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


12-26-2006

Wright v. Vaughn
Precedential or Non-Precedential: Precedential

Docket No. 04-3457




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                                          PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 04-3457


                       ANDRE WRIGHT,
                                  Appellant
                              v.

    DONALD T. VAUGHN; 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. 00-cv-03822)
             District Judge: Honorable Jan E. DuBois


                    Argued February 27, 2006

Before: SLOVITER, FUENTES, and BECKER, Circuit Judges

            Panel Reconstituted August 1, 2006
      SLOVITER, FUENTES, and ROTH,* Circuit Judges

                    (Filed: December 26, 2006)
                              _____


      *
        This case was argued before the panel of Judges Sloviter,
Fuentes, and Becker. Judge Becker died on May 19, 2006. The
panel was reconstituted on August 1, 2006 to consist of Judges
Sloviter, Fuentes, and Roth. Judge Roth had the same briefs and
record that were before the original panel and has read the
transcript of the argument before the court on appeal.
Barnaby C. Wittels
LaCheen, Dixon, Wittels & Greenberg
1429 Walnut Street
13th Floor
Philadelphia, PA l9l02

Carole L. McHugh (Argued)
410 Old York Road
Jenkintown, PA l9046

       Attorneys for Appellant

Thomas W. Dolgenos (Argued)
J. Hunter Bennett
Office of District Attorney
Three Penn Center Square
Philadelphia, PA l9l07

       Attorneys for Appellees



                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

        Andre Wright, who is currently serving a life sentence for
second-degree murder following his conviction by a jury in a
Pennsylvania state court trial, appeals the denial of his petition
for a writ of habeas corpus. The United States District Court for
the Eastern District of Pennsylvania dismissed Wright’s 28
U.S.C. § 2254 petition. Several months later, this court,
pursuant to 28 U.S.C. § 2253(c)(1), granted Wright’s request for
a certificate of appealability (“COA”) on several of his claims of
ineffective assistance of counsel and violation of rights pursuant
to the Confrontation Clause of the Sixth Amendment.

      The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 2241, 2254; this court has jurisdiction pursuant to 28 U.S.C.

                                 2
§§ 1291, 2253.

                                I.

        The parties present sharply divergent accounts of the
facts, but they agree on the following: Maurice Wilson died from
multiple gunshot wounds on July 8, 1975. Ballistics indicated
that the shots that caused the wounds came from two different
guns, neither of which was admitted into evidence at trial.
Police followed a trail of blood from the apartment where they
found Wilson’s body to an alley close to Mark Garrick’s house.
Upon obtaining a search warrant, police searched Garrick’s
house and found bloody clothing. Esther Jones, who claimed to
have witnessed the crime, testified that Eughenia Jones, one of
three men convicted of the murder, had been wearing those
clothes when he and two other men, including petitioner Wright,
entered her apartment. Police also seized a gun, which was not
tied by ballistics evidence to any of Wilson’s gunshot wounds,
bullets, and photographs of Garrick, Eughenia Jones, and Andre
Wright, albeit not together in one photograph. Garrick, Jones
and Wright were indicted in December 1980 and all three were
convicted of Wilson’s murder following a jury trial.

        Wright’s conviction was based largely on the testimony
of two witnesses, Esther Jones and Earlene Gates, who offered
occasionally inconsistent testimony regarding Wilson’s murder.
Jones and Gates initially denied knowing who killed Wilson;
they later changed their minds and implicated Wright, Garrick,
and Eughenia Jones. The testimony of the two witnesses was
consistent as to the following: they were in their apartment along
with Maurice Wilson, Esther Jones’ boyfriend, when the
doorbell rang. Wilson answered the door. Shortly thereafter,
Ms. Jones, who was in her room, saw someone enter her room
and remove a gun that Wilson kept under her pillow. Wright
then entered Jones’ room and forced her to come with him to the
living room. Eughenia Jones woke up Gates and similarly
forced Gates and her daughter into the living room. Wright
instructed both women to sit on the couch while Eughenia Jones
held Wilson on the floor with a gun to his head and demanded
money and drugs. When Wilson said he had given the three men
everything he had, the three accomplices took him into the

                                3
kitchen. Ms. Jones and Gates stayed in the living room, but they
heard a loud argument taking place in the kitchen. Both heard
Wilson say that he would not jump out the window. Shortly
thereafter, both witnesses heard multiple gunshots, followed by
the sounds of people running up and down stairs. They also
heard Eughenia Jones shout that he had shot himself. Ms. Jones
testified that she found Wilson’s dead body in the kitchen.

       Although the two witnesses agreed on the above facts,
they offered inconsistent testimony on several points. Most
importantly, Esther Jones testified that an unnamed man came
into the apartment to see Wilson while the crime was in
progress. According to Ms. Jones, the man was forced to lie on
the ground in the living room and left after Wilson was taken
into the kitchen and shot. In contrast, Gates testified that no
such man was present on the day of the crime.

       Defense witnesses offered substantially different
testimony. Sharon Hillian testified that on the day of the crime,
she saw Ms. Jones and two other men (none of whom was
ultimately accused of the murder) enter the building where
Wilson was shot. Hillian then heard four or five shots, after
which Ms. Jones and the two men left the building. Wendy
Phillips also testified for the defense. She testified that at the
time of the murder she was standing outside the building where
Wilson was killed. After hearing a gunshot, Phillips observed
two tall, light-skinned black men (none of whom were the co-
defendants) running down the street.

        Wright was convicted of second-degree murder, robbery,
and possession of an instrument of crime. On direct appeal, the
Pennsylvania Superior court vacated the robbery conviction on
the ground that it merged with the murder. In other respects, the
court affirmed Wright’s conviction. Commonwealth v. Wright,
501 A.2d 294 (Pa. Super. 1985). The Pennsylvania Supreme
Court denied allowance of Wright’s appeal. Wright then sought
relief under the Pennsylvania Post Conviction Relief Act
(“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq., but the PCRA court
denied relief. The Pennsylvania Superior Court affirmed the
denial (albeit on somewhat different grounds with respect to
certain claims). Commonwealth v. Wright, 738 A.2d 1059 (Pa.

                                 4
Super. Ct. 1999). The Pennsylvania Supreme Court denied
allocatur.

       Wright next sought a writ of habeas corpus in the United
States District Court for the Eastern District of Pennsylvania
pursuant to 28 U.S.C. §§ 2241(a) and 2254(a). The Magistrate
Judge filed a Report and Recommendation concluding that
Wright was not entitled to habeas relief, which the District Court
adopted. Wright timely filed this appeal.

        This court granted a Certificate of Appealability on the
following questions: (1) whether Wright’s claim that trial, post-
trial, and appellate counsel were ineffective with regard to trial
counsel’s failure to call Joanne Turner as a witness was
procedurally defaulted; (2) if that claim was defaulted, can
Wright overcome the default?; (3) whether the claims of
prosecutorial misconduct and violation of the Confrontation
Clause deemed unexhausted by the District Court are defaulted
and, if so, can Wright overcome the default?; and (4) whether
Wright was denied his right to confront witness Jones.

       At oral argument, the Government conceded that
Wright’s claim that trial, post-trial, and appellate counsel were
ineffective with regard to trial counsel’s failure to call Joanne
Turner was not procedurally defaulted. This court then
expanded the COA to address the merits of that claim–whether
Wright’s appellate lawyer on direct appeal was ineffective.

                                II.

                                A.

        The principal issue before us is whether Wright’s lawyer
on direct appeal was constitutionally ineffective for inadequately
presenting the claim that trial counsel was ineffective for failing
to call Wright’s alibi witness, Joanne Turner.

       Wright claimed throughout his appeal that Turner should
have been called as a witness because she could provide him
with an alibi. Specifically, he claimed that the two of them were
dating at the time, and on the day in question they both went to

                                 5
Temple Hospital to determine if Wright had impregnated another
woman. On direct appeal, he alleged that trial counsel was
ineffective for not calling Turner as a witness. The Superior
Court denied relief, explaining that, “[W]here a defendant
alleges that his attorney was ineffective in failing to . . . call
witnesses in his defense, there must be some demonstration that
their testimony would be helpful.” Supp. App. at 141 (internal
quotation marks and citations omitted). The Court noted that
Wright “has not alleged that Ms. Turner was willing or able to
testify, nor has he indicated about what she would have testified
or how her testimony could have benefited him. Absent such
allegations, appellant[ ] [is] entitled to no relief.” Supp. App. at
142.

        Wright then raised the issue at his PCRA proceeding as a
layered ineffectiveness claim. Specifically, he argued that post-
trial and appellate counsel were ineffective for failing to
preserve and properly present this issue on appeal. The PCRA
court held a hearing and found that Turner was not credible. The
Superior Court affirmed the PCRA court’s decision. The Court
first reviewed the applicable legal principles, stating:

       To establish ineffectiveness of counsel for failing to
       secure attendance of a witness, the appellant must show:
       (1) the witness existed; (2) the witness was available; (3)
       counsel knew or should have known of the existence of
       the witness; (4) the witness was willing to cooperate and
       testify for the appellant at trial; and (5) the witness’
       testimony was so essential to the defense that the absence
       of the testimony caused an unfair verdict or sentence.
       Commonwealth v. Gillespie, 620 A.2d 1143, 1145 (Pa.
       Super. Ct. 1993) (citing Commonwealth v. Petras, 534
       A.2d 483, 485 (Pa. Super. Ct. 1987)).

Supp. App. at 163. Thereafter, the Superior Court held that the
ineffectiveness of counsel issue “has previously been litigated
and therefore is not cognizable under the PCRA.” Supp. App. at




                                 6
163.1

        In the habeas proceeding, the Magistrate Judge evaluated
Wright’s claim of “Ineffective Assistance of Appellate Counsel
for Failure to Preserve the Issue of Ineffective Assistance of
Trial Counsel for not Calling Joanne Turner as a Potential
Witness,” Supp. App. at 29, and found that it lacked merit. The
Magistrate Judge noted that, “Even assuming arguendo that post-
trial/appellate counsel was ineffective for failing to properly
present petitioner’s claim on direct appeal, petitioner must prove
that he was prejudiced by that failure. Thus, our analysis
requires that we determine whether petitioner’s underlying claim
of ineffective assistance of trial counsel would have had
merit[.]” Supp. App at 31. The Magistrate Judge found that the
underlying ineffective assistance of trial counsel was meritless,
based on the fact that Turner had testified at the PCRA
proceeding and the PCRA judge had found her not credible. The
Magistrate Judge deferred to this finding and found that because
Wright was not prejudiced by trial counsel’s failure to call
Turner, the ineffective assistance of appellate counsel was also
meritless.

       The District Court stated that “the Magistrate Judge
correctly concluded [that Wright’s claim of ineffective
assistance of appellate counsel for failure to preserve the issue of
ineffective assistance of trial counsel for failure to call Turner]
was procedurally defaulted[.]” Wright v. Vaughn, No. 00-3822,
2004 U.S. Dist. LEXIS 14648, at *20 (E.D. Pa. July 26, 2004).

       This claim presents complicated issues. The Superior
Court, in deciding Wright’s appeal of the denial of post-
conviction relief, did not adopt the PCRA court’s finding
regarding Turner’s credibility. Rather, the Superior Court
simply found that the issue had been previously litigated. At
oral argument, the Commonwealth conceded that the Superior
Court erred. We have never decided whether we may look to a


        1
        Both parties agree that the Superior Court was in error.
Only the issue of trial counsel’s ineffectiveness, not appellate
counsel’s ineffectiveness, was previously litigated.

                                 7
lower state court’s decision of an issue on the merits if the
highest state court decision is based on procedural grounds.

        Wright argues that this court need not defer to the PCRA
court’s opinion regarding the merits of his claim because our
review is limited to the last state court decision. The
Commonwealth, however, contends that if the highest state court
decision is decided on procedural grounds, this court may look
to the last state court decision to address the merits of a case.
We have found only a few courts to have addressed this issue.
See, e.g., Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir.
1997); Nickerson v. Roe, 260 F. Supp. 2d 875, 892 (N.D. Cal.
2003). However, the issue before us is not whether the PCRA
court’s determination that Turner was not credible is entitled to
deference. The issue for purposes of this habeas petition is
whether appellate counsel was ineffective in failing to raise the
issue that trial counsel was ineffective in failing to call Turner as
a witness. In that regard, we agree with the decision in Cotto v.
Herbert, 331 F.3d 217, 231 (2d Cir. 2003), where the Court of
Appeals bypassed the issue and assumed without deciding that
there was an adjudication on the merits in the state courts and
looked to whether habeas relief was warranted.

       There is no reason to assume that Wright’s trial counsel
merely forgot that Turner was available to testify and provide
Wright with an alibi. After all, he had listed Turner as an alibi
witness. She testified at the PCRA hearing that she waited
outside the courtroom for several days and was not called by
counsel. She conceded, however, during her PCRA testimony
that she never asked counsel during the trial whether or when he
planned to call her.

         Appellate counsel was undoubtedly aware that under
Strickland v. Washington, 466 U.S. 668, 689-93 (1984), there is
a “strong presumption” that the challenged action was based on
trial strategy. Appellate counsel may have concluded that trial
counsel had a strategic reason for not calling Turner as a witness.
In the first place, she was not an unbiased witness. She was
Wright’s girlfriend, a relationship that undoubtedly would have
elicited vigorous cross-examination. In the second place, she
had, as the Government counsel described at oral argument, a

                                  8
“long history of crimen falsi,” including forgeries and frauds,
and Wright has not contested this in his reply brief. Oral
Argument Tr. 35, Feb. 27, 2006. There was also the matter of
some discrepancy between her affidavit and her PCRA
testimony as to the time she met Wright on July 7. Although we
may not find that discrepancy as impairing as the prosecutor
argued, the issue is not whether we believe trial counsel should
have called Turner, but whether appellate counsel could have
reasonably believed trial counsel had a valid trial strategy not to
call her as a witness. Appellate counsel was also aware that after
Wright was arrested, Turner never went to the police and
informed them that Wright could not have murdered Wilson
because he was with her at the critical time. We conclude that
the evidence is insufficient for us to conclude that appellate
counsel was ineffective.

        This conclusion is supported after the fact by the
conclusion of the PCRA judge, who heard Turner testify and had
the opportunity to observe her demeanor, that Turner was not
credible. Admittedly, the PCRA judge did not explain the basis
for that conclusion, but the credibility decision made by a judge
who had the opportunity to observe the witness is entitled to at
least some deference, even if not exhaustively explained. See
Chadwick v. Janecka, 302 F.3d 107, 116 (3d Cir. 2002) (“While
it is necessary for the state court to have adjudicated the claim on
the merits, it is not necessary for the state court to have
thoroughly explained its analysis in its opinion.”).
We therefore reject this basis for Wright’s habeas claim.

                                B.

        Wright contends that his trial was “infected with
pervasive misconduct on the part of the prosecutor.” Wright’s
Br. at 48-49. In his state court appeals, Wright specified
numerous instances of alleged misconduct. In his federal habeas
petition, Wright specifies additional instances of alleged
misconduct. The District Court refused to consider these
additional instances and concluded that because Wright had not
raised them in state court, they were not exhausted. Wright
contends that the District Court erred in not considering these
additional unexhausted instances of prosecutorial misconduct

                                 9
because they corroborated his exhausted claims. According to
Wright, prosecutorial misconduct claims must be evaluated in
the context of the prosecutor’s entire trial performance,
including instances of misconduct not previously raised.

       In evaluating a claim of prosecutorial misconduct, this
court has previously declined to consider instances of
misconduct not raised before the state courts. In Moore v.
Morton, 255 F.3d 95, 103 n.7 (3d Cir. 2001), we stated, “In this
appeal we will only address Moore's federal due process claim
with respect to the instances of prosecutorial misconduct that he
raised at each level of review before the New Jersey courts . . . .
The remaining factual predicates were not fairly presented to the
New Jersey courts in support of his due process claim.
Therefore to the extent Moore seeks relief based on other
allegations of prosecutorial misconduct, these claims are
unexhausted, and now procedurally defaulted.” We must follow
our precedent and accordingly hold that any additional instances
regarding prosecutorial misconduct have been defaulted.

        With regard to Wright’s non-defaulted claims of
prosecutorial misconduct, we conclude that those claims are
without merit. The Supreme Court has recognized that
prosecutorial misconduct may “so infect[ ] the trial with
unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
Such misconduct must constitute a “‘failure to observe that
fundamental fairness essential to the very concept of justice.’”
Id. at 642 (quoting Lisenba v. California, 314 U.S. 219, 236
(1941)). None of the instances of alleged misconduct raised by
Wright were sufficient to infect the trial with unfairness.
Wright’s only non-frivolous claim, i.e., that the prosecutor
displayed a gun that was not one of the murder weapons, is not
sufficient to render the trial unfair.

       Wright contends that the procedural default of instances
of prosecutorial misconduct, and indeed of all other claims, may
be excused under the “actual innocence” or “miscarriage of
justice” doctrine. In Schlup v. Delo, 513 U.S. 298 (1995), the
Supreme Court created a narrow exception to the rule that
federal courts cannot hear claims that have not been raised in

                                10
state courts. The Court held that “[I]f a petitioner such as Schlup
presents evidence of innocence so strong that a court cannot
have confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless constitutional
error, the petitioner should be allowed to pass through the
gateway and argue the merits of his underlying claims.” Id. at
316. To establish actual innocence, “a petitioner must show that
it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.” Id. at 327.
Petitioner “must also support his allegations of constitutional
error with new reliable evidence . . . that was not presented at
trial.” Id. at 324.

      The affidavits presented by Wright do not establish his
innocence. The affidavits show nothing other than a prosecution
witness’ possible motivation for killing Wilson. It follows that
Wright does not meet the Schlup standard and he cannot
overcome default.

                                C.

        Wright claims that he was denied the right to effectively
question prosecution witnesses in violation of the Confrontation
Clause of the Sixth Amendment and Due Process Clause of the
Fourteenth Amendment. Specifically, Wright argues that the
trial court committed constitutional error by disallowing
evidence that would have helped him establish two prongs of his
defense, i.e., that Esther Jones, one of the prosecution’s two
principal witnesses, had reason to falsely implicate Wright in
Wilson’s murder; and that many people other than Wright had an
interest in killing the decedent.

        Wright argues that Ms. Jones had several reasons for
lying about his involvement in the murder: she may have been
directly involved in the murder and interested in shifting blame
elsewhere; she may have been afraid to incur the wrath of the
real killers; and she may have wanted to exact revenge against
Wright for allegedly informing Wilson that she had been having
an affair with another man. As to the first of these motives,
Wright sought to prove that Jones had two reasons for
participating in the murder: first, because she and her boyfriend

                                11
stood to profit from Wilson’s death by taking over his role as
one of the premier drug dealers of North Philadelphia; and
second, because Wilson had physically abused her. Wright also
sought to establish in several ways that others (aside from Ms.
Jones) had a motive to kill Wilson by noting that Wilson, at the
time he was killed, was facing murder charges in a war between
competing drug dealers and by proving that Wilson had a history
of alienating other drug dealers and customers.

        The District Court noted that the trial court often thwarted
Wright’s efforts to introduce evidence of the above, but it
nonetheless rejected Wright’s claims under the Confrontation
Clause and the Due Process Clause. It found that while Wright’s
cross-examination was indeed erroneously curtailed, Wright was
not prejudiced by this error because Jones was able to introduce
this information through other witnesses.

        The constitutional nature of the right to question
witnesses is well established. An accused’s Sixth Amendment
right “to be confronted with the witnesses against him” is
“incorporated into the Fourteenth Amendment and therefore
available in state proceedings.” Olden v. Kentucky, 488 U.S.
227, 231 (1988). The right to confront witnesses includes the
right to conduct reasonable cross-examination. Id. “Subject to
‘the broad discretion of a trial judge to preclude repetitive and
unduly harassing litigation . . ., the cross-examiner has
traditionally been allowed to impeach, i.e., discredit, the
witness.’” Id. (quoting Davis v. Alaska, 415 U.S. 308, 316
(1974)). Moreover, “the exposure of a witness’ motivation in
testifying is a proper and important function of the
constitutionally protected right of cross-examination.” Id.
(internal quotation marks and citations omitted.)

        Evidentiary rulings in violation of the Confrontation
Clause are subject to harmless error analysis. Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986). Because Wright is a habeas
petitioner, in order to prevail on this claim he must show that the
trial court’s decision to curtail his cross-examination was
contrary to, or involved an unreasonable application of, clearly
established federal law. 28 U.S.C. § 2254(d)(1). Insofar as the
trial court concluded that cross-examining the witness regarding

                                12
her own motives for the crime was impermissible because it was
irrelevant, the trial court acted in a manner that was contrary to
law. 28 U.S.C. § 2254(d)(1). Petitioner is correct that under
Pennsylvania law, as well as under federal law, evidence about
the possible motive of persons other than the defendant is
admissible. We thus consider whether Wright was prejudiced by
the trial court’s error. Our review of the record discloses that
there were numerous instances in which Wright sought to cross-
examine Jones but was prevented from doing so by the trial
court’s rulings.

       On the other hand, much of the evidence that Wright
sought to introduce ultimately came before the jury in one way
or the other. In particular, there was evidence that Wilson was a
major drug dealer and that Ms. Jones, who was his girlfriend,
helped him, was sometimes present when he dealt drugs, was
herself dealing drugs and had tried to keep the grand jury from
knowing about her participation. Much of this evidence came in
through defense counsel’s cross-examination of Ms. Jones. In
defense counsel’s closing argument to the jury, counsel argued
not only that Ms. Jones had a compelling motive to murder
Wilson, i.e., the opportunity to take over Wilson’s drug business,
but that other drug dealers could also have had that motive. [see
N.T. 10/22/81 at 43-44; 60-61; 108-111; 132-33]. In its opinion,
the District Court cited numerous instances in which the trial
court permitted trial counsel to explore the issue of the motive of
Ms. Jones and others to murder Wilson.

       This was not a perfect trial–far from it. But we cannot
conclude that the trial court’s rulings on the scope of cross-
examination of Ms. Jones were so defective as to amount to
constitutional error. Therefore, we reject this basis
for grant of a writ of habeas corpus.

                               III.

       In their excellent brief on appeal in support of Wright’s
petition for a writ of habeas corpus and during the oral argument,
counsel for Wright have raised a plethora of issues. We have
limited our discussion above to the issues we believe warranted a
full exposition, but we have fully considered and now reject each

                                13
of the other issues raised. For the reasons set forth above, we
will affirm the judgment of the District Court denying Wright’s
petition for a writ of habeas corpus.




                               14
