                                                                NOT PRECEDENTIAL



                     UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                 Nos. 13-4733 & 13-4770
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                     ANDRE WARE,
                                             Appellant in 13-4733
                                    JERRY STEVENS
                                             Appellant in 13-4770

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                  (D.C. Nos. 2-08-cr-00625-001 & 2-08-cr-00625-002)

                        District Judge: Honorable Jan E. DuBois
                                     _____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 20, 2014

        Before: MCKEE, Chief Judge, RENDELL, SLOVITER, Circuit Judges

                           (Opinion filed: December 16, 2014)

                                ______________________

                                        OPINION

                                ______________________


  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SLOVITER, Circuit Judge.

       Andre Ware and Jerry Stevens appeal from the denial of their habeas corpus

petitions following their convictions on drug distribution charges. These cases come

before us on a Certificate of Appealability issued by the District Court on the sole issue

of whether Appellants’ attorneys were ineffective for failing to request a lesser-included

jury instruction for simple possession of cocaine base (“crack”) in addition to the charged

offense of possession with the intent to distribute. We will affirm the District Court’s

judgment.1

                                             I.

                                             A.

       After setting up undercover narcotics surveillance on a rooftop of a bar, Officer

Charles Myers observed Andre Ware and Jerry Stevens engage in what he believed were

two narcotics transactions. In these transactions the buyers paid Stevens for narcotics and

retrieved them from Ware, who had them in a plastic bag in a nearby car. The police

were unable to apprehend the buyers.

       Eventually, Myers observed a vehicle approach Stevens and the driver spoke with

him. Stevens subsequently yelled to Ware, “[i]t’s hot. They’re around the corner.” App.

at 271.2 Ware and Stevens then began to walk away and the police went to arrest them.

As the officers approached, Ware reached into his pocket and tossed the plastic bag on


1
  The District Court had jurisdiction under 28 U.S.C. § 2255 and we have jurisdiction
under 28 U.S.C. §§ 1291 and 2253.
2
  Appendix citations refer to the appendix submitted by Jerry Stevens.
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the sidewalk. The arresting officers recovered $42 in varying denominations from

Stevens and $10 from Ware. The discarded plastic bag contained eight separately packed

baggies of crack, totaling approximately 1.17 grams.

                                             B.

       Ware and Stevens were indicted on charges including one count of conspiracy to

possess with the intent to distribute crack, in violation of 21 U.S.C. §§ 846, 841(a)(1),

(b)(1)(C); one count of possession of crack with the intent to distribute and aiding and

abetting the possession with intent to distribute, respectively, in violation of 21 U.S.C. §

841(a)(1), (b)(1)(C) and 18 U.S.C. § 2; and one count of possession of crack with the

intent to distribute within 1,000 feet of a school, in violation of 21 U.S.C. § 860 and 18

U.S.C. § 2.

       Appellants were tried together before a jury and did not call any witnesses.

During opening and closing arguments, Ware’s counsel suggested that the quantity of

drugs seized was small and could have been for “personal use.” App. at 239; 438. He

also questioned Myers’ credibility by referencing “mythical” and “phantom” buyers. Id.

Stevens’ counsel added that the denominations of cash seized from Stevens were not

indicative of narcotics sales. Appellants’ attorneys also attacked Myers’ credibility

during cross-examination. The jury convicted Appellants on all of the drug-related

counts.

                                             C.

       Appellants filed habeas corpus petitions alleging ineffective assistance of counsel

which are before us. At oral argument, Appellants’ trial attorneys were questioned about

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their failure to request a simple possession instruction, and both testified that their

defense was that the Appellants had not possessed the drugs. Ware’s counsel testified

that it would not make strategic sense to request an instruction on personal use because

the defense theory of the case was that Ware did not possess the drugs. Ware’s counsel

also testified that his comments about the quantity being “personal use” were aimed at

obtaining an outright acquittal, because a lesser-included charge of simple possession was

not charged, and therefore if Ware or Stevens were not in possession of drugs with the

intent to distribute them, they should have not been convicted. According to Ware’s

counsel, the defense strategy centered on challenging Myers’ credibility to undermine

Myers’ testimony that there were narcotics purchasers and that Ware and Stevens

possessed the drugs.

       Stevens’ counsel’s testimony was similar. He testified that this case concerned the

sufficiency of the evidence and the credibility of the police. On direct examination,

Stevens’ counsel testified that “in order to get a lesser-included you have to concede

possession.” App. at 901–02. However, on cross-examination, Stevens’ counsel clarified

that he meant it did not make strategic sense to request an instruction on simple

possession because it did not follow the defense narrative.

       The District Court denied Ware’s and Stevens’ habeas petitions, but issued a

Certificate of Appealability on the sole issue of “[w]hether counsel for the petitioners

were ineffective in failing to request a lesser-included offense instruction for possession

of cocaine base (‘crack’) or conspiracy to possess cocaine base (‘crack’).” App. at 30.



                                               4
                                             II.

       In order to prove that counsel was ineffective under the Sixth Amendment, a

petitioner must establish that counsel’s performance “fell below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668, 687–88 (1984). A petitioner is

also required to “show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

       “It is ‘all too tempting’ to ‘second-guess counsel’s assistance after conviction or

adverse sentence’” and therefore “[t]he question is whether an attorney’s representation

amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated

from best practices or most common custom.” Harrington v. Richter, 131 S. Ct. 770, 788

(2011) (quoting Strickland, 466 U.S. at 689–90). Moreover, the reasonableness of an

attorney’s strategic decision made “‘after thorough investigation of the law and facts’” is

“essentially irrebuttable.” Marshall v. Cathel, 428 F.3d 452, 462–63 (3d Cir. 2005)

(quoting Strickland, 466 U.S. at 690).

       Appellants cite Breakiron v. Horn, 642 F.3d 126 (3d Cir. 2011) for the proposition

that their attorneys’ decision to argue personal use without requesting a lesser-included

jury instruction on simple possession was professionally unreasonable under Strickland

and that the resulting prejudice rendered them ineffective. In Breakiron, the defendant

was convicted of robbery after his counsel argued that he was guilty of theft, not robbery,

but did not request a lesser-included jury instruction. Breakiron, 642 F.3d at 130. At a

                                              5
post-conviction relief evidentiary hearing, Breakiron’s counsel stated that he never

considered asking for a lesser-included jury instruction. Id. at 138.

       We found that Breakiron’s counsel’s failure to request a lesser-included jury

instruction was clearly not a strategy decision protected under Strickland because he did

not even consider it. Id. Furthermore, failure to request the jury instruction was

objectively unreasonable as “[c]ounsel’s sole theory of defense to the robbery charge was

that Breakiron had committed a theft but not a robbery.” Id. We reasoned that in an “all-

or-nothing” situation like this, where the defendant is clearly guilty of an uncharged

crime, the jury is likely to convict on the charged offense, even if all of the elements of

the charged crime were not proven. Id. (quoting Beck v. Alabama, 447 U.S. 625, 634

(1980)). The Supreme Court noted in Beck that “if the prosecution has not established

beyond a reasonable doubt every element of the offense charged, and if no lesser offense

instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal”

but that a lesser-included instruction is appropriate because of “the substantial risk that

the jury’s practice will diverge from theory.” Beck, 447 U.S. at 634 (quoting Keeble v.

United States, 412 U.S. 205, 208 (1973)).

       However, Appellants’ reliance on Breakiron and Beck is misplaced, as their cases

are substantially different. In Breakiron, counsel’s only defense was that the defendant

had committed a less serious crime than he was charged with. Here, Appellants’ counsel

focused primarily on attacking Myers’ credibility in an attempt to prove that the

Appellants had not even possessed the drugs, and thus committed no crime. The mention

of the quantity of drugs being consistent with personal use was not the theory of the case,

                                               6
but was simply an alternative offered for the jury to return an outright acquittal. Unlike

in Breakiron, Appellants’ counsel testified at an evidentiary hearing that requesting a

lesser-included jury instruction would have been contrary to the defense narrative.

       Accordingly, as Appellants’ attorneys had a strategic reason for not requesting a

lesser-included jury instruction it cannot be said that their performance “fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 687–88; see also

Marshall, 428 F.3d at 462–63. Although the strategy was unsuccessful, it was not

unreasonable.

       As we find that the performance of Appellants’ counsel was not below an

objective standard of reasonableness, we need not address the issue of prejudice.

                                             III.

       For the reasons set forth, we will affirm the District Court’s denial of the

Appellants’ habeas corpus petitions.




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