OPINION
In May 2001, petitioner George Anthony Ross was convicted of third degree murder after his third trial on the same charge. Ross unsuccessfully appealed his conviction and sought relief under Pennsylvania’s Post-Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541-46. Ross then sought federal habeas corpus review under 28 U.S.C. § 2254, raising Constitutional claims under the Fifth, Sixth, and Fourteenth Amendments. The District Court denied Ross’s petition, and we granted a certificate of appealability. Among other issues, Ross argues that his rights under the Confrontation Clause were violated when the trial court admitted prior testimony from an unavailable government witness, even though Ross did not have the opportunity to cross-examine the witness with newly-discovered impeachment evidence. For the following reasons, we conclude that the Confrontation Clause is not the proper avenue for relief on Ross’s claim. We will affirm.
I.
This case arises out of a murder that took place a decade and a half ago. On December 31, 1996, Cheo Stevenson was shot dead while riding in a jitney in the Northside section of Pittsburgh, Pennsylvania. Ross was implicated in the shooting, and was charged with criminal homicide, aggravated assault, and carrying an unlicensed firearm in violation of the Uniform Firearm Act. On June 4, 1997, Ross *202 was tried before a jury in the Allegheny County Court of Common Pleas. On June 6, 1997, Ross’s first trial resulted in a mistrial. Ross was re-tried, and on October 80,1997, a jury found Ross guilty of all three charges. Ross appealed his conviction, and on May 31, 2000, the Superior Court of Pennsylvania granted Ross a new trial. This third trial, which began on May 1, 2001, is the subject of Ross’s habeas petition and the instant appeal.
A.
At the third trial, the Commonwealth opened its case-in-chief with testimony from Jonathan Smith, who was riding in the jitney along with Stevenson at the time of the shooting. The Commonwealth then called to the stand a series of witnesses who testified about the crime scene, and the results of various laboratory tests that were performed on objects found at the scene.
Finally, the Commonwealth called Randy Erwin to the stand. At the second trial, Erwin had testified that Ross, whom he had met at the Allegheny County Jail, confessed in jail to shooting Stevenson. At the third trial, however, Erwin refused to testify on the ground that he feared retribution if he were to testify. The Commonwealth inquired as to Erwin’s willingness to testify, asking whether Erwin would testify if ordered to do so. Erwin repeated that he would refuse to testify:
Q Would you explain to the Judge, please, if that is in fact what you would intend to do on [sic] this case, that you would not give any testimony?
A I will not give any testimony.
Q And if I call you to the stand while the jury is in the box, can you answer the questions that I pose to you?
A No, sir — no, ma’am.
Q And Mr. Erwin, I ask you again if I call you as a witness in this case, do you intend to give testimony against Mr. Ross?
A No, ma’am.
Trial Tr. at 110:5-12,112:3-6.
On cross-examination, Erwin suggested that despite his reluctance, he might testify if he was ordered to do so. The Commonwealth clarified this suggestion on redirect:
Q ... [Defense counsel] has now asked you if you’re called to the stand and the Judge tells you to testify, are you going to answer the questions that I ask?
A No, but I didn’t understand the way he was putting it. I don’t want to be responsible for refusing to the Judge [sic]. I don’t know the circumstances behind that, but I don’t want to testify in the case.
THE COURT: Let me cut to the heart of this. Mr. Erwin, if the Commonwealth calls you to the [stand], is it your present intention not to respond to any of the questions, correct?
THE WITNESS: Correct.
Id. at 117:14-22. Erwin also stated that he suffered a lapse of memory and would not be able to testify even if ordered to do so. Id. at 118:16-19.
The trial judge found Erwin unavailable over defense counsel’s objection. The unavailability determination having been made, the trial judge allowed Erwin’s testimony from the second trial to be read into the record. At this point, defense counsel had failed to proffer any reason why Ross might not have had a full and fair opportunity to cross-examine Erwin at the second trial. 1
*203 After Erwin’s testimony was read to the jury, the trial judge permitted the Commonwealth to read into the record Erwin’s prior convictions which, under Pennsylvania law, were classified as crimen falsi convictions. The Commonwealth read to the jury the date and name of each conviction:
[Prosecutor]: Thank you, Your Honor. Your Honor, I’ll read the date and the crime of crimen falsi.
First on June 10 of 1987, burglary. October 2 of 1987, burglary. On March 25 of 1990, receiving stolen property and retail theft. On April 3 of 1995, receiving stolen property and retail theft. And on May 31 of 1996, two cases of theft. And that would be the extent of the crimen falsi.
Trial Tr. at 142:17-143:1. The Commonwealth did not include in its list Erwin’s prior conviction for making a false report to law enforcement. Nor did Ross’s counsel introduce this omitted conviction. The Commonwealth then rested its case.
After presenting testimony from the driver of the jitney in which Stephenson had been riding at the time of the shooting, Ross’s counsel requested a sidebar with the trial judge to discuss the admissibility of testimony from Thomas Thornton. Thornton, an inmate who was allegedly housed next to Randy Erwin, was Ross’s only remaining witness. Thornton intended to testify that Erwin fabricated his testimony regarding Ross’s confession. 2 The trial judge found that Thornton’s testimony was inadmissible hearsay under Pennsylvania law and excluded his testimony from trial. With no witnesses left to call, Ross rested his case.
B.
After closing arguments, the trial judge delivered the jury charge and allowed the jury to deliberate. After approximately two and a half hours of deliberation, the jury indicated to the court tipstaff that it had reached a verdict. Before the verdict could be recorded, however, one juror asked to speak with the trial judge.
The trial judge held an in camera conference with the single juror, counsel for both sides, and a court reporter. Ross himself was not present at the conference. At the conference, the juror voiced concerns about retribution should she vote guilty, identifying a spectator at the trial who may have recognized her:
THE TIPSTAFF: Are you afraid of something happening to you or your family?
[Juror]: ... I’m just saying that I’m afraid because I know members, people of that sort of background.
THE TIPSTAFF: Do you know people in the courtroom?
*204 [Juror]: There was one guy that was standing outside, I went to school with him and I’m just saying by him knowing me, they could say, well, okay, I know your sister, your sister stood up for jury duty and she testified against a killing of so and so and so and so....
THE COURT: .... What I asked you was whether or not you were fearful of any repercussions.
[Juror]: I mean, Judge, I am.
THE TIPSTAFF: Do you think because you were here and you were on this jury that somebody who maybe come [sic] in or out of the courtroom or was associated with this case may do something to someone that you know?
[Juror]: Of course.
THE TIPSTAFF: That’s what you’re afraid of?
[Juror]: ... [I]f I was on the jury and they were sitting in the audience ... if there was somebody ... that was sitting in the audience that knew me they could say, okay, she made a statement ... so we’re going to make a statement against her. They go hand-in-hand like that.... And I just don’t want to make a statement against someone that may hurt me. Later on down the line, that’s like me putting my foot in my mouth and saying, okay, I’m killing myself.
Trial Tr. at 266:12-268:15; see also Trial Tr. at 258:24-259:2; 262:20-21. Throughout this conference, the juror continued to voice her belief that Ross was guilty of the charged crime. See, e.g., Trial Tr. at 254:10-11 (“I feel that he is guilty on his accounts which he was wrong for doing in God’s eyes.”). The juror never equivocated on the issue of Ross’s guilt.
The trial judge reminded the juror several times that her job was to vote to convict or not to convict, regardless of Ross’s race. The trial judge also tried to allay the juror’s fear of retribution by telling her that no juror in any case he had ever tried had been threatened after delivering a verdict. The trial judge then instructed the juror to return to the courtroom to record the verdict.
After the juror left the in camera conference, Ross’s counsel moved for a mistrial. The trial judge denied the motion. Counsel, the court reporter, and the trial judge reconvened in the courtroom, with Ross and the twelve jurors present. The jurors, who were individually polled by the court to ensure the verdict was correctly reported, unanimously convicted Ross of third-degree murder.
C.
Ross timely appealed his conviction. On October 23, 2003, the Superior Court of Pennsylvania affirmed the judgment. The Supreme Court of Pennsylvania denied Ross’s petition for allowance of appeal.
Having exhausted his direct appeal, on March 9, 2005, Ross petitioned for relief under Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. §§ 9541-46. The PCRA Court denied Ross’s petition on the merits. Ross appealed, and the Superior Court of Pennsylvania affirmed. The Supreme Court of Pennsylvania again denied Ross’s petition for allowance of appeal.
On September 24, 2009, Ross timely filed for federal habeas relief under 28 U.S.C. § 2254 in the Western District of Pennsylvania. On December 2, 2009, the District Court denied Ross’s petition on the merits. The District Court declined to issue a certificate of appealability under 28 U.S.C. § 2241(a).
On August 26, 2010, we granted Ross’s application for a certificate of appealability as to three issues relating to Erwin’s testi *205 mony at the third trial. We also granted a certificate of appealability as to two issues relating to the trial judge’s in camera conference with the single juror.
II.
The District Court exercised jurisdiction over Ross’s petition under 28 U.S.C. §§ 2241, 2254. We exercise jurisdiction under 28 U.S.C. §§ 1291, 2253. Because the District Court “relied exclusively on the state court record and did not hold an evidentiary hearing, our review is plenary.”
Palmer v. Hendricks,
A district court’s authority to review a state court’s denial of post-conviction relief is limited by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Because the PCRA Court denied Ross’s PCRA Petition on the merits, we may grant habeas relief only if the PCRA Court’s adjudication of Ross’s claims “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 ... in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.”
Cullen v. Pinholster,
— U.S. —,
III.
Ross raises three Sixth Amendment claims arising out of the introduction of Erwin’s testimony from the second trial, arguing that: (1) he was denied his rights under the Confrontation Clause when Erwin’s prior testimony was read into the record; (2) he was denied his rights under the Confrontation Clause when the trial court excluded Thornton’s testimony; and (3) he was denied his right to effective assistance of counsel when trial counsel failed to present evidence of Erwin’s crimen falsi conviction for making a false report to law enforcement.
A.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]” U.S. Const, amend. VI. Under the Confrontation Clause, “[A] witness’s testimony against a defendant is [ ’] inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.”
Melendez-Diaz v. Massachusetts,
*206
Whether a witness is available to testify is a mixed question of law and fact.
See McCandless v. Vaughn,
The existence of contrary evidence, however, does not render the PCRA Court’s determination unreasonable in light of the evidence presented.
See
28 U.S.C. § 2254(d);
Lambert v. Blackwell,
Ross also argues that the PCRA Court erred as a matter of law by concluding that Erwin’s refusal to testify was sufficient to render him unavailable within the meaning of the Confrontation Clause. Rather, Ross argues that the trial court had an obligation to order Erwin to testify under threat of sanctions. Only if Erwin refused to comply with the court order, Ross argues, would he be unavailable for Confrontation Clause purposes.
The Confrontation Clause does not require a witness to face the threat of sanctions in order to be rendered unavailable. A witness is unavailable for Confrontation Clause purposes when he or she refuses to testify, regardless of whether the refusal is in response to an order to testify under threat of sanctions.
See, e.g., United States v. Bell,
B.
As discussed above, in order for Erwin’s testimony from the second trial to have been admissible: (1) Erwin must have been “unavailable” and (2) Ross must have “had a prior opportunity for cross-examination.”
Melendez-Diaz,
In
Davis v. Alaska,
The Supreme Court bolstered this more limited reading of the Confrontation Clause in
Pennsylvania v. Ritchie,
Other courts of appeals have adopted the vision of the Confrontation Clause expounded in
Fensterer
and
Ritchie. See, e.g., United States v. Watson,
We agree with our sister circuits, and hold that Ross was not denied a “full and fair opportunity” to cross-examine Erwin. There were no “specific statutory or court-imposed restriction^] ... on the scope of questioning” at Ross’s second trial.
Ritchie,
We also consider it significant that when the trial judge declared Erwin unavailable, the judge had not been informed of any newly-discovered evidence. Only after Erwin had been excused, his testimony had been read into the record, and the Commonwealth had rested its case, did trial counsel raise the issue of Thornton’s testimony. 7 The timing of counsel’s submission of the issue prevented the trial judge from asking Erwin whether he would be willing to testify specifically about Thornton’s testimony, from declaring Erwin available for those purposes, or from allowing trial counsel the opportunity to cross-examine Erwin about the statements he allegedly made to Thornton.
Ross’s interpretation of the Confrontation Clause would allow a defendant to place a trial judge in a difficult situation: the judge would either have to declare a mistrial because the defendant’s right to confront was violated, or the judge would have to delay trial to recall the Government witness, who may well have been transported back to prison, to testify about the newly-discovered evidence. Such a result would encourage defendants to hide any newly-discovered evidence from a trial judge, creating the possibility of a Confrontation Clause violation that might jus *209 tify reversal later down the line. We decline to allow such gamesmanship where case law requires the opposite result.
This is not to say that a defendant in Ross’s situation is somehow frozen in time, precluded from introducing newly-discovered evidence in a later trial. There are other constitutional avenues by which a defendant might introduce such newly-discovered evidence. Ross may have had grounds to bring an ineffective assistance of counsel claim arising out of trial counsel’s failure to raise Thornton’s testimony earlier at trial.
See Strickland v. Washington,
Additionally, the Due Process Clause guarantees a defendant the “right to have clearly exculpatory evidence presented to the jury, at least when there is no strong countervailing systemic interest that justifies its exclusion[.]”
United States v. Herman,
Our holding today is limited to the case before us. We hold only that Ross was not denied his Sixth Amendment rights under the Confrontation Clause where Ross’s inability to cross-examine Erwin about Thornton’s testimony cannot be attributed to a limitation imposed by the trial court or by statute. Ross had a full and fair opportunity to cross-examine Erwin at the second trial within the meaning of the Sixth Amendment. His Confrontation Clause rights were not violated when Erwin’s prior testimony was read into the record at his third trial.
C.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. Ross argues that he was denied his Sixth Amendment right to effective assistance of counsel when trial counsel failed to introduce evidence of Erwin’s
crimen falsi
conviction for making a false report to law enforcement. Under
*210
Strickland v. Washington,
To show deficient performance, “a person challenging a conviction must show that counsel’s representation fell below an objective standard of reasonableness____ The challenger’s burden is to show that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Harrington v. Richter,
— U.S. —,
There is no question that counsel’s performance was deficient. A crimen falsi conviction for false reports is obviously important impeachment evidence, and the Commonwealth concedes as much. There is no apparent strategic reason that might explain or excuse counsel’s mistake. Thus, viewed objectively, Ross’s counsel unreasonably failed to introduce such impeachment evidence.
In addition to deficient performance, however, Ross must also show prejudice. “With respect to prejudice, a challenger must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ”
Richter,
The PCRA Court concluded that there was no prejudice here because the Commonwealth read into the record Erwin’s other crimen falsi convictions, which included two convictions for burglary, two convictions for retail theft, two convictions for receiving stolen property, and two convictions for theft. There was not a reasonable probability, the PCRA Court concluded, that reading one more conviction into the record would have led to a different result. Ross argues that Erwin’s false reports conviction is more damaging to Erwin’s credibility than his other convictions, and so its omission was prejudicial.
A false reporting conviction may well be more prejudicial than any one of Erwin’s other convictions. Depending on the facts underlying the conviction, a jury might infer that the similarities between Erwin’s previous false report and his report against Erwin implied that Erwin had lied at the second trial. We cannot say, however, that the PCRA’s conclusion was an unreasonable application of Strickland. The jury was told that Erwin had been convicted of eight separate crimes over a span of ten years. The PCRA Court could reasonably have concluded that the jury already discredited Erwin’s testimony to the point where the incremental impact of one additional conviction on Erwin’s credibility was minimal. Because the PCRA Court could reasonably have concluded that Ross failed to demonstrate prejudice, *211 they did not unreasonably apply Strick land. 8
rv.
Ross raises two claims arising out of the trial judge’s in camera conference with the juror, arguing that: (1) the trial judge denied Ross his right to a fair trial by giving instructions to a single juror; and (2) the trial judge denied Ross his right to be present at the conference. 9
A.
Generally, “communications between the court and the jury should be made in the presence of all of the jurors.”
United States v. Gullia,
In
Gullia,
we held that a trial judge erred where he held a conference with a juror who suggested that she might want to hold out and not vote guilty. The trial judge told her that if she held out, “we have just wasted two weeks” and gave the juror extensive, substantive instructions regarding the legal standards at issue in the case.
Gullia,
The trial judge’s conference with the juror here is far closer to the conduct upheld in
Rabb.
The judge did not elaborate on any evidence, and repeatedly emphasized that it was the juror’s job to weigh the evidence presented at trial to reach a verdict. At no point did the juror, like the juror in
Gullia,
equivocate on the issue of Ross’s guilt. Rather, the juror repeated that she believed Ross was guilty, but that she was afraid to deliver a verdict out of fear of retribution.
10
The
*212
trial judge’s conversation with the juror did not “directly or indirectly refer to the specifics of the case, [was] collateral to the issues under consideration, and [was] not capable of affecting the deliberative process in any manner.”
Truscott v. Chaplin,
B.
Ross argues that he had a constitutional right to be present at the in
camera
conference. The Due Process Clause of the Fifth and Fourteenth Amendments guarantee a criminal defendant the right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.”
11
Stincer,
Gagnon
is instructive. There, a criminal defendant in a multi-defendant trial was seen sketching portraits of the jury during the trial. A juror expressed a safety concern over the incident. The trial judge held an
in camera
conference with the juror, in the presence of counsel for the defendant who was seen sketching the portraits, but excluding the defendants themselves. On appeal, the defendants claimed that they were denied their Fifth Amendment right to be present at the conference. The Supreme Court disagreed, holding that the defendants’ presence “was not required to ensure fundamental fairness or a reasonably substantial ... opportunity to defend against the charge.”
Gagnon,
The Court emphasized that the defendant whose conduct had resulted in the conference had counsel present.
Id.; see also United States v. Fernandez-Hernandez,
The facts here are virtually indistinguishable from Gagnon. A juror expressed concerns about her safety. The trial judge held a conference to discuss matters extraneous to the questions at issue at trial. Ross’s counsel was present to ensure that nothing prejudicial was said. Ross’s presence would not have contributed to the fairness of the proceeding, and may well have been counterproductive, given that the juror was expressing concern about possible retaliation. Ross’s Fifth Amendment rights were thus not violated by the trial judge’s decision to hold the conference without his presence. 12
V.
The writ of habeas corpus “is an extraordinary form of relief and is granted only to remedy constitutional error.”
Evans v. Sec’y Pa. Dept. of Corr.,
Notes
. At oral argument before this court, Ross's attorney suggested that counsel had, in fact, *203 raised the issue of newly-discovered impeachment evidence, discussed in Part IV.B, infra. When pressed on this point, Ross was unable to provide a citation to the record demonstrating this point and requested permission to file a follow-up brief. Ross's follow-up brief, along with an independent review of the record, make clear that Ross’s counsel misspoke at oral argument. While the record shows that Ross did object to the judge’s unavailability determination, it does not indicate on what basis the objection was made. Trial Tr. at 120:10-15. Nothing in the record suggests that Ross raised the issue of newly-discovered impeachment evidence before the trial judge allowed Erwin’s prior testimony to be read into the record.
. Although Ross asserted at trial that Thornton was housed next to Erwin, the record on this point is unclear. The Commonwealth noted at trial that "if you check the computer it appears [Erwin and Thornton] were never lodged in the same prison at the same time, [where] they could have had the opportunity to discuss anything with each other....” Trial Tr. at 172:13-17.
. The Confrontation Clause separately requires that the Government have made a good faith effort to produce the witness at trial.
See Barber v. Page,
. The trial judge’s unavailability determination also appears to have been informed by non-verbal cues that the judge was able to observe. For instance, the trial judge stated that he “noticed Mr. Erwin winking at Mr. Ross. They can play all the games they want.” Trial Tr. 120:17-19. Under these circumstances, it would be especially inappropriate to overturn the PCRA Court's conclusion based on a few statements in the transcript, considered in isolation.
. Ross also takes issue with the trial judge’s evidentiary determination that Thornton’s testimony was inadmissible under Pennsylvania law. The Supreme Court has "stated many times that 'federal habeas corpus relief does not lie for errors of state law.’ ”
Swarthout v.
Cooke, - U.S. - ,
. Were we to adopt Ross’s argument, the pri- or testimony of any unavailable witness would be rendered inadmissible upon finding any newly-discovered impeachment evidence. If, for example, a critical government witness died before trial, a defendant would merely have to uncover a prior inconsistent statement to render that witness’s prior testimony inadmissible. Fensterer makes clear that the Confrontation Clause does not require such a result.
. As discussed supra in note 1, Ross's attorney suggested at oral argument that trial counsel had indeed raised the issue of Thornton's testimony before the trial judge. The record does not support this claim, nor has Ross’s attorney provided any support for this assertion. Nothing in the record suggests that trial counsel so much as hinted to the trial judge of his intent to introduce newly-discovered impeachment evidence, or to argue that Ross was deprived of a full and fair opportunity to cross-examine Erwin at the second trial.
. Although Ross mentioned in his brief and at trial that the false reports conviction may have resulted from a situation very close to the testimony he delivered against Ross, the facts of the conviction would not have been disclosed to the jury — they would simply have been told the name of the offense and the date of conviction. The crime of "making a false report to law enforcement” is vague and can be interpreted in different ways. A juror may reasonably conclude that the offense is not particularly damaging as impeachment evidence.
. Ross also raises ineffective assistance of counsel claims arising out of trial counsel's failure to raise these two issues. We have held, however, that "counsel cannot be deemed ineffective for failing to raise a merit-less claim.” Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir.2000). Because we conclude that Ross’s right to be present and to a fair trial were not violated here, Ross’s trial counsel was not ineffective for failing to raise those claims.
. Even if the instructions here were closer to those in Gullia, we could not reverse. The PCRA Court concluded that the judge’s conversation with the juror was not an "additional instruction” that might justify habeas relief because “there was no communication with the juror as to her thought process [n]or were additional instructions being given.” App’x 253. AEDPA only allows us to reverse if the PCRA Court’s conclusion results, among other things, in an unreasonable application of *212 "clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Ross has pointed to no Supreme Court precedent which was unreasonably applied here.
. A similar right to be present exists under the Confrontation Clause of the Sixth Amendment, but that right is implicated only "where the defendant is ... actually confronting witnesses or evidence against him.”
United States v. Gagnon,
. The PCRA Court and the District Court denied Ross’s claim on the basis that the conference with a juror was not a “critical” stage at trial because the jury already indicated it had reached a verdict. Ross argues on appeal that because the verdict had not yet been recorded, the jurors were free to change their minds and so the verdict was not yet final. Ross is correct, and the Commonwealth appears to concede as much. Nonetheless, "we can affirm a judgment on the merits on an alternative basis[.]”
Szuchon v. Lehman,
. Because we conclude that there was no error, we need not consider whether any errors were harmless.