                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-9-2006

Brown v. Folino
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2705




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                                                           NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                  Case No: 04-2705

                                KENNETH BROWN,

                                          Appellant

                                            v.

                 LOUIS FOLINO, Superintendent, SCI, Greene;
       THE DISTRICT ATTORNEY OF THE COUNTY OF MONTGOMERY;
        THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA


                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             District Court No. 03-cv-04950
                   District Judge: The Honorable Norma L. Shapiro


                               Argued March 30, 2006

    Before: SMITH and COWEN, Circuit Judges, and THOMPSON, District Judge*

                                (Filed:   May 9, 2006)


             Counsel:      Norris E. Gelman (Argued)
                           Suite 940
                           6th & Chestnut Streets
                           Public Ledger Building
                           Philadelphia, PA 19106
                           Counsel for Appellant




* The Honorable Anne E. Thompson, Senior District Judge for the District of New
Jersey, sitting by designation.
                             Kevin J. McCloskey (Argued)
                             Mary M. Killinger
                             Office of District Attorney
                             P.O. Box 311
                             Montgomery County Courthouse
                             Norristown, PA 19404
                             Counsel for Appellees



                                OPINION OF THE COURT


SMITH, Circuit Judge.

       Appellant Kenneth Brown appeals a District Court Order denying his petition for a

Writ of Habeas Corpus. Brown alleges that he received ineffective assistance of counsel

at his trial on first degree murder and other charges because trial counsel failed to object

to the unconstitutional definition of reasonable doubt contained in the trial court’s jury

instructions. He contends that the decision by the Pennsylvania Superior Court

(“Superior Court”) finding the jury instruction constitutional and rejecting Brown’s

ineffective assistance claim violated clearly established federal law such that Brown is

entitled to habeas relief.

       Although we agree with Brown that the trial court’s reasonable doubt formulation

raises grave constitutional concerns, nothing in the Superior Court’s decision as to the

jury instruction was “contrary to, or involved an unreasonable application of, clearly

established Federal Law” under the standard for habeas relief articulated in 28 U.S.C. §

2254(d)(1). Accordingly, we will affirm the Order of the District Court denying Brown’s


                                              2
habeas petition.

                                               I.

         Cynthia Linthicum was found in her apartment beaten and stabbed to death.

Brown was arrested and indicted on several charges connected to Linthicum’s death. At

Brown’s trial, the trial judge instructed the jury as follows on the definition of reasonable

doubt:

                 A reasonable doubt is a doubt that would cause a reasonably careful
         and sensible person to pause and hesitate before acting upon a matter of
         importance in his or her own affairs.
                 It is not mere hesitation. A mere hesitation in and of itself is not a
         reasonable doubt. But a hesitation concerning the guilt of the defendant
         may become a reasonable doubt when and if that hesitation becomes a
         restraint, and would then cause you to be restrained from acting in a matter
         of the highest importance in your own life.

Brown was convicted of first-degree murder, robbery, possession of instruments of crime,

aggravated assault, and theft of movable property.

         The convictions were affirmed on direct appeal, and the Pennsylvania Supreme

Court declined to hear the case. Brown filed a pro se petition under the Post Conviction

Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq., with the Court of Common

Pleas, and new counsel was appointed to represent Brown. In his PCRA appeal, Brown

alleged, inter alia, that trial counsel rendered ineffective assistance by failing to object to

the definition of reasonable doubt given in the trial court’s jury instructions, which Brown

argues was unconstitutional as a violation of due process. The Court dismissed the PCRA

petition, and the Superior Court affirmed, finding that the trial court’s formulation of


                                                3
reasonable doubt did not violate due process and, therefore, that trial counsel was not

ineffective for having failed to object to the court’s formulation. The Pennsylvania

Supreme Court again denied Brown’s request for allowance of appeal. Brown then filed

a petition for Writ of Habeas Corpus in Federal District Court, arguing that the above

conclusions by the Superior Court violated 28 U.S.C. § 2254(d)(1) such that Brown is

entitled to habeas relief. The District Court denied the petition and affirmed the

conclusions reached by the Superior Court. A Certificate of Appealability was granted on

July 13, 2005, limited to the question of whether trial counsel rendered ineffective

assistance in failing to object to the allegedly unconstitutional jury instruction on

reasonable doubt.1

                                              II.

       The Antiterrorism and Effective Death Penalty Act (“AEDPA” or the “Act”)

governs Brown’s habeas petition. 28 U.S.C. § 2254(d)(1).2 The Supreme Court has

  1
   The District Court had subject matter jurisdiction over this habeas petition pursuant to
28 U.S.C. § 2254(a). This Court exercises jurisdiction under 28 U.S.C. §§ 1291 and
2253.
  2
   The AEDPA provides in relevant part:

       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 . . . .

28 U.S.C. § 2254(d)(1).
                                              4
interpreted § 2254(d)(1) to mean that habeas relief is appropriate when independent

federal review shows that “the state court arrive[d] at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or . . . on a set of materially

indistinguishable facts,” or “the state court identifie[d] the correct governing legal

principle from th[e] [Supreme] Court’s decisions but unreasonably applie[d] that principle

to the facts of the prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413 (2000)

(emphasis added).

       In only one case, Cage v. Louisiana, 498 U.S. 39 (1990), has the Supreme Court

held that a definition of reasonable doubt violated due process. The instruction involved

in that case informed jurors that to acquit, the doubt raised in their minds must “give rise

to a grave uncertainty,” that it must be an “actual substantial doubt,” and that “moral

certainty” as to the defendant’s guilt was required. Id. at 40. In striking the instruction

down, the Court explained:

       The charge . . . equated a reasonable doubt with a “grave uncertainty” and
       an “actual substantial doubt,” and stated that what was required was a
       “moral certainty” that the defendant was guilty. It is plain to us that the
       words “substantial” and “grave,” as they are commonly understood, suggest
       a higher degree of doubt than is required for acquittal under the reasonable-
       doubt standard. When those statements are then considered with the
       reference to “moral certainty” . . . it becomes clear that a reasonable juror
       could have interpreted the instruction to allow a finding of guilt based on a
       degree of proof below that required by the Due Process Clause.

Id. at 41.

       Even if we assume that the jury instruction at Brown’s trial was unconstitutional,

Brown cannot show that the Superior Court’s decision requires habeas relief under

                                              5
Williams.3 The Supreme Court’s Cage decision certainly cannot be read to stand for the

proposition that the “restraint” formulation of reasonable doubt necessarily “allow[s] a

finding of guilt based on a degree of proof below that required by the Due Process

Clause.” Cage, 498 U.S. at 41. None of the problematic terms from the Cage instruction

were present in the instruction given here. Furthermore, the Cage decision in no way

mentions or refers to the terms “restrain,” “restraint,” or “hesitate” as part of a reasonable

doubt formulation. Although the Supreme Court in Victor v. Nebraska, 511 U.S. 1, 20

(1994), tacitly approved a version of the “hesitate” definition of reasonable doubt, the

Court in Victor specifically held that “the Constitution does not require that any particular

form of words be used in advising the jury of the government’s burden of proof,” id. at 5,

and no Supreme Court decision has struck down any version of the “restraint”

formulation of reasonable doubt. We also note, regarding the “unreasonable application”



  3
    Because of that conclusion, we need not pass formally on the constitutionality of the
reasonable doubt definition appearing in the jury instruction. Having said that, we note
our suspicion that the “restrain from acting” and “restraint” language as employed in the
instruction is constitutionally problematic.
        The word “restraint,” as it is commonly understood – especially in conjunction
with the previous discounting of the “hesitate” standard of reasonable doubt and the
precise formulation “restrain from acting” – suggests at least as high a degree of doubt as
do the phrases “grave uncertainty” and “substantial doubt” as employed in the Cage
instruction. In fact, to the extent that we conceive of “restraint” or “restrain from acting”
in their literal sense, those words arguably go beyond “giving rise” to a grave uncertainty
or substantial doubt and become “decision-determinative,” i.e., they arguably suggest a
level of doubt that, by its terms, prevents one from acting. Stated differently, we suspect
that the formulation employed by the state trial court is one that “suggest[s] a higher
degree of doubt than is required for acquittal under the reasonable-doubt standard.”
Cage, 498 U.S. at 41.
                                              6
prong of the Williams test, that every federal court within the Eastern District to address

some version of the “restraint” formulation has upheld the formulation under direct

constitutional analysis. See Porter v. Horn, 276 F. Supp. 2d 278, 340-41 (E.D. Pa. 2003);

Peterkin v. Horn, 176 F. Supp. 2d 342, 381 (E.D. Pa. 2001); Laird v. Horn, 159 F. Supp.

2d 58 (E.D. Pa. 2001).4

       Under our own precedent, we may not grant habeas relief “on the basis of simple

disagreement” with the Superior Court’s constitutional analysis. Matteo, 171 F.3d at 888.

Rather, we must be convinced that “Supreme Court precedent requires the contrary

outcome” to that reached by the Superior Court. Id. (emphasis added). We are not so

convinced. Brown may have made a compelling constitutional argument against the

reasonable doubt definition employed here, but based on the language of the instant jury

instruction and the foregoing analysis of Cage and Victor, we cannot conclude that the

Superior Court “arrive[d] at a conclusion opposite to that reached by [the Supreme] Court

on a question of law or . . . on a set of materially indistinguishable facts,” or that the

Court “identifie[d] the correct governing legal principle from th[e] [Supreme] Court’s

decisions but unreasonably applie[d] that principle to the facts of [Brown’s] case.”

Williams, 529 U.S. at 413 (emphasis added).


  4
   Although federal court decisions below the Supreme Court level cannot serve as the
legal benchmark against which to compare a state court’s decision, our cases state that
decisions of other federal courts are relevant in ascertaining the reasonableness of a state
court’s application of Supreme Court precedent. Fischetti v. Johnson, 384 F.3d 140, 149-
50 (3d Cir. 2004); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir.
1999) (en banc).
                                               7
                                              III.

       Moreover, even if we assume that the jury instruction raises grave constitutional

concerns, we agree with the conclusion of the Superior Court that Brown’s trial counsel

did not render ineffective assistance. Supreme Court precedent requires that to prevail on

an ineffective assistance claim, a defendant must show (1) that “counsel’s performance

was deficient,” and (2) that the “deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). In interpreting the first prong of the

test, the Strickland Court stated that “[t]he proper standard for attorney performance is

that of reasonably effective assistance.” Id. at 688. In other words, to obtain relief, a

defendant must show that “counsel’s representation fell below an objective standard of

reasonableness.” Id.

       In assessing an attorney’s performance, a reviewing court must be “highly

deferential” and must make every effort “to eliminate the distorting effects of hindsight,

to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Id. at 689. This effort requires that we

“indulge a strong presumption that counsel’s conduct [fell] within the wide range of

reasonable professional assistance . . . .” Id.

       Applying the Strickland standard for attorney performance, Brown cannot show

that trial counsel’s performance was deficient for failing to object to the jury instruction.

In the context of reviewing the proposed jury instruction with the trial judge and opposing

counsel, trial counsel – a Pennsylvania practitioner – likely would have recognized both

                                                  8
the “hesitate” and “restrain” language as formulations that have been upheld repeatedly

by the Pennsylvania Supreme Court in defining reasonable doubt. See, e.g.,

Commonwealth v. Hawkins, 787 A.2d 292, 301-02 (Pa. 2001) (indirectly approving an

instruction nearly identical to the instruction in Brown’s case); Commonwealth v. Ragan,

743 A.2d 390 (Pa. 1999) (explicitly approving both formulations); Commonwealth v.

Donough, 103 A.2d 694, 697 (Pa. 1954) (first case to approve the “restraint”

formulation); Commonwealth v. Kluska, 3 A.2d 398, 403 (Pa. 1939) (first case to approve

the “hesitate” formulation). Additionally, as noted in section II., supra, federal district

courts embracing Pennsylvania consistently have upheld versions of the “restrain”

formulation. In the face of such authority, a reasonable practitioner could certainly be

excused for failing to object to the instruction as worded in Brown’s case.

       Even measured against the other actors in this case, counsel’s assessment of the

jury instruction as constitutional would seem to meet reasonable professional standards.

Assuming that such an assessment was erroneous, counsel’s error has since been

duplicated by at least one Pennsylvania appellate court and a federal district court on

habeas review, both of which had significantly more time – and presumably more

expertise – to bring to bear in evaluating the instruction’s constitutionality. In short, trial

counsel’s failure to object to the jury instruction, even if ultimately incorrect, fell well

within the range of reasonable professional assistance under the circumstances.

       For the foregoing reasons, we will affirm the Order of the District Court denying

Brown’s habeas petition.

                                               9
