak’s grandmother. During the PCRA hearing, Miles
claimed that he could not remember telling police that
Saranchak had stated they “may have to shoot somebody.”
App. 840. Nevertheless, according to Miles “they told [him]
that [he] had to testify against Mr. Saranchak at his trial” and
that “this is what [he] had to say when [he] was asked . . . this
question.” App. 840–41. Miles’s testimony was not clear as
to who instructed him to testify in this fashion. On cross
examination at the PCRA hearing, Miles suggested that the
                               8
Miles then accompanied Saranchak to Saranchak’s
stepfather’s home, where Saranchak met his girlfriend and
obtained a rifle. Miles and Saranchak then went to another
bar, where Saranchak commented that he “wanted to load the
trash up in the truck to do a crime” in Virginia and “[t]hat
way it [would] look[] like we were there for a purpose.” App.
163. Rather than driving to Virginia, however, Saranchak
took Miles to his grandmother’s home.

       Miles then testified that upon their arrival, Saranchak
declared that he was “going in to get some money off [his]
grandmother.” App. 164. Miles followed Saranchak into the
home, where they found Saranchak’s uncle asleep on the
couch. Without saying a word, Saranchak shot his sleeping
uncle in the head immediately upon entering. When a dog
entered the room, Saranchak reassured Miles that “[t]he dog
used to be [Saranchak’s] dog and he wasn’t going to bark.”
App. 164. Saranchak then ascended the stairs to his
grandmother’s bedroom and attempted to hand Miles the rifle.
Miles refused. After Saranchak’s grandmother called out to
her grandson, Saranchak shot her in the head as well.5 Miles

prosecutor as well as his own attorney gave him this
“impression.” App. 846.
5
   Law enforcement testified at trial that both Edmund
Saranchak and Stella Saranchok had been shot in “the center
of [the] forehead.” App. 124–25. But the autopsy revealed
that the bullet had entered Saranchak’s uncle “through the left
upper eyelid.” App. 1122. The police report of the initial
investigation also indicated that Saranchak’s grandmother’s
gunshot wound was located on the “right eyebrow.” App.
1119–20.
                              9
also claimed that Saranchak took his uncle’s wallet before
both he and Saranchak returned to a bar. See also Saranchak
I, 616 F.3d at 297–98 (discussing additional details regarding
the killings).

        During his testimony, Miles revealed that he was in
possession of a fair amount of money on the night of the
murders—at least “two fifties and some twenties.” App. 183.
In response to the Commonwealth’s questioning, Miles
testified that the money had been in his possession even
before he met Saranchak that night, and that it had not come
from Saranchak’s grandmother’s home. When Saranchak’s
trial counsel sought to inquire further as to the money’s
source on cross-examination, Miles invoked his Fifth
Amendment right against self-incrimination. Later, at the
PCRA hearing, Miles admitted that the money had come from
an unrelated robbery. Saranchak now argues that the
admission of Miles’s testimony without additional cross
examination violated Saranchak’s Sixth Amendment
Confrontation Clause right and that trial counsel should have
raised that argument. However, we denied Saranchak’s
motion to expand the COA to include this theory of
ineffectiveness.

       Saranchak’s third and final claim of error as to the
degree-of-guilt phase focuses on trial counsel’s failure to
investigate and introduce evidence of Saranchak’s mental
health and family history to rebut a finding of intent. This
evidence also forms the basis for Saranchak’s penalty phase
claims, given that it is relevant not only to Saranchak’s intent
but also to his character and personal circumstances. Thus,
Saranchak urges that the evidence could have been presented
                              10
in support of mitigation so that jurors might have chosen not
to sentence him to death.

        Saranchak’s trial counsel introduced no expert medical
testimony on Saranchak’s behalf during the degree-of-guilt
hearing. Instead, counsel called several of Saranchak’s
neighbors and other members of the community who had seen
Saranchak and Miles on the day of the murders in an attempt
to cast doubt on Miles’s testimony, as well as to establish that
Saranchak had been intoxicated that evening. Carol Frantz,
Saranchak’s girlfriend and the mother of two of his children,
also testified that Saranchak had been drunk when he
obtained the rifle from his stepfather’s home, and that she had
unsuccessfully tried to prevent him from leaving. But
Saranchak persisted, pushing his girlfriend out of the way and
claiming that he was “going spotting for a deer.” App. 210.
She also testified as to Saranchak’s often strange behavior
when he was under the influence of alcohol. According to
Frantz, Saranchak “thought he was a sergeant when he was
drunk” and would order her around. App. 213.

       During the penalty phase, the Commonwealth sought
to prove two aggravating factors under Pennsylvania law: (1)
that Saranchak had killed his grandmother and uncle during
the commission of a robbery and (2) that Saranchak had
committed another murder at the time of the first murder. 42
Pa. Cons. Stat. Ann. § 9711(d)(6), (11). To that end, the
Commonwealth called many of the same witnesses from the
degree-of-guilt hearing, including Roy Miles, who again
described the manner in which Saranchak committed the
murders. The trial court also permitted Miles to invoke his
Fifth Amendment privilege a second time regarding the
                              11
source of the money he had in his possession on the night of
the murders. Miles did testify again that the money came
from neither Saranchak nor the murder victims. Laurie
Garber, the CYS caseworker, took the stand once again and
repeated her testimony as to Saranchak’s second confession.

        Trial counsel’s case in support of mitigation was
perfunctory. Indeed, the transcript of the penalty phase
hearing encompassing the testimony of witnesses called in
support of mitigation comprised a mere 40 pages, inclusive of
the Commonwealth’s cross examination. Frantz, Saranchak’s
girlfriend, again testified on Saranchak’s behalf, recounting
much of the same testimony she gave during the degree-of-
guilt hearing. Her testimony repeated that when Saranchak
was drunk, “[h]e tries to be demanding,” “he thinks he’s a
sergeant,” and that he would tell her “that [she was] his
private and he [was] [her] sergeant and [she] [would] obey his
commands.” App. 367. Further, she testified that Saranchak
would not always remember these military episodes when he
became sober. Counsel also called others who had testified
during the degree-of-guilt phase and who had been with
Saranchak on the night of the crimes, again focusing on
Saranchak’s intoxication that evening. Law enforcement and
prison officials also described Saranchak as a cooperative
inmate without disciplinary infractions.

        Trial counsel also called Dr. Stefan Kruszewski, a
court-appointed psychiatrist. Kruszewski had met with
Saranchak only once, and only to evaluate Saranchak’s
“ability to assist in his defense, his competency to stand trial,
and whether statements given to the police were voluntary or
involuntary as the result of any psychiatric dysfunction.”
                               12
Saranchak I, 616 F.3d at 299. Although Kruszewski had not
yet been given the records that later were made available to
him for PCRA purposes, Kruszewski testified during the
penalty phase that he had evaluated Saranchak’s background
“[t]o the extent that [he] c[ould].” App. 389. But Kruszewski
could not say specifically how alcohol might have affected
Saranchak, on the night of the murders or in general.
Kruszewski did report, however, that Saranchak had “one
previous psychiatric hospitalization when [he] was 21 years
of age” due to “a significant suicide attempt.” App. 390.
Further, Kruszewski knew from Saranchak’s mother that
Saranchak was “impulsive and had kind of a hot temper.” Id.
Nevertheless, Kruszewski described Saranchak as “extremely
cooperative, polite[,] . . . very pleasant” and “very credible
and very candid” during their conversation. App. 391.
Significantly, on cross examination Kruszewski testified that
Saranchak had “no major psychiatric diagnosis or any mental
disability, . . . which would prevent him from comprehending
the ability to defend himself with the help of his counsel.”
App. 394–95.         After hearing this testimony, the jury
concluded that the Commonwealth had proved both
aggravating factors beyond a reasonable doubt. The jury
found no mitigating factors. With two aggravating factors
and no mitigating factors, death was mandatory. 42 Pa. Cons.
Stat. Ann. § 9711(c)(1)(iv).

       The PCRA hearing revealed what evidence could have
been introduced not only during the degree-of-guilt hearing
regarding Saranchak’s intent, but also during the penalty
phase to convince the jury to impose a sentence of life
imprisonment. Kruszewski testified and acknowledged that
he had possessed “almost none” of Saranchak’s background
                             13
information at the time of his first evaluation beyond police
reports regarding the murders, Saranchak’s confession to
police, as well as the criminal complaint. App. 792. Trial
counsel had neither obtained nor produced for Kruszewski’s
review any of Saranchak’s school records, medical records, or
psychiatric records.    Indeed, trial counsel never asked
Kruszewski to conduct an evaluation of Saranchak for the
purpose of mitigation. Nor had Kruszewski been informed
specifically of Saranchak’s military delusions, though he was
aware of Saranchak’s militaristic behavior during his
confession to police.

       Once Kruszewski was provided with the records of
Saranchak’s background, Kruszewski’s evaluation of
Saranchak changed dramatically. Kruszewski initially had
observed an overall “pleasant” person without any “major
psychiatric diagnos[es].” App. 391, 394. Now, he believed
that Saranchak suffered from a “Jekyll and Hyde type
syndrome” after consuming alcohol during which his pleasant
demeanor would worsen significantly causing him to
experience “specific delusions that are presumably a result of
the alcohol.” App. 802. Saranchak’s psychiatric records also
revealed a history of depression along with two
hospitalizations, one for a previously disclosed suicide
attempt and one for “a rehab experience.” App. 805. Further,
although Saranchak’s alcohol usage had been discussed at
trial, Kruszewski’s revised opinion at the PCRA hearing
indicated that Saranchak suffered from “a psychoactive . . .
alcohol induced delusional disorder and alcohol induced
depressive disorder when drinking” at the time of the killings.
App. 808.

                              14
       Dr. Harry Krop, a clinical psychologist, also testified
on Saranchak’s behalf during the PCRA hearing. His
testimony further demonstrated the extensive evidence of
mitigation that counsel could have introduced at trial,
particularly regarding what Krop described as Saranchak’s
“chronic psychiatric disturbance.” App. 666. Specifically,
from the records of Saranchak’s psychiatric hospitalizations
along with records indicating that he had suffered from
“atypical pervasive developmental disorder” as a child, Krop
diagnosed Saranchak with adult attention deficit disorder.
App. 640. Krop also concluded that Saranchak suffered from
chronic polysubstance abuse.         And Krop diagnosed
Saranchak with a “depressive disorder,” as well as a
“personality disorder . . . with paranoid and anti-social
features.” App. 640–41. According to Krop, Saranchak’s
personality disorder had been “pervasive” since Saranchak’s
childhood. Krop also confirmed Saranchak’s significant
psychological problems while drinking, during which
Saranchak’s “distrustful” and “suspicious” tendencies
manifested themselves into “a full blown paranoid disorder”
or “a delusional disorder.” App. 642–43. Like Kruszewski,
Krop also described a “Jekyll and Hyde personality.” App.
658. And Krop opined that Saranchak’s thought processes
were significantly impaired on the night of the murders
themselves based on the alcohol that he had consumed.
Combined with Saranchak’s psychological issues, Krop also
believed that at the time of the offense, Saranchak was
experiencing an extreme mental or emotional disturbance.

      Krop also gave detailed testimony as to what, in his
view, produced these psychological difficulties. Beginning
with Saranchak’s “highly dysfunctional” family history, Krop
                             15
observed that Saranchak’s biological father was an abusive
alcoholic who had previously been incarcerated and that his
mother had also been treated “for nerves and depression.”
App. 646, 651. According to Krop, that “abusive family”
history was “a significant contributor” that “basically
deformed Mr. Saranchak’s overall personality and coping
skills and problem solving skills.” App. 647. When
Saranchak began attending school, he was diagnosed with a
developmental disorder and attended special education
classes. As a result, Saranchak developed a “poor self-
concept” and a “lousy perception” of himself. App. 652.
Saranchak turned to alcohol and drugs in an attempt to self-
medicate his mounting depression. He became a heavy
drinker by the age of 14. But that substance abuse only set
off a “spiraling effect” of increasing depression. App. 650,
652. Alcohol and other drugs thus became significant,
unusually negative influences in Saranchak’s life. Even his
first criminal offense as a juvenile involved the theft of
alcohol.

       Eventually Saranchak unsuccessfully attempted to join
the military in an effort to turn his life around. In Krop’s
view, this failure resulted in an even more pronounced
downward spiral, contributing to Saranchak’s “fantasy world
about being in the military.” App. 654. Yet the only
psychological support Saranchak sought out or otherwise
received was in “crisis situations” in connection with his
suicidal tendencies. App. 656. None of this evidence was
introduced at trial, nor was a psychiatrist or other medical
professional retained specifically on Saranchak’s behalf to
probe these issues as they related to mitigation or Saranchak’s
intent when his crimes were committed.
                              16
       Saranchak appeals the District Court’s rejection of his
claim that trial counsel’s failure to procure this psychological
evidence, coupled with counsel’s failure to seek suppression
of both Miles’s testimony as well as Saranchak’s confession
to police, substantially impacted his degree of guilt and the
trial court’s conclusion that Saranchak had murdered his
grandmother and uncle with premeditated intent. Saranchak
further argues that his mental health background would also
have substantially affected the jury’s decision to sentence him
to death. The District Court had jurisdiction pursuant to 28
U.S.C. §§ 2241 and 2254. We have jurisdiction pursuant to
28 U.S.C. §§ 1291 and 2253.

                              II.

        The Sixth Amendment guarantees to every criminal
defendant “the Assistance of Counsel for his defence.” U.S.
Const. amend. VI. This right plays “a crucial role in the
adversarial system embodied in the Sixth Amendment, since
access to counsel’s skill and knowledge is necessary to accord
defendants the ‘ample opportunity to meet the case of the
prosecution’ to which they are entitled.” Strickland v.
Washington, 466 U.S. 668, 685 (1984) (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 275–76 (1942)).
Accordingly, defendants are entitled to not just the assistance
of counsel, but the effective assistance of counsel. The right
to effective counsel is necessary to protect the “fundamental
right to a fair trial” afforded to every person accused. Id. at
684.

      The test for determining whether a criminal defendant
has been denied that right is twofold. To establish that
                              17
counsel was constitutionally ineffective, “[a] petitioner must
show that counsel’s performance was deficient.” Wiggins v.
Smith, 539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S.
at 687). To meet this prong, Saranchak must demonstrate that
his trial counsel’s representation “fell below an objective
standard of reasonableness” as defined by “prevailing
professional norms.” Outten v. Kearney, 464 F.3d 401, 414
(3d Cir. 2006) (emphasis omitted) (quoting Strickland, 466
U.S. at 687–88). Further, counsel’s reasonableness is
assessed “on the facts of the particular case, viewed as of the
time of counsel’s conduct.” Id. (citing Strickland, 466 U.S. at
689).

       In addition to objectively unreasonable conduct, a
petitioner must also show that counsel’s deficiency
“prejudiced the defense.” Wiggins, 539 U.S. at 521 (citing
Strickland, 466 U.S. at 687). To meet this standard, “[t]he
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694. A defendant need not prove that the evidence would
have been insufficient if not for counsel’s errors. See
Breakiron v. Horn, 642 F.3d 126, 140 (3d Cir. 2011). Nor
need a defendant prove “that counsel’s deficient conduct
more likely than not altered the outcome.” Strickland, 466
U.S. at 693. But a defendant must demonstrate more than
“that the errors had some conceivable effect on the outcome
of the proceeding.” Id. Further, the prejudice inquiry focuses
on “the effect the same evidence would have had on an
unspecified, objective factfinder” rather than a particular
decisionmaker in the case. Saranchak I, 616 F.3d at 309.

                              18
        Because this case calls for the collateral review of two
decisions by Pennsylvania state courts denying Saranchak
postconviction relief, we must also consider for each claim
whether the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and
28 U.S.C. § 2254 require deference to the Pennsylvania
Supreme Court’s and the PCRA court’s determinations of
those claims. Section 2254 bars us from granting a writ of
habeas corpus on Saranchak’s behalf for any claim that was
“adjudicated on the merits in State court proceedings unless
the adjudication of the claim” meets either of two conditions.
28 U.S.C. § 2254(d). First, we may grant habeas relief if the
State court proceedings “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.” § 2254(d)(1). A
decision is contrary to clearly established Supreme Court
precedent “if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases” or “if
the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [the Supreme
Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405–
06 (2000).

       By contrast, a decision involves an unreasonable
application of clearly established law where a state prisoner
shows “that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103
                               19
(2011). Thus, a state court’s application must be “objectively
unreasonable, not merely wrong; even clear error will not
suffice.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(internal quotation marks omitted) (quoting Lockyer v.
Andrade, 538 U.S. 63, 75–76 (2003)). We accord no
deference to a state court’s resolution of a claim if that
resolution was contrary to or reflected an unreasonable
application of clearly established Supreme Court precedent,
and we review the underlying claim de novo. Breakiron, 642
F.3d at 138.

       Second, habeas relief is available to Saranchak if the
State court proceeding “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.” §
2254(d)(2). The State court’s factual findings are “presumed
to be correct,” and Saranchak bears “the burden of rebutting
the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). But “even if a state
court’s individual factual determinations are overturned, what
factual findings remain to support the state court decision
must still be weighed under the overarching standard of
section 2254(d)(2).” Lambert v. Blackwell, 387 F.3d 210,
235–36 (3d Cir. 2004).

                             III.

       Before applying these tenets to Saranchak’s
cumulative error claim, we must identify which errors
potentially prejudiced Saranchak. As noted above, Saranchak
argues that trial counsel was ineffective when he failed to
seek suppression of Roy Miles’s testimony. His theory is that
                             20
permitting Miles to testify despite his invocation of his Fifth
Amendment rights violated Saranchak’s Confrontation Clause
rights. See United States v. McGlory, 968 F.2d 309, 344 (3d
Cir. 1992) (“If a witness’ invocation of her rights under the
Fifth Amendment to the United States Constitution could
interfere with a defendant’s right to cross-examine, the
district court must ensure that the invocation did not
‘effectively . . . emasculate the right of cross-examination
itself.’” (quoting Delaware v. Fensterer, 474 U.S. 15, 20
(1985)). But we denied Saranchak’s motion to include this
claim in the COA.

       Saranchak acknowledges this denial, yet he urges us to
consider any prejudice stemming from the admission of
Miles’s testimony as part of his cumulative error claim.
Because we denied a COA on Saranchak’s Confrontation
Clause claim, we lack jurisdiction to now reach the merits of
that claim. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (certificate of appealability is a “jurisdictional
prerequisite” and “until a COA has been issued[,] federal
courts of appeals lack jurisdiction to rule on the merits of
appeals from habeas petitioners”).6 If the admission of

6
  We denied a COA on this claim “[f]or substantially the
reasons given by the District Court.” App. 54. According to
the District Court, the Pennsylvania Supreme Court’s
conclusion that Saranchak’s Sixth Amendment claim lacked
even “arguable merit” was both “consistent with federal law”
and a “reasonable determination of the relevant facts.”
Saranchak II, 2012 WL 1414344, at *11 (quoting Saranchak-
Pa., 866 A.2d at 303). The District Court also noted that
“[i]nasmuch as Miles’ testimony should not have been
                              21
Miles’s testimony did not violate Saranchak’s Confrontation
Clause rights, then the decision not to move to strike that
testimony could not have contributed to any cumulative
prejudice resulting from trial counsel’s errors related to the
degree-of-guilt phase. We therefore do not consider Miles’s
testimony as erroneously admitted for the purpose of
assessing Saranchak’s cumulative error claim.

       Our analysis of Saranchak’s cumulative error claim at
the degree-of-guilt hearing is thus limited to the admission of
his confession to police, combined with trial counsel’s failure
to introduce evidence of Saranchak’s mental health
background as it pertained to his intent. These claims of error
raise several issues regarding the deference owed to the
Pennsylvania state courts under AEDPA.              Despite its
relatively sparse discussion of Saranchak’s cumulative error
claim, the Pennsylvania Supreme Court rejected that claim on
the merits. See Priester v. Vaughn, 382 F.3d 394, 398 (3d
Cir. 2004) (“[T]he deferential standard of AEDPA applies
even if the state court does not cite to any federal law as long
as the state court decision is consistent with federal law.”).
Specifically, the Pennsylvania Supreme Court held that
Saranchak’s cumulative error claim failed because none of
Saranchak’s individual claims had merit. Saranchak-Pa., 866
A.2d at 307.7


stricken, counsel cannot be faulted for his failure to move to
strike it.” Id.
7
    In doing so, the court cited its prior decision in
Commonwealth v. Rollins, 738 A.2d 435 (Pa. 1999). Rollins
held that “it is axiomatic that ‘no quantity of meritless issues
                              22
       As to those individual claims, the Pennsylvania
Supreme Court resolved Saranchak’s appeal regarding his
attorney’s failure to suppress his confession due to a failure to
meet both Strickland prongs. First, the court held that
counsel’s strategy did not prejudice Saranchak because of the


can aggregate to form a denial of due process.’” Id. at 452
(quoting Commonwealth v. Travaglia, 661 A.2d 352, 367
(1995)). This conflicts with our previous recognition that “a
cumulative-error analysis merely aggregates all the errors that
individually have been found to be harmless, and therefore
not reversible” to determine whether together “they had a
substantial and injurious effect or influence in determining
the jury’s verdict.” Albrecht v. Horn, 485 F.3d 103, 139 (3d
Cir. 2007); see also Collins v. Sec’y of Pa. Dep’t of Corrs.,
742 F.3d 528, 542 (3d Cir. 2014) (“The cumulative error
doctrine allows a petitioner to present a standalone claim
asserting the cumulative effect of errors at trial that so
undermined the verdict as to constitute a denial of his
constitutional right to due process.”). There is some debate,
however, as to whether cumulative error claims constitute
clearly established federal law as determined by the Supreme
Court for the purposes of deference under AEDPA. See, e.g.,
Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005) (arguing
post-AEDPA that “no Supreme Court precedent obligat[es]
the state court to consider the alleged trial errors
cumulatively”). We need not resolve this question because,
even assuming that cumulative error claims are clearly
established under Supreme Court case law, Saranchak’s
cumulative error claim fails to survive even de novo review.

                               23
“overwhelming evidence of [Saranchak’s] guilt.” Id. at 301.
Second, the Pennsylvania Supreme Court agreed with the
PCRA court’s finding that Saranchak had “specifically
directed [trial counsel] not to pursue the suppression issue.”
Id. at 302 n.12. For that reason, “counsel had a reasonable
basis in following his client’s instructions” and thus the
failure to seek suppression did not constitute deficient
conduct. Id.8

        We previously agreed with the court’s assessment of
prejudice as to Saranchak’s first confession. Although
Saranchak’s confession to police supported the
Commonwealth’s theory that the killing of his uncle was
premeditated and deliberate, the other evidence in the case
demonstrated that trial counsel’s failure to seek suppression
of this confession did not create a reasonable probability that
an objective factfinder would have come to a different
conclusion. Saranchak I, 616 F.3d at 307. The evidence
unaffected by Saranchak’s first confession included Miles’s
testimony regarding the manner in which the crimes were
committed, “the physical evidence, including the nature of the
wounds and the fact that the shell casing was found under
Edmund’s body,” as well as Garber’s properly admitted
testimony concerning Saranchak’s second confession. Id.


8
  The Pennsylvania Supreme Court’s conclusion that counsel
did not act unreasonably in following his client’s instructions
arguably requires deference under AEDPA. But we need not
consider the reasonableness of counsel’s conduct regarding
Saranchak’s cumulative error claim because he fails to
demonstrate cumulative prejudice even under de novo review.
                              24
        That body of evidence also undercut any conceivable
impact of Saranchak’s mental health history at the degree-of-
guilt hearing. We previously noted that the Pennsylvania
Supreme Court had erroneously applied “a subjective review
of the evidence introduced at the PCRA hearing and analyzed
the effect it would have had on the judge presiding, and
acting as factfinder, at the degree of guilt hearing.” Id. at 309
(emphasis added). Reviewing that evidence de novo, we
nevertheless concluded that “[t]he Commonwealth presented
overwhelming evidence of Saranchak’s specific intent to
murder Edmund and Stella at the degree of guilt hearing.” Id.
But our consideration of Saranchak’s mental health was
limited to whether there was a reasonable probability
Saranchak would have been able to make out a defense of
diminished capacity under Pennsylvania law.               Krop’s
extensive testimony, as well as most of Kruszewski’s
testimony as to Saranchak’s general mental health, were
irrelevant to that defense. See id. at 313 (noting that evidence
of Saranchak’s “auditory hallucinations, schizoaffective
disorder, delusion, pathological paranoia, and a tenuous
ability to apprehend reality” was irrelevant to a diminished
capacity defense (citing Commonwealth v. Kuzmanko, 709
A.2d 392 (Pa. Super. Ct. 1998))).

       Thus, we have not previously considered trial
counsel’s failure to present evidence of Saranchak’s mental
health history in conjunction with the potentially erroneous
admission of Saranchak’s confession to police as they relate
to Saranchak’s intent. Nor did we consider what impact the
evidence of Saranchak’s psychological problems would have
had on a finding of premeditated intent, as opposed to
diminished capacity. Although the Pennsylvania Supreme
                               25
Court and the PCRA court rendered opinions as to both the
availability of a cumulative error claim as well as the merits
of the individual errors comprising Saranchak’s claim, we
need not resolve whether deference is owed to any state court
on the impact of trial counsel’s alleged errors during the
degree-of-guilt phase. Even assessing those errors de novo,
we conclude that Saranchak has not established prejudice.

        As we did in Saranchak I, we “must consider the
strength of the evidence in deciding whether the Strickland
prejudice prong has been satisfied.” 616 F.3d at 311 (quoting
Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999)). The
untainted evidence of Saranchak’s intent was extensive. See
id. (listing evidence supporting Saranchak’s intentional
killing of his grandmother and uncle). Miles’s testimony at
trial indicated that Saranchak had concocted a plot to rob his
grandmother, all the while acknowledging that someone
might be shot in the process. Saranchak then acquired the
murder weapon from his stepfather’s home, falsely informing
his family that he was merely going hunting. Saranchak then
shot both his grandmother and his uncle in the head. Even
excluding Saranchak’s confession to the police concerning his
uncle’s murder, Saranchak separately confessed in even
greater detail to Laurie Garber. That confession not only
admitted his role in the deaths of Saranchak’s grandmother
and uncle, it included an expression of motive for both
killings. Whether the factfinder was aware that Saranchak
had confessed twice or only once, Saranchak’s more detailed
confession to Garber in her CYS capacity would have had a
similarly powerful impact.

      Further, although the expert medical testimony at the
                             26
PCRA hearing regarding Saranchak’s mental health history
was relevant to whether Saranchak actually had formed the
premeditated intent to murder his grandmother and uncle, that
historical evidence was far outweighed by the evidence of
Saranchak’s state of mind on the night of the crimes. Indeed,
as we explained in Saranchak I, “the verdict from the degree
of guilt hearing had ‘overwhelming record support.’” Id.
(quoting Strickland, 466 U.S. at 696). Our assessment of the
evidence presented to the trial court has not changed. Even
reconsidering the impact of trial counsel’s errors in the
aggregate, those errors did not contribute to a reasonable
probability of a different outcome given the strength of the
Commonwealth’s case. Accordingly, we will affirm the
District Court’s denial of Saranchak’s cumulative error claim.

                             IV.

       We next consider Saranchak’s penalty phase claims.
Before addressing the merits, however, we consider whether
those claims are moot. On February 13, 2015, recently-
inaugurated Pennsylvania Governor Tom Wolf declared a
moratorium on the death penalty in Pennsylvania. Although
neither party here contests justiciability, “[w]e have an
independent obligation at the threshold to examine whether
we have appellate jurisdiction.” Rendell v. Rumsfeld, 484
F.3d 236, 240 (3d Cir. 2007).

       The question we address is whether “changes in
circumstances that prevailed at the beginning of the litigation
have forestalled any occasion for meaningful relief.” Id.
(quoting In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003)).
The Governor’s moratorium did not abolish the death penalty
                              27
in Pennsylvania. Further, one of the parties in this case, the
Attorney General of Pennsylvania, is seeking to have
Pennsylvania’s courts lift the moratorium as an
unconstitutional exercise of the Governor’s authority under
Pennsylvania law. So not only does an Article III case or
controversy remain, the parties have demonstrated “sufficient
functional adversity to sharpen the issues for judicial
resolution.” In re Surrick, 338 F.3d at 229-30 (quoting Int’l
Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 915 (3d Cir.
1987)). Under these circumstances, the moratorium does not
affect our jurisdiction. Saranchak’s penalty phase claims are
not moot.

                              A.

        At the penalty phase, we first confront whether the
decision of Saranchak’s trial counsel not to pursue further his
client’s mental health and behavioral history was reasonable
under Strickland’s first prong.9 The Pennsylvania Supreme

9
  Saranchak claims that his trial counsel was constitutionally
ineffective both because he did not investigate mitigating
circumstances and because he failed to secure an expert to
opine on Saranchak’s mental health pursuant to Ake v.
Oklahoma, 470 U.S. 68 (1985). In this case, we consider trial
counsel’s failure to retain a mental health expert to be one of
many potential investigative steps subsumed within
Saranchak’s general failure to investigate claim. Indeed, the
Pennsylvania Supreme Court also considered Saranchak’s
Ake claim to be “merely a restatement of [Saranchak’s] initial
contention of ineffectiveness of trial counsel for failing to
obtain prior school, mental health and hospital records.”
                              28
Court, in disagreement with the PCRA court, concluded that
trial counsel ended his investigation at a reasonable point.
Specifically, the Pennsylvania Supreme Court placed the
blame for trial counsel’s failure to obtain evidence of
Saranchak’s background on Saranchak, his girlfriend, and his
mother. Those three individuals “failed to provide” trial
counsel with information regarding Saranchak’s background,
which the Pennsylvania Supreme Court characterized as “a
specific requirement of Strickland.” Saranchak-Pa., 866
A.2d. at 304 n.14. For that reason, in the Pennsylvania
Supreme Court’s view, “at the time of the penalty hearing,
counsel was not privy to [Saranchak’s] background
information.”    Id. (emphasis omitted).       Thus, because
“counsel’s strategic decision [not to investigate further] was
premised upon all of the information he had available to
him,” the court concluded that trial counsel’s behavior was
reasonable. Id. at 304.10


Saranchak-Pa., 866 A.2d at 305. Therefore, our resolution of
Saranchak’s claim regarding trial counsel’s failure to
investigate includes Saranchak’s claim under Ake.
10
   The Pennsylvania Supreme Court declined separately to
analyze Saranchak’s Ake claim, instead holding that it failed
“because, for all the reasons set forth supra, even assuming
arguendo the records would have been obtained and an
independent psychiatrist retained, the end result of this case
would have been no different.” Saranchak-Pa., 866 A.2d at
305. Although this statement is couched in terms of
prejudice, the Pennsylvania Supreme Court’s resolution of
Saranchak’s penalty phase claims turned on the purported
reasonableness of counsel’s investigation, not prejudice.
                             29
       Given this resolution on the merits as to whether
counsel’s conduct was constitutionally sufficient, we apply a
“doubly deferential standard,” both as to whether counsel’s
conduct was reasonable as well as to the Pennsylvania
Supreme Court’s treatment of the issue. Breakiron, 642 F.3d
at 141–42 (citing Harrington, 562 U.S. at 105). Nevertheless,
the Pennsylvania Supreme Court’s conclusion rests on the
premise that counsel was unaware from sources beyond
Saranchak and his family that further investigation was
required. The evidence before the Pennsylvania Supreme
Court clearly and convincingly demonstrates that this premise
was false. Far from lacking any information regarding
Saranchak’s background and the need for further
investigation, trial counsel admitted during the PCRA hearing
that his theory of defense focused on “the mental health
issue” regarding Saranchak. App. 698. Trial counsel was
also aware from multiple sources that Saranchak had
demonstrated psychological issues, “at times” adopting “a
character or mode” that Saranchak was in the military, which
struck counsel as “odd.” App. 700. Trial counsel’s testimony
at the PCRA hearing was not specific concerning the source
from whom he learned about Saranchak’s militaristic
behavior. But the record demonstrates that he would have
learned of that behavior at least from the police report
regarding Saranchak’s first confession as well as from


Accordingly, like Saranchak’s general penalty phase failure
to investigate claim, we do not believe the Pennsylvania
Supreme Court reached prejudice as to Saranchak’s penalty
phase Ake claim. Nevertheless, as discussed infra, the PCRA
court reached prejudice pursuant to Ake.
                             30
Saranchak’s girlfriend. Further, counsel testified that he “had
asked some of the people when [he] was interviewing them
around this time” about Saranchak’s military delusions. Id.
Thus, according to counsel, he sought a medical professional
to evaluate whether Saranchak had “any psychiatric
problems,” including schizophrenia and paranoia, or “whether
there was anything abnormal,” as well as whether Saranchak
was “understanding, whether he was competent to stand trial,
competent to testify, [and] competent to help [counsel].”
App. 700–01.

       Despite this testimony, counsel did not obtain a full
psychiatric evaluation for that purpose. Indeed, trial counsel
never retained a defense expert on Saranchak’s behalf,
notwithstanding his belief that Saranchak’s mental health was
important to his case. Instead, counsel relied on Kruszewski,
a neutral expert appointed to evaluate Saranchak’s
competency to stand trial, for Saranchak’s only pretrial
mental health evaluation. Yet Kruszewski had not been
appointed to evaluate Saranchak’s background, history, or
general mental health as those factors might have pertained to
mitigation, nor had counsel asked Kruszewski to conduct
such an evaluation. Trial counsel had never even provided
Kruszewski with Saranchak’s medical records or mental
health background, information that Kruszewski opined
would have been necessary to conduct a more general clinical
evaluation beyond Saranchak’s competency.            Although
counsel explained at the PCRA hearing that Kruszewski’s
“glowing” opinion of Saranchak persuaded him not to pursue
Saranchak’s mental health further, App. 703, it was not
strategically reasonable for counsel to cite Kruszewski’s
opinion of Saranchak’s competency as a basis for ruling out
                              31
further investigation of Saranchak’s mental health as it related
to mitigation.

       Indeed, despite Kruszewski’s initially positive
impression of Saranchak, the report Kruszewski gave to trial
counsel revealed significant red flags—red flags which
suggested that further investigation was warranted. That
report showed that “Saranchak stated that he was previously
treated at the Pottsville Hospital and Warne Clinic” and that
“he was treated for one month under the care of Dr. Richard
Wagner.” Saranchak v. Beard, No. 05-cv-00317, Appendix
by Daniel Saranchak, Ex. 1, at 6 (M.D. Pa. June 22, 2005)
(Docket No. 9) (hereinafter “Kruszewski Rep.”). Saranchak
had also previously ingested “250 pills” in response to his
wife’s affair, although Saranchak “did not admit to a previous
suicide attempt.” Id. at 5, 8. Kruszewski concluded from his
meeting with Saranchak that he was competent to stand trial,
but noted that Saranchak appeared to suffer from a
“[p]ersonality disorder, . . . with anti-social traits.” Id. at 9.
Given that all of this information was available to trial
counsel at the time he chose to end his investigation, the
Pennsylvania Supreme Court’s finding that trial counsel was
“not privy to” enough background information, Saranchak-
Pa., 866 A.2d. at 304 n.14, was incorrect by “clear and
convincing evidence,” § 2254(e)(1), and reflects “an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,”
§ 2254(d)(2).

       Further, the Pennsylvania Supreme Court’s analysis
was an objectively unreasonable application of Strickland’s
requirements pursuant to § 2254(d)(1).        Nowhere in
                               32
Strickland or in any other case has the Supreme Court stated
that trial counsel need pursue mitigation evidence related to a
defendant’s mental health only if a defendant or his family
specifically informs counsel of the defendant’s background,
despite trial counsel’s existing knowledge that his client’s
mental health was a significant issue. To the contrary,
Strickland states that “a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.” Strickland, 466 U.S. at 691 (emphasis
added). Thus, “strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations
on investigation.” Id. at 690–91. We acknowledge that
“inquiry into counsel’s conversations with the defendant may
be critical to a proper assessment of counsel’s investigation
decisions,” and in certain cases may be determinative. Id. at
691. But a defendant’s failure personally to inform his
counsel of possible avenues of investigation does not absolve
his attorney from pursuing those avenues, particularly where
counsel is already aware of facts demonstrating that such an
investigation may be fruitful.

        Indeed, the Supreme Court’s decision in Wiggins v.
Smith, 539 U.S. 510 (2003), is instructive, and was available
to the Pennsylvania Supreme Court at the time of its decision.
Like Saranchak’s claim of error here, Wiggins involved an
ineffectiveness claim “stem[ming] from counsel’s decision to
limit the scope of their investigation into potential mitigation
evidence.” Id. at 521. Counsel in Wiggins had obtained some
information of the defendant’s troubled past through a
presentence investigation report, certain social service
                              33
records, and a number of tests conducted by a psychologist.
Id. at 523–24. Yet “counsel abandoned their investigation of
petitioner’s background after having acquired only
rudimentary knowledge of his history from a narrow set of
sources,” id. at 524, and despite having uncovered “no
evidence in their investigation to suggest that a mitigation
case, in its own right, would have been counterproductive, or
that further investigation would have been fruitless,” id. at
525. By failing to consider “not only the quantum of
evidence already known to counsel, but also whether the
known evidence would lead a reasonable attorney to
investigate further,” the conclusion of the Maryland Court of
Appeals that counsel’s investigation was strategically
permissible was thus an objectively unreasonable application
of Supreme Court precedent. Id. at 527–28.

       So too here. Both we and the Supreme Court have
often considered the American Bar Association’s (“ABA”)
guidelines regarding the conduct of capital counsel to assess
counsel’s performance. See, e.g., Rompilla v. Beard, 545
U.S. 374, 387 (2005); Wiggins, 539 U.S. at 524 (noting that
the Supreme Court “long ha[s] referred” to “the standards for
capital defense work articulated by the [ABA] . . . as ‘guides
to determining what is reasonable’” (quoting Strickland, 466
U.S. at 688)); Williams, 529 U.S. at 396; Blystone v. Horn,
664 F.3d 397, 419–20 (3d Cir. 2011); Bond v. Beard, 539
F.3d 256, 288 (3d Cir. 2008); Outten, 464 F.3d at 417; see
also Strickland, 466 U.S. at 688 (noting that “[p]revailing
norms of practice as reflected in American Bar Association
standards and the like are guides to determining what is
reasonable, but they are only guides” (citation omitted)).
Those guidelines provide that investigations into mitigating
                             34
evidence “should comprise efforts to discover all reasonably
available mitigating evidence and evidence to rebut any
aggravating evidence that may be introduced by the
prosecutor.” Wiggins, 539 U.S. at 524 (quoting ABA
Guidelines for the Appointment and Performance of Counsel
in Death Penalty Cases (“ABA Guidelines”) 11.4.1(C), at 93
(1989)).11 Further, “[t]he investigation for preparation of the
sentencing phase should be conducted regardless of any
initial assertion by the client that mitigation is not to be
offered.” ABA Guidelines 11.4.1(C). As the commentary to
the ABA Guidelines explains, “[c]ounsel’s duty to investigate
is not negated by the expressed desires of a client.” ABA
Guidelines 11.4.1, commentary. That investigation should
include a defendant’s medical history, educational history,
military history, family and social history, and prior adult and
juvenile record. Id. 11.4.1(D)(2)(C). Defense counsel should
also retain an expert “where it is necessary or appropriate for .
. . presentation of mitigation.” Id. 11.4.1(D)(7)(D); see also
Holland v. Horn, 519 F.3d 107, 113 (3d Cir. 2008) (“[U]nder
Ake, ‘when a capital defendant demonstrates that his mental
condition is a significant factor at his sentencing phase, he is
entitled to the assistance of a psychiatrist . . . .” (second
alteration in original) (quoting United States v. Roman, 121
F.3d 136, 144 (3d Cir. 1997))).

       Counsel’s investigation here fell woefully short, under
standards expressed both in clear Supreme Court precedent

11
   The ABA updated its guidelines for defense counsel in
capital cases in 2003. But because trial counsel’s conduct
occurred in 1994, we look to the guidelines promulgated in
1989.
                               35
and as set forth by the ABA’s professional guidelines.
Further, given counsel’s failure to investigate despite his
awareness of the significance to the defense of Saranchak’s
mental health, we are convinced that “there is no possibility
fairminded jurists could disagree” that counsel’s conduct was
unreasonable. Harrington, 562 U.S. at 102. Even assuming
the Pennsylvania Supreme Court was correct that counsel
learned nothing from Saranchak, his girlfriend,12 or his
mother regarding Saranchak’s mental health, his abusive
upbringing, or his dysfunctional family, counsel nevertheless
learned from Kruszewski about Saranchak’s previous
psychiatric hospitalization as well as his suicide attempt and
depression. Counsel himself also acknowledged that he
believed Saranchak’s mental health was a major issue in the
case. And counsel was aware of Saranchak’s militaristic
posture during his confession. Yet counsel did not retain an
expert on Saranchak’s behalf or seek further medical
evaluation. Instead, counsel was content with the court-
appointed expert’s investigation of only Saranchak’s
competency to stand trial. Counsel did not even obtain the
records regarding the psychiatric hospitalization that was
reflected in Kruszewski’s report, much less Saranchak’s
school records or other hospitalization records. Even the
Commonwealth conceded in its brief and at oral argument
that trial counsel’s investigation was inadequate.

12
    Saranchak’s girlfriend stated repeatedly at trial that
Saranchak believed he was a military sergeant when he was
drinking. That unusual behavior should have given trial
counsel some indication that further psychological inquiry
was called for.
                             36
Accordingly, we conclude that trial counsel’s performance at
the penalty phase was unreasonably deficient, and the
Pennsylvania Supreme Court’s conclusion to the contrary was
objectively unreasonable.

                             B.

       We turn then to whether counsel’s failure to
investigate and present Saranchak’s mental health history
prejudiced Saranchak. As noted above, the Commonwealth
had proven beyond a reasonable doubt that Saranchak had
committed the murders in the course of a robbery and that his
crime involved the murder of two people, both aggravating
circumstances under Pennsylvania law. 42 Pa. Cons. Stat.
Ann. § 9711(d)(6), (11). A sentence of death is mandatory “if
the jury unanimously finds at least one aggravating
circumstance specified in subsection (d) and no mitigating
circumstances or if the jury unanimously finds one or more
aggravating circumstances which outweigh any mitigating
circumstances.” § 9711(c)(1)(iv). The Commonwealth must
prove aggravating circumstances beyond a reasonable doubt,
but a defendant need prove mitigating circumstances by only
a preponderance. § 9711(c)(1)(iii). Death sentences in
Pennsylvania must be unanimous. That means that Saranchak
would have been sentenced to life imprisonment—not
death—if even one juror had found that the aggravating
circumstances did not outweigh any mitigating circumstances.
§ 9711(c)(1)(iv); see also Jermyn v. Horn, 266 F.3d 257, 309
(3d Cir. 2001) (prejudice can be shown if there is a
reasonable probability that one juror would not have
sentenced defendant to death). Here, Saranchak sought to
prove that his capacity “to appreciate the criminality of his
                             37
conduct or to conform his conduct to the requirements of law
was substantially impaired.”        § 9711(e)(3).   Further,
Saranchak sought to prove the “catchall” mitigating
circumstances for “[a]ny other evidence of mitigation
concerning the character and record of the defendant and the
circumstances of his offense.” § 9711(e)(8).

        The Pennsylvania Supreme Court did not reach
Strickland’s prejudice prong as to Saranchak’s penalty phase
claims. But the PCRA court held that Saranchak suffered no
prejudice at the penalty phase stemming from trial counsel’s
failure to introduce the evidence of Saranchak’s mental health
revealed post-trial. Saranchak-PCRA, No. 889, 889A-1993,
at 17–18.13 “The lack of an express ruling from the
Pennsylvania Supreme Court on the question of prejudice
does not negate the PCRA court’s decision that [Saranchak]
was not prejudiced.” Collins, 742 F.3d at 546. Thus, we
must view the PCRA court’s conclusion on that prong
through AEDPA’s lens. Id.

       For Saranchak’s penalty phase claim, the PCRA court
correctly described the standard for prejudice under

13
   The PCRA court also concluded that Saranchak had failed
to establish prejudice as to his Ake claim based on the PCRA
court’s “resolution of the previous allegations of
ineffectiveness related to the presentation of the diminished
capacity defense and mitigation evidence.” Saranchak-
PCRA, No. 889, 889A-1993, at 17. Our analysis of the
prejudice Saranchak suffered at the penalty phase of his trial
from counsel’s failure to investigate mitigating circumstances
thus includes prejudice stemming from his claim under Ake.
                             38
Strickland as requiring Saranchak to show “the reasonable
probability that, absent trial counsel’s failure to present
mitigating evidence, he would have been able to prove at least
one mitigating circumstance by a preponderance of the
evidence and that at least one jury member would have
concluded that the mitigating circumstance(s) outweighed the
aggravating circumstance(s).” Saranchak-PCRA, No. 889,
889A-1993, at 16 (quoting Commonwealth v. Ford, 809 A.2d
325, 332 (Pa. 2002)). At other points in its opinion, the
PCRA court also described the prejudice inquiry as analyzing
whether “there is a reasonable probability that the outcome of
the proceedings would have been different” if counsel had not
been ineffective. Id. at 3, 6 (quoting Commonwealth v.
Marshall, 812 A.2d 539, 545 (Pa. 2002)).

         Much of the PCRA court’s analysis regarding
Saranchak’s psychological problems related to the evidence
of Saranchak’s intent produced at trial in comparison with
Kruszewski’s opinion at the PCRA hearing. In Kruszewski’s
view, Saranchak had been “acutely intoxicated at the time of
the killings and was actively delusional, believing that he was
on a military mission.” Saranchak-PCRA, No. 889, 889A-
1993, at 17. Thus, Kruszewski had opined that Saranchak
had suffered from an “extreme mental or emotional
disturbance” at the time of the killings, and that his “capacity
. . . to appreciate the criminality of his conduct or to conform
his conduct to the requirements of the law” had been
substantially impaired. Id. The PCRA court rejected this
testimony, holding that Kruszewski’s opinion was
“completely incredible and deserving of no weight” on this
point given the evidence at trial of Saranchak’s deliberate,
non-delusional conduct. We agree that the Commonwealth’s
                              39
evidence of Saranchak’s intent and lack of “substantially
impaired” capacity was generally strong for the same reasons
that we rejected Saranchak’s degree-of-guilt cumulative error
claim. The PCRA court’s finding that Kruszewski was not
credible as to whether Saranchak could have established the
existence of these mitigating circumstances thus deserves
deference.

        But the PCRA court also observed that the evidence of
Saranchak’s mental health produced at the PCRA hearing
“could have satisfied the catchall mitigating circumstance”
permitting the jury to consider any aspects of Saranchak’s
character, record, or the circumstances of the offense. §
9711(e)(8).     Nevertheless, the PCRA court summarily
rejected Saranchak’s argument that there was a reasonable
probability the outcome would have been different, even if
Saranchak could have proven the existence of the catchall
mitigating circumstance by a preponderance of the evidence.
Saranchak-PCRA, No. 889, 889A-1993, at 18. Noting that
the jury would still have been required to weigh Saranchak’s
mental health and background against the aggravating
circumstances, the PCRA court concluded that “[u]nder the
circumstances of this case, we do not believe that . . . the
existence of the catchall mitigating circumstance would have
swayed even one member of the jury to render a sentence of
life imprisonment rather than death.” Id. (emphasis added).
The PCRA court did not discuss Kruszewski’s changed
diagnosis of Saranchak’s general mental health beyond
whether Saranchak’s crimes were intentional on the night of
the killings. And inexplicably, the PCRA court failed to even
mention the diagnoses provided by Dr. Krop. Likewise, the
PCRA court did not mention any of the other additional
                             40
witnesses who testified or submitted affidavits at the PCRA
hearing on Saranchak’s behalf.

       Although the PCRA court had previously recited the
correct standard to determine whether Saranchak suffered
prejudice, its ostensible application of that standard raises
serious doubt that the correct analysis was in fact undertaken.
The test for prejudice in this context is not whether Saranchak
“would have swayed even one member of the jury to render a
sentence of life imprisonment rather than death,” as the
PCRA court stated. Saranchak-PCRA, No. 889, 889A-1993,
at 18 (emphasis added). Formulating the test in that fashion
places a higher burden on Saranchak than Strickland requires.
Indeed, Strickland makes clear that the prejudice inquiry
focuses on whether the defendant has shown merely “a
reasonable probability” that the outcome would have been
different absent counsel’s errors. Strickland, 466 U.S. at 694.
If the PCRA court indeed applied a heightened, outcome-
determinative standard, its analysis would thus reflect a
misapplication of Strickland.

        Nor was this the PCRA court’s only misstatement of
the law. When it analyzed prejudice in relation to the failure
to suppress Saranchak’s first confession to police, the PCRA
court used similarly erroneous language. The PCRA court
concluded that even if trial counsel had been deficient in
failing to pursue that argument, “the outcome of the degree of
guilt hearing would not have been different” and thus
Saranchak suffered no prejudice. Saranchak-PCRA, No. 889,
889A-1993, at 11–12 (emphasis added). Moreover, the
PCRA court apparently reached that conclusion because
“[t]he Commonwealth’s evidence against [Saranchak],
                              41
exclusive of his incriminating statements to police, was
sufficient to establish his guilt of first degree murder beyond a
reasonable doubt.” Id. at 12 (emphasis added). This too was
error, given that Strickland prejudice does not depend on the
sufficiency of the evidence despite counsel’s mistakes. See
Strickland, 466 U.S. at 694 (“The result of a proceeding can
be rendered unreliable, and hence the proceeding itself unfair,
even if the errors of counsel cannot be shown by a
preponderance of the evidence to have determined the
outcome.”).       Rather, “[a] reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694. And although the PCRA court did not
reach prejudice related to the failure to suppress Saranchak’s
confession to the CYS caseworker, had it done so the PCRA
court stated that it would have analyzed “whether the
outcome would have been different if the statements would
have been suppressed.” Saranchak-PCRA, No. 889, 889A-
1993, at 13.        None of these statements are accurate
characterizations of the law.

        Despite these inaccuracies, we must presume “that
state courts know and follow the law.” Woodford v. Visciotti,
537 U.S. 19, 24 (2002). Section 2254 also requires us to
apply a “highly deferential standard for evaluating state-court
rulings” and give state court decisions “the benefit of the
doubt.” Id. (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7
(1997) (internal quotation marks omitted)). Because the
PCRA court in other areas of its opinion correctly described
the prejudice standard when it quoted the law generally
applicable to ineffectiveness claims, whether it actually
applied a standard contrary to clearly established federal law
is not entirely clear. Nevertheless, the PCRA court’s repeated
                               42
misstatements of the law, particularly its application at one
point of a sufficiency of the evidence test to demonstrate that
the outcome “would not have been different,” Saranchak-
PCRA, No. 889, 889A-1993, at 12, indicate to us that the
PCRA court misapprehended Strickland’s prejudice prong.

       We concluded in Breakiron v. Horn, 642 F.3d 126,
140 (3d Cir. 2011), that a similar method of analysis was both
“contrary to and an unreasonable application of Strickland.”
Breakiron called for the Pennsylvania Supreme Court to
determine whether counsel’s failure to request a lesser-
included offense instruction had prejudiced his client. Id.
We did not defer to the Pennsylvania Supreme Court’s
resolution of that issue because it had “partial[ly] reli[ed]” on
a “sufficiency of the evidence standard” without weighing the
evidence as a whole “to determine whether there was a
reasonable probability” that the outcome would have been
different. Id. To be sure, the PCRA court here did not state
expressly that it was relying on a sufficiency determination in
conducting its prejudice analysis of Saranchak’s penalty
phase claims. But the PCRA court did make its sufficiency
analysis explicit in other parts of its opinion, and one would
not expect the PCRA court to apply two different methods of
analysis to determine whether Saranchak suffered prejudice
from his different claims of ineffectiveness. Accordingly, we
believe that the PCRA court was consistent in its prejudice
analysis and that its application of a sufficiency standard to
determine prejudice as to one of Saranchak’s degree-of-guilt
phase claims means that it applied a similarly erroneous
standard to Saranchak’s penalty phase claim. Thus, at the
very least, the PCRA court’s analysis constituted an
unreasonable application of clearly established federal law
                               43
under § 2254(d)(1). See also Hummel v. Rosemeyer, 564
F.3d 290, 305 (3d Cir. 2009) (holding that a state court’s
holding was contrary to clearly established Supreme Court
law where the state court concluded that a defendant suffered
no prejudice because he “failed to show the examination
would have established [he] was incompetent to stand trial”)
(emphasis omitted).

        The PCRA court’s failure to discuss the vast majority
of the relevant evidence presented at the PCRA hearing
further buttresses our conclusion that its analysis was
unreasonable. The proper prejudice analysis would have
required the PCRA court “to evaluate the totality of the
available mitigation evidence—both that adduced at trial, and
the evidence adduced in the habeas proceeding in reweighing
it against the evidence in aggravation.” Williams, 529 U.S. at
397–98. Yet the PCRA court did not discuss Krop’s
testimony, or Kruszewski’s testimony as it related to
Saranchak’s mental health generally as opposed to his
behavior on the night of the murders. Instead, the PCRA
court brushed aside Saranchak’s childhood and mental health
problems without analysis, despite the fact that the jury
“heard almost nothing that would humanize [Saranchak] or
allow them to accurately gauge his moral culpability.” Porter
v. McCollum, 558 U.S. 30, 41 (2009).

       Here, the PCRA hearing revealed that Saranchak’s
troubled past and psychological problems were significant
factors affecting his life. Yet the testimony that the jury
considered at trial only hinted at Saranchak’s substance abuse
and his alcohol-induced military fantasies. Indeed, the depth
of Saranchak’s problems were made apparent only after
                             44
Saranchak’s hospital and school records were obtained and an
expert was finally retained on Saranchak’s behalf to opine on
mitigating circumstances.      None of Saranchak’s major
psychological diagnoses were revealed to the jury.
Kruszewski, unaware of the magnitude of Saranchak’s
troubled past, instead testified that Saranchak suffered “no
major psychiatric diagnosis.” App. 394. Far from “barely . . .
alter[ing] the sentencing profile presented to the sentencing
judge,” Strickland, 466 U.S. at 700, the differences between
the portrait of Saranchak’s troubled life that could have been
presented to the jury and the one actually presented were
stark. The PCRA court’s conclusion, without analysis, that
not even one juror “would have [been] swayed,” Saranchak-
PCRA, No. 889, 889A-1993, at 18, indicated the PCRA court
either “did not consider or unreasonably discounted the
mitigation evidence adduced in the postconviction hearing,”
Porter, 558 U.S. at 42. Indeed, given that death sentences
must be unanimous under Pennsylvania law, 42 Pa. Cons.
Stat. Ann. § 9711(c)(1)(iv), “persuading even one juror to
vote for life imprisonment could have made all the
difference.” Outten, 464 F.3d at 422. Accordingly, we
conclude that the evidence at the PCRA hearing satisfied
Strickland’s prejudice prong, and the PCRA court’s analysis
was an unreasonable application of clearly established
Supreme Court case law.

                             V.

       For these reasons, we will affirm that part of the
District Court’s judgment denying Saranchak’s petition for
habeas corpus due to trial counsel’s cumulative errors at his
degree-of-guilt hearing. We will reverse in part the judgment
                             45
of the District Court and remand with instructions to grant a
provisional writ of habeas corpus directed to the penalty
phase. Unless the Commonwealth of Pennsylvania conducts
a new sentencing hearing, Saranchak shall be sentenced to
life imprisonment.




                             46
