                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 16-3095
                  _____________

               DAMIEN PRESTON,

                                    Appellant

                         v.

     SUPERINTENDENT GRATERFORD SCI;
  THE ATTORNEY GENERAL OF THE STATE OF
             PENNSYLVANIA



   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
          (District Court No.: 12-cv-06011)
    District Judge: Honorable Gene E. K. Pratter


               Argued April 18, 2018

Before: GREENAWAY, JR., RENDELL, and FUENTES,
                Circuit Judges

         (Opinion filed: September 5, 2018)
Ariana J. Freeman, Esq.
Thomas C Gaeta, Esq.              [ARGUED]
Leigh M. Skipper, Esq.
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut St.
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
       Counsel for Appellant, Damien Preston

Simran Dhillon, Esq.
Max C. Kaufman, Esq.              [ARGUED]
Nancy Winkelman, Esq.
Lawrence S. Krasner. Esq.
Carolyn Engel Temin, Esq.
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
       Counsel for Appellees, Graterford SCI and The
       Attorney General of the State of Pennsylvania


                      _____________

                       OPINION
                      _____________

RENDELL, Circuit Judge:

       Damien Preston seeks habeas relief based on an
alleged violation of his rights under the Confrontation Clause
of the United States Constitution. We agree that the use of a
witness’s prior statements against Preston violated the




                              2
Confrontation Clause because the witness, Leonard Presley,
refused to answer any substantive questions on cross-
examination. However, Preston’s Confrontation Clause claim
is procedurally defaulted.

       Preston argues that ineffective assistance of trial
counsel (“IATC”), namely, counsel’s failure to raise a
Confrontation Clause objection at trial, provides cause to
excuse the procedural default of the underlying Confrontation
Clause claim. Before his IATC claim, which is itself
procedurally defaulted, can serve as cause to excuse the
procedural default of his Confrontation Clause claim, Preston
must surmount two obstacles. First, he must overcome the
procedural default of his IATC claim. Second, he must
demonstrate that trial counsel’s performance was
constitutionally ineffective under the two-pronged test
established in Strickland v. Washington, 466 U.S. 668 (1984).
We find that, under Martinez v. Ryan, 566 U.S. 1 (2012), the
procedural default of his IATC claim is excused. However,
because he cannot show that he was prejudiced by trial
counsel’s failure to raise a Confrontation Clause objection,
Preston’s IATC claim fails at the second prong of the
Strickland analysis. Therefore, we are unable to grant Preston
habeas relief, and we will affirm the District Court’s order
dismissing Preston’s habeas petition.




I. BACKGROUND1

1
 The District Court had jurisdiction under 28 U.S.C. §§ 2241
and 2254. We have appellate jurisdiction to review the




                              3
       Damien Preston is currently serving a twenty- to forty-
year sentence for third degree murder for his role in the 2000
death of Kareem Williams, who was shot in the midst of a
physical fight with Preston and his brother Leonard Presley.2

                     A. Leonard’s Trial

       In 2001, Leonard was arrested for his role in the
shooting and tried before a jury in Pennsylvania state court.
At his trial, Leonard took the stand in his own defense. In
testimony that was consistent with the statement he gave to
police after he was arrested, Leonard explained that, on the
day of the shooting, he parked his car on the 1900 block of
Dennie Street in Philadelphia. Williams and a woman named
Latoya Butler were sitting in front of a house on the same
block. Preston and another man named Chris were also
standing on the block. Leonard approached Williams and
asked to have a word with him. The two men walked a short
distance down the street and had a brief conversation about a
rumor Leonard had heard about Williams. Williams then
walked away and entered an alley off of Dennie Street, where
he retrieved a bag and tucked “something shiny” into the
waistband of his pants. JA773. According to Leonard, the


certified issues under 28 U.S.C. §§ 1291 and 2253. Our
review is plenary where, as here, the District Court did not
conduct an evidentiary hearing and relied on the state court
record. Robinson v. Beard, 762 F.3d 316, 323 (3d Cir. 2014).
2
  18 Pa. Cons. Stat. § 2502(c). Preston was also found guilty
of possessing a criminal instrument in violation of 18 Pa.
Cons. Stat. § 907(b) and sentenced to an additional three to
sixty months’ imprisonment for that offense.




                              4
shiny object “looked like” a gun. Id. Williams told Butler that
he would “be back,” continued down Dennie Street, and
turned the corner onto Wayne Avenue. Leonard followed
Williams around the corner onto Wayne Avenue, and the two
men began fighting.

        At one point during the fight, Williams had his back
against the hood of a car parked along Wayne Avenue, with
Leonard facing him. According to Leonard, Preston then
came up behind him and began swinging at Williams over
Leonard’s shoulder. Leonard heard a gunshot, turned around,
and saw Preston running away. Leonard ran away as well,
passing Butler on the corner of Dennie Street and Wayne
Avenue. Leonard did not see who fired the shot, but he
testified that it came from somewhere behind him. Leonard,
Preston, and Williams were the only people involved in the
fight. Leonard testified that he had not shot Williams and that
Williams could not have shot himself because the shot came
from behind Leonard, who was facing Williams. Therefore,
Leonard “guess[ed]” his brother had shot Williams. JA776.
Leonard was found guilty of third degree murder.

                     B. Preston’s Trial

       A year later, Preston was arrested for his role in
Williams’s death. He was tried before a jury in October 2003
in the Pennsylvania Court of Common Pleas. Preston was
represented by counsel at trial.


           1. The Commonwealth’s Case-in-Chief




                              5
       The Commonwealth’s primary witness at Preston’s
trial was Latoya Butler. Butler testified that she and Williams
were sitting on a porch on the 1900 block of Dennie Street on
the day of the shooting. Leonard pulled up in a car and joined
Preston and Chris on a nearby porch. Leonard approached
Williams and asked to speak with him. Leonard and Williams
walked down the street and spoke briefly. Williams returned
to Butler’s porch looking “upset” and told her that he would
“be back.” JA522. As Williams walked away, Leonard told
him “You better come back with something big because I’m
playing with them big boys.” JA522. Williams walked down
Dennie Street and stopped in an alleyway, where he “picked
up something.” JA522. He continued down Dennie Street and
turned onto Wayne Avenue. Leonard followed Williams onto
Wayne Avenue. After a few moments, Preston, followed by
Butler, walked down Dennie Avenue and turned the corner
onto Wayne Avenue as well.

       Butler testified that when she turned the corner onto
Wayne Avenue, she saw the three men fighting. Leonard had
Williams pinned down on the hood of a parked car, and he
and Preston were hitting Williams. According to Butler,
Preston backed up “about two steps,” so he was standing to
the left of Williams. JA524. She testified that “the way
[Leonard] had [Williams] pinned down, [Williams’s] whole
left side was open for [Preston] to shoot him.” JA525.
Preston stretched out his right arm and aimed “something” at
Williams. JA524. Preston’s hand and whatever was in it were
covered by a sweatshirt. Butler then heard a “big loud pop”
and heard Preston ask Williams “You want some more, you
want some more?” JA525. Williams fell “flat on his face.”
JA526. Preston and Leonard fled, passing Butler on the
corner of Dennie Street and Wayne Avenue. As Butler




                              6
approached Williams, he told her “They got me.” JA526.
Butler accompanied Williams to the hospital, where she gave
police a statement that was consistent with her in-court
testimony and identified Preston and Leonard in a photo
array.

       Butler also testified to the pre-existing animus between
Williams and the two brothers. According to Butler, Preston
and Leonard had sold drugs on the 1900 block of Dennie
Street for several years. About four months before the
shooting, Williams began selling drugs on the same block.
Shortly before the shooting, Preston had confronted Williams
and told him he could no longer sell drugs there because he
wasn’t “from the block.” JA520. Preston and Williams had
also had at least one physical altercation in the past.

        The jury also heard from the medical examiner, whose
testimony largely corroborated Butler’s. He testified that
Williams had been shot in the left buttock area and that the
trajectory of the bullet was consistent with a shooter standing
on Williams’s left side. He also testified that Williams’s
facial injuries indicated that he had fallen flat on his face after
being shot. Although he could not conclude that Williams had
been shot at close-range, the medical examiner testified that
he had been unable to examine Williams’s clothing, which
may have contained evidence of a close-range shooting. He
also testified that if the muzzle of the weapon had been
covered by a sweatshirt, as Butler testified it was, it would
have filtered out evidence of a close-range shooting.

       Law enforcement officers testified to the physical
evidence recovered from the scene. Officers recovered a
bullet from the street in front of a parked car on Wayne




                                7
Avenue. The hood of the parked car was dented, as one would
expect if a body had been pressed against it. The
Commonwealth also introduced evidence that Preston fled to
North Carolina after the shooting and that no gun was
recovered from Williams’s body.

        The Commonwealth then called Leonard as a witness.
Leonard asserted his Fifth Amendment privilege against self-
incrimination and refused to testify. Leonard was concerned
that his testimony would jeopardize the pending appeal of his
own criminal conviction. He was granted immunity by the
District Attorney’s office and was therefore compelled to
testify. See Kastigar v. United States, 406 U.S. 401, 458
(1972) (“use and derivative-use immunity is constitutionally
sufficient to compel testimony over a claim of the privilege”).
Apparently, this did not assuage Leonard’s concerns, and he
again refused to testify. See JA599 (Leonard replying “No
comment. No comment.” to the Commonwealth’s questions);
JA606 (“I’m in a state of appeal. That’s why I said no
comment, because I’m in the course of my appeal.”). The
Commonwealth sought to introduce both the statement
Leonard had given to police after his arrest and his testimony
from his own criminal trial as admissible hearsay under
Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986).3 Defense
counsel said he had “no problem with [Leonard] being
Bradyized” using his police statement. JA598. However,
counsel did object to the admission of Leonard’s prior

3
  In Brady, the Pennsylvania Supreme Court announced that,
as a matter of state common law, a non-party’s prior
inconsistent statement may be used as substantive evidence
when the declarant is a witness at trial and available for cross-
examination. 507 A.2d at 70.




                               8
testimony. He noted that he did not have a chance to cross-
examine Leonard, but framed his objection along the lines of
Pennsylvania Rule of Evidence 804(b), rather than as a
Confrontation Clause claim.4 JA598.

       The trial court allowed the Commonwealth to use both
Leonard’s police statement and his prior testimony. The
prosecutor read aloud portions of the two statements,
occasionally stopping to ask Leonard if he remembered
making them. Leonard largely replied “no comment.” In this
manner, the jury heard Leonard’s version of events, as
described above. Defense counsel then attempted to cross-
examine Leonard. With three exceptions, Leonard replied “no
comment” to every question asked by defense counsel.5
                   2. The Defense’s Rebuttal

4
  Trial counsel’s objection focused on Preston’s inability to
cross-examine Leonard at the time Leonard gave his prior
testimony, i.e., at Leonard’s trial. See JA598. Pennsylvania
Rule of Evidence 804(b), provides that testimony given under
oath is not hearsay if offered against a party who had an
opportunity and similar motive to develop it by direct-, cross-,
or redirect-examination at the time the prior testimony was
given. Trial counsel did not focus on Preston’s inability to
cross-examine Leonard at Preston’s own trial, which would
have signaled that counsel was objecting on Confrontation
Clause grounds.
5
  When asked if he planned on responding “no comment” to
all of defense counsel’s questions, Leonard replied “Yes, sir.”
JA624. When asked if Preston was Leonard’s younger
brother, Leonard answered “Yes.” JA625. And when asked if
his parents and sister were sitting in the courtroom, Leonard
answered “Yes.” Id.




                               9
        Preston took the stand in his own defense. His
testimony was nearly identical to Butler’s and Leonard’s. He
testified that he, Leonard, Chris, Butler, and Williams were
all on the 1900 block of Dennie Street on the day of the
shooting and that Leonard asked to speak with Williams.
Leonard and Williams walked down the street and had a brief
conversation. Williams looked upset, and it was clear that
there was some sort of “problem.” JA682. Williams told
Butler he would “be back” and walked down Dennie Street
and around the corner onto Wayne Avenue. Id. Leonard
yelled something at Williams as he walked away, then he
followed Williams around the corner. Preston followed
Leonard, and when he turned the corner he saw the two men
fighting. Williams was pressed against the hood of a parked
car, with Leonard facing him. Preston joined the fight and
began swinging at Williams over Leonard’s shoulder. Then
he heard a gunshot and ran away, passing Butler on the corner
of Wayne Avenue and Dennie Street. Contrary to Butler’s
and Leonard’s versions of events, Preston testified that he had
not fired the shot and didn’t have “any idea” where the
gunshot came from. JA673.

       The defense called two additional eyewitnesses,
Kenneth Stanfield and Christopher Malloy. Stanfield testified
that he saw the three men fighting on the hood of a parked car
and heard a shot come from the direction of the three men. He
did not know who fired the shot and he had not seen anyone
with a gun. He also testified that Latoya Butler didn’t turn the
corner onto Wayne Avenue until after the shot was fired.
Contrary to Butler’s testimony, he testified that Preston was
standing to the right of Williams. However, Stanfield’s
testimony suffered from several inconsistencies. For example,
he testified that Leonard drove his car around the corner of




                              10
Dennie Street and parked it on Wayne Avenue before
engaging with Williams, whereas all the other eyewitnesses
testified that Leonard followed Williams on foot. He also
testified that he learned of Williams’s death the same day as
the shooting, which was impossible because Williams did not
die from his wounds until the following day.

        Malloy also testified that he saw the three men
fighting. Although he did not see any of them with a gun, he
intimated that Williams’s wound had been self-inflicted. See
JA657 (testifying that neither Preston nor Leonard had a
weapon and that right before the shot was fired he saw
Williams “reach in back” to grab something). He also
testified that he did not see Butler turn the corner onto Wayne
Avenue until after the shot was fired. Like Stanfield’s
testimony, Malloy’s testimony was marred by several
inconsistencies. For example, he testified that the three men
were fighting on the sidewalk, not on the hood of a parked
car. This was inconsistent with all the other eyewitness
testimony as well as the physical evidence recovered from the
scene. And Malloy’s suggestion that the gunshot wound was
self-inflicted contradicted the medical examiner’s conclusion
that Williams had been shot by someone standing to his left.

      At the close of the evidence, the jury was instructed to
consider first, second, and third degree murder.6 The jury was

6
    See JA720:
                 Third-degree murder is any killing
                 with malice that is not first- or
                 second-degree murder. You may
                 find the defendant guilty of third-
                 degree murder if you are satisfied




                                 11
also instructed on accomplice liability. 7 The members of the
jury were permitted to consider Leonard’s police statement


                 that the following three elements
                 have been proven beyond a
                 reasonable doubt: First, that
                 Kareem Williams is dead; second,
                 that the defendant killed him; and,
                 third, that the defendant did so
                 with malice. . . . For third-degree
                 murder, the malice that is needed
                 is the intent to cause serious
                 bodily injury. . . .[I]f you decide
                 that there was an intent to inflict
                 serious bodily injury and then as a
                 result of that injury death results,
                 that is third-degree murder.
7
    See JA723:
                 You may find the defendant guilty
                 of a crime without finding that he
                 personally engaged in the conduct
                 required for commission of that
                 crime. A defendant is guilty of a
                 crime if he is an accomplice of
                 another person who commits that
                 crime. A defendant does not
                 become an accomplice merely by
                 being present at the scene. He is
                 an accomplice if, with the intent
                 of promoting or facilitating
                 commission of the crime, he
                 encourages the other person to
                 commit it or aids or attempts to




                                 12
and prior testimony as substantive evidence, but they were
told to view that evidence with disfavor because Leonard was
an accomplice to the crime. The jury found Preston guilty of
third degree murder, and he was sentenced to twenty to forty
years’ imprisonment.

                 C. Preston’s Direct Appeal

       Preston was appointed new counsel on direct appeal.
Pursuant to Pennsylvania Rule of Appellate Procedure
1925(b), direct appeal counsel filed a statement setting out the
matters complained of on appeal. In the 1925(b) statement,
counsel challenged the sufficiency of the evidence against
Preston and the use of Leonard’s prior testimony. However,
he framed the use of Leonard’s prior testimony as a violation
of the Pennsylvania Rules of Evidence, not the Confrontation
Clause.8


             aid the other person in committing
             it. You may find the defendant
             guilty of a crime on the theory
             that he was an accomplice as long
             as you are satisfied beyond a
             reasonable doubt that the crime
             was committed and that the
             defendant was an accomplice of
             the person who committed it. It
             does not matter whether the
             person you believed committed
             the crime has been convicted of a
             different crime or degree of crime.
8
  See JA192 (“[T]he Court permitted, over defense objection,
the Commonwealth to use notes of testimony from Leonard




                              13
       The Pennsylvania Superior Court found Preston’s
challenge to the sufficiency of the evidence to be without
merit. Commonwealth v. Preston, No. 598 EDA 2004, slip op.
at 5-6 (Pa. Super. Ct. Oct. 22, 2007). As to Leonard’s prior
testimony, the Superior Court found that that the evidence
was admissible under a hearsay exception under the
Pennsylvania Rules of Evidence. Id. at 6-11. See Pa. R. Evid.
803.1(1) (a prior statement by a declarant-witness that is
inconsistent with the declarant-witness’s testimony is not
excluded by the rule against hearsay if it was given under
oath subject to penalty of perjury). The Superior Court also
noted that any challenge to the admission of Leonard’s police
statement had been waived because it had not been properly
preserved and presented to the trial court. Preston, No. 598
EDA 2004, slip op. at 7. The Pennsylvania Supreme Court
denied allocatur. Commonwealth v. Preston, 945 A.2d 169
(Pa. Mar. 26, 2008) (table).



Presley’s own trial to cross-examine [Leonard]. At that trial,
the defendant was not a party, nor did he have a
representative present, who would have cross-examined
[Leonard].” (emphasis added)). Like trial counsel, direct
appeal counsel was concerned with admissibility under
Pennsylvania Rule of Evidence 804(b), which provides that
testimony given under oath is not hearsay if offered against a
party who had an opportunity and similar motive to develop it
by direct-, cross-, or redirect-examination at the time the prior
testimony was given. The Confrontation Clause issue here is
Preston’s inability to cross-examine Leonard during Preston’s
trial, not his inability to cross-examine Leonard at the time
Leonard gave the prior testimony.




                               14
                      D. PCRA Review

       Preston filed a timely pro se petition for relief under
the Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat.
§§ 9541-46., and was appointed counsel. Before the Court of
Common Pleas, PCRA counsel raised four claims, including a
claim that the use of Leonard’s prior statements violated
Preston’s Confrontation Clause rights. However, PCRA
counsel did not claim that trial counsel had rendered
ineffective assistance by failing to raise and preserve the
Confrontation Clause issue at trial. The Court of Common
Pleas dismissed Preston’s PCRA petition as without merit.

       Preston, still represented by PCRA counsel, filed a
notice of appeal to the Superior Court. While Preston’s PCRA
appeal was pending, the Court of Common Pleas issued a
written opinion finding that Preston’s Confrontation Clause
rights had been violated, but it did not grant Preston PCRA
relief or reverse its previous order dismissing Preston’s
PCRA petition.9 Commonwealth v. Preston, No. CP-51-CR-

9
  Although the Court of Common Pleas concluded that
Preston’s Confrontation Clause rights had been violated, it
did not go so far as to conclude that Preston was entitled to
PCRA relief based on the Confrontation Clause error. “In
order to establish a right to relief in a [PCRA] proceeding, the
petitioner must demonstrate not only that an error has
occurred but also that the error has prejudiced him.”
Commonwealth v. Knox, 450 A.2d 725, 728 (Pa. Super. Ct.
1982). The Court of Common Pleas left the harmless error
analysis for the Superior Court to conduct on appeal, if
necessary. See Preston, No. CP-51-CR-0607901-2002, slip
op. at 14 n.21 (“Because this Court finds that the admission of




                              15
0607901-2002, slip op. at 8-14 (Phila. Comm. Pl. Ct. Dec. 30,
2010). After briefing, the Superior Court affirmed the
dismissal of Preston’s PCRA petition. Commonwealth v.
Preston, No. 2171 EDA 2010 (Pa. Super. Ct. Feb. 23, 2012)
(table). Pennsylvania Supreme Court denied allocatur.
Commonwealth v. Preston, 50 A.3d 692 (Pa. Aug. 22, 2012).

                  E. Federal Habeas Review

       Preston filed a timely pro se federal habeas petition in
the Eastern District of Pennsylvania. He claimed that the use
of Leonard’s police statement and prior testimony violated
Preston’s rights under the Confrontation Clause, that trial
counsel was ineffective for failing to raise and preserve the
Confrontation Clause claim, that PCRA counsel was
ineffective for failing to assert trial counsel’s ineffectiveness,
and that PCRA counsel’s ineffective assistance caused the
procedural default of Preston’s IATC claim. The petition was
referred to the Magistrate Judge.

       The Magistrate Judge recommended that Preston’s
petition be denied and dismissed. He reasoned that Preston
had not suffered a deprivation of his Confrontation Clause
rights because the trial judge had not limited the scope of
defense counsel’s cross-examination and because, through the
questions he asked Leonard on cross-examination and
through his closing argument, defense counsel was able to


Mr. Presley’s prior trial testimony was improper under the
Confrontation Clause, a harmless error analysis must be done.
. . . [S]hould the Superior Court agree that the admission of
the prior trial testimony was improper, the harmless error
analysis can be completed at that juncture.”).




                               16
“put before the jury the notion that [Leonard] was not
credible[.]” JA34. The Magistrate Judge considered
Leonard’s refusal to answer any of defense counsel’s
questions insignificant because “the constitutional right to
confront one’s accuser does not guarantee a perfect
confrontation.” JA34 (citing United States v. Owens, 484 U.S.
554, 560 (1988) and Delaware v. Fensterer, 474 U.S. 15, 21-
22 (1985) (per curiam)). In the alternative, he concluded that
any error the trial court had made in admitting Leonard’s
prior statements was harmless. The District Court approved
and adopted the Magistrate Judge’s Report and
Recommendation and dismissed Preston’s petition with
prejudice.

       Preston timely appealed to this Court. We appointed
counsel and granted him a Certificate of Appealability on
several issues:

    1. Whether the admission of Leonard’s prior statements
       violated Preston’s rights under the Confrontation
       Clause in light of Leonard’s refusal to answer any
       substantive questions on cross-examination;
    2. Whether trial counsel rendered ineffective assistance
       by failing to raise that issue;
    3. Whether the failure of PCRA counsel to raise
       Preston’s claims of trial counsel ineffectiveness
       constitutes cause to excuse the default of that claim
       under Martinez, 566 U.S. 1;
    4. Whether Preston’s claims of trial and appellate
       counsel’s ineffectiveness themselves show cause and




                             17
       prejudice to excuse the default of his underlying
       Confrontation Clause claim. 10

                       II. ANALYSIS

       The constitutional claim at the heart of Preston’s
habeas petition is that the use of Leonard’s prior statements
violated Preston’s Confrontation Clause right to confront
witnesses against him because Leonard refused to answer any
substantive questions on cross-examination. “Federal habeas
courts reviewing convictions from state courts will not
consider claims that a state court refused to hear based on an
adequate and independent state procedural ground.” Davila v.
Davis, 137 S. Ct. 2058, 2062 (2017). Preston’s Confrontation
Clause claim is procedurally defaulted because trial counsel
failed to raise and preserve the Confrontation Clause issue.

10
   Preston’s habeas petition also included a claim that direct
appeal counsel’s untimely filing of the 1925(b) statement
constituted ineffective assistance of counsel. The District
Court adopted the Magistrate Judge’s recommendation to
dismiss the ineffective assistance of direct appeal counsel
because Preston had not been prejudiced by direct appeal
counsel’s error. See Strickland v. Washington, 466 U.S. 668
(1984). Preston was not granted a certificate of appealability
on this issue. This Court also denied Preston a certificate of
appealability on his claim of ineffective assistance of PCRA
counsel to the extent that Preston asserted it as a substantive
ground for habeas relief. See 28 U.S.C. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal
or State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section
2254.”).




                              18
See 42 Pa. Cons. Stat. § 9544(b) (“an issue is waived if the
petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal or in a prior state
postconviction proceeding”). Nonetheless, a petitioner may
overcome the prohibition on reviewing procedurally defaulted
claims if he can show “cause” to excuse his failure to comply
with state procedure and “actual prejudice resulting from the
alleged constitutional violation.” Davila, 137 S. Ct. at 2065
(quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)) .11

        “[I]n certain circumstances counsel’s ineffectiveness in
failing properly to preserve the claim for review in state
court” provides cause to excuse the procedural default of the
underlying claim. Edwards v. Carpenter, 529 U.S. 446, 451
(2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89
(1986)). As Preston concedes, his IATC claim is itself
procedurally defaulted because PCRA counsel failed to raise
trial counsel’s ineffectiveness on state collateral review. See
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002)
(claims of trial counsel ineffectiveness are waived if not

11
    Alternatively, a petitioner can overcome a procedural
default by demonstrating that the court’s failure to review the
defaulted claim will result in a fundamental miscarriage of
justice. See Coleman v. Thompson, 501 U.S. 722, 748 (1991);
McCandless v. Vaughn, 172 F.3d 225, 260 (3d Cir. 1999).
However, this exception is limited to a “severely confined
category[] [of] cases in which new evidence shows ‘it is more
likely than not that no reasonable juror would have convicted
[the petitioner].’” McQuiggin v. Perkins, 569 U.S. 383, 395
(2013) (internal alteration in original) (quoting Schlup v.
Delo, 514 U.S. 298, 329 (1995)). Preston has not urged that
this exception applies here.




                               19
raised on PCRA review). Preston’s IATC claim cannot
provide cause to excuse the procedural default of his
Confrontation Clause claim unless he can overcome the
procedural default of the IATC claim. See Edwards, 529 U.S.
at 451-52 (“[A] procedurally defaulted ineffective-assistance-
of-counsel claim can serve as cause to excuse the procedural
default of another habeas claim only if the habeas petitioner
can satisfy the ‘cause and prejudice’ standard with respect to
the ineffective-assistance claim itself.”). Thus, we turn first to
Preston’s argument that he can overcome the procedural
default of his IATC claim under Martinez, 566 U.S. 1.

  A. Preston can overcome the procedural default of his

                 IATC claim under Martinez.

       Under Martinez, “a procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral
proceeding, . . . counsel in that proceeding was ineffective.”
566 U.S. at 17.

“[W]here state law requires a prisoner to raise claims of
ineffective assistance of trial counsel in a collateral
proceeding, rather than on direct review, a procedural default
of those claims will not bar their review by a federal habeas
court if three conditions are met: (a) the default was caused
by ineffective assistance of post-conviction counsel or the
absence of counsel (b) in the initial-review collateral
proceeding (i.e., the first collateral proceeding in which the
claim could be heard) and (c) the underlying claim of trial
counsel ineffectiveness is ‘substantial[.]’” Cox v. Horn, 757
F.3d 113, 124 (3d Cir. 2014) (quoting Martinez, 566 U.S. at




                                20
14). All three of the Cox requirements are met in this case.12
See Torrez-Ortega, 184 F.3d at 1133 (“The only answers that
the government cites as departing from th[e] pattern [of
obstinacy] are too elliptical and confusing to demonstrate that
the defendants were ever presented with an opportunity for
effective cross-examination.”).

       The procedural default of Preston’s IATC claim was
caused by PCRA counsel’s failure to raise the IATC claim
before the state court on collateral review. See Grant, 813
A.2d at 738 (claims of trial counsel ineffectiveness are
waived if not raised on PCRA review). In order to satisfy the
first Cox requirement, Preston must demonstrate that this
constituted deficient performance under the first prong of the
Strickland analysis—meaning that counsel’s representation
fell below an objective standard of reasonableness,
Strickland, 466 U.S. at 688. 13 See Brown v. Brown, 846 F.3d
502, 513 (7th Cir. 2017) (“To demonstrate cause under

12
    To be precise, Martinez applies if state law, “either
expressly or as a matter of practicality,” bars prisoners from
raising IATC claims on direct appeal. Cox, 757 F.3d at 124
n.8 (citing Trevino v. Thaler, 569 U.S. 413, 415-17 (2013)).
Pennsylvania state law requires prisoners to raise IATC
claims on PCRA review, rather than on direct review. Id.
(citing Grant, 813 A.2d at 738).
13
    Under the first prong of the Strickland analysis, often
referred to as the “performance” prong, a petitioner must
show that counsel’s performance fell below an objective
standard of reasonableness. Strickland, 466 U.S. at 688.
Under the second prong, often referred to as the “prejudice”
prong, he or she must demonstrate prejudice as a result of
counsel’s deficient performance. Id. at 692.




                              21
Martinez-Trevino, the petitioner must show deficient
performance by counsel on collateral review as required
under the first prong of the Strickland analysis. Actual
resulting prejudice can be established with a substantial claim
of ineffective assistance of trial counsel that would otherwise
have been deemed defaulted.” (citations omitted)); Detrich v.
Ryan, 740 F.3d 1237, 1246 (9th Cir. 2013) (“[N]o showing of
prejudice from PCR counsel's deficient performance is
required, over and above a showing that PCR counsel
defaulted a substantial claim of trial-counsel [ineffectiveness],
in order to establish cause for the procedural default.”
(internal quotations marks omitted)).

       We find that PCRA counsel’s performance was
objectively unreasonable. Counsel clearly recognized that the
admission of Leonard’s prior statements may have violated
Preston’s Confrontation Clause rights, as he included a
Confrontation Clause claim in the state collateral review
petition. However, PCRA counsel failed to include an IATC
claim or otherwise acknowledge trial counsel’s failure to
preserve the Confrontation Clause issue. Appellees have not
provided, nor can we discern, any strategic explanation for
PCRA counsel’s decision. See Strickland, 466 U.S. at 689
(noting a presumption that, “under the circumstances, the
challenged action ‘might be considered sound trial strategy’”
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1995))).
Thus, the first Cox requirement is satisfied.

       The second Cox requirement is also satisfied here, as
PCRA counsel failed to raise the IATC claim in the initial-
review collateral proceeding before the Court of Common
Pleas.




                               22
       The final Cox requirement is met if Preston’s IATC
claim is “‘substantial,’ meaning ‘the claim has some merit,’
analogous to the substantiality requirement for a certificate of
appealability.” Cox, 757 F.3d at 119 (quoting Martinez 556
U.S. 1, 14)). Thus, the question, for Martinez purposes, is
merely whether “reasonable jurists could debate” that
Preston’s IATC claim has merit, or whether the claim is
“adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting
Slack v. McDaniel, 529 U.S. 473, 483 (2000)). In considering
whether Preston’s IATC claim is substantial, we are guided
by the two-part Strickland analysis, but we remain mindful
that the “substantiality” inquiry “does not require full
consideration of the factual or legal bases adduced in support
of the claims.” Id.

        Preston’s IATC claim is “adequate to deserve
encouragement to proceed further.” Id. As explained in
greater detail below, trial counsel’s performance fell below an
objective standard of reasonableness, satisfying the
performance prong of Strickland. There was merit to the
Confrontation Clause objection, and there was no discernible
strategic reason why trial counsel would refrain from making
the objection—counsel did, after all, make an objection based
on the Pennsylvania Rules of Evidence. With respect to the
prejudice prong of Strickland as it might have been
envisioned in Martinez, the Martinez Court does not address
it, other than to say at the conclusion of the opinion that the
court of appeals “did not address the question of prejudice.”
Id. at 18. It would seem that, in light of the relatively light
“substantiality” test regarding the merits of the IATC claim, a
strict prejudice analysis for Martinez purposes would be
misplaced. Indeed, the Ninth Circuit Court of Appeals




                              23
addressed this issue and reasoned that if a petitioner “were
required to show prejudice, in the ordinary Strickland sense,”
at the Martinez stage, “this would render superfluous the . . .
Martinez requirement of showing that the underlying
Strickland claims were ‘substantial’—that is, that they merely
had ‘some merit.’” 740 F.3d at 1246 (quoting Martinez, 566
U.S. at 14). In other words, a somewhat relaxed prejudice
analysis, in the Detrich court’s eyes, was “necessary to
harmonize” the various Martinez requirements. Id.

       It could be that the need for a showing of prejudice at
the Martinez stage might rise and fall depending upon the
strength of the IATC claim. Here, where counsel’s
performance in failing to assert the Confrontation Clause
claim seems clearly substandard under the first prong of
Strickland, we need not concern ourselves with the prejudice
prong of Strickland in order to satisfy Martinez and excuse
the procedural default of the IATC claim. Were the
substandard performance not so clear, we might require more
of a showing of harm before letting the case advance to a full-
blown Strickland analysis.

      B. Preston’s IATC claim fails under Strickland.

       Although he can overcome the procedural default of
his IATC claim under Martinez, Preston’s IATC claim cannot
provide cause to excuse the procedural default of his
underlying Confrontation Clause claim unless trial counsel’s
performance was constitutionally ineffective. See Edwards,
529 U.S. at 451 (“Not just any deficiency in counsel’s
performance will do, however; the assistance must have been
so ineffective as to violate the Federal Constitution. In other
words, ineffective assistance adequate to establish cause for




                              24
the procedural default of some other constitutional claim is
itself an independent constitutional claim.” (citation
omitted)). Thus, Preston must demonstrate that trial counsel
was constitutionally ineffective for failing to raise a
Confrontation Clause objection to the admission of Leonard’s
prior statements at trial under the two-pronged test
established in Strickland.14

14
       We acknowledge that the Magistrate Judge did not
analyze the merits of Preston’s IATC claim under the
Strickland framework. We also acknowledge that we
generally “do[] not consider an issue not passed upon below”
and typically remand for the District Court to consider such
issues in the first instance. Goldenstein v. Repossessors, Inc.,
815 F.3d 142, 149 (3d Cir. 2016) (quoting Singleton v. Wulff,
428 U.S. 106, 120 (1976)). Nonetheless, we find that remand
is unnecessary in this case because the Magistrate Judge, in
the Report and Recommendation adopted by the District
Court, did in fact rule on the very issues on which the merits
of Preston’s IATC claim turns. He ruled on the merits of the
underlying Confrontation Clause claim—the key issue under
the performance prong of Strickland in this case. As part of
that analysis, the Magistrate Judge also ruled that any error in
the admission of Leonard’s prior statements was harmless—
the very issue on which the prejudice prong of Strickland
turns. Because the Magistrate Judges has “passed on” these
issues, remand in this case would be little more than a
formality. Thus, we will reach the merits of Preston’s IATC
claim in the interest of judicial economy, but we note that
remand may be the appropriate remedy in other cases.

       We also note that, in some cases, an evidentiary
hearing may be necessary to determine whether trial counsel




                              25
     1. Preston satisfies Strickland’s performance prong.

       Under Strickland's performance prong, we ask whether
counsel’s performance clearly fell below an objective
standard of reasonableness. Strickland, 466 U.S. at 688.
Preston’s IATC claim centers upon trial counsel’s failure to
raise a Confrontation Clause objection to the admission of
Leonard’s prior statements. Because “counsel cannot be
deemed ineffective for failing to raise a meritless claim,”
Ross v. Dist. Att’y of the Cty. of Allegheny, 672 F.3d 198, 211
n.9 (3d Cir. 2012) (quoting Werts v. Vaughn, 228 F.3d 178,
202 (3d Cir. 2000)), we must consider whether a
Confrontation Clause objection would have been meritless.
       Over fifty years ago, the Supreme Court held that the
Confrontation Clause barred the use of a witness’s prior
statement when the witness refused to answer questions on
cross-examination. Douglas v. Alabama, 380 U.S. 415
(1965). In Douglas’s trial for assault, the state called as a
witness a man who had been indicted along with Douglas and


was ineffective. See Martinez, 566 U.S. at 11-12 (noting that
IATC claims can require “investigative work” and that “the
prisoner is in no position to develop the evidentiary basis for
a claim of ineffective assistance, which often turns on
evidence outside the trial record”). A hearing may be
particularly useful when a petitioner’s IATC claim turns on
the performance prong of Strickland. See Detrich, 740 F.3d at
1246 (“For example, to determine whether an attorney’s
performance was deficient, it is often necessary to ask the
attorney to state the strategic or tactical reasons for his or her
actions.”). Here, where Preston’s IATC claim fails on the
prejudice prong of Strickland, and the factual record is fully
developed on that issue, no evidentiary hearing is necessary.




                               26
found guilty in a separate trial. Douglas, 380 U.S. at 416. The
witness was concerned that his testimony would negatively
impact his own criminal proceedings. Id. Although the trial
court ruled that the witness did not have a valid claim of Fifth
Amendment privilege, the witness refused to answer any
questions on direct- or cross-examination. Id. The prosecutor
was permitted to introduce portions of a written confession
previously signed by the witness, which implicated Douglas
in the assault. Id. at 416-17.

       The Supreme Court held that Douglas had been denied
the “right of cross-examination secured by the Confrontation
Clause.” Id. at 419. “Although the [prosecutor’s] reading of
[the witness’s] alleged statement, and [the witness’s] refusals
to answer, were not technically testimony, . . . [the witness’s]
reliance upon the privilege created a situation in which the
jury might improperly infer both that the statement had been
made and that it was true.” Id. Because these inferences
“could not be tested by cross-examination[,]” use of the
witness’s prior statement violated Douglas’s rights under the
Confrontation Clause. Id.

       Since Douglas, at least two Circuit Courts of Appeals
have also held that the use of a witness’s prior statement
violates a defendant’s rights under the Confrontation Clause
when the witness refuses to answer questions on cross-
examination. See United States v. Fiore, 443 F.2d 112 (2d
Cir. 1971); United States v. Torrez-Ortega, 184 F.3d 1128
(10th Cir. 1999). We adopt the reasoning of the Supreme
Court and our sister Circuit Courts of Appeals and conclude
that the use of a witness’s prior statement against a criminal
defendant violates the defendant’s Confrontation Clause




                              27
rights when the witness refuses to answer any substantive
questions on cross-examination.15
       “The Confrontation Clause provides two types of
protections for a criminal defendant: the right physically to
face those who testify against him, and the right to conduct

15
   To be sure, Douglas and Torrez-Ortega are different from
this case in that they involved witnesses who responded by
asserting the privilege against self-incrimination. We think,
however, that this distinction is immaterial for our purposes,
as the Supreme Court has made it clear that an asserted
privilege need not be properly invoked in order for a potential
Confrontation Clause problem to arise. See Douglas, 380 U.S.
at 420 (“We need not decide whether [the witness] properly
invoked the privilege[.]”); Torrez-Ortega, 184 F.3d at 1133
(“Settled Supreme Court authority instructs that the validity
of a witness’s assertion of privilege does not determine
whether such witness is subject to cross-examination.” (citing
Douglas, 380 U.S. at 420)).
        If repeated meritless assertions of privilege can give
rise to a Confrontation Clause violation, we think repeated
responses of “no comment” can as well. In either case, the
constitutional infirmity is the same: the witness’s out-of-court
statements are introduced despite it being “evident that he
w[ill] refuse to give testimony of any sort.” Fiore, 443 F.2d
at 115; see also Douglas, 380 U.S. at 420 (“[I]nferences from
[the] the witness’ refusal to answer added critical weight to
the prosecution's case in a form not subject to cross-
examination.” (emphasis added) (quoting Namet v. United
States, 373 U.S. 179, 187 (1963)); Torrez-Ortega, 184 F.3d at
1133 (“[S]ignificantly, [the witness’s] limited responses were
elicited well after he had established that he would not answer
questions on the stand.” (emphasis added)).




                              28
cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39, 51
(1987). The constitutionally-guaranteed right to cross-
examination “is a functional right that promotes reliability in
criminal trials,” Lee v. Illinois, 476 U.S. 530, 540 (1986), and
“reflects a judgment” that the reliability of a witness’s
testimony is best determined by testing in the “crucible of
cross-examination,” Crawford v. Washington, 541 U.S. 36, 61
(2004). A criminal defendant’s right to cross-examine the
witnesses against him applies not only to in-court testimony
but also to out-of-court statements introduced at trial.16
Crawford, 541 U.S. at 50-51. Therefore, “a witness whose
prior statement is to be used must not only be produced but
must also be sworn and made available for cross-
examination.” United States ex rel. Thomas v. Cuyler, 548
F.2d 460, 463 (3d Cir. 1977).

        A criminal defendant’s right to cross-examination is
not satisfied simply because a witness appears and takes the
stand at the defendant’s trial. A criminal defendant is also
entitled to a “full and fair opportunity to probe and expose
the[] infirmities” of the witness’s testimony. Fensterer, 474
U.S. at 22; see also Owens, 484 U.S. at 562 (a defendant must
have an opportunity for “meaningful” cross-examination);
Kentucky v. Stincer, 482 U.S. 730, 739 (1987) (the
Confrontation Clause guarantees an opportunity to conduct

16
   The right to cross-examination only applies to out-of-court
statements that are “testimonial.” Crawford, 541 U.S. at 51.
Leonard’s police statement and prior testimony are
testimonial statements. See Id. at 68 (“Whatever else the term
[‘testimonial’] covers, it applies at a minimum to prior
testimony at a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations.”).




                              29
“effective” cross-examination). A full and fair opportunity to
test the veracity of a witness’s statement through cross-
examination is particularly important when the witness is the
defendant’s accomplice or co-conspirator. The “truthfinding
function of the Confrontation Clause is uniquely threatened
when an accomplice’s confession is sought to be introduced
against a criminal defendant without the benefit of cross-
examination.” Lee, 476 U.S. at 541. This reflects a “reality of
the criminal process, namely, that once partners in crime
recognize that the ‘jig is up,’ they tend to lose any identity of
interest and immediately become antagonists, rather than
accomplices.” Id. at 544-45.

        We cannot conclude that Preston had a “full and fair
opportunity to probe and expose” the infirmities of Leonard’s
statements through “meaningful” and “effective” cross-
examination. Owens, 484 U.S. at 562; Stincer, 482 U.S. at
739; Fensterer, 474 U.S. at 22. Leonard, concerned that
answering questions would jeopardize his own criminal
appeal, responded “no comment” to nearly every question
defense counsel asked him. See Owens, 484 U.S. at 561-62
(“Ordinarily a witness is regarded as ‘subject to cross-
examination’ when he is placed on the stand, under oath, and
responds willingly to questions. . . . [A]ssertions of privilege
by the witness may undermine the process to such a degree
that meaningful cross-examination . . . no longer exists.”);
Cuyler, 548 F.2d at 463 (“A witness who refuses to be sworn
or to testify at all or one who, having been sworn, declines to
testify on Fifth Amendment grounds, has not been . . . made
available for cross-examination” (citing Douglas, 380 U.S.
415; Fiore, 443 F.2d 112) (internal citations omitted)).
Without a full and fair opportunity to cross-examine Leonard,
the admission of Leonard’s prior statements violated




                               30
Preston’s rights under the Confrontation Clause.17 The lack of
opportunity to effectively cross-examine a witness is
particularly problematic where, as here, the witness was the
defendant’s accomplice. Leonard’s statements, made after the
“jig was up,” were inherently suspect and should have been
subject to the crucible of cross-examination.



17
    “[T]he Confrontation Clause guarantees only ‘an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Owens, 484 U.S. at
559 (quoting Stincer, 482 U.S. at 739). For example, if a
witness’s belief is introduced into evidence, either through
live testimony or admission of an out-of-court statement, and
the witness then responds willingly to questions on cross-
examination but is unable to recall the basis for the
introduced belief, the defendant’s right to cross-examination
has not been violated. See, e.g., Owens, 484 U.S. at 559;
Fensterer, 474 U.S. at 20. The defendant in such a case has
been given a full and fair opportunity to conduct effective
cross-examination, even if the cross-examination ultimately
isn’t as effective as the defendant would like due to the
witness’s forgetfulness. This is because “other means of
impugning” the witness’s belief remain available: “the
defendant has the opportunity to bring out such matters as the
witness’s bias, his lack of care and attentiveness, . . . and even
(what is often a prime objective of cross-examination) the
very fact that he has a bad memory.” Owens, 484 U.S. at 559
(citation omitted). Such is not the case here, where the
witness categorically refused to participate in cross-
examination.




                               31
        The Magistrate Judge reasoned, and Appellees argue,
that Preston’s right to cross-examine Leonard was not
violated because “there were no legal or court-imposed
restrictions on the scope or nature of Preston’s questioning of
Leonard.” Br. for Appellees at 37. Restricting the scope or
nature of cross-examination violates a defendant’s rights
under the Confrontation Clause. See, e.g., Delaware v. Van
Arsdall, 475 U.S. 673 (1986); Davis v. Alaska, 415 U.S. 308
(1974). However, this is not the only way in which a
defendant’s Confrontation Clause rights may be violated.
“The cases that have arisen under the Confrontation Clause . .
. fall into two broad, albeit not exclusive, categories: ‘cases
involving the admission of out-of-court statements and cases
involving restrictions imposed by law or by the trial court on
the scope of cross-examination.’” Stincer, 482 U.S. at 737
(quoting Fensterer, 474 U.S. at 18). Confrontation Clause
claims like Preston’s, which fall into the first category, are no
less valid than those in the second category. Id.

       It is of no consequence that Leonard answered “yes” to
three of defense counsel’s questions; those questions were not
pertinent to the veracity of Leonard’s prior statements, his
testimony on direct-examination, or his credibility in general.
We also reject the notion that Preston’s Confrontation Clause
right to cross-examination was satisfied because Leonard
provided limited answers on direct-examination and because
defense counsel was supposedly able to “exploit” those
statements in his closing argument. Br. for Appellees at 40,
43. It is possible that, in some circumstances, a witness’s
answers on direct examination may provide the jury with
enough information to reach a credibility determination and




                               32
therefore satisfy the Confrontation Clause. 18 However, neither
direct examination nor a creative closing argument was a
substitute for cross-examination in this case.

       In short, the admission of Leonard’s prior statements
violated Preston’s rights under the Confrontation Clause.
Nonetheless, counsel failed to raise a Confrontation Clause
objection at trial. Appellees have not provided any strategic
explanation for trial counsel’s failure to do so. Nor are we
able to identify one. Thus, trial counsel’s performance was
ineffective under the first prong of Strickland.

     2. Preston fails to satisfy Strickland’s prejudice prong.

       Next, under Strickland’s prejudice prong, we ask if
there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. The prejudice
prong of the Strickland analysis is consistent with the general
“harmless error” standard applicable to all federal habeas

18
    Consider, for example, a hypothetical witness who
willingly answers the prosecution’s questions on direct and,
in doing so, reveals a number of biases against the defendant.
Assume that the witness then refuses to answer defense
counsel’s substantive questions on cross-examination. The
Confrontation Clause rights of the hypothetical defendant in
such a case may not have been violated because, despite the
witness’s lack of cooperation on cross-examination, the
defendant may have been able to “bring out such matters as
the witness’ bias, [and] his lack of care [or] attentiveness,”
which is “sufficient” under the Confrontation Clause. Owens,
484 U.S. at 559.




                                33
petitioners alleging non-structural errors. See Johnson v.
Lamas, 850 F.3d 119, 132 (3d Cir. 2017) (“To be entitled to
habeas relief, a habeas petitioner must establish that the trial
error ‘had [a] substantial and injurious effect or influence in
determining the jury’s verdict.’” (alteration in original)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993))).
Given the other evidence introduced at trial, we cannot
conclude that there is a reasonable probability that the result
of the proceeding would have been different if Leonard’s
prior statements had not been admitted. Stated in terms of the
harmless error standard, we conclude that the admission of
Leonard’s statements did not have a substantial and injurious
effect or influence in determining the jury’s verdict.

       First, the content of Leonard’s statements was largely
cumulative of other evidence. It was nearly identical to
Butler’s testimony, which also implicated Preston. Preston
argues that without Leonard’s corroborating testimony, the
jury would have found Butler’s testimony unreliable. This
argument is not supported by the record. Butler’s testimony
was corroborated by the medical examiner’s testimony as
well as the physical evidence recovered from the scene. It
also matched the statements Butler gave to police in the
immediate aftermath of the shooting. Moreover, Preston
himself largely corroborated Leonard’s and Butler’s version
of events. Nor does Butler’s testimony contradict that of
Stanfield or Malloy, both of whom testified that they could
not see who fired the shot.

       Preston places much weight on Stanfield’s and
Malloy’s testimony, suggesting that Butler did not turn the
corner, and therefore did not see the shooting, until after the
shot was fired. However, Preston fails to explain how Butler




                              34
could have manufactured a version of events that matched
Leonard’s and Preston’s versions of events, the physical
evidence, and the medical examiner’s conclusions and
provided that version of events to police immediately after the
shooting if she had not seen the events herself. This argument
also assumes that the jury considered Stanfield and Malloy
credible witnesses. Yet their testimony was marred by several
major inconsistencies. For example, Stanfield testified that
Leonard drove his car down Dennie Street and parked on
Wayne Avenue before engaging with Williams, while every
other eyewitness testified that Leonard followed Williams
down Dennie Street and onto Wayne Avenue on foot. Malloy
testified that the three men were fighting on the sidewalk,
while every other eyewitness and the bullet recovered from
the scene indicated that the fight occurred on the street
between cars. Malloy’s suggestion that Williams shot himself
was also contradicted by the medical examiner’s conclusion.

       Ultimately, neither Stanfield nor Malloy cast serious
doubt on Butler’s ability to witness the relevant events either.
According to Butler, she was at the “corner of Dennie and
Wayne” when she first saw Leonard and Preston fighting with
Williams. JA523. Neither Stanfield nor Malloy called that
into question, and they did not cast doubt on Butler’s ability
to see the fight from the corner. Instead, Stanfield said that
he, personally did not see Butler until after the shot, when she
came around the corner from Dennie Street. Similarly,
Malloy merely said that he did not notice Butler until she
came running around the corner. These answers do virtually
nothing to impeach Butler’s testimony.

      Second, aside from their cumulativeness, Leonard’s
statements were not as damning as Preston suggests. Leonard




                              35
said he did not see Preston with a gun and could only “guess”
that Preston was the shooter. JA601. The jury was also
instructed to view Leonard’s testimony with disfavor, since
“an accomplice when caught will often try to place the blame
on someone else [and] may even testify falsely in the hope of
obtaining a favorable result.” JA723.

        Finally, even if, absent Leonard’s testimony, the jury
would have concluded that Leonard, and not Preston, was the
shooter, there is not a reasonable probability that the jury
would have reached a different verdict. The jury was properly
instructed on accomplice liability and told that Preston could
be found guilty of third degree murder if he was the
accomplice of another person who caused the death of
Williams with an intent to inflict serious bodily injury. Even
if the jury had concluded that Leonard was the shooter, the
evidence fully supported a finding that Preston was Leonard’s
accomplice and was therefore also guilty of third degree
murder.

      Because trial counsel’s failure to object to the
admission of Leonard’s prior statements does not meet the
second Strickland prong, Preston cannot use his IATC claim
to overcome the procedural default of his underlying
Confrontation Clause claim. Therefore, we are unable to grant
him habeas relief.


                    III. CONCLUSION

      For the foregoing reasons, we affirm the District
Court’s order dismissing Preston’s habeas petition.




                             36
