                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT



                Case No. 18-2755


                 CARL SIMON,
                        Appellant

                        v.

    GOVERNMENT OF THE VIRGIN ISLANDS


         On Appeal from the District Court
                 of the Virgin Islands
        (District Court No.: 3-03-cv-00024)
     District Judge: Honorable Wilma A. Lewis


             Argued on April 8, 2019


           (Opinion filed: July 9, 2019)


Before: SMITH, Chief Judge, JORDAN and RENDELL,
                  Circuit Judges
Joseph A. DiRuzzo, III [ARGUED]
Daniel Lader
DiRuzzo & Company
401 East Las Olas Boulevard
Suite 1400
Fort Lauderdale, FL 33301

                    Counsel for Appellant

Su-Layne U. Walker [ARGUED]
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802

                    Counsel for Appellee



                        OPINION


RENDELL, Circuit Judge:

       Carl Simon was convicted in 1994 for his part in a
break-in that led to the death of Daniel Ezekiel. Twenty-five
years later, we review his petition for habeas relief. Although
we agree with the Appellate Division of the District Court for
the Virgin Islands that most of Simon’s claims do not entitle
him to relief, we remand for two reasons. First, the Superior
Court abused its discretion when it declined to conduct an
evidentiary hearing to address Simon’s claim that the Virgin




                              2
Islands Government violated its Brady obligations by failing to
disclose a prior agreement with its key witness, James Roach.
Second, the Appellate Division erred when it dismissed
Simon’s claim that his trial counsel was ineffective without
first remanding to the Superior Court to conduct an evidentiary
hearing. Simon presented facts that, if true, tend to show his
counsel had a conflict of interest by representing one of
Simon’s co-conspirators at the time of his trial. Thus, we will
affirm in part, reverse in part, and remand to the Appellate
Division with instructions to remand to the Superior Court to
conduct an evidentiary hearing on those two issues.

                              I.1

            A. The Crime and Pre-trial Events.

       In September 1993, three men broke into the home of
Elroy Connor. When Connor and Daniel Ezekiel returned in
the midst of the break-in, a struggle ensued and Ezekiel was
shot and killed. The three intruders fled the scene.

       Subsequently, James Roach was arrested for his
involvement in the death of Ezekiel. Roach was charged in the
District Court for the Virgin Islands with first degree murder
under Virgin Islands law and unlawful flight to avoid
prosecution under federal law. As to the murder charge, he
pled not guilty. The murder trial was prosecuted by the Virgin

1
 The facts of Simon’s case have been thoroughly discussed in
several opinions. See JA 30–40; Simon v. Gov’t of V.I., 679
F.3d 109, 111–13 (3d Cir. 2012); Simon v. Gov’t of V.I., 47 V.I.
3, 5–11 (2002). We thus set out here only what is necessary
for the disposition of this appeal.




                               3
Islands Attorney General’s Office. Roach testified on his own
behalf, stating he was at his girlfriend’s house on the night in
question, and thus did not commit the crime. When asked about
a possible co-conspirator, Simon, Roach stated that he did not
know him. In March 1994, Roach was found guilty of first
degree murder and subsequently appealed his conviction and
sentence to us. He later withdrew that appeal in March 1995.
Roach was also convicted on the unlawful flight charge, but in
October 1994 he moved to continue sentencing on that count.

       After Roach’s conviction, Simon was arrested. The
Government filed an Information in the Superior Court of the
Virgin Islands charging him with burglary, conspiracy, and
first degree premeditated murder. The Court appointed
Augustin Ayala, Esq., to represent Simon.

         Two weeks before trial, the Government notified Simon
that it intended to amend the Information. One week before
trial, it moved to amend the Information changing
premeditated murder to felony-murder with a predicate felony
of robbery. The amendment also added robbery and conspiracy
to commit robbery. Ayala objected, as the amendment added
new charges only a week before trial. The Court nonetheless
granted the motion to amend the Information. Two days before
trial, the Court again permitted an amendment to cure a defect
over Ayala’s objection, removing the conspiracy count and
altering some language to reflect the elements of felony-
murder.



                 B. Trial and Direct Appeal




                               4
       At trial, the Government presented Roach as its key
witness. Shortly after his conviction, Roach provided a
statement to officials that was diametrically opposed to his
testimony at his own trial. In the statement, he indicated that
Simon orchestrated the burglary and shot Ezekiel. Roach
explained his change in tune, testifying, “I was scared. I was
scared for my life. That’s why I didn’t tell the truth then, cause
Carl Simon say he going to kill me. But, I ask for protection,
and I get it, so I [am] willing to tell the truth now.” JA 444–45.
Ayala cross examined Roach on, among other things, the
“protection” he received. Ayala asked, “Do you know which
Government gave the protection? Was it the Federal
Government or the Local Government?” JA 482–83. He stated,
“I can’t—the Local.” JA 483. On redirect examination, the
Government asked Roach to explain what, if any promises,
were made to him:

       [The Government]: Mr. Roach, will you state to
       the Court and the . . . Jury, whether or not the
       Government has made any promises to you for
       your testifying here today, in terms of reducing
       or having to do anything with your case?
       [Roach]: I ask for protection.
       [The Government]: And?
       [Roach]: So that Carl Simon and he brother [sic]
       and they couldn’t get to me.
       [The Court]: Are there any other promises that
       were made to you by the Government?
       [Roach]: No, Sir.


JA 498. Although other witnesses testified at Simon’s trial,
Roach was the only witness to affirmatively place Simon at




                                5
Connor’s house and identify him as the one who shot Ezekiel.
Connor, the homeowner, testified that Roach was with a
shorter man, but never identified the “short man” as Simon, nor
did he identify him at trial. See JA 578–59 (“No, I couldn’t see
[his face].”). In addition, Roach and Connor’s testimony
conflicted: Roach indicated that Simon put a t-shirt over his
head to cover his face, while Connor indicated the man wore a
stocking.

        The third intruder was never formally identified. Ayala
questioned Roach about a man named Daryl Ward, the possible
third man. Roach stated that he had a conversation with Ward
in jail and that he “fit the description” of the third man, but “it
wasn’t him” because “he was in jail, and when I really think, it
wasn’t him.” JA 465–66. Roach further stated that it “wasn’t
him” because of “how he express[ed] [him]self.” JA 469.
Ayala testified years later in an unrelated proceeding that:

       Ward, as far as I’m concerned, notice I said as
       far as I’m concerned, was part of the individuals
       who were in that house. The only problem that
       the government had, and the government didn’t
       call him, was the Bureau of Corrections records
       indicated that Mr. Ward was at the Bureau of
       Corrections at the time. But I know that Mr.
       Ward was out, because I had, Mr. Ward was also
       one of my clients, and I remember Mr. Ward
       being out. And from all indications, it would
       appear to me that Mr. Ward was another
       individual who may have been there along with
       Mr. Simon and Mr. Roach.
JA 966. Ayala attempted to have Ward testify at Simon’s trial,
but “he didn’t come to court. I couldn’t force him to come to




                                6
court, because, again . . . [t]he records would indicate that he
would be in jail[.]” JA 967.

        Simon was found guilty of burglary, robbery, and
felony-murder, and sentenced to life imprisonment without
parole. He appealed the conviction to the District Court of the
Virgin Islands, Appellate Division.2 At that time, the Public
Defender’s Office signed an agreement with Michael Joseph,
Esq. to take over Simon’s appeal. Joseph filed a brief arguing
that the District Court erred by permitting the Government to
amend the Information to add additional charges before trial.
The Appellate Division affirmed. Simon wished to appeal the
decision to us. After he attempted to contact Joseph, Joseph
sent a letter stating:

       I received your message . . . in which you
       demanded that I file a notice of appeal to the 3d
       Circuit from your direct appeal to the Appellate
       Division. . . . Unfortunately, such an appeal
       would be frivolous and without merit. . . . I am
       therefore advising you that you should seek other
       counsel if you insist on an appeal to the Third
       Circuit Court of Appeals. Note that you must file
       such notice immediately.
JA 921. Although Simon filed pro se a notice of appeal shortly
thereafter, it was dismissed as untimely.


2
  At the time of Simon’s conviction, all appeals from the
Superior Court (previously known as the Territorial Court)
were heard by the District Court for the Virgin Islands,
Appellate Division. As discussed below, appellants were
further entitled to a second appeal as of right to us.




                               7
       In September 1995, the United States Attorney’s Office
filed a stipulation to vacate Roach’s sentence of first degree
murder and reduce the conviction to second degree murder.
Several months after Roach testified and helped secure
Simon’s conviction, Roach withdrew his ongoing appeal to the
Third Circuit. The United States Attorney’s Office, in
exchange, informed the District Court of his substantial
cooperation and requested that his conviction for first degree
murder be vacated and reduced to second degree murder. The
Virgin Islands Assistant Attorney General who prosecuted
Simon’s case also submitted a letter in support of Roach’s
resentencing. At a hearing considering this, Roach’s attorney
indicated that:

       After [Roach] had filed [his] appeal with regards
       to this matter, we were approached by the
       Government and we agreed with regards to that
       matter to testify in the Territorial Court. Upon
       our testimony in the Territorial Court, we agreed
       and we stipulated to vacate the conviction for
       first degree murder.

JA 868. The District Court vacated the first degree murder
sentence, and Roach pled guilty to the new count of second
degree murder. The District Court subsequently sentenced him
to 20 years’ imprisonment.
                  C. Habeas Proceedings.3

      After Simon’s direct appeal, he filed this petition in the
Superior Court. Simon argued, inter alia, that: (1) the

3
  There are several habeas petitions not before us but relevant
to this appeal. Immediately after his trial was completed,




                               8
Government’s amendment to the Information two weeks
before trial was per se reversible error; and (2) the Government
violated its Brady obligations by failing to disclose a prior
agreement with Roach to testify in exchange for reducing his
conviction and sentence. The Superior Court denied the habeas
petition in a July 18, 2002 Order without an evidentiary hearing
(“Simon I”). Simon subsequently appealed to the Appellate
Division.

       While pending in the Appellate Division, Simon’s
attorney, believing that there were no meritorious issues to be
raised on appeal, filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967). The Appellate Division, however,
realized the Superior Court failed to issue a Certificate of
Probable Cause (“CPC”) with its order denying the petition, as
required by V.I. R. App. P. 14(b). Thus, the Appellate Division
remanded back to the Superior Court where it issued the CPC.
The CPC stated that several issues, including the Brady
violation and the amended Information, were worthy of review
by the Appellate Division. The Appellate Division, however,


Simon filed pro se his first of several petitions. That petition
was denied and Simon appealed. Arturo Watlington, Esq., was
appointed as counsel for the appeal, which was later dismissed
for failure to prosecute. As discussed below, Simon argues that
Watlington was ineffective for failing to file an appellate brief.
Simon also filed a § 2254 habeas petition with the District
Court of the Virgin Islands, concurrent with the habeas petition
before us. The District Court conducted an evidentiary hearing,
where much of the testimony on this record was presented. The
District Court dismissed that petition, however, for failure to
exhaust remedies in the territorial courts.




                                9
proceeded to grant Simon’s counsel’s motion to withdraw
pursuant to Anders, and deny the petition. It did so without
considering the CPC. Simon then appealed to us.

       We concluded that it was error for the Appellate
Division to grant the petition to withdraw without considering
the CPC because it established meritorious issues for appeal.
Simon v. Gov’t of V.I., 679 F.3d 109, 115–16 (3d Cir. 2012)
(“Simon II”). In doing so, we permitted Simon to raise
additional issues on remand including several ineffective
assistance of counsel claims. Id. at 116. On remand, the
Appellate Division permitted Simon to raise, inter alia:

   1. Whether Ayala (trial counsel) was ineffective for: (a)
      failing to seek a continuance when new substantive
      counts were added; (b) failing to object to Roach’s
      testimony stating that Simon threatened Roach; (c)
      maintaining a conflict of interest by representing Ward;
      and (d) facilitating a breakdown in communication
      between Simon and himself.

   2. Whether Joseph was ineffective for: (a) refusing to file
      the notice of appeal to us on direct appeal, when Simon
      had an appeal as of right; and (b) failing to raise the
      Brady violation on direct appeal.
   3. Whether Arturo Watlington, Esq., was ineffective for
      failing to prosecute an initial (and different) habeas
      petition.

   4. Whether the Superior Court lacked Jurisdiction to
      preside over Simon’s trial because the crime occurred
      before that Court obtained jurisdiction.




                             10
Simon also raised the Brady violation and the improper
amendment to the Information.

        The Appellate Division denied the petition in part,
dismissing all issues except whether Joseph was ineffective. JA
102–03; Simon v. Gov’t of V.I., 116 F. Supp. 3d 529, 575 (D.
V.I. App. Div. 2015) (“Simon III”). For that claim, it remanded
to the Superior Court to develop a factual record. After the
Superior Court submitted findings of fact, the Appellate
Division denied the petition, concluding that Simon had no
right to counsel on his second appeal as of right to us. JA 9–
28; Simon v. Gov’t of V.I., 2018 WL 2994374 (D. V.I. App.
Div. 2018) (“Simon IV”).

       Simon again appealed to us. We now review the
Appellate Division’s order denying the petition in both Simon
III and Simon IV.



                             II.4

       Simon raises six issues for appeal: (1) The Brady
violation; (2) Ayala’s ineffectiveness; (3) Joseph’s
ineffectiveness; (4) Watlington’s ineffectiveness; (5) the
improper amendment to the Information; and (6) the Superior
Court’s lack of jurisdiction. We address each argument below.




4
 The Appellate Division had jurisdiction pursuant to 48
U.S.C. §§ 1613a(a) and 1613a(d). We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 48 U.S.C. § 1613a(c).




                              11
                     A. Brady Violation

       First recognized in Brady v. Maryland, 373 U.S. 83
(1963), the prosecution has an obligation to disclose material
evidence that could exculpate a defendant or help impeach an
opposing witness. Failure to do so violates the Due Process
Clause of the Fourteenth Amendment. See Brady, 373 U.S. at
86. To establish a Brady violation, the defendant must show
that “(1) the government withheld evidence, either willfully or
inadvertently; (2) the evidence was favorable, either because it
was exculpatory or of impeachment value; and (3) the withheld
evidence was material.” United States v. Walker, 657 F.3d 160,
185 (3d Cir. 2011) (internal quotation marks omitted).

       Because “the prosecution . . . alone can know what is
undisclosed,” Kyles v. Whitley, 514 U.S. 419, 437 (1995), a
problem arises when the defendant bears the burden to
establish a violation but is unlikely to uncover evidence
without assistance. To correct this imbalance, an initial
showing supporting the claim of a Brady violation may entitle
a defendant to an evidentiary hearing. The trial court should
conduct a hearing where a habeas applicant “has made out a
prima facie case for habeas corpus relief that is not
procedurally barred[.]” Rivera-Moreno v. Gov’t of V.I., 61 V.I.
279, 313 (2014). If a petitioner makes a “prima facie showing,”
then the lower court may abuse its discretion if it nonetheless
denies an evidentiary hearing. Morris v. Beard, 633 F.3d 185,
196 (3d Cir. 2011). But see Palmer v. Hendricks, 592 F.3d 386,
393 (3d Cir. 2010) (“[E]ven if the factual allegations in the
habeas petition are sufficient to make out a prima facie claim
for habeas relief, a district court may decline to convene an
evidentiary hearing if the factual allegations are ‘contravened
by the existing record.’”). In considering whether to hold a




                              12
hearing, we have suggested that district courts “focus on
whether a new evidentiary hearing would be meaningful, in
that a new hearing would have the potential to advance the
petitioner’s claim.” Morris, 633 F.3d at 196.

        Simon argues that the Government failed to disclose a
prior agreement with Roach promising to reduce his conviction
and lower his sentence in exchange for his testimony against
Simon. Simon identifies several pieces of evidence that support
the existence of an agreement. First, he points to testimony by
Roach’s attorney at the June 1996 re-sentencing hearing.
Roach’s attorney indicated that “[a]fter we had filed our appeal
with regards to [Roach’s conviction], we were approached by
the Government and we agreed with regards to that matter to
testify in the Territorial Court. Upon our testimony in the
Territorial Court, we agreed and we stipulated to vacate the
conviction for first degree murder.” JA 868. Simon argues that
“upon our testimony” suggests the parties reached an
agreement prior to Roach’s testimony, conditioned upon his
cooperation. Simon also relies upon a letter from the state
prosecutor recommending a downward departure for Roach’s
cooperation. See JA 866. He further argues that this is evidence
of a relationship between the local and federal prosecutors, and
thus the local prosecutor in Simon’s case must have known
about a federal agreement. See United States v. Risha, 445 F.3d
298, 299 (3d Cir. 2006) (“[C]ross-jurisdiction constructive
knowledge can be imputed to the federal prosecution because
of close involvement between the federal prosecution and state
agents[.]”).5

5
  Although not raised by Simon, we note that the timing of
Roach’s motion to continue sentencing on his federal unlawful
flight charge could also support the existence of an agreement




                              13
        The Superior Court denied the claim without
conducting an evidentiary hearing. It concluded that Simon
failed to make a showing that the Government and Roach had
a prior agreement: “[a] request for a reduction in sentence does
not, in and of itself, establish the existence of a quid pro quo
between the United States or the Government of the Virgin
Islands and James Roach.” JA 131–32. The Superior Court
further concluded that, even if there was an agreement “there
is no reasonable probability that . . . the outcome of the trial
would have been different” in light of other corroborating
testimony. JA 132. The Appellate Division agreed: The
evidence suggests, at most, “a two-step process” where Roach
testified and then the Government reached an agreement to
vacate his sentence and re-sentence him under a lesser offense.
JA 43. The Appellate Division primarily relied upon our
decision in United States v. Freeman, 763 F.3d 322 (3d Cir.
2014). In Freeman, we rejected the defendant’s Brady claim
that the Government failed to disclose letters between federal
agents and cooperating witnesses because “there is no record
evidence that the letters even existed at the time of
[defendant’s] trial[.]” Id. at 347.

       At this juncture, we believe Simon has made a prima
facie showing that a prior agreement may have existed between
the Government and Roach. Roach’s attorney’s testimony
suggests, at a minimum, that the Government initiated contact


prior to his testimony in Simon’s case. Roach moved to
continue sentencing in October 1994, three months prior to his
testimony. The record indicates that the United States
Attorney’s Office later filed a § 5K1.1 motion in support of a
sentence reduction on that count.




                              14
with Roach after he was found guilty. See JA 868 (“[W]e were
approached by the government[.]”). Then, after that meeting,
Roach dramatically changed his tune—at his own trial he
claimed he did not know Simon, but at Simon’s trial, he
claimed that Simon orchestrated the burglary and shot Ezekiel.
The Appellate Division concluded that the testimony suggests
a “two-step process,” JA 43, where Roach testified first and
then an agreement was reached. But the testimony also
supports the contrary conclusion: An agreement had been
reached or assurances made before Simon’s trial, in exchange
for his testimony against Simon. Such a factual dispute can be
resolved at an evidentiary hearing.

        It is true the formal agreement between Roach and the
federal Government may not have been memorialized until
after trial. And favorable treatment alone is insufficient to state
a Brady claim. See Akrawi v. Booker, 572 F.3d 252, 263 (6th
Cir. 2009) (“[T]he mere fact that a witness desires or expects
favorable treatment in return for his testimony is insufficient;
there must be some assurance or promise from the prosecution
that gives rise to a mutual understanding or tacit agreement.”);
Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003) (“[T]he fact
that a prosecutor afforded favorable treatment to a government
witness, standing alone, does not establish the existence of an
underlying promise of leniency in exchange for testimony.”).
But if the agreement was the result of prior discussions,
promises, or assurances by the Government, then the fact that
the agreement was put to paper later is of no moment.

        Nor do we agree that even if a prior agreement existed,
it is unlikely that it would have affected the trial. “Material”
evidence requires only “a reasonable probability” that the
outcome of the proceedings would be different. United States




                                15
v. Bagley, 473 U.S. 667, 682 (1985). Put simply, does the
evidence “undermine confidence in the outcome”? Id. Here,
Roach was the only witness to place Simon in the house and to
claim that Simon pulled the trigger. Other testimony
suggesting that Simon was on St. John at the time pales in
comparison to Roach’s inculpating evidence. Although Ayala
attempted to vigorously cross-examine Roach on his prior false
testimony, he was rebuked by Roach’s claim that Simon had
threatened to kill him, portraying him as desperate and
dangerous. If Ayala was armed with the additional evidence
that Roach reached an agreement for a lesser sentence
contingent on his testimony, there is a reasonable probability
the jury may have not believed Roach’s claim. See Bagley, 473
U.S. at 676 (“[Impeachment] evidence . . . is favorable to an
accused, so that, if disclosed and used effectively, it may make
the difference between conviction and acquittal.” (internal
citation and quotation marks omitted)). As a result, resolution
of this factual dispute is necessary to determine if Simon is
entitled to relief.6


6
  Simon raises the additional argument that his appellate
counsel, Joseph, was ineffective for failing to raise this Brady
claim on direct review. Such a claim is not outcome
determinative. If, after an evidentiary hearing, the Court finds
that there was no Brady violation, then Simon was not
prejudiced by Joseph failing to raise the issue. See, e.g., Diggs
v. Owens, 833 F.2d 439, 446 (3d Cir. 1987) (concluding
appellate counsel was not ineffective for failing to raise non-
meritorious issues on appeal). And, if the Court finds that the
Government did violate its Brady obligations, then that is
grounds for habeas relief regardless of Joseph’s
ineffectiveness.




                               16
       Our conclusion does not predetermine the merits of
Simon’s Brady claim. Rather, we conclude that the
development of a factual record is necessary to determine
whether the Government violated its obligation to disclose its
prior promises to or agreements with a witness. It is possible
the Superior Court and the Appellate Division are correct that
the evidence supports only an after-the-fact agreement. But it
was an abuse of discretion to make that determination absent
an evidentiary hearing.7



      B. Ineffectiveness Assistance of Trial Counsel

        The Sixth Amendment guarantees the right to effective
trial counsel. “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). A
petitioner, first, must establish “that counsel’s performance
was deficient.” Id. at 687. Counsel’s performance must have
fallen “below an objective standard of reasonableness.” Id. at

7
  This conclusion does not call into question the longstanding
principle that “[w]e think it unwise to infer the existence of
Brady material based upon speculation alone.” United States v.
Ramos, 27 F.3d 65, 71 (3d Cir. 1994). Here, Simon has raised
a colorable claim beyond mere speculation by pointing to the
testimony of Roach’s attorney who specifically discussed an
agreement and was ambiguous regarding the time frame of the
agreement. Such ambiguity can be resolved through an
evidentiary hearing.




                             17
688; see also Gov’t of V.I. v. Vanterpool, 767 F.3d 157, 165
(3d Cir. 2014). Second, the petitioner must establish prejudice:
a showing that “counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687.

                  1. Ayala’s Ineffectiveness

        Simon argues Ayala was ineffective for several reasons.
Simon first claims that Ayala failed to seek a continuance after
the Superior Court granted the motion to amend the
Information to add felony-murder and robbery. It is a high bar
to claim ineffectiveness from failing to seek a continuance or
lack of time to prepare. Cf. Morris v. Slappy, 461 U.S. 1, 3–4,
11–12 (1983) (appointing new counsel six days before trial
when the evidence was prepared by the original attorney);
Avery v. Alabama, 308 U.S. 444, 452 (1940) (affirming
appointment of counsel three days before trial because “the
examination and preparation of the case, in the time permitted
by the trial judge, had been adequate for counsel to exhaust its
every angle”). A short window of time to prepare is not a
reason to presume ineffectiveness; counsel is ineffective only
if the time frame affected the adversarial process. Here, the
Government informed Ayala of the change two weeks before
trial. The shift from premeditated murder to felony-murder and
the addition of robbery were unlikely to meaningfully affect
the trial strategy, as the differing elements are easily proved,
and the evidence presented against the different charges is
likely substantially similar. As a result, Ayala was not
objectively unreasonable for failing to seek a continuance, nor
has Simon explained how he was prejudiced.




                               18
        Second, Simon argues that Ayala failed to object to
Roach’s testimony that Simon had threatened Roach’s life and
failed to object to the Government’s invocation of Roach’s
testimony in closing argument. But Ayala’s cross-examination
of Roach spent significant time on whether Roach was actually
afraid of Simon. He asked Roach whether “Mr. Simon was in
jail” at the time he claimed to be “afraid” of him, JA 448,
suggesting that this fear is exaggerated and Roach was lying.
As a result, Ayala’s decision to not object was reasonable in
light of the alternative strategy to discredit Roach. For the same
reasons, Ayala’s decision to respond to the Government’s
closing statement, rather than object, was not an objectively
unreasonable decision.

       Third, Simon claims there was a constructive denial of
counsel because the Court failed to substitute counsel despite
an “irreparable breakdown of the attorney-client relationship.”
Pet. Br. at 37. He cites to Ayala’s heavy caseload at the time
and his repeated attempts to withdraw as counsel as evidence
of the deteriorating relationship.8 There is no evidence,

8
  Ayala admitted that, in light of the case load, his work was
not up to his personal standards: “I would have to characterize
[my performance] as ineffective, because there is no way.
Capital cases require a lot of leg work. Public Defender’s
office[s] are not equipped with the personnel, and I mean the
supporting personnel. For example, I had to do the
investigations myself. I didn’t have any competent investigator
at that time[.]” JA 948. Although the statements of an attorney
can bear on the conclusion of ineffectiveness, Strickland
describes the standard as objective. Thus, even though Ayala
may believe he was unable to be effective, we still evaluate
whether his conduct was objectively reasonable.




                               19
however, that the relationship or caseload affected the
reliability of the adversarial process. See United States v.
Cronic, 466 U.S. 648, 658 (1984) (“Absent some effect of
challenged conduct on the reliability of the trial process, the
Sixth Amendment guarantee is generally not implicated.”).
The evidence instead points to Ayala being adequately
prepared for the demands of Simon’s trial.

                    2. Conflict of Interest

        We nonetheless believe the Appellate Division erred by
rejecting Simon’s claim that Ayala operated under a conflict of
interest without first remanding to develop the factual record.
See, e.g., Rivera-Moreno, 61 V.I. at 311–12 (2014)
(concluding once petitioner makes a prima facie case for relief,
a writ ought to be issued, and a hearing conducted).

        A petitioner claiming a conflict of interest must “prove
(1) multiple representation that (2) created an actual conflict of
interest that (3) adversely affected the lawyer’s performance.”
Sullivan v. Cuyler, 723 F.2d 1077, 1084 (3d Cir. 1983). The
“critical inquiry is whether counsel actively represented
conflicting interests.” Gov’t of V.I. v. Zepp, 748 F.2d 125, 135
(3d Cir. 1984) (internal quotation marks omitted). There must
be a point where “the defendants’ interests diverge with respect
to a material factual or legal issue or to a course of action.”
Sullivan, 723 F.2d at 1086.9 This could result from refusing to

9
  A petitioner need not establish an “actual” conflict of interest
if the trial counsel moved to withdraw based on a conflict of
interest. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Simon
urges “[we] should construe Ayala’s motions [to withdraw] as
objections [based on an existing conflict of interest] for




                               20
cross-examine a witness, failing to respond to inadmissible
evidence, or failing to “diminish the jury’s perception of a [co-
conspirator’s] guilt.” Cuyler v. Sullivan, 446 U.S. 335, 349
(1980). A petitioner can also show that the attorney failed to
pursue an alternative strategy that “(a) could benefit the instant
defendant and (b) would violate the attorney’s duties to the
other client.” United States v. Morelli, 169 F.3d 798, 811 (3d
Cir. 1999) (emphasis omitted). Such an alternative strategy
need not “have been successful if it had been used” but must
have “possessed sufficient substance to be a viable
alternative.” United States v. Gambino, 864 F.2d 1064, 1070
(3d Cir. 1988) (quoting United States v. Fahey, 769 F.2d 829,
836 (1st Cir. 1985)).

        Simon argues that Ayala had an actual conflict of
interest at the time of his trial because he represented the
potential third intruder, Daryl Ward. Ayala testified in an
unrelated proceeding that Ward was “also one of [his] clients”
and that “from all indications, it would appear” that Ward was
with Simon and Roach on the night in question. JA 966. At
trial, Roach testified that Ward “fit the description” of the third
man, but that it wasn’t him “[be]cause he was in jail, and when
I really think, it wasn’t him.” JA 465–66. Roach further
testified, however, that the three men ran from the house and
that the third man parted ways “[w]here Daryl Ward lives.” JA
469–70. Taken together, Simon argues that “Ayala knew that
another individual was either the perpetrator of the crime that
Simon was charged of, or was a potential witness to the crime.”
Pet. Br. at 36.


purposes of appellate review.” Pet. Br. at 36. The record does
not support that reading, and thus, Simon must establish an
“actual” conflict.




                                21
       The Appellate Division disagreed. It characterized
Ayala’s statement as “speculation” that Ward was the third
man and emphasized the portion of Roach’s testimony where
he claimed that Ward was not the third man. JA 73. It
concluded that Simon failed to establish a conflict of interest.
We disagree. Ayala’s statement, made under oath, cannot be
properly characterized as mere speculation. Ayala stated that,
based on his relationship with Ward, he believed Ward was the
third man. Ayala’s testimony is corroborated in part by
Roach’s testimony, which also implicated Ward. He claimed
that Ward “fit the description” of the third man and that the
third man fled towards Ward’s home. JA 465. In closing
argument, the Government noted that Roach indicated the third
man was named Crucian; Roach also testified that he has heard
people refer to Ward as “Crucian.” JA 464. Finally, there was
evidence that Ward was in jail at the time of the crime. But,
Ayala definitively testified that Ward was out of jail at that
time, even though “the [jail] records would have been against
[him].” JA 967.

        The evidence can be interpreted to reach two different
results: one putting Ward at the scene of the crime, and one
placing him in jail at the time. Based on the evidence as it exists
at this time, neither interpretation can be deemed
“speculation.” Because Simon set out a prima facie claim of a
conflict of interest, he was entitled to develop the factual record
on this issue. We thus remand to the Appellate Division with
instructions to remand to the Superior Court to develop the
factual record on this claim.

  C. Joseph’s Ineffectiveness: Second Appeal as of Right




                                22
       At the time of Simon’s direct review, a defendant had
two appeals as of right from the Superior Court: first, to the
Appellate Division of the District Court of the Virgin Islands
and, then, to us. See 48 U.S.C. § 1613a(a) (conferring
Appellate jurisdiction to the District Court over the courts of
the Virgin Islands); 48 U.S.C. § 1613a(c) (conferring
jurisdiction to the Third Circuit over the District Court).10
Simon was represented by Joseph on his appeal to the
Appellate Division. The Appellate Division affirmed his
conviction. Then, despite Simon’s desire to file an appeal to
the Third Circuit, Joseph declined to do so. Simon then filed
pro se a notice of appeal, which was dismissed as untimely.
Simon argues that Joseph was ineffective for failing to file a
notice of appeal to the Third Circuit—his second appeal as of
right.

       But a petitioner does not have a right to counsel at every
stage of every proceeding. And if a petitioner does not have a
right to counsel, then it is not a constitutional violation to
receive ineffective assistance. See Wainwright v. Torna, 455
U.S. 586, 587–88 (1982) (“Since respondent had no
constitutional right to counsel, he could not be deprived of the
effective assistance of counsel by his retained counsel’s failure

10
   This system of two-tier appellate review as of right is rare.
See Gov’t of V.I. v. Hodge, 359 F.3d 312, 323 (3d Cir. 2004)
(noting its peculiarity but recognizing Congress intended the
system of review). Now, with the establishment of the Supreme
Court of the Virgin Islands, criminal convictions and sentences
from the Superior Court are appealed as of right to the V.I.
Supreme Court, not here. Thus, this system of two-tier review
(although governing at the time of Simon’s appeal) is no longer
in effect in the Virgin Islands.




                               23
to file the application timely.”).11 So Simon’s claim of
ineffectiveness depends on whether he had a right to counsel
on his appeal to the Third Circuit. If he did, failure to file the
petition was per se ineffective without need for a showing of
prejudice. See Solis v. United States, 252 F.3d 289, 293–94 (3d
Cir. 2001) (concluding that attorney’s failure to file a notice of
appeal, despite clear instructions from defendant to do so, was
presumptively prejudicial). To answer this question, we must
determine whether there is a right to counsel on a second
appeal as of right. We conclude that there is not.
       Denial of appellate counsel at important stages of
appellate review may violate a defendant’s rights to due
process and equal protection under the law. See Douglas v.
People of State of Cal., 372 U.S. 353, 355 (1963); see also 48
U.S.C. § 1561 (Virgin Islands Revised Organic Code “Bill of
Rights”).

        The Supreme Court has consistently addressed two
concerns when considering the need for appellate counsel.
First, has the appellant already received some form of appellate
review? If so, a defendant would have “at the very least, a

11
   Simon cites Richardson v. Superintendent Coal Township
SCI, 905 F.3d 750 (3d Cir. 2018) for the assertion that Simon
had a right to counsel on the notice of appeal to the Third
Circuit. There, we said “the line dividing trial from appeal falls
naturally at the notice of appeal.” Id. at 756. Richardson did
not, however, address counsel’s ineffectiveness for failing to
file the notice of appeal, but rather ineffectiveness in the post-
sentencing proceedings. Id. The Supreme Court’s decision in
Wainwright v. Torna, which addressed an attorney’s failure to
file a timely application for certiorari, is consistent with
Richardson and controls here.




                               24
transcript or other record of trial proceedings, a brief on his
behalf in the Court of Appeals setting forth his claims of error,
and in many cases an opinion by the Court of Appeals
disposing of his case.” Ross v. Moffitt, 417 U.S. 600, 615
(1974). And second, does the court have discretion to review?
That is to say, can the reviewing court deny review “even
though it believes that the decision of the Court of Appeals was
incorrect[?]” Id. Discretionary appeals, contrary to appeals as
of right, are not wholly concerned with “whether there has been
a correct adjudication of guilt in every individual case[.]” Id.
(internal quotation marks omitted). We are, thus, less
concerned if a defendant does not receive the assistance of
counsel on discretionary review.

       Applying these principles, the Court has twice extended
the right to counsel to the first tier of appellate review. In
Douglas, it concluded that a state violates the Fourteenth
Amendment if it fails to provide an indigent defendant counsel
on his first appeal as of right: “[W]here the merits of the one
and only appeal an indigent has as of right are decided without
benefit of counsel, we think an unconstitutional line has been
drawn between rich and poor.” Douglas, 372 U.S. at 357. The
Court feared that having an indigent defendant “run this
gantlet” without counsel results in a “meaningless ritual.” Id.
at 357–58. Similarly, in Halbert v. Michigan, the Court
extended the right of counsel to first-tier appellate review, even
though review was discretionary. 545 U.S. 605, 616–17
(2005). The Court concluded that because the reviewing court
“looks to the merits of the claims” and the indigent defendant
is “generally ill-equipped” to argue the merits unassisted,
failure to provide counsel on such denial draws an
unconstitutional line. Id. at 617.




                               25
        The Court, however, has not recognized a right to
counsel beyond the first-tier of appellate review. In Ross, the
Court concluded that the right to counsel does not extend to
subsequent discretionary appeals, since “both the opportunity
to have counsel prepare an initial brief . . . and the nature of
discretionary review . . . make this relative handicap far less
than the handicap borne by the indigent defendant denied
counsel on his initial appeal as of right in Douglas.” Ross, 417
U.S. at 616. And in Pennsylvania v. Finley, the Court extended
Ross to uphold Pennsylvania’s decision to deny counsel on
postconviction review because “[p]ostconviction relief is even
further removed from the criminal trial than is discretionary
direct review.” 481 U.S. 551, 556–57 (1987).12
        The second appeal as of right situates itself between the
two rationales outlined by the Supreme Court. Unlike a first
appeal, the defendant seeking a subsequent appeal has “at the
very least, a transcript or other record of trial proceedings, a

12
  In Finley, the Court stated “[o]ur cases establish that the right
to appointed counsel extends to the first appeal of right, and no
further.” Finley, 481 U.S. at 555. Other courts have relied upon
this statement alone to reject a right to counsel on second
appeals as of right. See State v. Buell, 639 N.E.2d 110, 110
(Ohio 1994) (relying on “and no further” to extend the right to
counsel only to first appeals as of right); State v. Hughan, 703
N.W.2d 263, 265–66 (Neb. Ct. App. 2005) (same). But the
Court has never squarely reached second appeals as of right.
Because we should only apply dicta when “the case at bar is []
the situation the Court’s dictum anticipated,” Off. Comm. of
Unsecured Creditors of Cybergenics Corp. v. Chinery, 330
F.3d 548, 561 (3d Cir. 2003), we decline to apply it here
without further analysis.




                                26
brief on his behalf in the Court of Appeals setting forth his
claims of error, and in many cases an opinion by the Court of
Appeals disposing of his case.” Ross, 417 U.S. at 615. But,
unlike discretionary review, a second appeal as of right must
be reviewed, and is thus intended to ensure the “correct
adjudication of guilt.” Id.

       Here, given the specific nature of the two layers of
review, we conclude that deprivation of counsel on Simon’s
second appeal as of right to the Third Circuit does not deny
equal protection or due process. After review by the Appellate
Division, Simon had at his disposal the full record of the trial
court, a merits brief arguing the Superior Court erred by
amending the Information two weeks before trial, and an
opinion addressing the merits of that claim. Any concern that
he may be “ill-equipped” is significantly lessened by the
thorough review on his first appeal as of right. And although
review by the Court of Appeals under the Virgin Islands’
scheme is also as of right, and therefore concerned with the
adjudication of guilt, our review is not meaningfully different
from the Appellate Division’s review. See BA Props. Inc. v.
Gov’t of V.I., 299 F.3d 207, 211–12 (3d Cir. 2002) (noting that
the Appellate Division is “essentially a federal creature” where
panels are comprised of “a majority of federal judges”). The
same concerns present in Douglas and Halbert do not apply
with equal force when the defendant lacks counsel on a second
appeal as of right. Because Simon was not entitled to counsel
on his second appeal as of right, any ineffectiveness does not
amount to a constitutional violation.13

13
  Simon filed a legal malpractice claim based in part on
Joseph’s failure to file a notice of appeal to the Third Circuit.
See Simon v. Joseph, 59 V.I. 611, 613 (2013). Whether Simon




                               27
               D. Watlington’s Ineffectiveness

        Simon also argues that Attorney Arturo Watlington was
ineffective when he failed to file a brief in a separate habeas
petition that was dismissed for failure to prosecute. We agree
with the Appellate Division that we are unable to review this
claim, as it involves a habeas petition distinct from the petition
here.14
            E. The Amendment to the Information

       The Government initially filed an Information charging
Simon with premeditated murder and third degree burglary.
Two weeks before trial, the Government notified Simon that it
intended to amend the Information. One week before trial, it
moved to amend the Information changing premeditated
murder to felony-murder with a predicate felony of robbery.
The amendment also added robbery and conspiracy to commit
robbery. Ayala objected, as the amendment added new charges
only a week before trial. The Court nonetheless granted the
motion to amend the Information. Two days before trial, the
Court again permitted an amendment to cure a defect, over



had a constitutional right to counsel is a separate inquiry from
whether Joseph committed malpractice by failing to file the
notice.
14
   Even so, because there is generally no right to counsel on
habeas review, and never a right to counsel on appellate habeas
review, there can be no denial of effective assistance for any
alleged failure to prosecute. See Martinez v. Ryan, 566 U.S. 1,
16 (2012); Torna, 455 U.S. at 587–88 (concluding there can be
no denial of effective assistance if there is no right to counsel).




                                28
Ayala’s objection, removing the conspiracy count and altering
some language to reflect the elements of felony-murder.

         Simon argues that these eleventh hour amendments
constituted constructive amendments, violating his Sixth
Amendment right to be informed of charges against him.
Simon’s constitutional claim ends with the definition of a
constructive amendment: “An indictment is constructively
amended when, in the absence of a formal amendment, the
evidence and jury instructions at trial modify essential terms of
the charged offense[.]” United States v. Vosburgh, 602 F.3d
512, 532 (3d Cir. 2010) (internal quotation marks omitted)
(emphasis added). The amendment here was granted after a
formal motion to amend. Thus, this is not a constructive
amendment. Rather, the issue is whether the Superior Court
abused its discretion in permitting the amendment of the
Information to add a new charge of robbery, one week before
trial in violation of Federal Rule of Criminal Procedure 7(e).

       Rule 7(e) provides “[u]nless an additional or different
offense is charged or a substantial right of the defendant is
prejudiced, the court may permit an information to be amended
at any time before the verdict or finding.” Whether the
amendment adds an “additional or different offense” is “not
coextensive with the question of whether a crime is a lesser
included offense of another.” Gov’t of V.I. v. Bedford, 671 F.2d
758, 765 (3d Cir. 1982). To determine if the offense is
additional or different, we look to whether the original
Information provides adequate notice of the added charge. Id.
The Superior Court on habeas review concluded that the
substitution of the felony murder charge for premeditated
murder did not amount to the charge of a different offense, but
that the trial court technically erred when it permitted the




                               29
Government to add the robbery charge because it is an
“additional or different offense” than those offenses originally
charged. We agree: A plain reading of Rule 7(e) confirms that
it was an error to amend the original Information to include the
robbery count. Robbery is an additional and different offense
from burglary,15 and the Information was not sufficiently
detailed to alert Simon of the new offense.

       Even though it was error to permit the amendment, the
error was harmless.16 See United States v. Steiner, 847 F.3d
103, 113 (3d Cir. 2017) (“We can call a non-constitutional
error harmless, and uphold the conviction, if there is a high
probability that the error did not contribute to the judgment,
requiring us to have a sure conviction that the error did not
prejudice the defendant.”) (internal quotation marks omitted).
Here, Simon received adequate notice—two weeks before the

15
    The offenses are different because each requires the
Government to establish an element the other does not:
Robbery requires the unlawful taking of personal property in
the possession of another, 14 V.I.C. § 1861, and burglary
requires breaking and entering into a building. 14 V.I.C. §
444(1). See Gov’t of V.I. v. Brathwaite, 782 F.2d 399, 406–07
(3d Cir. 1986) (describing the Blockburger test).
16
   The Superior Court elected to impose the Chapman standard
of harmless error review, concluding that the error was
“harmless beyond a reasonable doubt.” JA 122–24; Chapman
v. California, 386 U.S. 18, 24 (1967). In doing so, it conflated
a Rule 7(e) violation with a Sixth Amendment violation. As
noted here, we see those as two separate inquiries, and thus
reject the Sixth Amendment claim, because there was no
constructive amendment or variance, and apply the lower
harmless error standard to the Rule 7(e) violation.




                              30
trial—of the robbery charge and the facts significantly
overlapped with the already charged offense of burglary. There
is a high probability the change from burglary to robbery did
not affect the trial strategy. Even so, given the record, two
weeks was enough time to address any effect it may have had.
Thus, to the extent that there was error, it was harmless.

            F. The Superior Court’s Jurisdiction

       Prior to January 1994, the Superior Court of the Virgin
Islands did not have jurisdiction to hear first degree murder
cases. That jurisdiction was conferred effective on January 1,
1994. The crime here occurred in September 1993 and the
Government filed charges against Simon in May 1994. On
appeal, Simon argues the Superior Court did not have
jurisdiction over his felony-murder case because the crime
occurred before the Superior Court had jurisdiction.17 He
claims the date the crime is committed is the date that
determines whether a court has jurisdiction.

       We disagree. The date that a court must have
jurisdiction is the date that charges are filed against the
defendant. See Gov’t of V.I. v. Colbourne, 31 V.I. 22, 26 (Terr.
Ct. 1994) (“[A]s long as the . . . action was filed after
jurisdiction passed to the Territorial Court, the Territorial

17
   Simon also argues that one must look to the intent of the
legislature when determining whether a statute should be
applied retroactively, citing to Brewer v. A.D. Transp. Express,
Inc., 782 N.W. 2d 475 (Mich. 2010). Not only is Brewer not
binding on this court, it is inapplicable, as it addresses the
expansion of substantive rights in a workers’ compensation
context, rather than the transfer of jurisdiction between courts.




                               31
Court had jurisdiction over the matter.”) (citing Skelton v.
Gov’t, T.C. Crim. No. F155/1992 (V.I. Terr. Ct. 1992), aff’d,
290 F. Supp. 2d 603 (D. V.I. App. Div. 1994)); see also Old
Colony Trust v. Comm’r of Internal Revenue, 279 U.S. 716,
727–28 (1929) (having jurisdiction over a tax deficiency that
occurred in 1919 and 1920, where the court gained jurisdiction
in 1926 and the petition for review was perfected in 1927).
Here, the Government filed the charges against Simon in the
Superior Court several months after the Superior Court gained
jurisdiction. Thus, the Superior Court had jurisdiction.

                              III.

       For the above reasons, we will affirm in part, reverse in
part, and vacate the Appellate Division’s order. We will
remand to the Appellate Division of the District Court for the
Virgin Islands with instructions to remand to the Superior
Court to conduct an evidentiary hearing regarding the Brady
violation and the conflict of interest claim.




                              32
