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


9-25-2006

Richards v. Tennis
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2725




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Recommended Citation
"Richards v. Tennis" (2006). 2006 Decisions. Paper 423.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2725


                                MICHAEL RICHARDS,
                                             Appellant

                                           v.

           FRANK TENNIS, SUPERINTENDENT, SCI BELLEFONTE;
       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. Civil Action No. 04-cv-1642
                          (Honorable Michael M. Baylson)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                               September 11, 2006
       Before: SCIRICA, Chief Judge, SLOVITER and BARRY, Circuit Judges

                              (Filed: September 25, 2006)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      Michael Richards appeals from an order denying his 28 U.S.C. § 2254 habeas

petition. We have jurisdiction under 28 U.S.C. § 2253, and will affirm.

                                            I.
       On May 30, 2001, Richards was convicted in state court after a jury trial of first

degree murder, robbery, and witness intimidation. Richards ran a drug house in

Philadelphia, at the home of John Agostini, and Richards “employed” Chad Ferdinand

and Raymond Fredericks to run the drug operation. On July 14, 1994, Ferdinand left the

drug house with drugs and the money he had collected that evening. He returned to the

drug house at 3:00 a.m., informing Fredericks that the women he had been with that night

took the money and the drugs. The next day, Richards confronted Ferdinand and

Fredericks. At one point, Richards struck Fredericks across the chest with a gun, and

continued arguing with Ferdinand. At a later point, Richards pulled his gun on Ferdinand

and shot and killed him.

       On the first degree murder charge, the primary issue at trial was whether Richards

specifically intended to kill Ferdinand. Fredericks testified at trial that the shooting

occurred accidentally when Richards attempted to strike Ferdinand over the head with the

butt of his gun. Fredericks testified the gun went off when Ferdinand put his hands up to

block the imminent physical blow. The owner of the house, Agostini, testified he saw

Richards pull out the gun and move to hit Ferdinand over the head. But Agostini turned

his head to avoid watching the impact and was not watching when the gun went off. A

third witness—an inmate who was in jail with Richards at the time of his trial—testified

Richards told him the gun “accidentally” went off.

       Edwin Lieberman, M.D., Assistant Medical Examiner, testified at trial, explaining

that Ferdinand had blunt force injuries to his shoulder and forehead consistent with the

                                              2
butt end of a gun, and a gunshot wound entering at the back of his head with an exit

wound over the left temple. Significantly, Dr. Lieberman testified the gunshot wound

could not have occurred while Richards was beating the victim with the gun because the

bullet wound was on the side of the victim’s head opposite the blunt force injuries.

       Being struck on the top of the shoulder with the butt of a gun, if the person
       is standing in front holding the gun, holding it by the muzzle so that the butt
       is free or holding it by the butt of the gun and striking downward, the
       muzzle would be pointing forward or backward, not at the back of the head
       in this direction as I’ve outlined. Nor would a muzzle ever come close to
       the back of the head being struck in the front with the butt of a gun.
       Remember, a gun looks like sort of an L-shape or a 7. So if you’re struck
       with the short side, the butt, over the forehead this way, the muzzle would
       be pointing down or pointing up or pointing to the side, but it can’t curve
       around to the back of the head to cause the wound.

As a result, the location of the gunshot wound is not consistent with an accidental

discharge during the infliction of blunt force wounds.

       Richards appealed his conviction and sentence to the Pennsylvania Superior Court,

alleging, among other things, ineffective assistance of counsel. At trial, there was

evidence that Richards was born in Jamaica, ran his drug house with another group of

Jamaican men in the neighborhood, and employed Jamaicans to run his drug business.

During opening and closing arguments, the prosecutor referred to Richards as a

“Jamaican drug dealer” and noted some witnesses knew Richards as either “Mikey Lala”

or “Jamaica Mike.” The prosecutor also stated the case was about a “murder involving

drugs,” which was motivated by anger over Richards’s loss of money as a direct

consequence of the victim’s actions. On appeal, Richards argued his counsel was


                                             3
ineffective for failing to request a jury instruction limiting the use of references to his

nationality and references to his drug activities to prove his tendency toward violence.

       The Superior Court affirmed Richards’s conviction, holding, “even if counsel was

ineffective, appellant suffered no prejudice.” Commonwealth v. Richards, 828 A.2d 402

(Pa. Super. Ct. 2003). According to the court, Richards’s involvement in the sale of drugs

was “overwhelmingly established by the properly admitted evidence, so that the

references to appellant were harmless error.” Id. The Pennsylvania Supreme Court

denied review. Commonwealth v. Richards, 841 A.2d 530 (Pa. 2003).

       Richards filed a timely petition under 28 U.S.C. § 2254 in federal court, arguing

ineffective assistance of counsel based on his trial counsel’s failure to request a limiting

instruction on the “Jamaican drug dealer” references. He asserts that the jury might have

convicted him of first degree murder, instead of third degree murder, based solely on

Richards’s status as a “Jamaican” and a “drug dealer” and not because the jury believed

Richards intended to kill Ferdinand. The Magistrate Judge recommended denying the

petition, agreeing with the state court that “in light of the abundance of evidence against

Richards, the references to him as a drug dealer did not prejudice the defense.” The

Magistrate Judge also concluded the prosecutor’s references to Richards’s ancestry and

drug activities were not prejudicial because these facts were overwhelmingly established

at trial. Richards filed objections, arguing the Magistrate Judge failed to recognize the

prejudicial effect of the references to his Jamaican ancestry. The District Court adopted

the Magistrate Judge’s recommendations and denied Richards’s § 2254 petition.

                                               4
Richards v. Tennis, No. 04-1642, 2005 WL 991264, at *2 (E.D. Pa. April 24, 2005). The

court held the references to Richards’s ancestry were not prejudicial in part because the

government did not attempt to draw direct links between his ancestry and the crime for

which he was charged. Id.

       We granted a certificate of appealability on the following issue: “whether the

District Court erred by denying habeas corpus relief as to Appellant’s claim that counsel

was ineffective in failing to request an instruction that the jury should not consider

Richards’ nationality or activity as a drug dealer for a propensity to commit violent

crime.” Our review is plenary. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001).

We may grant relief only if the state court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d).

                                             II.

       To establish a claim of ineffective assistance of counsel under Strickland, Richards

must demonstrate his attorney’s performance was deficient and that he was prejudiced by

this deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). That is, he must

prove counsel’s performance “fell below an objective standard of reasonableness,” id. at

688, and that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different,” id. at 694.

                                              5
       To succeed on an ineffective assistance of counsel claim, petitioners must show

counsel’s performance was deficient based on the “facts of the particular case, viewed as

of the time of counsel's conduct.” Id. at 690. Petitioners may only overcome the

“presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance,” id. at 689, by “showing that no sound strategy posited by the

[government] could have supported the conduct.” Thomas v. Varner, 428 F.3d 491, 500

(3d Cir. 2005). The state court did not address the performance prong of Strickland,

noting “even if counsel was ineffective, appellant suffered no prejudice and thus is not

entitled to any relief.” There was no evidentiary hearing on the federal habeas petition.

Even though a request by defense counsel for a limiting instruction may have highlighted

for the jury an explicit connection between a propensity towards violence and the

prosecution’s characterization of Richards as a Jamaican drug dealer, see Buehl v.

Vaughn, 166 F.3d 163, 176 (3d Cir. 1999), there is nothing in the record to demonstrate

that trial counsel conceived this strategy. Therefore, we turn to the prejudice analysis

under Strickland.

       The state court found the references to Richards as a “Jamaican drug dealer” were

not prejudicial. This decision was not unreasonable. The evidence at trial

overwhelmingly established Richards’s guilt. The evidence of Richards’s drug activities

and involvement in the local Jamaican drug gang was properly admitted, both to

demonstrate motive and to establish the circumstances surrounding the murder. Richards

does not dispute his involvement. Several witnesses saw Richards argue with the victim

                                             6
over missing drug money and other drug-related issues and point a gun at the victim

shortly before the fatal shot rang out. From this testimony, the jury would have reached

the obvious conclusion that defendant was a drug dealer, negating any possible prejudice

caused by the prosecutor’s characterization of him as one. The Pennsylvania Supreme

Court reached a similar conclusion in Rollins, holding the absence of a limiting

instruction for the admission of one witness’s drug related testimony did not prejudice the

defendant where the record was replete with evidence that the witnesses and the

defendant were “involved in the sale and/or use of drugs.” Commonwealth v. Rollins, 580

A.2d 744, 748 (Pa. 1990).1 Furthermore, Richards’s claim that the gun accidentally went

off is contradicted by the medical examiner’s testimony that Ferdinand could not have

been shot while Richards struck him with his gun.2 In light of this evidence, the state

court reasonably found Richards was not prejudiced by his counsel’s error, if any.



   1
     Richards contends the state court’s reliance on Rollins was in error because
admission of his drug activities to establish motive does not render the evidence harmless
in his murder trial. We agree the basis for the state court’s decision is unclear,
considering Richards asserts entitlement to limiting instructions for both the evidence of
his nationality and drug activities, as well as to any references thereto. But we need not
decide this issue because the evidence at Richards’s trial strongly supported his
conviction for first degree murder.
   2
     Although the medical examiner stated the shooting could have occurred while
Richards struck the victim if the victim turned his head away, possibly to flee, there was
no evidence at trial to support this theory. Fredericks testified only that Ferdinand put his
hands up to protect his face, and then the shot went off. We apply a deferential standard
of review when evaluating the legal sufficiency of evidence used to support a jury verdict.
See, e.g., United States v. Gambone, 314 F.3d 163, 169–70 (3d Cir. 2003). Here, we find
sufficient evidence upon which a reasonable jury could have rested its verdict.

                                             7
       Richards cites several cases in support of his argument that references to his

nationality infected his trial, but none are on point. In some, the evidence of the

defendant’s guilt was not as strong as in this case. See, e.g., United States v. Rodriguez

Cortes, 949 F.2d 532, 543 (1st Cir. 1991) (noting the case was “very close”); United

States v. Doe, 903 F.2d 16, 28 (D.C. Cir. 1990) (finding prejudice from comments about

defendant’s nationality where the evidence was “hardly overwhelming”). In others, the

comments were irrelevant. See, e.g., United States v. Cabrera, 222 F.3d 590, 596 (9th

Cir. 2000) (noting references to the defendants’ ancestry were “improper and

inadmissible” under the Federal Rules of Evidence). In most of these cases, the

prosecution attorneys attempted to draw direct links between the defendants’ nationalities

and the charged crimes. See, e.g., Doe, 903 F.2d at 20 (holding comments which

“focused on monopolization of the local drug market by dealers tracing their ancestry to

Jamaica, and strongly suggested that appellants were guilty because two of them are

Jamaican” were prejudicial). None of these facts are present here.

                                             III.

       For the foregoing reasons, we will affirm the District Court’s judgment, denying

Richards’s § 2254 petition.




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