                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                     No. 11-1720
                                     __________

                               FRED WILSON, Appellant

                                          v.

                SUPERINTENDENT OF SCI HUNTINGDON;
       THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
        THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
                            __________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D.C. No. 2-09-cv-04797)
                   District Judge: The Honorable John R. Padova
                                      _________

                               ARGUED April 17, 2012

           BEFORE: SCIRICA, AMBRO, and NYGAARD, Circuit Judges

                                 (Filed: May 16, 2012)

Adrian N. Roe, Esq. [Argued]
Suite 1331 Gulf Tower
707 Grant Street
Pittsburgh, PA 15219

Carolyn Slayton, Law Student [Argued]
Nathan Ward, Law Student [Argued]
Duquesne University School of Law
600 Forbes Avenue
Pittsburgh, PA 15282

      Counsel for Appellant
Susan E. Affronti, Esq. [Argued]
Philadelphia County Office of the District Attorney
3 South Penn Square
Philadelphia, PA 19107

       Counsel for Appellees
                                          __________

                               OPINION OF THE COURT
                                     __________

NYGAARD, Circuit Judge

       Consistent with our certificate of appealability, Appellant Fred Wilson claims that

the admission of certain statements of his co-defendant violated his Confrontation Clause

rights. For the reasons that follow, we will affirm the District Court’s denial of Wilson’s

petition for a Writ of Habeas Corpus. 1

                                              I.

       A jury in the Court of Common Pleas of Philadelphia County found Fred Wilson

guilty of first degree murder, robbery, and conspiracy based on the shooting death of

Benjamin Milla. The facts of the conviction stemmed from a robbery and shooting

allegedly involving Wilson, Johnell Haines, and a third man whose identity is unknown.

Wilson was tried jointly with Haines. Wilson was eligible for the death penalty, but was

ultimately sentenced to life imprisonment.

       Wilson appealed the decision to the Pennsylvania Superior Court, arguing that his

Confrontation Clause rights under Bruton v. United States, 391 U.S. 123, 126 (1968),

were violated. In its opinion addressing the issues, the Trial Court concluded that

1
 The Court expresses its gratitude to the Duquesne University School of Law students
and professors for their able pro bono representation of the Appellant in this matter.
                                              2
Wilson’s Bruton claim was meritorious in light of the then-recent Supreme Court

decision in Gray v. Maryland, 523 U.S. 185 (1998), which had been decided after

Wilson’s trial. Accordingly, the Trial Court concluded that Wilson should be granted a

new trial. The Pennsylvania Superior Court disagreed. It held that Gray did not affect

the outcome of Wilson’s case and affirmed the judgment of sentence. The Pennsylvania

Supreme Court denied allocatur.

       Wilson then filed a petition under the Pennsylvania Post Conviction Relief Act

(“PCRA”) which did not reassert the Bruton claim. The PCRA Court dismissed the

PCRA petition, and Wilson appealed. While his PCRA appeal was pending, Wilson filed

a pro se habeas petition under 28 U.S.C. § 2254 in the District Court. The District Court

dismissed the habeas petition without prejudice, allowing Wilson to complete his PCRA

litigation. The Superior Court ultimately affirmed the PCRA Court, and the Supreme

Court denied allocatur.

       Wilson then filed the instant habeas petition. The Magistrate Judge recommended

that one claim be dismissed as procedurally barred, and that the remaining claim be

denied on the merits. After rejecting Wilson’s objections, the District Court adopted the

Magistrate Judge’s recommendation. We granted Wilson a certificate of appealability on

the question of whether his Confrontation Clause rights under Bruton were violated by

the use of Haines’ two redacted written confessions at trial.

                                             II.

       We have jurisdiction over Wilson’s appeal under 28 U.S.C. § 1291. Because the

District Court’s ruling in this case “relied exclusively on the state court record and did

                                              3
not hold an evidentiary hearing on habeas review,” our review is plenary. Gibbs v.

Frank, 387 F.3d 268, 271 (3d Cir. 2004). “An application for a writ of habeas corpus . . .

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 . . . was contrary to, or involved an

unreasonable application of clearly established Federal law, . . . [or] resulted in a decision

that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceedings.” 28 U.S.C. § 2254(d).

                                              III.

       Wilson was tried jointly with codefendant Haines, who provided various

confessions to the police. After Haines was arrested in Indiana, Pennsylvania, he gave a

videotaped confession as well as a written confession. Five days later, now in the

custody of the Philadelphia police, Haines gave another written confession. All three

statements were admitted into evidence at trial. In an effort to comply with Bruton,

Haines’ two written statements were redacted to replace explicit references to Wilson and

the third man allegedly involved in the robbery with the terms “other guy,” “other guys,”

or “them.” The taped confession was also redacted. In place of explicit references to

Wilson or the third participant, Haines’ voice went silent on the tape. 2 The Trial Court

read the jury a cautionary instruction during the trial and in the final instructions that

2
  Wilson’s state court briefs only complained of Haines’s two written confessions, and
made no mention of the videotaped confession. As a result, the Magistrate Judge’s Report
explained that any potential Bruton claim tied to the taped confession would be
unexhausted and procedurally defaulted. Because we agreed with the Magistrate Judge’s
cogent analysis, we declined to issue a certificate of appealability on issues pertaining to
the videotaped confession.

                                               4
Haines’ statements were to be considered only as evidence against him and not against

Wilson. In his habeas petition, Wilson asserts a violation of his Confrontation Clause

rights under Bruton and seeks relief on those grounds. We will, however, put Wilson’s

argument aside. We assume, without deciding, that the admission of Haines’ redacted

confession was a violation of Wilson’s Confrontation Clause rights. We nevertheless

conclude that such an error was harmless.

                                             IV.

       On collateral review of a state court criminal judgment under 28 U.S.C. § 2254,

“an error is harmless unless it had substantial and injurious effect or influence in

determining the jury’s verdict.” Fry v. Pliler, 551 U.S. 112, 116 (2007) (internal

quotation marks omitted). We conclude that the evidence introduced against Wilson

satisfies the Fry standard.

       Evidence established that Wilson had a business relationship with the victim.

Wilson had repeatedly telephoned Milla’s house the day of the murder. Further, the

prosecution introduced Wilson’s own statements to a police informant. Ricky Williams,

a police informant, testified that a month after Milla’s murder, he met with Wilson and

Wilson told him that Milla was dead. Wilson then told Williams that

              he had gotten his crew together because [Milla] didn’t want to
              pay him some money which they had a transaction of a check
              and that he went to [Milla]’s house and called on the phone
              and then his crew or whoever went in [Milla]’s house and had
              shot him in the leg or something like that.

Wilson was also recorded as admitting to entering Milla’s house with his “squad” and

that he “nailed” Milla because he had the money. This statement not only corroborated

                                              5
the testimony of Milla’s girlfriend that Wilson repeatedly telephoned, but also provided

the jury with a basis to conclude that Wilson admitted to the crimes--Wilson “nailed”

him.

       In the face of this evidence against Wilson, and absent any evidence introduced to

exonerate him, the admission of Haines’ redacted statements and the subsequent

reference to those statements as “redacted” did not have the required “substantial and

injurious effect” on the fairness of Wilson’s trial and conviction. See, e.g., Fry, supra;

Schneble v. Florida, 405 U.S. 427, 430 (1972) (even under a more stringent standard for

harmlessness, any error committed by admitting a codefendant's statement was harmless

where defendant's confession and corroborating evidence more than adequately

established guilt). Any impermissible inferences drawn about Wilson from Haines’

redacted statements would merely have been cumulative of the evidence of Wilson’s

involvement and presence.

                                             V.

       Since any Confrontation Clause violations that may have occurred at Wilson’s

trial are harmless, we conclude that no state decision was “contrary to, or involved an

unreasonable application of clearly established Federal law.” 28 U.S.C. § 2254(d).

Therefore, we will affirm the District Court’s denial of Wilson’s petition for a writ of

habeas corpus.




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