                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2007

Taylor v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 04-9016




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                                        PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 04-9016


                 PAUL GAMBOA TAYLOR,

                                               Appellant

                              v.

               MARTIN HORN, Commissioner,
            Pennsylvania Department of Corrections;
            GREGORY R. WHITE, Superintendent
        of SCI Pittsburgh; JOSEPH MAZURKIEWICZ,
               Superintendent of SCI Rockview




        On Appeal from the United States District Court
            for the Middle District of Pennsylvania
                 (D.C. Civil No. 04-cv-00553)
          District Judge: Hon. James F. McClure, Jr.


                   Argued October 18, 2006

  BEFORE: BARRY, FUENTES, and ROTH, Circuit Judges

                  (Filed September 20, 2007)

Matthew C. Lawry, Esq. (Argued)
Michael Wiseman
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West

                              1
Independence Square West
Philadelphia, PA 19106

       Counsel for Paul Gamboa Taylor

Stuart Suss, Esq. (Argued)
Office of the Pennsylvania Attorney General
Appeals and Legal Services Section
2490 Boulevard of the Generals
Norristown, PA 19403

       Counsel for Martin Horn, Commissioner,
       Pennsylvania Department of Corrections;
       Gregory White, Superintendent, State
       Correctional Institution at Pittsburgh; and
       Joseph P. Mazurkiewicz, Superintendent,
       State Correctional Institution at Rockview




                            OPINION


FUENTES, Circuit Judge.

        Paul Gamboa-Taylor (“Taylor”) is a Pennsylvania inmate
sentenced to death by a Pennsylvania state court for murdering his
wife, Valerie, their two children, and his mother-in-law’s child. He
is also serving a life sentence for murdering his mother-in-law,
Donna Barshinger. On federal habeas review, pursuant to 28
U.S.C. § 2254, the District Court concluded that none of Taylor’s
guilt or penalty-phase claims merited a writ of habeas corpus.1 We
agree with the District Court, and will affirm.

            I. Background And Procedural History




       1
        The Court granted a certificate of appealability as to all
procedural and merits issues.

                                 2
      Taylor pleaded guilty to five murders on December 19,
1991. A hearing was conducted on January 10, 1992 to determine
Taylor’s degree of guilt and penalty. At this hearing, Taylor was
found guilty of five counts of murder in the first degree by the
Honorable John H. Chronister, Judge of the Court of Common
Pleas of York County, Pennsylvania. Judge Chronister also
determined the sentence, without objection from Taylor, which was
imposed on January 23, 1992.

                                A.

        The murders took place on the evening of May 18, 1991.
Under the influence of alcohol and cocaine, Taylor, who had no
apparent prior history of domestic violence, hammered the skull of
his mother-in-law and slit her throat with a knife. He then
hammered the skulls of her two-year-old son Lance, and his own
children, four-year-old Paul and two-year-old Jasmine. When his
wife Valerie returned home twelve hours later, he also hammered
her skull until she died. Taylor did not harm his five-month-old
daughter, Rachelle, who was present during the killings. After
killing his wife, Taylor attempted suicide by slashing his wrists
with a hacksaw and stabbing himself in the abdomen. He then
called 911 (because he was worried about Rachelle) before trying
to electrocute himself in the bathtub with a hair dryer. When the
police arrived, they found him alive in the bathtub and took him to
York Hospital.

        At the hospital Taylor made incriminating statements after
the police questioned him about the killings without advising him
of his right to counsel or to remain silent. Doctors stabilized
Taylor physically and on May 22, 1991, transferred him to York
Hospital’s psychiatric inpatient unit. There, Mohamed I. Elyan,
M.D., Taylor’s treating physician, recorded Taylor’s account of
what happened the night of the murders in his hospital records.
When Dr. Elyan concluded that Taylor was psychiatrically
stabilized, on May 24, 1991, he discharged Taylor to the state’s
custody.

      Attorney Robert Bruce Evanick, Chief Public Defender, was
appointed to represent Taylor. Evanick prepared a suppression

                                3
motion, seeking to exclude the statements that Taylor made to
police at the hospital. Taylor, however, wrote a letter of confession
to the police, dated June 15, 1991, which states the following:

       On May 18, 1991, I, Paul G. Taylor, came home,
       went to the third floor, and to check on the kids.
       Jasmine was sleeping with Donna. I picked her up
       and put her in my bed, and no voice made me do it.
       I did it. Paul G. Taylor, on my own. I was so mad or
       bad about me to turn back to drugs, and my wife
       didn’t care no more that I wasn’t going to leave my
       family for no one. If I couldn’t have my kids, no one
       will. So I went downstairs and got the ball-peen
       hammer and killed Donna, Lance, Jasmine and Paul
       with it. After I dropped the hammer, I ran
       downstairs and washed my hands and went outside
       and walked around and cried. And I knew what I
       had done. It was my turn and my wife’s turn to die.
       I came back, went to the third floor, and covered
       them up. The baby was asleep. Rachelle and I went
       downstairs. And I called about 5:00 or 6:00 a.m. I
       called Tina Markle to see if she was there. The
       phone rang and Tina picked it up and I said, is Val
       there. She said, yes. But she never got on the
       phone, and the phone went dead. I called back, but
       I got a busy sound, and tried a half hour later, and
       got the same thing. Val called back around 11:30
       and said she be home around 12, or 12:30, and she
       hung up. When she got home she did not look or say
       anything but went to the dining room, and said, I’m
       going out tonight. And I killed her with the hammer,
       too, and went outside and said to Tina, she’ll see you
       tonight, and she went. I carried my wife up the stairs
       and laid her in bed with my daughter, and went
       downstairs and got a hacksaw and a knife, and went
       back upstairs to kill myself. That’s what happened
       to my family. I don’t want mercy from the Court. I
       want the maximum sentence. God said that this was
       the truth. Amen. P.S., I’m not a sick man. I’m a
       man that went over and came back. P.S. It was out

                                 4
       of love that no one was going to take them away, my
       wife and my kids. Truly sorry, Mr. Paul G. Taylor.

(App. at 238-39.)

       Before Taylor’s plea hearing, two experts—Edward J.
Briercheck, M.S., a licensed psychologist, and Robert L. Sadoff,
M.D., a psychiatrist—evaluated Taylor and opined that he was
competent to participate in legal proceedings. Moreover, Mr.
Briercheck concluded that Taylor “was capable of formulating
intent” at the time of the murders and Dr. Sadoff found that Taylor
would not be able to prove an insanity defense. (App. at 317.)

        At Taylor’s guilty-plea hearing on December 19, 1991,
about seven months after the murders, defense counsel reported to
the trial judge that Taylor had directed him “not to contact any
witnesses or to call any medical personnel who have interviewed
and talked with him. He understands that there are statutory
aggravating circumstances and that the likely result will be
imposition of the death penalty.” (App. at 137.) Taylor agreed
with counsel’s statement in a colloquy on the record, after which
the court accepted his plea.

       Twenty-two days later, at Taylor’s degree-of-guilt and
penalty hearing, the trial judge granted Taylor’s suppression
motion, ruling that the hospital statements were unlawfully
obtained. The court next asked Taylor if he wished to let his guilty
plea stand, and Taylor answered affirmatively.

        The Commonwealth presented several witnesses’ testimony,
including police and pathologists. Defense counsel presented no
evidence, and made no argument on Taylor’s behalf. The trial
judge concluded that all five murders were intentional and thus in
the first degree.

       The penalty phase commenced immediately, and the court
asked Taylor whether he wanted to present any mitigating
evidence. Taylor declined. Nevertheless, the District Attorney, H.
Stanley Rebert, stated that, as an officer of the court, he felt obliged
to mention that Taylor could claim the mitigating circumstance set

                                   5
forth in 42 Pa. Cons. Stat. Ann. § 9711(e)(1) because he had no
significant history of prior criminal convictions.2

        The trial judge next heard argument on the aggravating
circumstances, and the Commonwealth conceded that none applied
to the murder of Taylor’s mother-in-law. Taylor murdered the
three children and Valerie after his mother-in-law, however, which
satisfied 42 Pa. Cons. Stat. Ann. § 9711(d)(11) (requiring that a
defendant be convicted of another murder committed either before
or at the time of the offense at issue). And the three children were
under the age of twelve, which satisfied 42 Pa. Cons. Stat. Ann. §
9711(d)(16) (requiring that the victim be a child under the age of
twelve).

       As the hearing came to an end, Taylor’s counsel added:

       Your Honor, just so we’re clear for the record, the
       only other additional mitigating factor is the
       Defendant’s remorse. That has been passed on by
       the Supreme Court and found to be a legitimate
       mitigating factor. Whether or not you conclude from
       his letter [of June 15, 1991] that he is genuinely
       sorry for what occurred, of course, is your decision,
       but there is certainly evidence to support it of record.

(App. at 247-48.)

       The judge sentenced Taylor to life in prison for his mother-
in-law’s murder, after finding that there were no aggravating
circumstances and at least one mitigating circumstance (no prior
criminal record). With respect to the three children, the court
found that both aggravating circumstances had been proved beyond
a reasonable doubt, and that there were two mitigating
circumstances: no prior criminal record and genuine remorse. The
court concluded that the aggravating circumstances outweighed the
mitigating ones, and imposed three death sentences for the
childrens’ murders. For Valerie’s murder, only one aggravating



       2
           Taylor’s only prior conviction was for disorderly conduct.

                                   6
circumstance had been proven since she was an adult, and there
were two mitigating circumstances: no prior record and remorse.
Nevertheless, the judge found that the single aggravating
circumstance outweighed the two mitigating circumstances and
imposed a death sentence. The court explained:

       The Court draws this conclusion on the fact that
       there were multiple homicides which occurred. Also
       in the fact that a substantial period of time passed
       after the first four victims were killed, and the wife,
       Valerie Taylor came home, so that this lying in wait,
       and this further opportunity to plan and premeditate
       the situation creates an additional weight to the
       aggravating circumstance in the Court’s mind.

(App. at 285.)

        The court advised Taylor that post-trial motions were due on
January 23, 1992, the date of formal sentencing, and advised him
of his automatic right to appeal. At formal sentencing, on January
23, 1992, defense counsel explained: “I spoke with Paul last week.
He indicated that he did not want any motions filed in his behalf
and I’m not sure there are any that could have been filed. So he’s
essentially forfeited that potential area of review.” (App. at 288.)
The court then asked Taylor whether he had anything to say before
sentencing. He did not, and the court imposed four death sentences
and one life sentence.

                                 B.

        Death sentences are subject to automatic review by the
Supreme Court of Pennsylvania. 42 Pa. Cons. Stat. Ann. §
9711(h). On May 4, 1993, Taylor’s counsel told the Court that
Taylor wished no action to be taken on his behalf. The Court
instructed counsel to obtain an affidavit from Taylor confirming
this intention, and counsel supplied Taylor with an affidavit for his
signature. Taylor declined to sign the affidavit in a handwritten
note to counsel, dated May 6, 1993. The note said:

       The affidavit you send me on May 6, 1993 to sign

                                 7
       and get notary is a suicide form to say I Paul
       Gamboa Taylor give them the right to kill me; they
       the court found me guilt[y] now they or you want me
       to commit suicide in writing too. I do not understand
       the law, but by the Grace of God I will not sign over
       my life in a affidavit you have send.

(App. at 340.) Thereafter, Taylor executed an affidavit authorizing
counsel to withdraw his guilty plea, and on May 20, 1993, counsel
filed a petition with the Court requesting a remand to afford Taylor
the opportunity to do so. The Court denied the petition for remand,
without explanation, on July 21, 1993.

        On December 9, 1993, the Court sustained Taylor’s murder
convictions and affirmed the judgment of sentence.
Commonwealth v. Gamboa-Taylor, 634 A.2d 1106 (Pa. 1993)
(hereinafter “Taylor I”). Because no issues had been preserved for
review, the Court reviewed only those issues required by statute,
and held: the evidence was sufficient to support convictions for
first degree murder;3 there was no evidence that the sentences of
death were the product of passion, prejudice or any other arbitrary
factor; and the sentences of death were not excessive or



       3
         With respect to whether the evidence was sufficient, the
court stated:

       At the degree of guilt hearing, the autopsy reports
       were admitted into evidence to establish that the
       victims’ deaths were homicides. Valerie’s friend,
       Tina Smith, was able to place Appellant at the
       murder scene, and the court accepted into evidence
       the hammer and Appellant’s confession as evidence
       to establish that the murders were intentional
       killings. From this wealth of evidence, there is no
       doubt in our minds that the five first degree murder
       convictions were sustainable and that overwhelming
       evidence can support them.

Id. at 1108.

                                 8
disproportionate. Id. at 1108-09. The Court did not mention
Taylor’s desire to withdraw his guilty plea.

                                 C.

       On January 13, 1997, Taylor filed a timely pro se petition
for post-conviction relief under Pennsylvania’s Post Conviction
Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541-46.
Attorney J. Richard Robinson, who was appointed as post-
conviction counsel, filed a supplemental petition (the “first PCRA
petition”), including the following pertinent claims:

       1. Trial counsel was ineffective in failing to
       introduce evidence of Petitioner’s drug use for
       purposes of mitigating circumstances at the penalty
       phase.

       2. Trial counsel was ineffective in failing to
       interview witnesses identified in discovery who may
       have provided exculpatory evidence for Petitioner.

       3. Trial counsel was ineffective in failing to raise or
       pursue the defense of diminished capacity.
       ...
       6. Trial counsel was ineffective in failing to call
       family members and friends as character witnesses at
       trial.

(App. at 351-52.) The first PCRA petition also contained a list of
twenty-two potential witnesses, including family members and
friends. The petition was assigned to Judge Chronister, who had
been Taylor’s trial judge. The judge held a hearing on June 24,
1997, at which Taylor presented no evidence besides his own
testimony. Trial counsel, then working in New Orleans, gave
testimony via telephone.

       Judge Chronister denied the post-conviction petition,
finding that Taylor had instructed counsel “not to present
testimony, that [Taylor] had discussed the possibility of having
testimony by various friends, associates, employers, coworkers

                                 9
with Mr. Evanick and elected not to call them and, in fact, [Taylor]
made the phone calls to tell those witnesses not to come in.” (App.
at 277-78.) Taylor appealed the denial of post-conviction relief,
but on August 20, 1998, Judge Chronister’s decision was affirmed
in Commonwealth. v. Taylor, 718 A.2d 743 (Pa. 1998) (hereinafter
“Taylor II”).

                                 D.

       On September 3, 1998, Taylor, represented by current
counsel, the Defender Association of Philadelphia, initiated
proceedings in the United States District Court for the Middle
District of Pennsylvania by filing motions to stay the execution,
appoint counsel, and proceed in forma pauperis. After receiving
extensions of time, Taylor filed a petition for writ of habeas corpus
on January 5, 1999 raising numerous claims—some of them plainly
new, some of them more comprehensive versions of what had been
raised in his first PCRA petition. Among other things, Taylor
claimed that trial counsel’s performance was constitutionally
deficient because he failed to adequately investigate Taylor’s
family background and mental health issues, and failed to present
a defense to first-degree murder or, at the penalty phase, evidence
of mitigating circumstances.

        On February 5, 1999, Taylor filed a second PCRA petition
in the York County Court of Common Pleas in order to exhaust the
claims in his federal petition that were new. Taylor’s second
PCRA petition was also assigned to Judge Chronister. Taylor
alleged ineffective assistance of post-conviction counsel (counsel
for his first PCRA petition) and submitted new evidence, including
affidavits from his siblings and family friends, and affidavits from
two new experts, Richard G. Dudley, Jr., M.D., and Gillian Blair,
Ph.D. The petition also included updated affidavits from Mr.
Briercheck and Dr. Sadoff.

      On March 9, 1999, the District Court dismissed the “mixed”
habeas petition without prejudice, for failure to exhaust state
remedies. See Rose v. Lundy, 455 U.S. 509, 510, 522 (1982).
And, in the meantime, Judge Chronister denied Taylor’s second
PCRA petition as untimely.

                                 10
        Taylor appealed to the Supreme Court of Pennsylvania
contending that the after-discovered evidence exception to the
state’s post-conviction one-year limitation period, 42 Pa. Cons.
Stat. Ann. § 9545(b)(1)(ii), applied. He included affidavits from
Drs. Dudley, Blair, Sadoff, and Mr. Briercheck, and he argued that
the first post-conviction counsel provided ineffective assistance by
failing to appreciate the significance of his diminished mental state,
as revealed in this after-acquired evidence. On June 19, 2000, the
Court affirmed the untimeliness ruling. Commonwealth. v.
Gamboa-Taylor, 753 A.2d 780 (Pa. 2000) (hereinafter “Taylor
III”). The Court reasoned that an allegation of ineffective
assistance of post-conviction counsel does not excuse a failure to
comply with the PCRA’s time limitation, id. at 785, and that all of
the facts regarding Taylor’s mental state, if not known, were
discoverable by the exercise of due diligence before his
proceedings, id. at 787.

       On August 11, 2000, proceedings in the District Court
resumed when Taylor re-filed his habeas petition. On July 22,
2004, the District Court denied the habeas petition on the merits.4
Taylor appealed.5 Taylor’s habeas petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 110 Stat. 1214.

       Taylor pursued seventeen claims before the District Court,
and has consolidated them for the purposes of this appeal
essentially as follows:

        Claim 1:      The trial court failed to hold a competency
                      hearing despite indicia that Taylor was
                      incompetent.

        Claim 2:      Taylor’s due process rights were denied when
                      he was tried while incompetent, and the


        4
            The District Court had jurisdiction under 28 U.S.C. §
2254.
        5
        We have appellate jurisdiction under 28 U.S.C. §§ 1291
and 2253.

                                 11
            District Court erred when it refused to hold
            an evidentiary hearing to consider his
            after-acquired evidence that he was not
            actually competent at the time of his
            proceedings.

Claim 3:    Trial counsel was ineffective for failing to
            investigate, prepare, and present evidence of
            Taylor’s incompetence.

Claim 4:    Taylor’s guilty plea and waivers of other
            rights were not knowing, intelligent, and
            voluntary.

Claim 5:    Trial counsel was ineffective for failing to
            ensure that any waiver by Taylor was
            knowing, intelligent, and voluntary.

Claim 6:    Taylor never waived his right to have his
            sentence determined by a jury, and counsel
            was ineffective for failing to object to the
            invalid waiver.

Claim 7:    Trial counsel failed to investigate, present,
            and argue mitigating evidence, and his
            deficient performance prejudiced the defense.

Claim 8:    Taylor did not waive his right to present
            mitigating evidence and any purported waiver
            was invalid because he was not adequately
            informed of his rights.

Claim 9:    Trial counsel was ineffective for failing to
            investigate, develop, and present the defense
            of diminished capacity.

Claim 10:   Trial counsel was ineffective for failing to
            investigate, develop and present the defense
            of voluntary intoxication.



                      12
       Claim 11:     Taylor was denied effective assistance of
                     counsel on direct appeal to the state supreme
                     court.

Before reaching the merits of Taylor’s claims we first address the
threshold issues of timeliness, exhaustion, and procedural default.

     II. Timeliness, Exhaustion, and Procedural Default

                          A. Timeliness

       The Commonwealth argues that the set of claims Taylor
raised for the first time in his August 2000 federal habeas petition
is barred by the statute of limitations set forth in 28 U.S.C. §
2244(d)(1), which provides:

       A 1-year period of limitation shall apply to an
       application for a writ of habeas corpus by a person in
       custody pursuant to the judgment of a State court.
       The limitation period shall run from the latest of-

              (A) the date on which the judgment became
              final by the conclusion of direct review or the
              expiration of the time for seeking such
              review;

              (B) the date on which the impediment to
              filing an application created by State action in
              violation of the Constitution or laws of the
              United States is removed, if the applicant was
              prevented from filing by such State action;

              (C) the date on which the constitutional right
              asserted was initially recognized by the
              Supreme Court, if the right has been newly
              recognized by the Supreme Court and made
              retroactively applicable to cases on collateral
              review; or

              (D) the date on which the factual predicate of

                                 13
              the claim or claims presented could have been
              discovered through the exercise of due
              diligence.

Because Taylor’s conviction became final before AEDPA was
passed, the one-year limitation period began to run on its passage
date, April 24, 1996. Burns v. Morton, 134 F.3d 109, 111 (3d Cir.
1998); Miller v. N.J. State Dep’t of Corrs., 145 F.3d 616, 617 (3d
Cir. 1998).

        On January 13, 1997, about eight months after the statute of
limitations began to run, Taylor filed his first PCRA petition. We
toll the limitations period while that petition was pending, pursuant
to 28 U.S.C. § 2244(d)(2); thus it did not begin to run again until
the Supreme Court of Pennsylvania affirmed the denial of the
petition, on August 20, 1998.

       An additional two weeks elapsed before Taylor filed his
motions for a stay of execution, appointment of counsel, and in
forma pauperis status in federal court, on September 3, 1998.
Then, on January 5, 1999, he filed his first, timely habeas petition.
However, on March 9, 1999, the District Court dismissed the
“mixed” petition, without prejudice, for failure to exhaust state
remedies. See Rose, 455 U.S. 509. The Court declined to stay the
matter pending exhaustion, but noted that Taylor’s filing of an
exhausted petition would likely relate back to his January 1999
petition, under Federal Rule of Civil Procedure 15(c).

        By the time Taylor filed his second petition before the
District Court, on August 11, 2000, his time to file had run out.
The Court had to reconsider its prediction that the revised petition
would relate back because the law changed while Taylor had been
pursuing his second PCRA petition. In the interim, we issued
Jones v. Morton, 195 F.3d 153 (3d Cir. 1999), which held that once
a petition is dismissed for failure to exhaust, a new petition cannot
relate back to the dismissed petition. In light of Jones, the District
Court correctly determined that Taylor’s August 2000 petition
could not relate back to his January 1999 petition. However, the
Court decided to equitably toll the statute because it would have
granted his request for a stay initially, had it the benefit of our

                                 14
subsequent decisions in Jones and Crews v. Horn, 360 F.3d 146,
154 (3d Cir. 2004), in which we permitted a stay when a dismissal
would jeopardize timeliness. The Court also found that Taylor had
pursued his claims diligently.

       The Commonwealth argues that the District Court erred
because § 2244(d)(1)’s one-year requirement is not subject to
equitable tolling. In Miller, however, we explained that §
2244(d)(1) is a statute of limitations, subject to equitable tolling,
not a jurisdictional rule. 145 F.3d at 617; see also Day v.
McDonough, 547 U.S. 198, 205 (2006) (holding that § 2244’s one-
year time limitation is not jurisdictional).

       Section 2244(d)’s one-year limitation may be tolled, among
other reasons, if “the plaintiff has in some extraordinary way been
prevented from asserting his rights.” Fahy v. Horn, 240 F.3d 239,
244 (3d Cir. 2001). The Commonwealth concedes that if §
2244(d)(1)’s time limitation may be tolled, then the factual
circumstances in this case warrant tolling. Commonwealth Br. at
21. Our review confirms that Taylor has pursued his claims
diligently, and that the District Court had assured Taylor “that the
claims presented in [his timely] petition could later be reasserted in
an ‘amended’ petition” that would “relat[e] back” to his timely
petition.6 See Dist. Ct. Op. at 9. Thus, in these circumstances, we
agree with the Commonwealth, Taylor, and the District Court that
equitable tolling is warranted. We will therefore affirm the District
Court’s decision to toll the statute of limitations. Taylor’s claim is
therefore timely.

            B. Exhaustion and Procedural Default

        The Commonwealth concedes that the claims Taylor raised
in his first PCRA petition have been exhausted under 28 U.S.C. §



       6
          “[W]here, as here, the relevant facts are not disputed, a
District Court’s decision on the question whether a case is
sufficiently extraordinary to justify equitable tolling should be
reviewed de novo.” Brinson v. Vaughn, 398 F.3d 225, 231 (3d Cir.
2005) (internal quotation marks omitted).

                                 15
2254(b)(1)(A). It argues, however, that the claims Taylor raised
for the first time in his second PCRA petition have not been
exhausted and are procedurally defaulted because the state courts
dismissed his petition as untimely.

       Section 2254(b)(1)(A) provides that an application for a writ
of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that
“the applicant has exhausted the remedies available in the courts of
the State.” “To satisfy the exhaustion requirement, 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
omitted). Here, because we will deny all of Taylor’s claims on the
merits, we need not address exhaustion. See 28 U.S.C. §
2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”).

       We will address procedural default, however, even with
respect to the claims we will deny. A habeas claim has been
procedurally defaulted when “a state court declined to address a
prisoner’s federal claims because the prisoner had failed to meet a
state procedural requirement.” Coleman v. Thompson, 501 U.S.
722, 730 (1991). For a federal habeas claim to be barred by
procedural default, however, the state rule must have been
announced prior to its application in the petitioner’s case and must
have been “firmly established and regularly followed.” Ford v.
Georgia, 498 U.S. 411, 423-24 (1991). Whether the rule was
firmly established and regularly followed is determined as of the
date the default occurred, not the date the state court relied on it,
Doctor v. Walters, 96 F.3d 675, 684 (3d Cir. 1996), because a
petitioner is entitled to notice of how to present a claim in state
court, Ford, 498 U.S. at 423-424.

       Here, the state courts dismissed Taylor’s second PCRA
petition as untimely pursuant to Pennsylvania’s one-year PCRA




                                 16
statute of limitations, 42 Pa. Cons. Stat. Ann. § 9545(b)(1). 7 We
agree with the District Court that Taylor’s default occurred on
March 9, 1995, when Taylor’s time to file a second petition
expired, and we have held that § 9545(b)(1) was not firmly
established or regularly applied until November 23, 1998, at the
earliest, when the Supreme Court of Pennsylvania decided
Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998). See
Bronshtein v. Horn 404 F.3d 700, 708-09 (3d Cir. 2005)
(recognizing that petitioner, whose second PCRA petition was
untimely under § 9545(b)(1), had not defaulted federal review
because Pennsylvania previously applied a “relaxed waiver” rule,
under which a claim of constitutional error in a capital case would
not be waived by a failure to preserve it).8 Thus, we agree with the
District Court’s determination that Taylor’s claims raised for the
first time in his second PCRA petition are not barred by procedural
default.

                III. Applicable Legal Principles

       The parties agree that AEDPA governs federal court review
of Taylor’s habeas action. We review de novo whether the District
Court appropriately applied AEDPA’s standards of review.
Johnson v. Carroll, 369 F.3d 253, 257 (3d Cir. 2004). The District
Court’s denial of an evidentiary hearing is reviewed for abuse of
discretion. See Schriro v. Landrigan, 127 S. Ct. 1933, 1940, 1944
(2007); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993).


       7
        The grace period afforded first state petitions by the 1995
amendments to the PCRA, which permitted petitions to be filed by
January 16, 1997, did not apply to Taylor’s second petition. See
Taylor III, 753 A.2d at 782 n.2.
       8
           On December 21, 1998, the Supreme Court of
Pennsylvania held in Commonwealth v. Peterkin, 722 A.2d 638
(Pa. 1998), that the time bar applies to capital cases and is not
superseded by the relaxed waiver rule. In Commonwealth v.
Banks, 726 A.2d 374 (Pa. 1999) the Court held that the time bar is
jurisdictional. The Commonwealth’s only argument in support of
its procedural default claim is that we should overrule Bronshtein
en banc.

                                17
            A. Standards of Review Under AEDPA

       AEDPA requires federal courts collaterally reviewing state
proceedings to afford considerable deference to state courts’ legal
and factual determinations on the merits. Specifically, 28 U.S.C.
§ 2254(d) provides:

       An application for a writ of habeas corpus on behalf
       of a person in custody pursuant to the judgment of a
       State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State
       court proceedings unless the adjudication of the
       claim—

              (1) resulted in a decision that was contrary to,
              or involved an unreasonable application of,
              clearly established Federal law, as determined
              by the Supreme Court of the United States; or

              (2) resulted in a decision that was based on an
              unreasonable determination of the facts in
              light of the evidence presented in the State
              court proceeding.

        A state court decision is “contrary to” Supreme Court
precedent if the state court “arrives at a conclusion opposite to that
reached” by the Court on a question of law, or “confronts facts that
are materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to” that of the Court.
Williams v. Taylor, 529 U.S. 362, 405 (2000). An “unreasonable
application” of Supreme Court precedent occurs: (1) “if the state
court identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case;” or (2) if it “either unreasonably
extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.” Id. at 407.


       If, on the other hand, “the state court has not reached the

                                 18
merits of a claim thereafter presented to a federal habeas court, the
deferential standards provided by AEDPA and explained in
Williams do not apply.” Appel v. Horn, 250 F.3d 203, 210 (3d Cir.
2001). “In such an instance, the federal habeas court must conduct
a de novo review over pure legal questions and mixed questions of
law and fact, as a court would have done prior to the enactment of
AEDPA.” Id.

       Whether or not the state courts reached the merits of a
claim, § 2254(e)(1) requires that “a determination of a factual issue
made by a State court shall be presumed to be correct” unless the
petitioner rebuts “the presumption of correctness by clear and
convincing evidence.” See id. Although it would appear that there
is “little material difference between a reasonableness
determination and a presumption of correctness as they express the
same fundamental principle of deference to state court findings,”
we have explained that, in fact,

       the language of § 2254(d)(2) and § 2254(e)(1)
       implies an important distinction: § 2254(d)(2)’s
       reasonableness determination turns on a
       consideration of the totality of the “evidence
       presented in the state-court proceeding,” while §
       2254(e)(1) contemplates a challenge to the state
       court’s individual factual determinations, including
       a challenge based wholly or in part on evidence
       outside the state trial record.

Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).

        In addition, AEDPA prohibits district courts, except in
certain limited circumstances, from holding an evidentiary hearing
on a federal habeas claim “[i]f the applicant has failed to develop
the factual basis of [the] claim in State court proceedings.” §
2254(e)(2). However, even if an evidentiary hearing is not
prohibited under § 2254(e)(2), a petitioner is not necessarily
entitled to one: “In deciding whether to grant an evidentiary
hearing, a federal court must consider whether such a hearing could
enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.”

                                 19
Landrigan, 127 S. Ct. at 1940. Furthermore, to the extent that “the
deferential standards prescribed by § 2254 control whether to grant
habeas relief, a federal court must take into account those standards
in deciding whether an evidentiary hearing is appropriate.” Id. at
1940.

              B. Ineffective Assistance of Counsel

       Sixth Amendment claims of ineffective assistance of
counsel are governed by Strickland v. Washington, 466 U.S. 668
(1984), which “qualifies as clearly established Federal law, as
determined by the Supreme Court of the United States.’” 9
Williams, 529 U.S. at 391 (internal quotation marks omitted). To
prevail, a defendant must show that counsel’s performance was
deficient, and that this prejudiced the defense. Strickland, 466 U.S.
at 687. Trial counsel’s representation must fail to satisfy an
objective standard of reasonableness, considering all the
circumstances. Id. at 688. Courts must assess the reasonableness
of counsel’s conduct on the facts of the particular case, and as of
the time of counsel’s conduct. Id. at 690. Counsel’s strategic
choices made after full investigation are “virtually
unchallengeable,” but choices made after limited investigation are
reasonable only to the extent that the limited investigation itself
was reasonable. Id. at 690-91. Moreover, courts may look to the
defendant’s statements or actions in determining the reasonableness
of counsel’s conduct. Id. at 691. Strickland’s prejudice prong
requires a defendant to show “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.

           IV. Competency Claims (Claims 1, 2, and 3)




       9
         We note that the District Court properly determined that
there was no constructive denial of counsel in Taylor’s case, and
thus no basis for a presumption of prejudice under Cronic v. United
States, 466 U.S. 648, 659 (1984). See Bell v. Cone, 535 U.S. 685,
696-98 (2002) (rejecting broad application of Cronic). We reject
Taylor’s arguments to the contrary.

                                 20
        Taylor argues that the proceedings leading to his conviction
and death sentence violated three of his constitutional rights
relating to his competency to stand trial: (Claim 1) his due process
right to a competency hearing; (Claim 2) his due process right not
be tried while incompetent; and (Claim 3) his Sixth Amendment
right to effective assistance of counsel with respect to competency
issues. He also seeks an evidentiary hearing before the District
Court to present newly-acquired evidence that he was not
competent at the time of his proceedings.

              A. Federal Competency Standards

       The foundation of these competency claims is the well-
established due process right to not to be tried, or plead guilty,
while incompetent. See Drope v. Missouri, 420 U.S. 162, 171-72
(1975); Pate v. Robinson, 383 U.S. 375, 385 (1966); Godinez v.
Moran, 509 U.S. 389, 399-400 (1993) (holding that standards for
competency to plead guilty and to stand trial are the same).

        The Supreme Court set the basic standard for competency
in Dusky v. United States, 362 U.S. 402 (1960): To be competent
to plead guilty or stand trial, a defendant must have a “sufficient
present ability to consult with his lawyer with a reasonable degree
of rational understanding” and must possess “a rational as well as
factual understanding of the proceedings against him.” Id. at 402
(internal quotation marks omitted); see also Drope, 420 U.S. at 171
(“[A] person whose mental condition is such that he lacks the
capacity to understand the nature and object of the proceedings
against him, to consult with counsel, and to assist in preparing his
defense may not be subjected to a trial.”).

    B. State Court Proceedings and Standards of Review

                                 1.

       At the outset, the state trial court “accept[ed] [Taylor’s]




                                21
guilty plea finding it to be knowingly and voluntarily given.” 10
(App. at 152.) In Godinez, the Supreme Court explained:

       The focus of a competency inquiry is the defendant’s
       mental capacity; the question is whether he has the
       ability to understand the proceedings. The purpose
       of the “knowing and voluntary” inquiry, by contrast,
       is to determine whether the defendant actually does
       understand the significance and consequences of a
       particular decision and whether the decision is
       uncoerced.

 509 U.S. at 401 n.12 (citations omitted). If a defendant does not
have the “ability” to understand the proceedings, it is impossible
that he “actually does” understand them. It follows, then, that a
finding of competence is a prerequisite to a determination that a
plea is knowing and voluntary. Thus, the state trial court’s
determination that Taylor’s plea was knowing and voluntary,
included an implied finding that he was competent.11


       10
          Taylor contends that his plea was not in fact “knowingly
and voluntarily” given, see Taylor Br. at 46-56, but that argument
is not relevant to our determination of whether there was a state
court determination of competency on the merits. Taylor’s
argument is, however, appropriate in rebuttal to the presumption of
correctness of the competency determination, and we address it in
that context.
       11
           See, e.g., United States v. Pressley, 602 F.2d 709, 711
(5th Cir. 1979) (“The court’s finding that Pressley was competent
to understand the proceedings at the time of his original plea,
although a prerequisite to validity of the plea, does not end the
inquiry. Such factors as whether . . . the original plea was knowing
and voluntary . . . should be considered.”); White v. Horn, 54 F.
Supp. 2d 457, 466 (E.D. Pa. 1999) (“Even in the absence of an
express finding of competence by the state courts, a defendant who
alleges insanity in his habeas corpus petition may be presumed to
be competent, since the trial court judge would not have otherwise
allowed the trial to proceed.”); cf. Whitmore v. Arkansas, 495 U.S.
149, 165 (1990) (suggesting that a litigant has not demonstrated

                                22
        Sitting as the first PCRA court, Judge Chronister held an
evidentiary hearing and made factual findings on (1) Taylor’s
competency during his proceedings and (2) effective assistance of
counsel with respect to competence. Judge Chronister explicitly
reaffirmed his implicit finding at the guilty plea hearing that Taylor
was competent. The Judge also determined for the second time
that Taylor had been competent to make decisions about his case,
albeit affected by his remorse, and that counsel was not ineffective
for entrusting Taylor with decisions about his case:

       There’s nothing in the testimony today which would
       show that the Defendant was not capable of making
       those decisions or that there was any legal
       impediment which would have forced counsel not to
       submit the decision to the Defendant.

              We recognize that perhaps the Defendant’s
       thinking at that time was colored by remorse. I don’t
       think there’s any question about that. His very
       actions of having counsel file for suppression,
       having the Court grant a suppression of a confession,
       and then the Defendant turning right around and
       sending a letter to the D.A. giving another
       confession to make sure that the conviction would
       occur makes it clear that the Defendant was acting
       out of remorse. But the Court does not find that to
       be a legal impediment.


              That remorse is a natural result and feeling of
       the circumstances of this particular death given the
       fact that it was the Defendant’s family and his
       children who were involved, and the fact that the
       Defendant’s mind may have been affected by the
       remorse is not an impediment to—legally to his



mental incapacity for purposes of “next friend” standing “where an
evidentiary hearing shows that the defendant has given a knowing,
intelligent, and voluntary waiver of his right to proceed”).

                                 23
       making the decisions as to what—how the trial will
       proceed unless his mind is so clouded that he
       becomes confused or subject to a mental status that
       would make him unable to participate in the trial.

               The Court was very careful to make sure that
       that was not the case, insisted upon the psychiatric
       evaluation prior to proceeding. The evaluation
       showed that the Defendant was capable of
       cooperating with counsel and making rational
       decisions, albeit affected by his remorse, and the
       Court finds that there’s no legal impediment because
       of that.

(App. at 279-80.)

        The Supreme Court of Pennsylvania affirmed this decision
in Taylor II, recognizing that “[w]oven into Taylor’s claim of
ineffectiveness [of counsel] is the assertion that his mental state
after the killings prevented him from making rational decisions,
essentially rendering him incompetent. . . . In this case, Taylor’s
claim of incompetency is completely unsupported in fact.” 718
A.2d at 745 (emphasis added). The Court reasoned, further:

       [T]he PCRA court’s determination that Taylor was
       competent in all matters of decision and strategy is
       supported by substantial evidence of record,
       including Taylor’s own testimony, the testimony of
       his trial counsel, and the report of the
       court-appointed psychiatrist. Taylor’s suggestion
       that stress and remorse associated with a capital case
       are such that he (and, by implication, others in his
       situation) are per se incompetent to make decisions
       of strategy does not comport with the
       well-established standard for determining mental
       competency . . . .

Id. at 745-46.
                                 2.



                                24
       Based on this record it is clear that the state courts addressed
the merits of Taylor’s claim that he was tried while incompetent
(Claim 2), and received ineffective assistance of counsel in this
regard (Claim 3); we will therefore review both claims under §
2254(d).12 We will, however, review the trial court’s decision not
to hold a competency hearing (Claim 1) de novo because that claim
was not addressed on the merits.

       Moreover, regardless of whether a given claim was reached
on the merits, competency is a state court factual finding that, if
supported by the record, is presumed correct. See Thompson v.
Keohane, 516 U.S. 99, 111 (1995) (citing Maggio v. Fulford, 462
U.S. 111, 118 (1983)); Demosthenes v. Baal, 495 U.S. 731, 735
(1990) (per curiam). Implicit factual findings are presumed correct
under § 2254(e)(1) to the same extent as express factual findings.
Campbell, 209 F.3d at 285-86. Thus, here, the state courts’
implicit and explicit factual findings that Taylor was competent are
presumed correct, unless Taylor can rebut “the presumption of
correctness by clear and convincing evidence.” See § 2254(e)(1);
Appel, 250 F.3d at 210.

            C. The Merits of the Competency Claims




       12
           Taylor correctly notes that the state trial court never
conducted a formal competency hearing. But this does not mean
that his competency was not addressed on the merits. See Jermyn
v. Horn, 266 F.3d 257, 281 n.8 (3d Cir. 2001) (citing PCRA court’s
review of trial court’s decision not to hold a competency hearing as
an adjudication on the “merits”). We appreciate that if a
competency hearing was not held when it ought to have been, in
accordance with minimal federal standards of procedural due
process, then no deference is due to a state court’s competency
determination. See Panetti v. Quarterman, 127 S. Ct. 2842, 2855-
59 (2007). However, the corollary is also true: if due process did
not require the trial court to convene a competency hearing, and the
issue was otherwise addressed on the merits, then we afford the
competency determination due deference under § 2254(d). See,
e.g., Jermyn, 266 F.3d at 290-91.

                                  25
1.The Trial Court’s Failure To Hold A Competency Hearing
                         (Claim 1)

       Taylor argues that the trial court’s failure to hold a
competency hearing despite indicia of his incompetence violated
his procedural due process rights under Drope, 420 U.S. at 171-72
and Pate, 383 U.S. at 385. A trial court’s failure to inquire into
competency, sua sponte, where there is reason to doubt a
defendant’s competency, violates due process because it deprives
the defendant of his right to a fair trial. Drope, 420 U.S. at 172;
Pate, 383 U.S. at 385-86. But barring indicia of incompetence, due
process does not require that a competency hearing be held.
Godinez, 509 U.S. at 402 n.13.

       The Supreme Court has not “prescribe[d] a general standard
with respect to the nature or quantum of evidence necessary to
require resort to an adequate procedure” but it has explained:

       a defendant’s irrational behavior, his demeanor at
       trial, and any prior medical opinion on competence
       to stand trial are all relevant in determining whether
       further inquiry is required, but that even one of these
       factors standing alone may, in some circumstances,
       be sufficient. There are, of course, no fixed or
       immutable signs which invariably indicate the need
       for further inquiry to determine fitness to proceed;
       the question is often a difficult one in which a wide
       range of manifestations and subtle nuances are
       implicated. That they are difficult to evaluate is
       suggested by the varying opinions trained
       psychiatrists can entertain on the same facts.

Drope, 420 U.S. at 172, 180.

        Taylor argues, first, that rather than hold a hearing the trial
court erroneously relied wholly on Dr. Sadoff’s conclusion that
Taylor was competent to proceed. See Taylor Br. at 29-33.
Although it would have been insufficient for the trial court to rest
his entire competency determination on just one psychiatric report,
see Pate, 383 U.S. at 383, that is not what happened here.

                                  26
         In addition to the Sadoff report, which concluded that
Taylor was “mentally competent to proceed in that he does know
the nature and consequences of his current legal situation and can
work with counsel in preparing his defense,” App at 326, the trial
court had the benefit of its own observations and interactions with
Taylor, as well as reports of counsel’s observations and interactions
with him. None of these indicated incompetency. The record
shows that throughout the proceedings Taylor was able to engage
with counsel and respond to the trial court’s inquiries, and that trial
counsel never expressed concern over Taylor’s competency.13 See
Jermyn v. Horn, 266 F.3d 257, 294-97 (3d Cir. 2001);
Demosthenes, 495 U.S. at 736-37.

         The trial court also granted a continuance of the
proceeedings when Taylor’s counsel sought a psychological
evaluation from Mr. Briercheck, to supplement the Sadoff report,
prior to the guilty plea. After having received Mr. Briercheck’s
evaluation, which concluded that Taylor was “mentally competent
to proceed with the legal aspects of his case,” 14 App. at 317, trial
counsel did not seek a hearing on competency. The record does not
disclose whether the court ever saw the Briercheck report, but we
know that the court was aware counsel considered the issue of
competence, had reviewed an expert opinion in addition to Dr.
Sadoff’s, and still did not raise the issue. See Jermyn, 266 F.3d at


       13
           By contrast, the defendant in Drope “had difficulty in
participating well,” “had a difficult time relating,” and “was
markedly circumstantial and irrelevant in his speech.” 420 U.S. at
165 n.1.
       14
            Briercheck also wrote that Taylor was in complete
contact with reality by September 1991, three months before he
pleaded guilty, and Dr. Sadoff wrote in September 1991 that Taylor
was without current evidence of a psychotic thought disorder,
hallucinations or delusions, and was well-oriented, with unimpaired
memory. Dr. Elyan, who treated Taylor immediately after the
murders, concluded in his report that any cocaine-induced
psychosis that Taylor may have experienced during the murders
had remitted by the time he was discharged to the jail, which was
less than a week later and seven months before he pleaded guilty.

                                  27
292 (noting, in denying petitioner’s competency-hearing claim, that
counsel did not give any indication to the trial court that he doubted
petitioner’s competence).

        Second, Taylor argues that the court erroneously focused on
Dr. Sadoff’s conclusion of competency, while ignoring portions of
the report that indicated incompetency. He also argues that both
Mr. Briercheck’s and Dr. Sadoff’s competency conclusions must
be read in the context of their other observations of Taylor’s poor
mental health. For example, both experts reported Taylor’s drug
use, suicidal thoughts, acute grief reaction to the killings, and
severe depression. It is plain from the face of these reports,
however, that both took full account of these issues in reaching
their respective conclusions that Taylor was competent. Indeed, as
the District Court correctly observed, the Briercheck and Sadoff
reports stand in stark contrast to the reports in Drope, which
indicated that the defendant would have difficulty assisting in his
case and reached no conclusion about whether the defendant was
competent to stand trial. 420 U.S. at 164 n.1, 175-76.

        Third, notwithstanding the experts’ conclusions, we cannot
agree with Taylor that his history of drug abuse or suicidal thoughts
indicated that he was incompetent to participate in the proceedings.
There is no evidence that Taylor was abusing drugs immediately
prior to or during the proceedings. See United States v. Renfroe,
825 F.2d 763, 767 (3d Cir. 1987). And his suicide attempt
occurred long before the plea and penalty proceedings.15 Compare



       15
            In his most recent declaration, Dr. Sadoff states that
Taylor’s actively suicidal phase persisted for “at least one month,”
after his discharge from York Hospital. (App. at 378.) This is not
inconsistent with Dr. Sadoff’s statement in his original declaration
that, by September 1991, Taylor was not actively suicidal. Dr.
Sadoff noted specifically, before Taylor pleaded guilty, that
“[Taylor] was actively suicidal after this happened, and since June
17, when he reached his conversion [he became a Born Again
Christian], he has not been suicidal. He talks about having his life
in God’s hands, and whether or not he gets the death penalty will
be up to God.” (App. at 322.) Dr. Elyan reached a similar

                                 28
Jermyn, 266 F.3d at 293 (early suicide attempt did not implicate
competency vel non to stand trial) with Drope, 420 U.S. at 178-80
(mid-trial suicide attempt raised doubt as to competency); United
States v. Loyola-Dominguez, 125 F.3d 1315, 1319 (9th Cir. 1997)
(suicide attempt on eve of trial raised doubt as to competency); and
Tiller v. Esposito, 911 F.2d 575, 578 (11th Cir. 1990) (two suicide
attempts while in pre-trial incarceration raised doubt as to
competency). Finally, Taylor’s desire to confess and receive the
death penalty as punishment, and refusal to allow witnesses during
the penalty phase, are not indications that he was incompetent.
These actions are consistent with Taylor’s repeatedly expressed
desire to plead guilty and accept the consequences.

        Ultimately, the record reveals no indicia that compelled the
trial court to hold a competency hearing. As the District Court
aptly observed: “Taylor’s lucid and remorseful desire to plead
guilty simply cannot, out of hand, be colored as utterly bizarre
behavior indicative of incompetency.” App. at 35 (citing Jermyn,
266 F.3d at 288). We agree with the District Court’s analysis in
this regard, and are satisfied that the state trial court’s decision to
forego a competency hearing—before accepting Taylor’s guilty
plea and through the end of the penalty phase—comported with
federal standards of due process.

           2. Competence To Stand Trial (Claim 2)

      Taylor also argues that he was incompetent during his
proceedings, in violation of his due process rights. See Drope, 420



conclusion in Taylor’s hospital Discharge Summary, in which he
stated that by June 28, 1991, Taylor “was not expressing any
immediate suicidal plans even though he thought he should have
joined his with his family . . . [he] add[ed] that if he was spared
then God must have different plans for him, and he seemed to be
willing to accept that.” (App. at 295.) Mr. Briercheck, too, noted
that in 1991Taylor “den[ied] suicidal ideation, but at the same time
[was] asking for the death penalty as punishment for his crimes.”
(App. at 313.)


                                  29
U.S. at 171-72; Pate, 383 U.S. at 385. As mentioned previously, to
be competent a defendant must have “a sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding” and must possess “a rational as well as factual
understanding of the proceedings against him.” Dusky, 362 U.S.
at 402. We will presume that the state courts’ finding that Taylor
was competent were correct, unless Taylor can rebut “the
presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); Appel, 250 F.3d at 210.

    i. Taylor’s After-Acquired Evidence of Incompetence

        To rebut the presumption of competence, Taylor seeks an
evidentiary hearing before the District Court, in order to present the
testimony of four experts: Mr. Briercheck, and Drs. Sadoff, Blair,
and Dudley. As indicated in their affidavits, these experts would
testify that, contrary to the state courts’ competency findings,
Taylor was incompetent to plead guilty or to waive his rights. This
evidence was not presented to the first PCRA court, which held an
evidentiary hearing on Taylor’s competency. It was first presented
to the state courts in Taylor’s second PCRA petition, which the
Supreme Court of Pennsylvania dismissed as untimely.

      The limits on evidentiary hearings set out in 28 U.S.C. §
2254(e)(2) are relevant here:

       If the applicant has failed to develop the factual
       basis of a claim in State court proceedings, the court
       shall not hold an evidentiary hearing on the claim
       unless the applicant shows that–

              (A) the claim relies on—
              ...
                     (ii) a factual predicate that could not
                     have been previously discovered
                     through the exercise of due diligence
                     ...

Id. (emphasis added). We have explained the meaning of “failed
to develop” under § 2254(e)(2) as follows:

                                 30
       The “failure” inquiry does not end once it is
       determined that the factual basis of a claim had not
       been developed in state court. Because “[i]n its
       customary and preferred sense, ‘fail’ connotes some
       omission, fault, or negligence on the part of the
       person who has failed to do something,” “a person is
       not at fault when his diligent efforts to perform an
       act are thwarted, for example, by the conduct of
       another or by happenstance.” Williams, 529 U.S. at
       431-32, 120 S. Ct. 1479. Accordingly, “[u]nder the
       opening clause of § 2254(e)(2), a failure to develop
       the factual basis of a claim is not established unless
       there is lack of diligence, or some greater fault,
       attributable to the prisoner or the prisoner’s
       counsel.” Id. at 432, 120 S. Ct. 1479.

Thomas, 428 F.3d at 498 (emphasis added). Thus, if the state
courts had failed to resolve the competency issue for some reason
unrelated to Taylor’s diligence, § 2254(e)(2) would not apply and
a new evidentiary hearing would be permitted. See Campbell, 209
F.3d at 286-87.

        As the Supreme Court of Pennsylvania explained in Taylor
III, however, Taylor had every opportunity to present this evidence
of his incompetency at the time of his proceedings, and again at his
first PCRA hearing on the issue, nearly six years after the trial:
“The issue to which this purportedly newly discovered evidence
speaks is whether Appellant was mentally fit at the time of trial.
All the facts regarding Appellant’s mental state, if not known,
surely were ascertainable by the exercise of due diligence before
Appellant’s trial.” 753 A.2d at 786-87. The Court also noted that
“regardless of Appellant’s [after-acquired evidence] argument, the
issue of whether Appellant was competent at trial has been
litigated.” Id. at 787 n.8.

       Taylor argues, nonetheless, that because the second PCRA
court declined to hear this evidence based on an inadequate state
procedural default rule, it is not his fault that he failed to develop
these facts in the state courts. See Wilson v. Beard, 426 F.3d 653,

                                 31
665 (3d Cir. 2005) (“If a petitioner requests a hearing to develop
the record on a claim in state court, and if the state courts . . . deny
that request on the basis of an inadequate state ground, the
petitioner has not failed to develop the factual basis of [the] claim
in State court proceedings for purposes of § 2254(e)(2).”) (internal
quotation marks omitted). But the problem with an argument based
on Wilson is that Taylor’s competency claim had been fully
litigated well before he sought to have the second PCRA court
consider his new evidence. To the extent that the state procedural
default of Taylor’s claims was inadequate, it only bears on the
claims that were new to his second PCRA petition.16 Unlike the
petitioner in Wilson, Taylor’s competency claim was raised in his
first PCRA petition and addressed on the merits. His resurrection
of the claim in his second PCRA petition does not put it under
Wilson’s rule.

         “Federal courts sitting in habeas are not an alternative
forum for trying facts and issues which a prisoner made insufficient
effort to pursue in state proceedings.” Williams, 529 U.S. at 437.
The only thing that prevented Taylor from presenting his new
evidence of incompetency before the first PCRA court was a lack
of diligence.17 Therefore, under § 2254(e)(2), we must affirm the


       16
             Taylor, in this regard, references the second PCRA
court’s comment that “if the Defendant’s legal arguments were
accepted . . . the factual basis that is offered would be sufficient to
at least raise a question which would require the testimony [of the
new experts] to be heard even though it may not be in the final
decision on the merits convincing and may not prevail.” (App. at
361.) It is clear from Taylor III, however, that the Supreme Court
considered the issue of competency precluded, based on its general
observation, independent from the untimeliness of the second
PCRA petition, that “the issue of whether Appellant was competent
at trial has been litigated.” 753 A.2d at 787 n.8. Even if that were
not the Supreme Court’s view, the fact that there may be a triable
issue of fact under state law does not absolve us of our statutory
obligation under § 2254(e)(2).
       17
         We have doubts about the effectiveness of Taylor’s post-
conviction counsel, who failed to obtain this evidence—or indeed,

                                  32
District Court’s decision to deny an evidentiary hearing on this
claim.

 ii. Taylor Has Failed Rebut the Presumption that the State
      Courts’ Competency Determinations Were Correct

        As we have explained, both the trial court and the first
PCRA court determined as a factual matter that Taylor was
competent throughout his proceedings. The Supreme Court of
Pennsylvania affirmed these determinations, and they are presumed
correct under § 2254(e)(1). Because § 2254(e)(2) bars an
evidentiary hearing on Taylor’s new evidence of incompetence, he
must rely on the present record to rebut the presumption of
correctness by clear and convincing evidence. See Lambert, 387
F.3d at 235. In our discussion about the trial court’s decision not
to hold a competency hearing, however, we explained why the state
court record shows no indication that Taylor was incompetent.
Taylor therefore cannot rebut the presumption that the state courts’
competency determinations were correct.

        Moreover, under § 2254(d)’s deferential standard of review,
Taylor’s claim lacks merit. His competency is amply supported by
the state court record—based on, among other things, the original
Sadoff and Briercheck reports and the trial court’s and trial
counsel’s interactions with Taylor—and thus the state courts’
competency findings constituted a reasonable determination of the
facts. See id. (“Section 2254(d)(2) mandates the federal habeas
court to assess whether the state court’s determination was
reasonable or unreasonable given that evidence.”).



any evidence other than his client’s testimony—but ineffectiveness
of postconviction counsel is not an exception to § 2254(e)(2)’s
requirements. See 28 U.S.C. § 2254(i) (mandating that ineffective
assistance of post-conviction counsel is not a ground for habeas
relief); Thomas, 428 F.3d at 498 (“[F]ailure to develop the factual
basis of a claim is not established unless there is lack of diligence,
or some greater fault, attributable to the prisoner or the prisoner’s
counsel.”) (emphasis added); Coleman, 501 U.S. at 752 (noting no
federal constitutional right to post-conviction counsel).

                                 33
       Morever, nothing in the record suggests that the competency
determinations were “contrary to” the teachings of Drope, Pate, or
Dusky. See § 2254(d)(1). Ultimately, “[r]equiring that a criminal
defendant be competent has a modest aim: It seeks to ensure that
he has the capacity to understand the proceedings and to assist
counsel.” Godinez, 509 U.S. at 402. Based on our review of the
record, we are confident that aim was achieved in Taylor’s case.
We will therefore affirm the District Court’s dismissal of Taylor’s
claim that he was tried while incompetent.

3. Ineffective Assistance with Respect to Competency (Claim
                              3)

       Taylor argues that trial counsel was ineffective for not
requesting a competency hearing. We have explained that

       Counsel’s failure to request the trial court to order a
       hearing or evaluation on the issue of the defendant’s
       competency . . . could violate the defendant’s right to
       effective assistance of counsel provided there are
       sufficient indicia of incompetence to give objectively
       reasonable counsel reason to doubt the defendant’s
       competency, and there is a reasonable probability
       that the defendant would have been found
       incompetent to stand trial had the issue been raised
       and fully considered.

Jermyn, 266 F.3d at 283.

      Here, trial counsel testified before the PCRA court, in detail,
about his observations of Taylor at the time of the proceedings:


       I did not see anything that [indicated] Paul did not
       understand the course of conduct that he chose. . . .
       In what he said or how he behaved or how he acted
       that would indicate that he didn’t understand what
       was going on. . . . I talked frequently with Pat
       [Gallagher] at the jail . . . Paul frequently talked to
       Pat Gallagher, and I received no indication from Pat

                                 34
       Gallagher that Paul Taylor did not understand what
       was happening. He appeared—everything I saw,
       Paul was competent to make decisions.

(App. at 270-71.) Consistent with the legal standard for
competency, counsel’s interactions with Taylor—paired with both
the Briercheck and Sadoff reports concluding that Taylor was
competent—were sufficient for counsel to reasonably forego a
competency hearing.

       Nor do we agree with Taylor that counsel unreasonably
failed to provide Mr. Briercheck and Dr. Sadoff with enough
information for them to make well-informed competency
determinations. Mr. Briercheck and Dr. Sadoff state in their new
affidavits that they would have benefitted from reading one
another’s reports,18 but this retrospective observation does not
suggest that it was unreasonable of trial counsel, at the time, to
seek two independent evaluations. In Jacobs v. Horn, 395 F.3d 92
(3d Cir. 2005), we disapproved of counsel’s failure to provide
experts with any background information concerning the
defendant’s history, the alleged crimes, or the Commonwealth’s
pursuit of the death penalty. Id. at 103. But, in contrast to Jacobs,
Taylor’s background and crimes are detailed in both Briercheck’s
and Sadoff’s reports. These experts knew a great deal about
Taylor’s history and the crime, and it is evident from their reports
that Taylor discussed the possibility of the death penalty with both
of them.

       In sum, Taylor’s competency-related, ineffective assistance
of counsel claim fails on the first prong of Strickland because
counsel’s decision not to pursue a competency hearing was
objectively reasonable, considering all the circumstances. See 466
U.S. at 688. As with the trial court’s decision not to convene a
competency hearing, there were insufficient indicia of
incompetence to deem counsel’s decision unreasonable.




       18
         Sadoff did, however, review Dr. Elyan’s report before
making his competency determination.

                                 35
       Taylor has also failed to show prejudice under Strickland’s
second prong. Because we have found that the state courts
correctly determined, based on all of the evidence available, that
Taylor was competent, there is no “reasonable probability” that
Taylor was incompetent, and therefore no prejudice caused by
counsel’s failure to request a competency hearing.19 Id. at 694.
We will therefore affirm the District Court’s dismissal of this
claim.

 V. Validity of Taylor’s Guilty Plea and Waiver of Specific
   Defenses (Claim 4); Ineffective Assistance of Counsel
                Regarding Waivers (Claim 5)

       Taylor next argues that his guilty plea, waivers of related
      20
rights, and waiver of specific defenses to first degree murder were


       19
            Taylor argues that his newly-acquired evidence of
incompetency shows that trial counsel’s investigation was
inadequate, and is sufficient to establish prejudice because there is
a reasonable probability that his new evidence would result in a
finding that he was incompetent. On this basis, he contends, the
District Court should have held an evidentiary hearing. Taylor Br.
at 37. The problem, again, is that Taylor already had an evidentiary
hearing on this issue before the first PCRA court, where he failed
to produce Dr. Blair’s and Dr. Dudley’s evaluations. Cf. Hutchison
v. Bell, 303 F.3d 720, 749 (6th Cir. 2002) (“[T]he defendant] did
receive an evidentiary hearing on his ineffective assistance of
counsel claims in state court. If, as [the defendant] contends, a
reasonable investigation would have revealed the evidence
discussed above, then it should have been developed in relation to
his ineffective assistance claims during his first postconviction
proceeding.”).
       20
            “Several federal constitutional rights are involved in a
waiver that takes place when a plea of guilty is entered in a state
criminal trial.       First, is the privilege against compulsory
self-incrimination guaranteed by the Fifth Amendment and
applicable to the States by reason of the Fourteenth. Second, is the
right to trial by jury. Third, is the right to confront one’s accusers.”
Boykin v. Alabama, 395 U.S. 238, 243 (1969) (citations omitted).

                                  36
not knowing, intelligent, and voluntary. Primarily, he argues that
the trial court’s inquiry into how his mental state influenced his
waivers was inadequate, and he seeks an evidentiary hearing to
develop the record on this issue. Taylor Br. at 63.

       For the reasons we explain below, however, we fully agree
with the District Court that the waiver colloquies in this case,
including the written one, made part of the record, were legally
sufficient under federal law.21 See Boykin v. Alabama, 395 U.S.
238, 242-43 (1969).

                     A. Standard of Review

       Taylor’s claim that his guilty plea was not knowing and
voluntary was first raised in his second PCRA petition and has
never been reviewed on the merits by the state courts. Taylor I
does not mention Taylor’s last minute decision to withdraw his
guilty plea, and although the first PCRA court addressed Taylor’s
competence to make decisions, it did not address the broader issue
of whether his guilty plea was knowing and voluntary. We will
therefore review this claim de novo, Appel, 250 F.3d at 210,
affording the state courts’ factual determinations a presumption of
correctness, 28 U.S.C. § 2254(e)(1).

B. Constitutional Requirements for Knowing and Voluntary
                         Waivers

        As noted, competence to plead guilty is subject to the same
legal standard as competence to stand trial. Godinez, 509 U.S. at
398-99. We have already established that Taylor had the requisite
competence to stand trial. However, as the Supreme Court has
explained, that is not enough for a valid waiver:

       In addition to determining that a defendant who
       seeks to plead guilty or waive counsel is competent,



       21
          This holding does not extend to Taylor’s waiver of his
state-law right to have a penalty-phase jury, for which there was no
on-the-record colloquy. We address this waiver separately, below.

                                37
       a trial court must satisfy itself that the waiver of his
       constitutional rights is knowing and voluntary. In
       this sense there is a “heightened” standard for
       pleading guilty . . . .

Id. at 400-01 (citations and emphasis omitted). Under Boykin, it
is crucial that the record reveal not only that a defendant was aware
of his rights, but also that he “intelligently and understandingly”
waived them. 395 U.S. at 242; see also Johnson v. Zerbst, 304
U.S. 458, 464 (1938) (“[waiver must be] an intentional
relinquishment or abandonment of a known right or privilege”).


       Numerous cases have addressed the basic requirements for
a knowing and voluntary waiver, but there are few hard-and-fast
rules. We have stated that

       no criminal defendant should plead guilty to a crime
       unless, and until, he has had explained to him and
       understands all of his constitutional rights and
       protections, including the privilege against
       compulsory self-incrimination guaranteed by the
       Fifth Amendment, the right to trial by jury, and the
       right to confront one’s accusers.

Hill v. Beyer, 62 F.3d 474, 480 (3d Cir. 1995) (citing Boykin, 395
U.S. at 243); see also United States v. Peppers, 302 F.3d 120, 135
(3d Cir. 2002) (stating that “to be valid [a defendant’s] waiver must
be made with an apprehension of the nature of the charges, the
statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to
a broad understanding of the whole matter”); but see United States
v. Thomas, 357 F.3d 357, 364 (3d Cir. 2004) (describing these
same factors as “illustrative examples of factors that courts might
discuss, not a mandatory checklist of required topics”).

        The Supreme Court has explained, further, that the level of
detail in the colloquy is not dispositive:



                                 38
       [T]he law ordinarily considers a waiver knowing,
       intelligent, and sufficiently aware if the defendant
       fully understands the nature of the right and how it
       would likely apply in general in the circumstances-
       even though the defendant may not know the
       specific detailed consequences of invoking it. . . . If
       [the defendant] . . . lacked a full and complete
       appreciation of all of the consequences flowing from
       his waiver, it does not defeat the State’s showing that
       the information it provided to him satisfied the
       constitutional minimum.
Iowa v. Tovar, 541 U.S. 77, 92 (2004) (emphasis, internal
quotation marks, and citation omitted). With these guidelines in
mind, we review the record of Taylor’s waivers.

                  C. The State Court Record

        In accordance with Pennsylvania law, the trial court first
accepted Taylor’s guilty plea to homicide generally, and then held
a hearing to determine his degree of guilt. Before Taylor pleaded
guilty, the court elicited the following:

       MR. EVANICK: . . . I have talked to Paul about this
       extensively. This is his desire to do this [to plead
       guilty]. He understands the consequences of what he
       is doing today. He is also aware of the likely
       outcome of the further proceedings.

             Specifically, he has directed me not to contact
       any witnesses or to call any medical personnel who
       have interviewed and talked with him.             He
       understands that there are statutory aggravating
       circumstances and that the likely result will be the
       imposition of the death penalty.

       THE COURT: You heard the statement of your
       counsel. Is there anything you wish to add to that at
       this point?

       THE DEFENDANT: No, Your Honor.

                                39
       ...

(App. at 137-38.)

        The court then asked Taylor whether he admitted to each of
the murders he was charged with, including the method of each
killing. Taylor admitted to committing each one. The court next
asked:

       Also you have had the opportunity to review this
       guilty plea colloquy with your attorney and you filled
       it out? 22



       22
            Evanick assisted Taylor in filling out a “Guilty Plea
Colloquy” form. The form is ten pages long, and contains forty-
four questions, most of which required Taylor to supply a
handwritten answer, which he did. Taylor indicated in the form
that he had completed 13 years of education, including “2 yrs of
electrical and 3 yrs of electronic” school. (App. at 329.) The form
asked, “[i]f you are presently being treated for a mental illness, do
you still feel that you can cooperate with your attorney,
comprehend what you are doing today, understand what these
questions mean and know why you must answer these questions?”
Taylor answered “No, Yes.” Taylor also affirmed on the form,
among numerous other things, that he understood that he was
entering a guilty plea (question 15); his attorney had explained all
of the elements of the crime (question 16); he admitted doing all of
things a person must do to be held guilty of the crimes he was
charged with (question 17); he understood the presumption of
innocence, and waiver of that presumption (question 18); he
understood his absolute right to a trial before a jury to determine
his guilt or innocence, and affirmed that he knew of all the rights
he had in the course of a trial (questions 19a-19i); he understood he
could waive his guilt-phase jury right and have the judge decide his
case in its entirety (question 20); he understood that if he pleaded
guilty he would be accepting that he was properly charged
(question 21) and that his guilty plea would terminate his right to
be heard on any challenge the propriety of the charges against him
(question 22); he understood his right to be represented by counsel

                                 40
       THE DEFENDANT: Yes.

       THE COURT: And from discussing the colloquy
       with him, do you understand your trial rights?

       THE DEFENDANT: Yes.

       THE COURT: And by pleading guilty you are giving
       up those rights?

       THE DEFENDANT: Yes.

       THE COURT: Do you have any questions at all
       about anything that is happening today or anything
       that has been involved in this whole process from



(question 23); he understood that for first degree murder the court
could impose the death penalty, and that lesser sentences were
available for lesser degrees of murder and manslaughter (question
25); he was not coerced directly or indirectly to enter the plea
(question 35); and he was doing so of his own free will (question
36).
        Taylor now argues that any reliance on this form is improper
because the form misleadingly suggested that he would not have
the opportunity to present witnesses at his degree-of-guilt hearing,
and would not be allowed to challenge any trial court errors.
Taylor Br. at 49-50 n.24. If the form had misled Taylor by
erroneously informing him that his post-plea rights were more
extensive than they actually were, we agree that the form might
undermine the validity of Taylor’s plea, depending on the
remainder of the record. We cannot agree, however, that his choice
to plead guilty perhaps thinking that his post-plea rights were more
limited than they actually were, undermines the validity of his
guilty plea. This only shows Taylor would have chosen to plead
guilty in spite of these limitations. To the extent that the form’s
errors may have misled Taylor about his opportunity to present
witnesses at the degree-of-guilt phase, we will consider this
argument, below.

                                41
      your discussions with your attorney or police or
      anything that you want to call to the Court’s
      attention at this time?

      THE DEFENDANT: No.

      THE COURT: Mr. Evanick indicates that you
      advised him that essentially you don’t wish to
      challenge your guilt in these matters and, in effect,
      you are telling him to just plead guilty and get it over
      with and that you will accept the result which he
      thinks is likely to be the death penalty. Is that a
      correct statement by you?

      THE DEFENDANT: Yes, sir, sort of. Yes.

      THE COURT: This would be a good time to add
      anything you want to add if you want to correct it or
      change it.

      THE DEFENDANT: No.             I plead guilty to my
      charges and I accept it.

      THE COURT: What you are saying is whatever
      happens happens. . . .

             And has Mr. Evanick had the opportunity to
      go over with you the requirements for the charge of
      criminal homicide, the legality of it telling you what
      the elements of the offense are and telling you what
      the Commonwealth would have to prove?

      THE DEFENDANT: Yes.

      THE COURT: And you are satisfied that you
      understand what they are?

      THE DEFENDANT: Yes.

(App. at 141-43.)

                                42
        The court then questioned Taylor about whether counsel had
gone over with him the Commonwealth’s evidence of criminal
homicide, and whether Taylor understood that he was pleading
guilty to the general charge of homicide, and would later have the
opportunity to contest his degree of guilt, but that the death penalty
was possible. Taylor responded, “Yes.” (App. at 143-44.)
Counsel asked the court to advise Taylor in more detail about the
specific elements of homicide. The court did, explaining the
possible verdicts of first and third degree murder, voluntary
manslaughter, and involuntary manslaughter, as well as the
difference between murder and manslaughter, along with the
elements of the individual offenses. The court asked Taylor
whether he had any questions, and then asked him to give a brief
statement explaining precisely what happened the night of the
killings. Taylor complied, describing the murders in detail, up to
the point when he blacked out in the bathtub and found himself in
the hospital. The court then accepted the guilty plea “finding it to
be knowingly and voluntarily given.” (App. at 152.)

       Next, at the combined degree-of-guilt and penalty-phase
hearing, the court began with argument on Taylor’s motion to
suppress his hospital statements:

       THE COURT: . . . [A]re you aware that Mr. Evanick
       thinks there may be some problems in regard to the
       manner in which the police obtained those
       statements, that you were not properly advised of
       your rights prior to giving them?

       THE DEFENDANT: Yes.

       THE COURT: And if that is correct, the Court
       would have a hearing and determine whether or not
       you were properly advised of your rights, and that if
       the Court found that you were not, it would be
       possible that the Court would suppress those
       statements; that is, not permit the Commonwealth to
       use those statements in evidence against you here
       today. That possibility exists, is what I'm telling
       you. Do you understand you have that right?

                                 43
      THE DEFENDANT: Yes.

      THE COURT: And your attorney’s telling me that
      knowing that you have that right, you choose not to
      exercise it, that you are telling your attorney, do not
      file such a suppression motion, let the
      Commonwealth use whatever evidence they want to
      use, it doesn’t matter to me, I don’t want to suppress
      it?

      THE DEFENDANT: Yes.

      THE COURT: And you had a sufficient opportunity
      to talk to Mr. Evanick about that?

      THE DEFENDANT: Yes.

(App. at 158-59.) Before Taylor chose to pursue his suppression
motion, however, he confirmed that a victory would not require
him to revoke his guilty plea:

      THE DEFENDANT: [I]f I lose, they would still use
      the statement, but if I win, I’d rather go on the road
      I’m going now, plead guilty for my charges. . . .
      ...
              I’m not dropping and I’m not going to fight it.
      ...
      THE COURT: If we have a suppression hearing and
      I rule in your favor . . . you are saying you still want
      to leave your guilty plea in?

      THE DEFENDANT: Yes.

      THE COURT: And you still want to proceed to have
      your hearing?

      THE DEFENDANT: Yes.

(App. at 159-61.)



                                44
        After the colloquy, the court heard evidence and granted
Taylor’s suppression motion.23 The court then reaffirmed Taylor’s
desire to plead guilty:

       I have suppressed the statements at the hospital.
       Those statements may not be introduced into
       evidence against you.

               Before we proceed, I do want to make sure
       that you still wish to stand on your guilty plea and
       proceed with the case. This was only a possibility
       before. You now know. I have ruled in your favor.
       I have suppressed those statements and I want to
       know from you whether you still wish to proceed in
       the manner that you indicated earlier, whether you
       still wish to let your guilty plea stand and whether
       you still wish to proceed with the Degree of Guilt
       Hearing at this time?

       THE DEFENDANT: Yes, proceed with the guilty
       plea, and go on the same road I’m going now.

(App. at 193-94.)

       After the Commonwealth’s six witnesses testified in detail
about the circumstances surrounding the murders the court
announced a recess. As soon as the hearing resumed, defense
counsel stated that he had no argument on the degree of guilt, and
the court read aloud the elements of first degree murder and found
Taylor guilty of the charges.

      The first PCRA court credited counsel’s testimony that it
was Taylor’s informed decision not to contest the first-degree
murder charge. Counsel stated:
      Paul told us about using cocaine before the murders



       23
         Taylor’s June 15 letter of confession contained the same
incriminating information as his hospital statement, and was not
suppressed.

                               45
       occurred and during—while the murders were
       occurring. He mentioned the prior use to Dr. Sadoff.
       But Paul did not want to exercise any of his rights
       and testify or present that defense.
       ...
       [There] was nothing from what Paul was telling us
       that the cocaine caused him not to understand what
       he was doing or not to understand that it was wrong.

(App. at 273-75) (emphasis added). The court then found that

       there was discussion with Mr. Evanick about use of
       both alcohol and drugs and that Mr. Taylor made
       the decision not to present that testimony or any
       other testimony; that Mr. Evanick explained to Mr.
       Taylor his right to present testimony both by himself
       or by witnesses . . . but that he left it up to Mr.
       Taylor to make the final decision as to what
       witnesses would be called; and that Mr. Taylor
       acting out of remorse and being upset with what had
       occurred and wishing to receive the death penalty as
       being the only acceptable atonement for his actions
       decided not to call those witnesses and to proceed in
       the fashion that he did knowing and accepting the
       fact that it would lead directly to a death penalty.

(App. at 278.) (emphasis added).

           D. Adequacy of The State Court Record

       Taylor argues that his on-the-record waivers were
constitutionally deficient because (1) the trial court failed to
undertake a “penetrating and comprehensive” inquiry into the
impact of Taylor’s mental health; (2) the court relied heavily on a
pre-printed waiver form; and (3) the court did not discuss the range
of punishments allowable for lesser degrees of murder, knowing
that there were facts supporting defenses to first degree murder.
We address each of these contentions in turn.

       First, Taylor argues that the current state court record is

                                46
insufficient to judge whether his guilty plea and other waivers were
knowing and voluntary. This argument relies largely on the
findings contained in new affidavits Taylor has obtained from Mr.
Briercheck, Drs. Sadoff, Blair, and Dudley. None of this evidence
is part of the state court record and the District Court denied
Taylor’s request for an evidentiary hearing on the issue.

       Because Taylor’s “knowing and voluntary” waiver claims
were new to his second PCRA petition, which was barred by an
inadequate state procedural rule, see supra, we cannot say that
Taylor, by his own fault, failed to establish the factual basis for this
claim under § 2254(e)(2). See Wilson, 426 F.3d at 665. Yet, a
petitioner who diligently but unsuccessfully seeks an evidentiary
hearing in state court still is not entitled to an evidentiary hearing
in federal court under AEDPA. Rather, as we explained
previously, whether to hold a hearing for a petitioner who is not at
fault under § 2254(e)(2) remains in the discretion of the district
court, and depends on whether the hearing would “have the
potential to advance the petitioner’s claim.” See Campbell, 209
F.3d at 287.

       We will therefore consider whether this after-acquired
evidence raises an issue that warrants an evidentiary hearing. In
doing so, we review the District Court’s decision not to hold a
hearing for abuse of discretion. But, we will only consider this
evidence to the extent it bears on the knowing and voluntary nature
of Taylor’s plea—we will not revisit our determination that
AEDPA bars a new hearing on competency.

                1. Updated Briercheck Affidavit

        First, Taylor proffers testimony from Mr. Briercheck, who
has submitted an updated affidavit. He opines, based on a more
recent reevaluation of Taylor and newly available background
material, that Taylor’s decision to waive his rights was “the result
of his grief reaction and his depression.” (App. at 383.) This new
evidence does not warrant a hearing. The fact that an otherwise
competent waiver is the “result” of grief and depression, does not
mean that it was not “an intentional relinquishment or
abandonment of a known right or privilege.” Zerbst, 304 U.S. at

                                  47
464.

        Next, Mr. Briercheck suggests that Taylor’s psychological
disturbances in 1991 make it difficult to determine whether
Taylor’s waivers were knowing and voluntary by looking only at
his statements in court. (App. at 382-83.) Fortunately, as the record
currently stands, we have more than Taylor’s statements to
consider. We also have Briercheck’s original, pre-trial report in
which he expressed no reservations about Taylor’s ability to
proceed with the legal aspects of his case. In this report, Mr.
Briercheck reached his conclusion despite his contemporaneous
finding that Taylor was “struggling psychologically,” App. at 317;
despite the fact that his “testing did clearly show that [Taylor] was
suffering from depression with secondary anxiety features,” and a
“profound grief reaction,” App. at 381 (referring to testing in
1991); despite his diagnosis of “Depressive Disorder with
Secondary Anxiety Features;” and despite his recognition that
Taylor’s “coping skills and defenses [were] extremely taxed,” App.
at 317.

       In short, no evidentiary hearing is needed to evaluate
Briercheck’s new diagnoses, because his observations before
Taylor pleaded guilty reveal the same functional limitations that he
noted in his new affidavit. Assuming Taylor was competent, as we
have concluded, we are confident on this record that his depression,
anxiety, and grief did not undermine the knowing or voluntary
nature of his plea.

                  2. Updated Sadoff Affidavit

        Second, Taylor proffers testimony from Dr. Sadoff, who
also submitted an updated affidavit. In it, Sadoff concluded that
Taylor’s waivers were the result of his depression, disturbed mental
state, and desire to commit suicide. However, like Briercheck’s
new affidavit, these clinical findings are consistent with Sadoff’s
findings in 1991—which he does not retract—that despite his
disturbed mental state and depression, Taylor “kn[ew] the nature
and consequences of his current legal situation,” and was able to




                                 48
“work with counsel in preparing his defense.” 24 (App. at 326.)
Sadoff’s new affidavit fails to raise an issue about the knowing and
voluntary nature of Taylor’s waivers because it tells us nothing new
about whether Taylor actually and intentionally abandoned his
known rights.

                       3. Dudley Affidavit

        Third, Taylor proffers testimony from Dr. Dudley, who
evaluated him for the first time more than seven years after the
guilty plea. Dudley diagnosed Taylor with longstanding Borderline
Personality Disorder, and states that “symptoms present in Mr.
Taylor’s case prevented him from . . . making knowing, intelligent
and voluntary waivers of his rights.” (App. at 369.) He also
indicates that at the time Taylor waived his rights he was suffering
from a “Major Depressive Episode.” (App. at 368.) Notably, Dr.
Dudley states that Taylor’s Borderline Personality Disorder caused
a psychotic breakdown in 1991 that was well documented by Mr.
Briercheck and Drs. Elyan and Sadoff. And we already know,
from Briercheck’s and Sadoff’s 1991 reports, that Taylor’s suicidal
ideation and depression did not otherwise impair his ability to assist



       24
            Sadoff’s 1991 evaluation of Taylor shows that he
appreciated the contours of Taylor’s mentally disturbed and
suicidal state. In it, he noted Taylor’s reports of auditory
hallucinations—voices telling Taylor what to do on the night of the
murders and for a month after he was admitted to the medical unit
in prison. He also reported that he had received and agreed with
Dr. Elyan’s May 1991 report, which gave Taylor a diagnosis of
“acute grief reaction, possible cocaine induced psychosis, and
history of cocaine and alcohol abuse.” (App. at 325.) And, in his
updated affidavit, Sadoff reiterated that at the time he initially
evaluated him, Taylor “remained severely depressed and continued
to suffer from an acute grief reaction.” (App. at 378.) In spite of
all these issues, Sadoff concluded in 1991 that Taylor was “not
actively suicidal at present, and [was] no longer hearing voices,” he
“appear[ed] to have recovered from the acute situational
disturbance that occurred in May 1991,” and was “currently
mentally competent to proceed.” (App. at 326.)

                                 49
counsel and proceed with the legal aspects of his case. The legal
conclusions Dr. Dudley reaches based on facts that are already in
the record—that Taylor’s waivers were not “knowing, intelligent
and voluntary”—do not warrant an evidentiary hearing on that
issue. See Landrigan, 127 S. Ct. at1940 (“[I]f the record refutes
the applicant’s factual allegations or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary
hearing.”) (citing Totten v. Merkle, 137 F.3d 1172, 1176 (1998)
(“[A]n evidentiary hearing is not required on issues that can be
resolved by reference to the state court record.”) (emphasis
deleted)).

                        4. Blair Affidavit

       Fourth, and finally, Taylor offers the expert testimony of Dr.
Blair, who also met Taylor for the first time nearly seven years
after he pleaded guilty. Like Dr. Dudley, Dr. Blair diagnosed
Taylor with longstanding borderline personality disorder. Contrary
to Dr. Elyan’s, Mr. Briercheck’s, and Dr. Sadoff’s psychiatric
evaluations conducted in 1991, Blair opines that Taylor “remained
suicidal throughout the trial proceedings in late 1991 and early
1992.” (App. at 374.) In Blair’s opinion, Taylor’s “waivers were
a passive way of committing suicide and were the product of his
mental confusion, disorganization and depression rather than
rational thinking.” (App. at 374.) Blair concludes from these
observations that Taylor’s waivers were not “voluntary, knowing,
and intelligent,” but her focus is entirely on Taylor’s potentially
disordered motivation for seeking the death penalty. Thus,
although she uses the terms “knowing and voluntary,” the
substance of her proposed testimony assesses Taylor’s
competency—his “ability to understand the proceedings” in
1991—not whether he actually did understand the “significance
and consequences” of his decisions and whether they were
uncoerced. See Godinez, 509 U.S. at 401 n.12.

      In short, Taylor’s proffered evidence sheds no new light on
whether his plea and other waivers were knowing and voluntary.
The District Court’s denial of an evidentiary hearing on the
knowing and voluntary character of the plea or waivers was



                                 50
therefore not an abuse of discretion.25 See Landrigan, 127 S. Ct. at
1940.

   E. Taylor’s Remaining Guilt-Phase Waiver Arguments

        Taylor’s remaining arguments challenge the validity of his
waivers based on the state court record as it currently stands. First,
Taylor argues that the trial court’s failure to advise him of his
potential defenses to first-degree murder invalidates his plea and
waiver of defenses. Putting aside the fact that Taylor did
acknowledge his understanding of the range of punishments for
lesser degrees of homicide in his written waiver, the record shows
that he chose to plead guilty after the court informed him of all
lesser degrees of culpability, and the elements that the
Commonwealth was required to prove for each. Moreover,
Taylor’s discussions with Mr. Briercheck, Dr. Sadoff, his counsel,
and the trial court, show that he was well aware that the death
penalty was a possible consequence of a first degree murder
conviction.

        Federal law requires no more detailed colloquy than what
Taylor received. See United States v. Thomas, 389 F.3d 424 (3d
Cir. 2004), vacated on other grounds, 545 U.S. 1125 (2005)
(stating, in the context of a federal criminal trial, that defendants do
not have a right to be “advised of possible defenses, such as
voluntary intoxication, during [a] plea colloquy”); United States v.
Broce, 488 U.S. 563, 573-74 (1989) (“Relinquishment derives not
from any inquiry into a defendant’s subjective understanding of the
range of potential defenses, but from the admissions necessarily
made upon entry of a voluntary plea of guilty”). Where, as here, the
defendant fully “understands the nature of the right [being waived]



       25
           We are not suggesting that mental health evidence is
never relevant to whether a plea is knowing and voluntary, rather,
we reach our conclusion, here, because this particular mental
health evidence—while it uses the words “knowing and
voluntary”—is clearly focused on Taylor’s competence, and does
not raise questions about Taylor’s waivers under the standards set
in Boykin, Godinez, VonMoltke, or any other relevant federal law.

                                  51
and how it would apply in general in the circumstances,” he may
knowingly and intelligently waive that right “even though [he] may
not know the specific detailed consequences of invoking it.” Ruiz,
536 U.S. at 629.

      Second, though we agree with Taylor that a pre-printed
waiver form alone does not satisfy Boykin’s requirements, the form
here—which Taylor reviewed with the assistance of counsel—was
supplemented with an adequate oral colloquy.

       Third, considering the first PCRA court’s finding that
Taylor instructed counsel not to present any testimony at the
degree-of-guilt hearing, counsel’s in-court statement waiving
defenses to first degree murder clearly represented Taylor’s
knowing and voluntary choice. The record shows that Taylor
apprehended the nature of the charges, the statutory offenses
included within them, the possibility of the death penalty and “all
other facts essential to a broad understanding of the whole matter,”
yet he repeatedly and clearly insisted on his right to plead guilty
and not to present any testimony. See Peppers, 302 F.3d at 135
(internal quotation marks omitted). Because he was competent to
make those decisions, his private motivation does not undermine
their validity under federal law.

       In sum, an evidentiary hearing on the knowing and
voluntary character of Taylor’s guilty plea and related waivers is
not warranted. The current record—including the mental health
evidence from 1991—fully supports the District Court’s conclusion
that Taylor appreciated the significance of his plea, despite his
depression, grave remorse, and other mental deficiencies. With full
information and understanding, Taylor repeatedly and clearly
indicated his desire to plead guilty and waive his rights. We will
therefore affirm the District Court’s decision that these waivers
were knowing and voluntary.

            F. Ineffective Assistance of Counsel:
     Guilty Plea and Waiver of Related Rights (Claim 5)

       Taylor argues, next, that trial counsel was ineffective for
failing to ensure that his waivers were knowing and voluntary.

                                52
(Taylor Br. at 56-58.) This argument is belied by the record, which
shows that trial counsel repeatedly and unambiguously explained
to Taylor the consequences of waiving his rights, and that Taylor
repeatedly and unambiguously expressed his desire to waive them.
Taylor’s argument that counsel should not have permitted him to
make any decisions because of his incompetence has already been
addressed. Based on our review of the record, and adopting the
District Court’s well-reasoned discussion of this issue, counsel’s
performance with respect to Taylor’s guilty plea was not
constitutionally deficient under Strickland, 466 U.S. at 687-88.

         VI. Waiver of Penalty Phase Jury (Claim 6)

       Taylor claims that he never knowingly and voluntarily
waived his right under 42 Pa. Cons. Stat. Ann. § 9711(b) to have
his sentence determined by a jury. The state’s failure to follow its
own rules of criminal procedure, he argues, violated his Eighth and
Fourteenth Amendment due process rights under the federal
Constitution. Because this claim has not been addressed on the
merits by the state courts we review it de novo.

        A capital defendant does not have a federal constitutional
right to be sentenced by a jury, and states are free to determine
whether a judge or jury makes the ultimate sentencing decision.
Spaziano v. Florida, 468 U.S. 447, 464-65 (1984). Section 9711(b)
of Pennsylvania’s death penalty statute provides that

       [i]f the defendant has waived a jury trial or pleaded
       guilty, the sentencing proceeding shall be conducted
       before a jury impaneled for that purpose unless
       waived by the defendant with the consent of the
       Commonwealth, in which case the trial judge shall
       hear the evidence and determine the penalty in the
       same manner as would a jury. . . .

42 Pa. Cons. Stat. Ann. § 9711(b). Under Pennsylvania law, a
waiver of rights under § 9711(b) must be on the record and
“calculated to insure the defendant comprehends the nature and
significance of the right being waived.” Commonwealth v. Fears,
836 A.2d 52, 70 (Pa. 2003).

                                53
        Even assuming the state court failed to follow the law of
Pennsylvania, in this federal habeas case, we are limited to
deciding whether Taylor’s conviction and sentence “violated the
Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). It is well established that “a
state court’s misapplication of its own law does not generally raise
a constitutional claim. The federal courts have no supervisory
authority over state judicial proceedings and may intervene only to
correct wrongs of constitutional dimension.” Geschwendt v. Ryan,
967 F.2d 877, 888-89 (3d Cir. 1992) (en banc) (quoted in Johnson
v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997)).

        Taylor argues that the state court’s failure to obtain a
knowing and voluntary waiver of his penalty-phase jury right was
a federal due process violation under Hicks v. Oklahoma, 447 U.S.
343 (1980). In Hicks, an Oklahoma trial court instructed a jury that
if it found the defendant guilty of distributing heroin, it must
sentence him to a 40-year term of imprisonment as an habitual
offender. Id. at 344-45. But after the trial, the Oklahoma Court of
Criminal Appeals declared the mandatory sentencing statute
unconstitutional in an unrelated case. Id. at 345. On appeal, Hicks
sought to have his 40-year sentence vacated in view of the
unconstitutionality of the habitual offender provision. Id. The
Court of Criminal Appeals acknowledged that the provision was
unconstitutional, but affirmed Hicks’s sentence nonetheless,
reasoning that since it was within the range of punishment that
could have been imposed by a new jury, he had not been
prejudiced. Id.

        The Supreme Court vacated and remanded the case,
explaining that Hicks had a “substantial and legitimate expectation
that he w[ould] be deprived of his liberty only to the extent
determined by the jury in the exercise of its statutory discretion,
and that liberty interest is one that the Fourteenth Amendment
preserves against arbitrary deprivation by the State.” Id. at 346
(internal citation omitted). Oklahoma had denied Hicks “the jury
sentence to which he was entitled under state law, simply on the
frail conjecture that a jury might have imposed a sentence equally
as harsh as that mandated by the invalid habitual offender



                                54
provision.” 26 Id. “Such an arbitrary disregard of the petitioner’s
right to liberty,” the Court held, “is a denial of due process of law.”
Id.

        “Hicks involved an unusual situation which the Supreme
Court concluded required due process treatment.” Johnson, 117
F.3d at 113. Thus, the Supreme Court has not applied Hicks to
mean that “every error of state law affecting the outcome of a state
criminal proceeding would be cognizable as a due process claim.”
Id. If the Court did, “the district courts in habeas cases effectively
would become state appellate courts one rung above the state
courts of last resort.” Id. Importantly, in Hicks, the prejudice the
defendant suffered because of the state’s error heavily influenced
the Court’s decision: “[t]he possibility that the jury would have
returned a sentence of less than 40 years is . . . substantial,” the
Court explained, and “therefore, [the state court was] wholly
incorrect to say that the petitioner could not have been prejudiced
by the instruction requiring the jury to impose a 40-year prison
sentence.” 447 U.S. at 346.

        Accordingly, when considering whether an error under state
law implicates due process, “we require more than that the
defendant simply be prejudiced . . . . The standard requires that the
defendant be prejudiced in a very particular way.” Smith v. Horn,
120 F.3d 400, 416 (3d Cir. 1997) (internal quotation marks
omitted). In Smith, we required that “the erroneous jury
instructions [must] have operated to lift the burden of proof on an
essential element of an offense as defined by state law.” Id.; see
also Hill v. Estelle, 653 F.2d 202, 205 (5th Cir. 1981) (holding that
error in minimum possible sentence did not implicate Hicks when
actual sentence given was large enough to show that error did not
prejudice defendant).

       Here, we agree with Taylor that we cannot presume, based
on a silent record, that he knowingly and voluntarily waived his



       26
          Had the members of the jury been correctly instructed in
Hicks, they could have imposed any sentence above a minimum of
ten years. See id. (citing Okla.Stat., Tit. 21, § 51(A)(1) (1971)).

                                  55
state law right to a penalty phase jury. See Boykin, 395 U.S. at
242; Fears, 836 A.2d at 70. But we still must determine whether
Taylor was prejudiced in a way that implicated his federal
constitutional rights. Cf. Geschwendt, 967 F.2d at 888 (rejecting
defendant’s claim of prejudice, and finding no federal due process
violation even assuming state disregarded its own law). Critically,
Taylor does not argue that having a judge determine his sentence
prejudiced him any way that implicates his federal rights. Indeed,
there were substantial strategic reasons not to elect a penalty-phase
jury in this case, and Taylor has never asserted that he would have
elected one, had he known of the option. And because Taylor does
not suggest that he wanted a penalty-phase jury, he cannot support
his ineffective assistance of counsel claim either, because he cannot
show prejudice to satisfy Strickland’s second prong. Accordingly,
we cannot hold on this record that the alleged state law error
violated the Due Process Clause of the federal Constitution.

    VII. Taylor’s Penalty-Phase Ineffective Assistance of
                      Counsel Claims
            and Waiver Claims (Claims 7 and 8)

       Taylor’s next argument is that trial counsel failed to
investigate, present, and argue mitigating evidence at the penalty
phase, and his deficient performance prejudiced the defense.
(Taylor Br. 76-84.) Specifically, he argues that counsel failed to:
promptly investigate Taylor’s mental health; follow up on the
Sadoff and Briercheck reports; develop life-history mitigation;
develop and present evidence of substance abuse and dependence;
or argue for a life sentence based on the mitigating evidence that
was already in the record. Because of counsel’s failure to
investigate, Taylor argues that his decision not to present mitigation
evidence was not knowing and voluntary.

 A. State Court Proceedings on Counsel’s Assistance in the
                      Penalty Phase
                 and Standards of Review

                                  1.

       At the hearing on his first PCRA petition, Taylor testified

                                 56
that he had instructed counsel not to present any witnesses at the
degree of guilt or penalty phases. He testified, however, that
counsel should have taken “all authority and represented me . . .
which he did not because he let me decide my fate. And I wasn’t
really up to deciding nothing because of my—my stress I was
under and—and the remorse I had for what I’ve done.” (App. at
254.) He testified, further, that at the time of his proceedings: “I
wanted to plead guilty and—but mostly all—I just wanted to take
my life.” (App. at 256.)

         In terms of specific mitigation evidence, Taylor testified that
counsel should have called as witnesses “family members, friends,
employees, [and] bosses,” who could have testified that he had a
good home life with his wife and children, but that he also had a
drug and alcohol problem. (App. at 254-55.) He admitted that
counsel wanted to call some of these witnesses, but that he told
counsel: “I didn’t want to put them under that pressure because . .
. it’s a high profile case and I didn’t want to put my family through
that, you know, whether it be from my family or my wife’s family.
I didn’t want to . . . put them under all this pressure that was
brought on.” (App. at 261.) When asked whether he had made
telephone calls shortly before the hearing and told witnesses not to
appear, Taylor replied: “I don’t recall that, no.” (Id.)

        On cross-examination, Taylor admitted that trial counsel
wanted the hospital statements suppressed and to go to trial, but
that he resisted this advice: “I just wanted to plead guilty and . . .
[a]bout that time . . . I started serving God and found God in my
life and I wanted to do . . . the right thing and I told him, no, I don’t
want to go to trial, I’ll plead guilty to what I have done. . . .” (App.
at 257.) The Commonwealth attorney asked Taylor whether
counsel investigated Taylor’s mental health issues, and he replied:
“The Court . . . brung a psychiatrist to see me and I think Evanick
brought one, too, but he never told me the outcome of—of what
they said.” (App. at 258.)

       The court then questioned Taylor about his decision not to
present mitigating evidence. Taylor first described how on the
night of the murders he consumed alcohol and cocaine, and
afterwards, various household poisons in a suicide attempt. Taylor

                                   57
explained that counsel had this information at the time of the guilty
plea, but Taylor did not know whether the trial court was aware of
it. The court then asked the following:

       THE COURT: Essentially you prevented him from
       presenting anything that would have caused the
       death penalty not to be imposed, did you not?
       You instructed him not to call witnesses on your
       behalf and not to present any evidence that would, is
       that what you’re indicating?

       THE DEFENDANT: Yes, because —

       THE COURT: And what you are saying today is that
       you were in a mental state such that you were
       incapable of making that decision, that Mr. Evanick
       told you that legally it was your choice and you had
       the final say, and that you accepted that and you told
       him not to do it? And you’re saying today that was
       the wrong decision and because of your mental state
       you weren’t capable of making that decision and Mr.
       Evanick shouldn’t have le[t] you make the decision?

       THE DEFENDANT: Right.

       THE COURT: Does that sum it up?

       THE DEFENDANT: Yes, something like that.

(App. at 263-64.)

       Trial counsel testified next, and stated that, in his view,
Taylor had been competent to make decisions and fully capable of
understanding the proceedings. Counsel testified, further, that
Taylor was adamant about not presenting witnesses, and even
telephoned scheduled witnesses the night before the degree-of-guilt
and penalty hearing, telling them not to appear. Counsel stated that
he knew “a great deal about Paul’s background but Paul wanted
none of that presented.” (App. at 270.)



                                 58
        When asked specifically about Dr. Sadoff’s evaluation,
counsel explained that it was submitted to the trial judge, but
counsel “read the report,” which “indicated that Paul was
competent and that Paul had no apparent defense.” (App. at 272.)27
Counsel testified that he advised Taylor about Dr. Sadoff’s
findings, and discussed with him the relevance of his cocaine use:
“Paul told us about using cocaine before the murders occurred and
during—while the murders were occurring. He mentioned the
prior use to Dr. Sadoff. But Paul did not want to exercise any of
his rights and testify or present that,” either as a defense or in
mitigation. (App. at 273.) On cross-examination, counsel
reiterated his belief that there “was nothing from what Paul was
telling us that the cocaine caused him not to understand what he
was doing or not to understand that it was wrong.” (App. at 275.)

       Based on Taylor’s and counsel’s testimony, the first PCRA
court found the following facts bearing on effectiveness of counsel:

               The Court finds Mr. Taylor’s testimony today
       to be truthful. We believe that it is correct that he
       instructed Mr. Evanick not to present testimony, that
       he had discussed the possibility of having testimony
       by various friends, associates, employers, coworkers
       with Mr. Evanick and elected not to call them and, in
       fact, he made the phone calls to tell those witnesses
       not to come in.

              Also that there was discussion with Mr.
       Evanick about use of both alcohol and drugs and that
       Mr. Taylor made the decision not to present that
       testimony or any other testimony; that Mr. Evanick
       explained to Mr. Taylor his right to present
       testimony both by himself or by witnesses and that
       — but that he left it up to Mr. Taylor to make the
       final decision as to what witnesses would be called;
       and that Mr. Taylor acting out of remorse and being
       upset with what had occurred and wishing to receive



       27
            We note that the report actually is addressed to counsel.

                                  59
       the death penalty as being the only acceptable
       atonement for his actions decided not to call those
       witnesses and to proceed in the fashion that he did
       knowing and accepting the fact that it would lead
       directly to a death penalty.

       ...

              It’s clear that counsel has the obligation of
       explaining these matters to the Defendant and
       allowing him to make all of these decisions and that
       they’re the decisions of the Defendant not the
       decisions of counsel.

(App. at 277-78.) The court then concluded that because Taylor
was competent to make decisions about his case, and his remorse
was not a legal impediment, it was appropriate for counsel to defer
to Taylor’s wishes.

        Taylor II affirmed the first PCRA court’s dismissal of
Taylor’s petition, discussing its prior decisions in Commonwealth
v. Morales, 701 A.2d 516 (Pa. 1997), Commonwealth v. Beasley,
678 A.2d 773 (Pa. 1996), and Commonwealth v. Sam, 635 A.2d
603 (Pa. 1993), which held that defense counsel has no duty to
introduce and argue evidence of mitigating circumstances where
his client has specifically directed otherwise.28 718 A.2d at 744-45.
Concluding that Taylor’s case was indistinguishable from Morales,
Beasley, and Sam, the Court explained:

       [T]he record in this case clearly supports the PCRA court’s
       findings that Taylor made the decision not to present evidence in
       the penalty phase and that he did so contrary to the
       recommendations and advice of trial counsel. In addition to
       Taylor’s having had the benefit of the advice of trial counsel, the



       28
          The Supreme Court of Pennsylvania has held that its
analysis of ineffective assistance of counsel claims under these
cases is identical to Strickland, 466 U.S. 668, and we agreed in
Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000).

                                    60
       trial court in various colloquies also advised him of his rights and
       probed whether his decisions were rational and properly
       informed. Like trial counsel, the trial court specifically advised
       Taylor of his right to defend against imposition of the death
       penalty, including the right to present mitigating circumstances,
       and that the likely result of the failure to do so would be the
       imposition of a sentence of death. Under these circumstances,
       counsel cannot be deemed ineffective for failing to override
       Taylor’s decision not to present such evidence.

Id. at 745.

                                 2.

       The District Court determined that Taylor’s penalty-phase
ineffective assistance of counsel claims were not considered on the
merits by the state courts. We disagree and will therefore review
these claims under § 2254(d). The state court record, which we
recounted above, shows that the first PCRA court considered
whether Taylor instructed counsel not to present mitigating
evidence and whether Taylor was competent to make that decision.
See, e.g., App. at 277-80; see also Taylor II, 718 A.2d at 744-45.

       The only exception is Taylor’s claim that he did not
knowingly and voluntarily waive his right to present mitigation
evidence. The state courts did not squarely address this issue.
Without deciding whether this is truly an independent claim or,
rather, an argument that Taylor should have raised when his
competence was litigated before the first PCRA court, we will
review the question de novo. We do so because under either
standard of review, the claim lacks merit. See, e.g., Holloway v.
Horn, 355 F.3d 707, 719 & n.6, 729 (3d Cir. 2004) (reviewing de
novo and under AEDPA, noting that result would be the same
under either standard).

       Moreover, because Taylor sought an evidentiary hearing
before the District Court in order to present new mitigating
evidence that trial counsel had failed to uncover, we must evaluate
Taylor’s failure to establish the factual basis for his ineffective
assistance claim under § 2254(e)(2). To the extent that the state

                                 61
courts did make factual findings relevant to counsel’s assistance,
they are binding unless Taylor can rebut “the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); Appel, 250 F.3d at 210.

 B. Federal Standards: Ineffective Assistance of Counsel in
                    the Penalty Phase

       We evaluate counsel’s assistance in the penalty phase of a
death penalty case in light of the fundamental constitutional
requirement that the fact-finder render a decision based upon full
consideration of available mitigating evidence. Williams, 529 U.S.
at 393; Eddings v. Oklahoma, 455 U.S. 104, 110-12 (1982). The
“catch-all” provision of Pennsylvania’s death penalty statute, 42
Pa. Cons. Stat. Ann. § 9711(e)(8), permits the fact-finder to
consider “[a]ny . . . evidence of mitigation concerning the character
and record of the defendant and the circumstances of his offense.”


       To ensure this is a meaningful process, counsel has an
“obligation to conduct a thorough investigation” for mitigating
evidence. Williams, 529 U.S. at 396 (citing 1 ABA Standards for
Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980)). The
investigation must include “efforts to discover all reasonably
available mitigating evidence,” including information about
“medical history, educational history, employment and training
history, [and] family and social history.” Wiggins v. Smith, 539
U.S. 510, 524 (2003) (quoting ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases,
§§ 11.4.1(C), 11.8.6 (1989) (emphasis omitted)); accord Rompilla
v. Beard, 545 U.S. 374, 380-81 (2005). We evaluate counsel’s
investigation under Strickland’s reasonableness standard, based on
prevailing professional norms, such as those found in the ABA
Standards for Criminal Justice. See Outten v. Kearney, 464 F.3d
401, 417 (3d Cir. 2006).

       Applying these standards in Wiggins, the Supreme Court
held that counsel’s decision not to expand his investigation of the
defendant’s life history beyond the pre-sentence investigation
report and Department of Social Services records fell short of

                                 62
prevailing professional standards. The Court reasoned that
prevailing norms of practice as reflected in the 1989 ABA
standards were guides to determining what is reasonable, 539 U.S.
at 522, and the pre-sentence report and records provided valuable
leads that counsel unreasonably ignored: “[A]ny reasonably
competent attorney would have realized that pursuing these leads
was necessary to making an informed choice,” particularly given
the absence of prior convictions or other negative information
(such as a history of violence) in Wiggins’s background. Id. at
525.

        Similarly, the Supreme Court held in Rompilla, 545 U.S.
374, that “even when a capital defendant’s family members and the
defendant himself have suggested that no mitigating evidence is
available, his lawyer is bound to make reasonable efforts to obtain
and review material that counsel knows the prosecution will
probably rely on as evidence of aggravation at the sentencing phase
of trial.” Id. at 377. In Rompilla, further effort on counsel’s part
would have unearthed school, medical, and prison records showing
severe psychological deficits and evidence of a highly abusive
home life. Id. at 390-93.

        The Supreme Court, however, recently distinguished
Wiggins and Rompilla, in the situation in which a defendant
prevents his attorney from presenting mitigating evidence. See
Schriro v. Landrigan, 127 S. Ct. 1933, 1942 (2007). The defendant
in Landrigan, Jeffrey Landrigan, was convicted of first degree
murder. His counsel had two witnesses prepared to testify at the
penalty phase (Landrigan’s mother and his ex-wife), but Landrigan
asked them not to testify. Id. at 1937. In addition to his
instructions to counsel, Landrigan had several outbursts in open
court opposing counsel’s presentation of mitigation evidence. Id.
at 1937-38. For example, when counsel attempted to explain some
of the state’s aggravating evidence in a more mitigating light,
Landrigan verbally attacked counsel, and made comments that
made the state’s aggravating evidence sound even worse than the
state’s presentation. Id. at 1938, 1941. When the trial judge asked
Landrigan if he had instructed his lawyer not to present mitigating
evidence, Landrigan responded affirmatively. Id. at 1941. And
when the court asked whether there were mitigating circumstances

                                63
it should be aware of, Landrigan replied, “Not as far as I’m
concerned.” Id.

        Despite his recalcitrance at trial, Landrigan later filed a
federal habeas petition alleging, among other things, ineffective
assistance of counsel for failure to investigate and present
mitigation. The Supreme Court reversed the Ninth Circuit’s grant
of habeas relief because (1) the state courts’ factual findings that
Landrigan instructed counsel not to present any mitigating evidence
were reasonable; and (2) the state court reasonably concluded that
a defendant who refused to allow the presentation of any mitigating
evidence could not establish Strickland prejudice based on his
counsel’s failure to investigate further. Id. at 1941-42; see also
Shelton v. Carroll, 464 F.3d 423, 440 (3d Cir. 2006) (holding that
counsel’s reliance on defendant’s “deliberate and strategic
determination that he ought not present mitigating evidence does
not rise to the level of unreasonableness under Strickland”).

       Landrigan also argued that his decision to present mitigating
evidence was not informed and knowing. Id. at 1942. The
Supreme Court found this claim lacked merit as well, because the
Court “ha[s] never imposed an informed and knowing requirement
upon a defendant’s decision not to introduce evidence.” Id.
(internal quotation marks omitted).29

C. Taylor’s Penalty-Phase Ineffective Assistance of Counsel
                         Claims



       29
           Even assuming such a requirement, the Court held that
Landrigan would not be entitled to relief for three reasons: (1) he
had failed to develop the factual basis for this claim in the state
courts; (2) the record showed that counsel had “carefully
explained” the importance of mitigating evidence and the Court has
“never required a specific colloquy to ensure that a defendant
knowingly and intelligently refused to present mitigating evidence”
and (3) it was apparent from Landrigan’s statements—“if you want
to give me the death penalty, just bring it right on. I’m ready for
it.”—that he clearly understood the consequences of asserting that
were no mitigating circumstances. Id. at 1943.

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        As a threshold matter, we will assume that Taylor’s newly
proffered mitigation evidence, showing that he was raised in an
impoverished, alcoholic, neglectful, perverse, and physically
violent home, could have influenced the state trial court to impose
life sentences instead of death. Nevertheless, even if the District
Court had held a hearing and determined that counsel’s failure to
uncover this evidence fell below the standards set out in Wiggins
and Rompilla, the Court still could not have granted the writ
because, under Landrigan, Taylor cannot show Strickland
prejudice.

       We agree with Taylor that he was not belligerent and
obstructive in court like the defendant in Landrigan, 127 S. Ct. at
1944, but the record shows that his determination not to present
mitigating evidence was just as strong. Specifically, the first
PCRA court reasonably determined that: (1) Taylor refused to
allow the presentation of any mitigating evidence, and he called off
witnesses that were scheduled to appear; and (2) he was competent
to make those decisions. These factual determinations are
supported by the record from the first PCRA hearing that we have
recounted above, and also by Taylor’s and counsel’s statements on
the record at the guilty plea hearing.30 See 28 U.S.C. § 2254(d)(2).
Thus, whatever counsel could have uncovered, Taylor would not
have permitted any witnesses to testify, and was therefore not
prejudiced by any inadequacy in counsel’s investigation or decision
not to present mitigation evidence. See Landrigan, 127 S. Ct. at
1941.

        Taylor further attempts to distinguish Landrigan, arguing
that, in his case, the first PCRA court made no specific finding that



       30
         Without reiterating all of this testimony here, we note that
Taylor admitted to the first PCRA court that he instructed counsel
not to present any testimony. Morever, the first PCRA court’s
decision to credit counsel’s testimony that Taylor called off
witnesses, as well as the court’s competency determination, which
we have already addressed, were both reasonable, based on the
record.

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he would have prevented presentation of the mental health
evidence already available in the Sadoff and Briercheck reports.
The record shows, however, that the sentencing court had reviewed
the Sadoff report and was aware that Taylor had mental health
issues.31 To the extent supplemental testimony would have been
necessary at the penalty phase to elaborate on that report, Taylor’s
decision not to present witnesses would have prevented it. And to
the extent that Taylor’s newly obtained mental health evidence
(new reports from Mr. Briercheck, Drs. Sadoff, Dudley, and Blair)
would have made a difference, Taylor has no cognizable excuse for
his failure to present this evidence to the first PCRA court, which
heard testimony on Taylor’s ineffective assistance of counsel
claim. See 28 U.S.C. § 2254(e)(2).

       We are also satisfied that Taylor’s decision not to present
mitigating evidence was informed and knowing. Counsel
addressed the trial court and stated that he had discussed with
Taylor the likelihood of a death sentence if no mitigating evidence
was presented, and Taylor did not disagree that he had been so
advised. It is clear from Taylor’s many colloquies with the trial
court that he understood the consequences of not presenting
mitigation evidence. In any event, the Supreme Court stated in
Landrigan that it “ha[s] never imposed an informed and knowing
requirement upon a defendant’s decision not to introduce
evidence.” 127 S. Ct. at 1942 (internal quotation marks omitted).

       For all of these reasons, we will affirm the District Court’s
denial of an evidentiary hearing on ineffective assistance of
counsel at the penalty phase, denial of Taylor’s federal habeas
claims based on ineffective assistance of counsel at the penalty
phase, and denial of his claim challenging the validity of his



       31
           Dr. Sadoff’s original report discusses facts that were
potentially mitigating under 42 Pa. Cons. Stat. Ann. § 9711(e)(2)
(extreme mental or emotional disturbance) and § 9711(e)(3)
(substantially impaired capacity). The trial court was aware from
this report that, in one psychiatrist’s view, “the killings were a
product of [Taylor’s] aberrant state of mind,” and that “he was
responding to his mental disturbance.” (App. at 326.)

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decision not to present mitigating evidence.

   VIII. Taylor’s Remaining Claims (Claims 9, 10 and 11)

        We have focused, thus far, on what we view as Taylor’s
strongest claims. We have also carefully reviewed the record and
the briefs with respect to Taylor’s three remaining claims: that trial
counsel was ineffective for failing to investigate, develop, and
present the defenses of diminished capacity and voluntary
intoxication (Claims 9 and 10), and that Taylor was denied
effective assistance of counsel on direct appeal (Claim 11). We
adopt and affirm the District Court’s careful analysis of these
claims and agree that they are without merit.

                          IX. Conclusion

       Taylor was competent throughout the proceedings, and
knowingly and voluntarily pleaded guilty and waived his trial
rights. He then unambiguously instructed his attorney not to
present mitigating evidence at the penalty phase because he wanted
to receive the death penalty as punishment for his crimes. Because
the proceedings in the state courts afforded Taylor an opportunity
to exercise all of his Constitutional rights, and otherwise fully
comported with federal law, we will affirm the District Court’s
denial of Taylor’s petition in full.




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