                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-12-2000

Campbell v. Vaughn
Precedential or Non-Precedential:

Docket 98-1744




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Filed April 12, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-1744

DEAN NATHAN CAMPBELL, Appellant

v.

DONALD T. VAUGHN; THE DISTRICT ATTORNEY OF THE
COUNTY OF DELAWARE; THE ATTORNEY GENERAL
OF THE STATE OF PENNSYLVANIA

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 97-cv-02677)
District Judge: Honorable John P. Fullam

Argued: January 10, 2000

Before: BECKER, Chief Judge, ALITO and BARRY,
Circuit Judges.

(Filed: April 12, 2000)

       PETER GOLDBERGER, ESQUIRE
        (ARGUED)
       PAMELA A. WILK, ESQUIRE
       50 Rittenhouse Place
       Ardmore, PA 19003-2276

       Counsel for Appellant
       VRAM NEDURIAN, JR., ESQUIRE
        (ARGUED)
       Assistant District Attorney
       A. SHELDON KOVACH, ESQUIRE
       Deputy District Attorney
       Chief, Law & Appeals Unit
       PATRICK L. MEEHAN, ESQUIRE
       District Attorney
       Delaware County Court House
       201 West Front Street
       Media, PA 19063-2683

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by Dean Campbell, a Pennsylvania
prison inmate, whose petition for writ of habeas corpus
pursuant to 28 U.S.C. S 2254(d) was denied by the District
Court. Campbell contends that, because his trial counsel
did not properly inform him of his right to testify at trial,
counsel rendered ineffective assistance by interfering with
his constitutional right to testify. In the alternative,
Campbell seeks a new evidentiary hearing, pursuant to 28
U.S.C. S 2254(e)(2), so that the District Court can complete
the factual record on which his substantive claim rests.
Campbell contends that the state courts failed to make a
finding of historical fact as to whether trial counsel
informed him that it was his choice to testify on his own
behalf. Without such a finding, he argues, it is impossible
to address the merits of his substantive claim.

We reject both of Campbell's claims. Addressing the
S 2254(e)(2) claim first, we hold that, while they were not
artfully expressed, the state trial court made sufficient
findings of fact regarding Campbell's communications with
his trial counsel. That court's written opinion made it clear
that the court implicitly found that Campbell's trial counsel
informed him of his right to testify. This implicit factual
finding, which is binding under the federal habeas statute

                               2
and Supreme Court precedent, undermines Campbell's
substantive constitutional claim.

Turning to Campbell's substantive claim, we hold that,
on the facts presented, the state appellate court's
conclusion that Campbell's trial counsel did not render
ineffective assistance or interfere with his right to testify in
warning Campbell that testifying on his own behalf might
be unwise was not " `contrary to' or an`unreasonable
application of ' clearly established federal law, as
determined by the Supreme Court," Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 887 (3d Cir.
1999) (en banc) (quoting 28 U.S.C. S 2254(d)(1)), nor was it
reached " `based on an unreasonable determination of the
facts in light of the evidence,' " id. at 887-88 (quoting 28
U.S.C. S 2254(d)(2)). Accordingly, we will affirm the order of
the District Court denying habeas relief.1

I. Factual Background and Procedural History

The facts before the state trial court may be summarized
as follows. One night in January 1983, Campbell and his
_________________________________________________________________

1. We note that Campbell's constitutional claim is something of a hybrid.
He does not allege that the Commonwealth deprived him of his right to
testify--the normal scenario in a right-to-testify claim, see, e.g., Rock
v.
Arkansas, 483 U.S. 44, 61 (1987) (holding that state's evidentiary rules
interfered with criminal defendant's right to testify on his or her own
behalf)--but rather that his trial counsel's ineffective assistance
interfered with that right. (For the sake of convenience, throughout the
opinion we refer to Campbell's claim as his "right-to-testify/ineffective-
assistance claim.")

As we ultimately conclude that Campbell's counsel did not interfere
with his right to testify or render ineffective assistance, see infra Part
III,
we do not address the standard by which we would judge the
harmlessness or prejudicial nature of counsel's actions had they been
ineffective or injurious to Campbell's right to testify. This appears to
be
an open question, and the parties disagree about which standard should
apply. Campbell argues that because the right to testify is a fundamental
right, the denial of that right should per se render a trial unfair.
Counsel
for the Commonwealth argues that because Campbell's claim hinges on
a finding of ineffective assistance of counsel, the Strickland v.
Washington, 466 U.S. 668, 691-96 (1984), actual prejudice standard
should apply. We take no position in this dispute.

                               3
brother, Michael, waited at an intersection at the end of a
freeway off-ramp in Chester, Pennsylvania. John Maletsky
and his four-year old daughter, Kimberly, drove down the
off-ramp and waited at the stop light. Campbell and
Michael approached the car. Campbell pulled Maletsky
from the car and shot him twice. Michael jumped into the
car and drove away with the child still in the passenger
seat.

Maletsky's wife, Deborah, who had been following her
husband in another car, arrived on the scene shortly
thereafter. She saw her husband struggling with Campbell
near a curb, but did not see his car or their daughter. She
called to her husband, and he pointed in the direction that
Michael had driven. Deborah looked down the street and
saw that her husband's car had been immobilized by ice.
Campbell approached Deborah's car and grabbed her
handbag. Deborah and Campbell began to struggle. After
she pulled a hat from his head, Campbell ran down the
street with Deborah's handbag. Deborah ran toward her
husband's car, where she found Michael inside the car with
their child. She convinced Michael to let her take the child.
Michael then ran away. Maletsky died later that evening
from gunshot wounds to the chest and stomach.

Campbell and Michael fled to Louisiana, but were
apprehended there by local authorities. After the authorities
gave Campbell the proper warnings, Campbell waived his
rights and voluntarily confessed (with a great deal of
contrition) that he had shot Maletsky and committed a
number of other crimes against Maletsky and his wife. He
thereafter waived the right to an extradition hearing and
was transferred to Pennsylvania. Upon his arrival, the
Commonwealth charged him with murder (18 Pa. Cons.
Stat. S 2502), theft (id. S 3902), kidnapping (id. S 2901),
reckless endangerment (id. S 2705), possessing the
instruments of crime (id. S 907), and criminal conspiracy to
commit other offenses (id. S 903).

Campbell's trial counsel was a public defender without a
great deal of experience. He and Campbell disagreed on
trial strategy. Trial counsel's greatest concern, given the
heinous nature of Campbell's crimes, was that his client
not be sentenced to death. Campbell did not take the

                               4
witness stand at trial, but he later asserted that he had
wanted to take the stand so that he could explain his
confession, assert an intoxication defense, and try to avoid
a life sentence. Trial counsel responded that he counseled
against such a strategy on the grounds that recanting his
grief-ridden confession might alienate the jury and expose
Campbell to a death sentence.

After a three-day trial, in May 1984, Campbell was
convicted on all counts (the jury returned a second-degree
murder conviction). On January 2, 1985, the trial judge
sentenced him to serve a term of life imprisonment on the
murder count and to consecutive terms aggregating to 13 to
39 years on the five other counts. Post-trial motions filed by
Campbell's trial counsel were denied.

Campbell's trial counsel initiated but failed to perfect
Campbell's appeal, to which he had a right under
Pennsylvania law. Objecting to this failure, Campbell filed a
pro se petition under the Post Conviction Hearing Act
(PCHA) on May 2, 1986; an amended pro se petition on
November 10, 1986; and a third petition, with the
assistance of counsel, on January 4, 1987. In these papers,
he asserted several grounds to support an ineffective-
assistance-of-counsel claim, primarily focusing on the fact
that trial counsel had failed to file a timely appellate brief,
thereby precluding him from pursuing his right to appeal.
In attempting to preserve his right to appeal, Campbell
asked for an exception to statutory time-bar provisions in
the form of permission to file a nunc pro tunc appeal with
the Pennsylvania Superior Court--an intermediate appellate
court. In addition to his nunc pro tunc request, among other
things, he asserted that his trial counsel (1) interfered with
his constitutional right to testify on his own behalf; (2)
failed to emphasize the level of his intoxication at the time
he committed the crime; and (3) failed to remove himself
from the case in light of his inexperience.

On March 4, 1987, the PCHA court, which had also been
the trial court, held an evidentiary hearing as it was
required to do under Pennsylvania law. See Commonwealth
v. Stokes, 440 A.2d 591, 595 (Pa. Super. Ct. 1982). At this
hearing, the PCHA court undertook its duty to hear
evidence regarding all of Campbell's claims that required

                               5
the development of a factual record. See Commonwealth v.
Elliot, 466 A.2d 666, 668 (Pa. Super. Ct. 1983). The PCHA
court heard evidence that Campbell's trial counsel had
failed to perfect Campbell's appeal; that trial counsel had
failed to assert Campbell's intoxication defense; and that
trial counsel was so inexperienced--this was hisfirst
homicide trial, at least according to Campbell--that in
failing to seek his own withdrawal from the case, he
rendered ineffective assistance.

Most importantly for our purposes, the court heard
evidence regarding Campbell's contention that trial counsel
had interfered with his constitutional right to testify on his
own behalf. In support of this claim, Campbell testified that
his trial counsel did not inform him of his right to testify,
that he had wanted to testify, and that the reason he did
not do so is that his trial counsel said not to. Trial counsel
also testified. He admitted that he had cautioned Campbell
against testifying, but insisted that he "[a]bsolutely" told
Campbell that it was Campbell's decision to take the stand.
The relevant testimony is reproduced in the margin. 2
_________________________________________________________________

2. On examination by his counsel at the PCHA hearing, Campbell
testified as follows:

       Q: Did you indicate to [your trial counsel] that you wanted to
testify
       on your own behalf?

       A: Yes.

       Q: Did you testify on your own behalf.

       A: No.

       Q: Why not?

       A: Because he said not to, but I did want to testi fy because there
       was a number of things that I could have said to the jury . . . .

       Q: Did [your trial counsel] indicate to you that you had the right
to
       testify on your own behalf?

       A: He didn't come out and give it to me in no formal manner. He
just
       said, "I don't think you should testify ."

Appendix at 28a (emphasis added).

The testimony of Campbell's trial counsel on examination by
Campbell's lawyer at the PCHA hearing is as follows:

                               6
Neither man's testimony was corroborated, and the
conflicting testimony created a credibility dispute.

At the conclusion of the hearing, the PCHA court
determined that Campbell's trial counsel had negligently
failed to file an appellate brief and that Campbell was
entitled to a nunc pro tunc appeal. In a written opinion
memorializing its decision, the court "refrained from ruling
upon the merits of defendant's other grounds,"
Commonwealth v. Campbell, No. 666-84, at 2 (Pa. Ct.
Common Pleas Jan. 6, 1988), as prescribed by
Commonwealth v. Miranda, 442 A.2d 1133 (Pa. Super. Ct.
1982).3 In so refraining, the court nonetheless attempted to
_________________________________________________________________

         Q: Did you ever--did the Court ever ask my clien t why he was not
         going to take the stand to testify on his own behalf?

         . . .

         A: I don't recall if we did it on the record or if he and I just
         discussed it at the counsel table together. I considered it that
there
       would be absolutely no way that he could take the stand and
       preserve the question of trying to avoid the first degree murder
       question. If he took the stand in my opinion, and I told him this,
       that he could have the jury be alienated against him because his
       confession . . . was somewhat mitigating in that he expressed
       considerable remorse and if he were to take the stand and either
       give a different story or either try to explain it away, in my
opinion,
       and I told him this, that I considered it to be a very substantial
       possibility that the jury would consider that his remorse has now
       been or had then been qualified. So I advised him not to take the
       stand.

         Q: But it was my client's position that he wanted to take the
stand,
         is that correct?

         A: He wasn't certain as to what to do.

         . . .

         Q: Had you indicated to my client that he had a right to take the
         stand if he decided to?

         A: Absolutely, it was his decision, it was his   life.

Appendix at 23a-26a (emphasis added).
3. Miranda holds that "once the PCHA court determines petitioner has
been deprived of his appellate rights, it should refrain from ruling upon
the merits of the other claims and should grant petitioner the right to
file
an appeal nunc pro tunc." 442 A.2d at 1138.

                               7
fulfill its obligation under Miranda, see id. at 1138, to
"make the findings of fact" necessary to"see to it that the
record" was complete for the appellate court that would
subsequently be hearing Campbell's nunc pro tunc appeal,
Commonwealth v. Johnson, 444 A.2d 1291, 1293 n.2 (Pa.
Super. Ct. 1982); see also Commonwealth v. Presbury, 467
A.2d 898, 898 (Pa. Super. Ct. 1983) (citing Pa. R. Crim. P.
1506(5) and other "decided cases" as the source of this
duty).

The PCHA court made its findings of fact regarding
Campbell's other ineffective-assistance claims in the
following manner:

       The court, following the mandates of Commonwealth v.
       Miranda, supra, completed this record by allowing an
       evidentiary hearing concerning the other issues raised
       [the six ineffective-assistance-of-counsel claims other
       than the failure-to-file-an-appellate-brief claim]. Thus,
       the record is complete for appellate purposes [citing
       and quoting Miranda at length].

        It may be noted in passing that the allegedly new
       issues raised by defendant at his Post Conviction
       Hearing Act Hearing [the six other ineffectiveness
       claims] were either disposed of in this court's original
       Opinion [denying claims raised in post-trial briefing], or
       are clearly unsupported by the records (for example this
       was not trial counsel's first homicide trial . . . and the
       issue of intoxication was placed before the jury . .. .)

        The defendant has simply failed to carry his burden
       of establishing ineffectiveness as to any specific issue
       raised or collectively as to all of the issues raised.

        Respecting the Appellate Court mandate hereinabove
       cited, [Miranda] no further decision is made as to the
       additional issues of ineffectiveness claimed by
       defendant. The denial of his right to appeal has already
       been remedied. This court does respectfully suggest
       that the defendant's contention of ineffectiveness as to
       the additional issues has not been established by the
       evidence.

                               8
Commonwealth v. Campbell, No. 666-84, at 2-4 (Pa. Ct.
Common Pleas Jan. 6, 1988) (emphasis added) (citations
and footnote omitted).

In these four paragraphs, the PCHA court did not
explicitly resolve the credibility dispute between Campbell
and his trial counsel regarding the right-to-testify/
ineffective-assistance claim. However, the Commonwealth
contends that the court did so implicitly with its repeated
mention that the evidence did not support Campbell's
ineffectiveness claims other than his right to appeal claim.
See infra Section II.C (discussing whether the PCHA court,
in fact, made this finding).

The Superior Court panel that heard Campbell's nunc pro
tunc appeal did not advert to the PCHA court's failure to
make an explicit finding regarding this disputed testimony.
In its memorandum opinion, it reproduced the testimony
given by Campbell's trial counsel at the PCHA hearing (also
reproduced at supra note 2), without mentioning
Campbell's testimony to the contrary. In ruling on the legal
issue, the panel wrote:

        This testimony [that of Campbell's trial counsel]
       would indicate that [Campbell] made a decision not to
       testify after full consultation. In addition, it appears
       that counsel had a reasonable basis designed to
       further appellant's interests, for not calling him to
       testify. . . . We find no ineffectiveness in counsel's
       action.

Commonwealth v. Campbell, No. 1010 Philadelphia 1987, at
8 (Pa. Super. Ct. Jul. 26, 1988) (citations omitted). Based
on this analysis, the Superior Court rejected Campbell's
right-to-testify/ineffective-assistance claim, along with the
host of claims that Campbell had asserted.

On April 18, 1997, Campbell filed a timely habeas
petition, asserting several claims, including his right-to-
testify/ineffective-assistance claim. The Magistrate Judge to
whom the case was referred for a report or recommendation
rejected all of Campbell's claims. Addressing Campbell's
right to testify claim, she concluded "that the Superior
Court's finding that Mr. Campbell decided not to testify
after consultation with his counsel [was] not based on an

                               9
unreasonable determination of the facts in light[of] the
evidence presented at the PCHA hearing." Campbell v.
Vaughn, No. 97-2677, at 21-22 (E.D. Pa. June 5, 1998)
(Magistrate Judge's Report and Recommendation)
(emphasis added). Moreover, she concluded, neither was
the "Superior Court's [legal conclusion] contrary to
established Federal law" under the Strickland v.
Washington, 466 U.S. 668 (1984), ineffective-assistance-of-
counsel standard. Campbell, No. 97-2677 at 22 (emphasis
added). The District Court adopted the Magistrate Judge's
findings and entered an order denying Campbell's petition
for writ of habeas corpus.

The District Court declined to grant a certificate of
appealability pursuant to 28 U.S.C. S 2253(c)(1); however,
this court granted the certificate on June 14, 1999. See
Campbell v. Vaughn, No. 98-1774 (3d Cir. June 14, 1999).
In so doing, we limited the certificate of appealability to
Campbell's right-to-testify/ineffective-assistance claim. See
id. The District Court had jurisdiction pursuant to 28
U.S.C. SS 2241(c)(3) and 2254(a). We have jurisdiction
pursuant to 28 U.S.C. SS 1291 and 2253.

II. Whether a New Evidentiary Hearing is Required

The provisions of the federal habeas statute govern our
review. It provides that "a determination of a factual issue
made by a State court shall be presumed to be correct. The
[habeas] applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence." 28 U.S.C. S 2254(e)(1). In interpreting this
statute, the Supreme Court has held that an implicit
finding of fact is tantamount to an express one, such that
deference is due to either determination. See Parke v.
Raley, 506 U.S. 20, 35 (1992); Marshall v. Lonberger, 459
U.S. 422, 432-33 (1982); LaVallee v. Delle Rose , 410 U.S.
690, 692 (1973) (per curiam); see also McAleese v.
Mazurkiewicz, 1 F.3d 159, 172 (3d Cir. 1993); Ahmad v.
Redman, 782 F.2d 409, 413 (3d Cir. 1986).

A.

Campbell does not seek to introduce new evidence that
would cast doubt upon the factual determinations made by

                               10
the state courts involved in this case. Rather, he argues
that the PCHA court and the Superior Court made no
factual "determination" to which we need to defer. In
advancing this argument, he makes two contentions: (1)
that both courts' treatment of the unresolved issue of fact
created by Campbell's and his trial counsel's conflicting
testimony was too indeterminate to be treated as a factual
determination; and (2) that if the Superior Court made a
definitive factual finding resolving this credibility dispute,
the court did not have the power to do so under
Pennsylvania law, and hence, its finding should be
disregarded. Campbell therefore submits that, to resolve his
substantive habeas claim, a new evidentiary hearing must
be held--not so that new, or recently discovered, evidence
may be introduced, but so that the District Court can
determine, based on Campbell's live testimony and that of
his trial counsel's whether, as a matter of fact, his trial
counsel informed him that it was his decision whether to
testify on his own behalf.

The Antiterrorism and Effective Death Penalty Act
(AEDPA) amended the federal habeas statute in such a way
as to limit the availability of new evidentiary hearings on
habeas review. See 28 U.S.C. S 2254(e)(2). Prior to AEDPA,
new evidentiary hearings were required in several
circumstances. See Townsend v. Sain, 372 U.S. 293, 313
(1963) (listing six circumstances in which a hearing was
required, including when "the material facts were not
adequately developed at the state-court hearing"); Keeney v.
Tamayo-Reyes, 504 U.S. 1, 11 (1992) (refining the
Townsend standard by requiring that the petitioner "show
cause for his failure to develop the facts in the state-court
proceedings and actual prejudice resulting from that
failure," but not curtailing Townsend's list); see also 28
U.S.C. S 2254(d) (1995) (amended by AEDPA, at 28 U.S.C.A.
S 2254(e)(2) (West Supp. 1999)) (providing the pre-AEDPA
standard for holding evidentiary hearings on habeas
review).

AEDPA, in contrast, permits evidentiary hearings on
habeas review, but only in a limited number of
circumstances. See 28 U.S.C. S 2254(e).4 If Campbell is
_________________________________________________________________

4. As amended by AEDPA, 28 U.S.C. S 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of a claim in

                               11
correct that the state courts failed to resolve the factual
issue on which his habeas petition rests, a new evidentiary
hearing would be permitted, as the failure to develop the
factual record would not be his fault. AEDPA and uniform
case law interpreting it provide that if the habeas petitioner
"has diligently sought to develop the factual basis of a claim
for habeas relief, but has been denied the opportunity to do
so by the state court, S 2554(e)(2) will not preclude an
evidentiary hearing in federal court." Cardwell v. Greene,
152 F.3d 331, 337 (4th Cir. 1998) (collecting court of
appeals cases that agree with this proposition).

However, even if a new evidentiary hearing is permitted
under AEDPA--when it is solely the state's fault that the
habeas factual record is incomplete--AEDPA, unlike
Townsend and Keeney, does not require that such a
hearing be held. Instead, federal courts have discretion to
grant a hearing or not. In exercising that discretion, 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. For example, in Cardwell,
the court held that a new evidentiary hearing was
permissible under AEDPA because it was the state's fault
that the factual record was incomplete. See 152 F.3d at
338. The court nonetheless went on to conclude that the
district court did not err in refusing to grant the petitioner
an evidentiary hearing, because the petitioner "ha[d] failed
to forecast any evidence beyond that already contained in
_________________________________________________________________

State court proceedings, the court shall not hold an evidentiary hearing
on the claim unless the applicant shows that--

       (A) the claim relies on--

       (i) a new rule of constitutional law, made retroac tive to cases on
       collateral review by the Supreme Court, that was previously
       unavailable; or

       (ii) a factual predicate that could not have been previously
       discovered through the exercise of due diligence; and

       (B) the facts underlying the claim would be sufficient to establish
by
       clear and convincing evidence that but for constitutional error, no
       reasonable factfinder would have found the applicant guilty of the
       underlying offense.

                               12
the record" that would help his cause, "or otherwise to
explain how his claim would be advanced by an evidentiary
hearing." Id.

Campbell, in contrast, has explained how a new hearing
would advance his claim. Assuming arguendo, that he is
correct that the Pennsylvania state courts did not resolve
the credibility dispute between Campbell and his trial
counsel, a new evidentiary hearing in which the Magistrate
Judge or District Judge found that Campbell's testimony is
to be believed would surely advance his right-to-testify/
ineffective-assistance claim. Such a finding would mean
that trial counsel rendered ineffective assistance by
unconstitutionally interfering with his right to testify. If
Campbell is wrong, and the state courts made a finding of
fact to which we must defer, then a new evidentiary hearing
would not only not advance his right-to-testify/ineffective-
assistance claim, it would be forbidden under the precepts
of S 2254(e)(2) and case law interpreting it, because there
would be no factual deficiency that a federal habeas court
could redress.

B.

In addressing Campbell's S 2254(e)(2) claim, the
Magistrate Judge, the District Judge, the Commonwealth,
and Campbell have all concentrated on the Superior Court's
statement that the record "would indicate" that Campbell's
trial counsel informed his client that it was his decision to
testify. Commonwealth v. Campbell, No. 1010 Philadelphia
1987, at 8 (Pa. Super. Ct. Jul. 26, 1988) (citations omitted).
The Magistrate Judge, the District Judge, and the
Commonwealth have reasoned that this is the
determination of fact to which we must defer, and therefore
that a S 2254(e)(2) hearing is inappropriate. Campbell
contends both that the Superior Court's statement is not a
determination of fact, and that the Superior Court, as an
appellate court, did not have the power under Pennsylvania
law to make such a finding on a cold record when making
such a finding necessitated resolving a credibility dispute
without having seen the witnesses testify. Neither the
Magistrate Judge, the District Judge, nor the
Commonwealth have addressed the latter argument.

                               13
The parties' and the Magistrate and District Judges' focus
on the Superior Court opinion is not necessary. Under
Pennsylvania law, the PCHA court was charged with
making the finding of fact in question. See Commonwealth
v. Johnson, 444 A.2d 1291, 1293 n.2 (Pa. Super. Ct. 1982)
(describing the duty); Commonwealth v. Miranda , 442 A.2d
1133, 1138-43 (Pa. Super. Ct. 1982) (same). Accordingly, it
was the PCHA court's duty to resolve the credibility dispute
between Campbell and trial counsel before passing
Campbell's legal claim to the Superior Court. See
Commonwealth v. Elliot, 466 A.2d 666, 668 (Pa. Super. Ct.
1983); Johnson, 444 A.2d at 1293 n.2; Miranda, 442 A.2d
at 1138; see also infra Section II.C (explaining this
procedure). We believe the PCHA court made thisfinding of
fact, to which we must defer, and turn to this matter now.
Before doing so, we note that in relying on the PCHA court's
finding, we express no opinion as to whether in this precise
factual circumstance, the Superior Court could have made
this finding of fact on the cold appellate record, such that
we would need to defer to it pursuant to AEDPA.

C.

In determining whether the PCHA court made a finding of
fact resolving the credibility dispute between Campbell and
his trial counsel, the prime evidentiary source is the PCHA
court's written opinion. Through its repeated references to
the insufficiency of the evidence that Campbell adduced to
support his myriad ineffective-assistance-of-counsel claims,
the PCHA court demonstrated--if in somewhat
circumabulatory fashion--that it did not credit Campbell's
testimony that his trial counsel failed to inform him of his
right to choose to testify. While never explicitly crediting the
testimony of Campbell's trial counsel, the PCHA court
wrote:

       It may be noted in passing that the allegedly new
       issues raised by defendant at his Post Conviction
       Hearing Act Hearing . . . are clearly unsupported by the
       records . . . .

       . . .

                               14
       The defendant has simply failed to carry his burden of
       establishing ineffectiveness as to any specific issue
       raised or collectively as to all of the issues raised.

       Commonwealth v. Campbell, No. 666-84, at 3 (Pa. Ct.
       Common Pleas Jan. 6, 1988).

       This court does respectfully suggest that the
       defendant's contention of ineffectiveness as to the
       additional issues has not been established by the
       evidence.

       Id. at 4.

As we read these passages, we believe that the PCHA
court implicitly discredited Campbell's testimony.
Borrowing from the Supreme Court's holding in LaVallee v.
Delle Rose, 410 U.S. 690, 692 (1973) (per curiam),
"[a]lthough it is true that the state trial court did not
specifically articulate its credibility findings, it can scarcely
be doubted from its written opinion that [Campbell's]
factual contentions were resolved against him." Although,
as Campbell properly notes, the PCHA court made one of
these remarks "in passing," Campbell, No. 666-84, at 3, the
PCHA court was properly passing the legal resolution of
these claims--based on the factual record it created--on to
the Superior Court. Miranda and other Pennsylvania case
law dictated that the PCHA court do so, and, in fact,
prohibited the PCHA court from reaching out to dispose of
the legal questions raised in those additional claims.

Miranda held that "once the PCHA court determines
petitioner has been deprived of his appellate rights, it
should refrain from ruling upon the merits of the other
claims and should grant petitioner the right tofile an
appeal nunc pro tunc." 442 A.2d at 1138. In completing the
record for appellate review as to the other claims,"the
PCHA court is merely acting as an evidentiary tribunal." Id.
(emphasis added). Cases interpreting Miranda hold the
same. In Commonwealth v. Pate, the Pennsylvania Superior
Court wrote, "[O]nce a PCRA court [the equivalent of PCHA
court] determines that a petitioner's right to direct appeal
has been violated, the PCRA court is precluded from
reaching the merits of other issues raised in the petition."
617 A.2d 754, 757 (Pa. Super. Ct. 1992) (emphasis added).

                               15
This limitation on the powers and duties of the PCHA court
may explain its somewhat tentative written opinion, as well
as validate its (inchoate) fact-finding.

Similarly, the fact that the PCHA court merely
"suggest[ed]" that the evidence did not support Campbell's
claims does not undermine our conclusion. Campbell, No.
666-84, at 4. If anything, it bolsters it, for in attempting to
determine the character of the PCHA court's statements, we
also look to the court's legal conclusions and the rational
deductions that we can draw therefrom. As the Supreme
Court made clear in Marshall v. Lonberger, 459 U.S. 422,
433 (1982), in determining what implicit factualfindings a
state court made in reaching a conclusion, we must infer
that it applied federal law correctly. Therefore, the PCHA
court's suggestion to the Superior Court regarding the
merits of Campbell's claims is helpful in determining what
findings of fact it implicitly reached. See id.; see also
Ahmad v. Redman, 782 F.2d 409, 413 (3d Cir. 1986)
(applying the rule in Marshall). Put differently, our duty is
to begin with the PCHA court's legal conclusion and reason
backward to the factual premises that, as a matter of
reason and logic, must have undergirded it.

The PCHA court repeatedly suggested that Campbell's
ineffective-assistance-of-counsel claims had no legal merit.
From this tentative legal conclusion one may infer that the
PCHA court assumed that Campbell's trial counsel properly
informed him of his right to testify. Otherwise, the legal
conclusion would be invalid, because Campbell's lawyer
would have deprived him of his constitutionally guaranteed
right to choose whether to testify on his own behalf at trial.
See Jones v. Barnes, 463 U.S. 745, 751 (1983) ("[T]he
accused has the ultimate authority to make certain
fundamental decisions regarding the case, [including] as to
whether to . . . testify in his or her own behalf."); see also
Rock v. Arkansas, 483 U.S. 44, 49-56 (1987). As Marshall,
459 U.S. at 433, teaches, we cannot assume that a state
court would have so grossly misapplied our federal
jurisprudence as to have reached the legal conclusion it did
based on a factual finding to the contrary.

Carrying through the logic from the PCHA court's
suggested legal conclusion and the implicit factual

                               16
conclusion that drives it, we can infer that the PCHA court
credited the testimony of Campbell's trial counsel over
Campbell. If the PCHA court had credited Campbell's
testimony, its implicit factual finding that Campbell was
notified of his right to testify would be irrational. It would
mean that the PCHA court found Campbell more credible,
but understood him to say the opposite of what he said.

A review of our precedent supports this mode of analysis.
In McAleese v. Mazurkiewicz, 1 F.3d 159, 171-72 (3d Cir.
1993), for example--a habeas case based on a ineffective-
assistance-of-counsel claim--the defendant contended that
his trial counsel had failed to obtain certain long-distance
phone records that would have greatly bolstered his alibi
defense. At a post-conviction hearing, the defendant
testified that he had told his trial counsel that such records
could be obtained from the phone company and that he
had asked his lawyer to obtain them. See id. at 172. His
trial counsel then testified that he did not know that the
telephone company kept or could have produced such
records. See id. "Faced with this conflicting evidence," the
state post-conviction relief court hearing this evidence failed
to resolve explicitly the credibility dispute between the
defendant and his trial counsel. Id. The court did, however,
"decide that trial counsel had thoroughly investigated and
considered all the areas about which [the defendant]
complained post-verdict." Id. In reviewing the state court's
legal conclusion, we held that "[i]mplicit in this conclusion
is a finding that trial counsel's testimony was credible. This
finding is presumptively correct and should not be
disturbed by a federal court on habeas review if it is fairly
supported by the record." Id. (citing, inter alia, LaVallee v.
Delle Rose, 410 U.S. 690, 694-95 (1973) (per curiam)); see
also Ahmad, 782 F.2d at 413 (reaching a similar conclusion
on similar facts).

In sum, under the Supreme Court precedent articulated
in Marshall and LaVallee, and pursuant to our cases such
as McAleese and Ahmad, although the PCHA court did not
make its findings of fact explicit, we are bound by its
implicit resolution of the credibility dispute between
Campbell and his trial counsel. The PCHA court should
have made its factual findings explicit, and it would have

                                17
been salutary for the Superior Court to have taken the
PCHA court to task for not doing so. Cf. Commonwealth v.
Townsell, 379 A.2d 98, 100 n.6 (Pa. Super. Ct. 1977)
(noting "with disapproval" a PCHA court's failure to make
its findings of fact explicit in the post-conviction relief
hearing record); see also Commonwealth v. Elliot , 466 A.2d
666, 668 (Pa. Super. Ct. 1983) (noting that "[o]n prior
occasions," and in the instant appeal, the Superior Court
"ha[d] remanded for findings of fact where the P.C.H.A.
hearing court failed to resolve conflicts in evidence or
determine issues of credibility").

At all events, we hold that the PCHA court made a
sufficient determination of the factual issue on which
Campbell's habeas appeal turns. AEDPA dictates that we
must presumptively defer to this determination absent clear
evidence to the contrary. See 28 U.S.C.S 2254(e)(1). As
Campbell has introduced no such clear evidence, we
further hold that ordering a new evidentiary hearing in this
situation would be inappropriate. See supra Section II.A
(discussing the circumstances in which a 28 U.S.C.
S 2254(e)(2) evidentiary hearing is appropriate).

III. The Merits of Campbell's Substantive Habeas
       Claim in Light of the PCHA Court's Findings

In turning to the merits of Campbell's substantive habeas
claim, we defer to the PCHA court's finding of fact that
Campbell's trial counsel told Campbell that it was
Campbell's choice whether to testify. The Superior Court
hearing Campbell's nunc pro tunc appeal reviewed the
evidence that the PCHA court implicitly credited--namely,
that Campbell's trial counsel "absolutely" told Campbell it
was Campbell's decision whether to testify, see supra note
2--and reached the legal merits of Campbell's right-to-
testify/ineffective-assistance claim. It held that the legal
assistance given by Campbell's counsel had not been
ineffective because Campbell "made a decision not to testify
after full consultation. . . . [and] it appears that counsel
had a reasonable basis designed to further appellant's
interests, for not calling him to testify." Commonwealth v.
Campbell, No. 1010 Philadelphia 1987, at 8 (Pa. Super. Ct.
Jul. 26, 1988) (citations omitted). On habeas review, 28

                               18
U.S.C. S 2254(d) governs our review of the state court's
substantive legal conclusion.

As amended by AEDPA, 28 U.S.C. S 2254(d), provides
that

        (d) 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, o r
       involved an unreasonable application of, clearly
       established Federal law, as determined by the
       Supreme Court of the United States; or

       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of
       the evidence presented in the State court
       proceeding.

28 U.S.C.A. S 2254(d) (West Supp. 1999).

We address these two potential grounds for habeas relief
in reverse order. At the PCHA hearing, Campbell's trial
counsel testified unequivocally that he informed Campbell
of his right to testify and that he assured him it was
Campbell's ultimate decision, alone, whether to testify. See
supra note 2. Campbell testified to the contrary. See id. A
reasonable fact-finder could discount Campbell's testimony
and credit his trial counsel's. Therefore, the state PCHA
court did not make an unreasonable determination of the
facts in light of the evidence presented when it implicitly
reached that conclusion. Accordingly, habeas relief is
unwarranted under 28 U.S.C. S 2254(d)(2).

We next turn our attention to 28 U.S.C. S 2254(d)(1). In
reaching its legal conclusion, the Superior Court applied
the federal standard regarding ineffective-assistance-of-
counsel claims articulated in Strickland v. Washington, 466
U.S. 668, 687-96 (1984). Based on the facts presented it
concluded that Campbell's trial counsel did not render
ineffective assistance. The Court reasoned, appropriately,
that Campbell's trial counsel did not render ineffective

                               19
assistance by warning him that if he were to take the
witness stand and recant his remorse-filled confession, he
would likely alienate the jury. If anything, this was sound
advice. The factual record to which we must defer
demonstrates that this advice went no further than
counseling, and that trial counsel did not suggest to
Campbell that he could not testify, even if he chose to do
so.

On these facts, the Superior Court applied federal law in
a reasonable manner in concluding that Campbell's trial
counsel did not render ineffective assistance under the
"objective reasonableness" standard articulated by the
Supreme Court in Strickland. See, e.g. , United States v.
Teague, 953 F.2d 1525, 1534-35 (11th Cir. 1992) (holding
that counsel's performance was not constitutionally
deficient, in case in which defendant was advised of his
right to testify, but was advised that he should not exercise
that right because it would be unwise and unnecessary). As
this decision was not "contrary to . . . clearly established
Federal law," or an "unreasonable application of " such law,
28 U.S.C. S 2254(d)(1), habeas relief underS 2254(d)(1) is
unwarranted, see Matteo v. Superintendent, SCI Albion, 171
F.3d 877, 888-91 (3d Cir. 1999) (en banc) (establishing the
analytical framework, under AEDPA, for reviewing the legal
conclusions reached by state courts based on federal law).
The District Court's order denying habeas relief will
therefore be affirmed.

       BY THE COURT:

        /s/ Edward R. Becker
       ________________________
       Chief Judge

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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