                                                                     NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                        No. 09-3756
                                       _____________

                                   HAKEIM ROBINSON,
                                             Appellant

                                               v.

     ROBERT SHANNON; THE DISTRICT ATTORNEY OF THE COUNTY OF
       PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF
                          PENNSYLVANIA
                           _____________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                 (D.C. No. 2-08-cv-01074)
                          District Judge: Hon. Norma L. Shapiro

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    February 6, 2012

             Before: SLOVITER, VANASKIE, and GARTH, Circuit Judges.

                                  (Filed: February 8, 2012)
                                       ____________

                                          OPINION
                                        ____________

GARTH, Circuit Judge.

       Following a conviction for, among other crimes, second degree murder, appellant

Hakeim Robinson filed a petition for a writ of habeas corpus, which was denied. The

District Court issued a certificate of appealability of its denial of the petition, and this


                                               1
court thereafter expanded the scope of that certificate. Consistent with the certificate of

appealability, Robinson now claims that the admission of certain statements of his

codefendants violated his Confrontation Clause rights and claims that his appellate

counsel was ineffective. For the reasons that follow, we will affirm the District Court’s

August 10, 2009 denial of Robinson’s petition for a writ of habeas corpus.

                                              I.

       We write principally for the benefit of the parties and recite only the facts essential

to our disposition.

       In April 2002, after a joint trial with two codefendants, appellant Hakeim

Robinson was convicted in the Court of Common Pleas of second-degree murder,

robbery, burglary, and conspiracy and sentenced to a term of life imprisonment, with

lesser terms imposed on the charges other than murder. During the course of the trial,

none of the three defendants testified, but the prosecution introduced redacted versions of

incriminating statements made by each of them. 1 Counsel for all three defendants timely

objected to the introduction of these statements, claiming that the redactions were

1
  During investigation of the underlying incident, all three of the codefendants in the
case--appellant Robinson, Robert Jones, and Fred Porter, all confessed to involvement in
the incident, but gave conflicting versions of exactly what had occurred. While all three
acknowledged that they were in the course of committing a planned robbery when the
victim was killed, Robinson told police that one of his two codefendants had accidentally
shot the victim after Robinson had left the victim’s residence; Porter told police that he
was outside the victim’s residence when the victim was killed by either Robinson or
Jones, and Jones told police that Porter had shot the victim. The content of each of these
statements was offered at trial against the individual who had made the statement, with
redactions that, except in one instance where Robinson’s name was simply removed,
replaced the names of any codefendant with terms such as “some guy I know” and with
an instruction that each defendant’s statement could only be considered as evidence
against the defendant who had originally made the statement.
                                              2
insufficient to bring the statements into conformity with the Confrontation Clause; these

objections were overruled. Thereafter, a prosecution witness referred to one of the

statements as “redacted,” and the defendants’ counsel jointly moved for a mistrial, which

was denied. During closing argument, the prosecutor commented on Robinson’s failure

to testify despite Robinson’s counsel’s promise during opening statements that Robinson

would testify.

       After Robinson’s conviction and the imposition of sentence, he appealed to the

Pennsylvania Superior Court. On appeal, Robinson claimed that the introduction of the

redacted statements of his two codefendants violated his Confrontation Clause rights, that

the prosecutor committed misconduct by commenting on Robinson’s failure to testify,

and that Robinson’s trial counsel was ineffective for promising that Robinson would

testify. The Superior Court, in an unpublished opinion, affirmed Robinson’s conviction

and sentence, determining, inter alia, that Robinson had, by failing to include the claim in

his statement of issues on appeal, waived his claim that a specific redaction of Jones’

statement violated his Confrontation Clause rights under Gray v. Maryland, supra. The

Pennsylvania Superior Court denied all of Robinson’s other claims.

       The Pennsylvania Supreme Court thereafter granted allocator, with Robinson’s

appeal limited to the question of whether Robinson had been denied his Confrontation

Clause rights by the redaction and introduction of his codefendants’ statements and by

the reference to those statements as “redacted.” After oral argument, the Pennsylvania

Supreme Court dismissed the appeal without opinion as improvidently granted.

Robinson filed a timely petition under the Pennsylvania Post-Conviction Relief Act

                                             3
(PCRA). In his PCRA petition, Robinson sought relief on the grounds of: 1) the

ineffectiveness of both his trial and appellate counsel for failing to raise and preserve

Robinson’s objections to the admission of his codefendants’ statements under the

Confrontation Clause; 2) the ineffectiveness of both his trial and appellate counsel for

failure to raise and preserve Robinson’s objections to the characterization of those

statements as “redacted;” 3) his trial counsel’s ineffectiveness for failure to object to the

prosecutor’s references to the statements during closing argument; and 4) his trial

counsel’s ineffectiveness for promising that Robinson would testify. The PCRA court

dismissed Robinson’s petition, the Superior Court affirmed that dismissal, and the

Pennsylvania Supreme Court denied allowance to appeal.

       Robinson filed a pro se habeas petition in the District Court pursuant to 28 U.S.C.

§ 2254. That petition specified four grounds for relief: 1) Confrontation Clause

violations; 2) ineffective assistance of trial counsel for promising that Robinson would

testify; 3) prosecutorial misconduct for referring to Robinson’s failure to testify; 2 and 4)

ineffective assistance of direct appellate counsel for failure to specifically raise all of

Robinson’s appellate claims in his statement of issues on appeal.

       The District Court concluded that Robinson’s Confrontation Clause rights were

violated, but determined that those violations were harmless, and denied his petition for a

writ of habeas corpus. The District Court also issued a certificate of appealability “as to

Robinson’s objections concerning the Confrontation Clause claims.” On motion by


2
  Robinson does not appeal before us the issues of trial counsel promising that he would
testify and prosecutorial misconduct for referring to his failure to testify.
                                               4
Robinson, this court expanded the certificate of appealability to include Robinson’s

“claim that his appellate counsel rendered ineffective assistance on direct appeal by

failing to argue in the statement of issues on appeal that the redaction of codefendant

Robert Jones’s confession was improper under Gray v. Maryland, 523 U.S. 185, 192-94

(1998)[(holding that the admission of redacted codefendant statements that substitute a

blank or the word “deleted” for the name of a defendant violates the Confrontation

Clause)].” Robinson timely appealed under the expanded certificate of appealability.

                                              II.

       We have jurisdiction over Robinson’s appeal under 28 U.S.C. § 1291. Where a

district court, in ruling on a habeas corpus petition, “relied exclusively on the state court

record and did not hold an evidentiary hearing on habeas review, this Court’s review is

plenary.” Gibbs v. Frank, 387 F.3d 268, 271 (3d Cir. 2004). “An application for a writ of

habeas corpus . . . 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 . . . was contrary

to, or involved an unreasonable application of, clearly established Federal law, . . . [or]

resulted in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d).

                                             III.

       Robinson now claims that the Confrontation Clause violations the District Court

determined occurred at his trial were not harmless, and seeks relief on those grounds.

Even if we were to assume, without deciding, that the admission of Jones’ and Porter’s



                                              5
redacted statements violated Robinson’s Confrontation Clause rights, 3 and that the

subsequent reference to the statements as redacted also violated his Confrontation Clause

rights, we nevertheless conclude that any error was harmless.

       On collateral review of a state court criminal judgment under 28 U.S.C. § 2254,

such as the present case, “an error is harmless unless it had substantial and injurious

effect or influence in determining the jury’s verdict.” Fry v. Pliler, 551 U.S. 112, 116

(2007) (internal quotation marks omitted). This is a less stringent standard for the

demonstration of harmlessness than the standard employed on direct review, which

requires only that the reviewing court be “able to declare a belief that [the error] was

harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967).

We conclude that the evidence introduced against Robinson satisfies the Fry v. Pliler

standard.

       The prosecution introduced Robinson’s confession, where Robinson admitted to

his involvement in the robbery which led to the victim’s death and which also admitted to

his presence while the victim was beaten, but before the victim was shot. Robinson never

claimed that the confession was coerced. In addition to this confession, the prosecution

introduced significant additional evidence of Robinson’s presence and involvement in the

3
  Although the District Court determined that the admission of Jones’ redacted statement
violated Robinson’s Confrontation Clause rights, Robinson also claims that the District
Court improperly concluded that the admission of Porter’s redacted statement did not. A
careful review of the District Court’s decision reveals that the District Court did not reach
any express conclusion as to the propriety of Porter’s statement, which was admitted into
evidence. The District Court, did, however, consider whether the reference to Porter’s
statement as “redacted” violated Robinson’s Confrontation Clause rights. We therefore
conclude that the District Court held, sub silentio, that admission of Porter’s statement
did not violate the Confrontation Clause.
                                              6
criminal enterprise that ultimately led to the charge of murder on which he was

convicted. Most notably, the prosecution introduced the testimony, which Robinson has

never challenged, of a fourth participant in the scheme, which established Robinson’s

presence at the scene of the murder and his involvement in the robbery. 4

       Robinson did not call any witnesses in his own defense. Rather, Robinson’s trial

counsel made only two concerted efforts to refute the prosecution’s case. First, counsel

asserted, despite his lack of a claim of coercion, that it was impossible to know what had

happened between Robinson’s arrest and his confession. Second, Robinson argued that

the only uninvolved witness who had been present at the time of the murder had not seen

Robinson in the apartment where the murder took place. Robinson himself admitted to

being in the apartment, and further stated that he did not see that witness in the apartment

either. The evidence also established that the witness was lying down while Robinson or

his codefendants were in the apartment. Because of her lying down position, she did not

see Robinson, and concededly, Robinson did not see her.

       In the face of this evidence against Robinson, and absent any evidence introduced

to exonerate him, the admission of Porter’s and Jones’ statements and the subsequent

reference to those statements as “redacted” did not have the required “substantial and

injurious effect” on the fairness of Robinson’s trial and conviction. See, e.g., Fry v.

Pliler, supra; Schneble v. Florida, 405 U.S. 427, 430 (1972) (even under a more stringent

standard for harmlessness, any error committed by admitting a codefendant’s statement


4
 The prosecution’s theory was that Robinson’s codefendant Porter was the actual
principal “triggerman.”
                                              7
was harmless where defendant’s confession and corroborating evidence more than

adequately established guilt). Any impermissible inferences drawn about Robinson from

Jones’ or Porter’s redacted statements would merely have been cumulative of the

substantial evidence of Robinson’s involvement and presence. We therefore conclude

that any Confrontation Clause errors that had been committed at Robinson’s trial were

harmless, and cannot provide grounds for habeas relief.

       Robinson also seeks relief on the grounds that his direct appellate counsel failed to

list each of his individual claims in his statement of issues on appeal. Specifically, while

the statement of issues mentions both the alleged inadequacy of redactions and the

prosecution’s reference to the statements as “redacted,” it does not include Robinson’s

contention that a specific redaction in Jones’ statement, distinct from all the other

redactions, violated his Confrontation Clause rights under Gray v. Maryland, supra. 5 To

prevail on an ineffective assistance of counsel claim on federal habeas review, a

petitioner must establish at a minimum that his counsel was responsible for a deficient

performance which prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,

687 (1984). Robinson has never articulated any colorable claim of prejudice resulting

from his counsel’s failure to include a claim pertaining to Jones’ statement and predicated

on Gray v. Maryland, supra.


5
 In his brief to the Superior Court, Robinson claimed that the admission into evidence of
a portion of Jones’ statement where Robinson’s name had simply been removed violated
his rights as established by Gray v. Maryland. Specifically, as introduced at trial, the
redacted statement read, in relevant part: “Me and [. . . ] went up and knocked on the
door.” Robinson’s name had been removed from immediately before the word “went,”
but had not been replaced by any substitute phrase.
                                              8
          While Robinson is correct that the Pennsylvania Superior Court disposed of that

claim by concluding that he had waived it by failing to include it in his statement of

issues, he fails to mention the Superior Court’s observation that “were we to review

Robinson’s claim on the merits, we would find that the single inadvertent omission of a

reference to a person was not prejudicial to” Robinson. In order to demonstrate the

prejudice necessary to establish a Strickland violation, a petitioner must “prove that his

[incompetently handled] claim is meritorious.” Kimmelman v. Morrison, 477 U.S. 365,

375 (1986). Robinson has failed to argue that he would have prevailed on the defaulted

claim on direct appeal, and the Superior Court has expressly stated that he would not

have done so. We therefore conclude that any deficient performance by his appellate

counsel did not prejudice Robinson, and therefore, cannot provide the basis for habeas

relief.

                                             IV.

          Because any Confrontation Clause violations that may have occurred at

Robinson’s trial are harmless and because Robinson has not shown any prejudice

resulting from the alleged ineffectiveness of his appellate counsel, we conclude that no

state decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d). We will therefore affirm the District

Court’s denial of Robinson’s petition for a writ of habeas corpus.




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