                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-12-2008

Anthony Boggs v. DA Chester Cty
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1857




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-1857


                               ANTHONY K. BOGGS,
                                             Appellant

                                           v.

                         DAVID DIGUGLIELMO;
          THE DISTRICT ATTORNEY OF THE COUNTY OF CHESTER;
        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-05882
                             (Honorable Anita B. Brody)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 January 17, 2008
         Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges.

                               (Filed: February 12, 2008)


                              OPINION OF THE COURT


SCIRICA, Chief Judge.

      In a jury trial in the Chester County, Pennsylvania Court of Common Pleas,

Anthony K. Boggs was convicted of murder in the first degree and received a sentence of
life imprisonment.1 Boggs appeals an order denying his petition for writ of habeas

corpus, 28 U.S.C. § 2254.2 We issued a certificate of appealability on a single issue:

whether Boggs’ counsel was ineffective for failing to appeal a properly preserved claim

under Batson v. Kentucky, 476 U.S. 79 (1986). 3 We will affirm.

                                             I.

       At the close of jury selection, Boggs raised a Batson objection based on the

peremptory strikes of three African-American venirepersons. The trial court addressed

each objection and concluded the Commonwealth did not violate Batson. On direct




   1
    Boggs appealed the judgment of sentence to the Superior Court of Pennsylvania,
which affirmed. See Commonwealth v. Boggs, No. 1390 Philadelphia 1998 (Pa. Super.
Ct. Jan. 14, 1999). The Pennsylvania Supreme Court denied allocatur. See
Commonwealth v. Boggs, 740 A.2d 1143 (Pa. 1999). Boggs sought relief under the Post
Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. §§ 9541-9546. The Court of
Common Pleas dismissed his petition. See Commonwealth v. Boggs, No. 505-97 (Pa.
Commw. Ct. June 13, 2003). The Superior Court affirmed, see Commonwealth v. Boggs,
No. 2170 EDA 2003 (Pa. Super. Ct. July 13, 2004), and the Pennsylvania Supreme Court
denied Boggs’ nun pro tunc allowance for appeal. See Commonwealth v. Boggs, 190
MM 2004 (Pa. 2004).
   2
    Boggs filed a pro se petition which was referred to a Magistrate Judge. Judge Wells
recommended that each of Boggs’ habeas claims be dismissed or denied without a
hearing. See Boggs v. Diguglielmo, No. 04-5882 (E.D. Pa. Aug. 25, 2005) (Report and
Recommendation). The District Court approved and adopted the Report and
Recommendation and denied the habeas petition. See Boggs v. Diguglielmo, No. 04-5882
(E.D. Pa. Mar. 6, 2006).
   3
    “[T]he Equal Protection Clause [of the Fourteenth Amendment] forbids the
prosecutor to challenge potential jurors solely on account of their race or on the
assumption that black jurors as a group will be unable impartially to consider the State’s
case against a black defendant.” Batson, 476 U.S. at 89.

                                             2
appeal in state court, Boggs’ counsel did not raise the Batson claim.4 In his PCRA

petition, Boggs sought relief for ineffective assistance based on a failure to appeal the

Batson issue. The PCRA court rejected Boggs’ claim, concluding: “[t]he Commonwealth

set forth neutral based explanations which were supported by the voir dire of [the

jurors].” Commonwealth v. Boggs, No. 505-97 (Pa. Commw. Ct. June 13, 2003). The

Superior Court summarily affirmed. Commonwealth v. Boggs, No. 2170 EDA 2003 (Pa.

Super. Ct. July 13, 2004).

       Boggs seeks federal habeas relief, asserting his counsel’s failure to appeal the

Batson claim denied his Sixth Amendment right to effective assistance of counsel.

Boggs’ petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2254. Relief will only be granted if the state court decision

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


   4
     On direct appeal, counsel raised two issues: (1) that a Commonwealth witness
improperly commented on the credibility of two defense witnesses, and (2) that the trial
court erred in failing to grant Boggs’ motion to suppress his statements made at the police
station. Neither claim prevailed. Commonwealth v. Boggs, No. 1390 Philadelphia 1998
(Pa. Super. Ct. Jan. 14, 1999).
       During the PCRA hearing, counsel explained the reason why he did not also raise
the Batson claim on direct appeal:
       I did not believe that I had a valid Batson claim that I could raise on appeal
       in the appellate courts that would be successful . . . . So although I made
       that objection at trial, and many times I will make objections at trial to
       protect the record, when I review the record for appellate purposes or to
       brief something, there are many times I may not present an issue to the
       appellate court even though it’s raised at trial, and I didn’t believe I had a
       strong Batson issue at all.
Transcript of January 2, 2003 PCRA Hearing.

                                              3
established Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 405-407 (2000).

       We evaluate Boggs’ claim under the ineffectiveness standard articulated in

Strickland v. Washington, 466 U.S. 668 (1984). Smith v. Robbins, 528 U.S. 259, 285

(2000). Under Strickland, a defendant must establish that counsel’s performance was

deficient and that it prejudiced the defense. Strickland, 466 U.S. at 687. Counsel’s

performance is deficient when the “representation fell below an objective standard of

reasonableness.” Id. at 688. Accordingly, Boggs must show that his counsel

“unreasonably failed to . . . file a merits brief raising [a nonfrivolous Batson claim].”

Smith, 528 U.S. at 285. To establish prejudice, “[t]he defendant must 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.” Strickland, 466 U.S. at 694. Boggs must show

“a reasonable probability that, but for his counsel’s failure . . . , he would have prevailed

on his appeal.” Smith, 528 U.S. at 285.

                                              A.

       In her Report and Recommendation, the Magistrate Judge concluded that because

the underlying Batson claim lacked merit, counsel was not ineffective for failing to raise

it on appeal. Boggs v. Diguglielmo, No. 04-5882 (E.D. Pa. Aug. 25, 2005) (Report and

Recommendation). Although Boggs objected to the Magistrate Judge’s findings on other



                                              4
matters, he did not object to the conclusion that his underlying Batson claim lacked merit.

In Nara v. Frank, 488 F.3d 187 (3d Cir. 2007), we articulated the general rule: “[p]lain

error review is appropriate where a party fails to timely object to a magistrate judge’s

[Report and Recommendation] in habeas corpus cases.” 5 Id. at 196. But in Leyva v.

Williams, 504 F.3d 357 (3d Cir. 2007), we conducted a plenary review despite a pro se

litigant’s failure to object to a magistrate’s report and recommendation. We noted that

there was no indication that the pro se litigant “was ever warned that his failure to object

to the Magistrate Judge’s report would result in the forfeiture of his rights.” Id. at 364.

We concluded that “[w]ithout such a warning . . . it would be inequitable to deny a pro se

litigant de novo appellate review.” Id.

       As noted, Boggs filed his habeas petition pro se. Furthermore, the Report and

Recommendation did not include language warning of the consequences for failing to

object. But unlike the petitioner in Leyva, Boggs filed an eight-page objection to the

Magistrate Judge’s Report and Recommendation. Boggs challenged the Magistrate

Judge’s holdings on three of his ineffective assistance claims – failure to investigate,

interview and call key witnesses to testify at trial, prejudicing the jury during voir dire,




   5
      “Under the plain error standard, we should only reverse the District Court’s decision
if it made a plain error which affects ‘substantial rights.’” Nara, 488 F.3d at 197 (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)). “If we discern an error, we will only
correct it if the appellant also demonstrates the error ‘seriously affected the fairness,
integrity or public reputation of judicial proceedings.’” Nara, 488 F.3d at 197 (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)).

                                               5
and failure to object when the prosecutor presented a mistaken fact to the jury. But he did

not object to the finding that his underlying Batson claim lacked merit. Based upon

Boggs’ actions, we find Levya distinguishable and should apply the general plain error

rule articulated in Nara. Boggs cannot establish plain error. Nevertheless, we would

affirm even under a de novo standard of review.

                                             B.

       As noted, in order to prevail, Boggs must establish that the state court’s

determination was contrary to, or an unreasonable application of, Strickland’s

performance and prejudice prongs. Because we conclude that Boggs’ underlying Batson

claim lacks merit, we need not address Strickland’s performance prong. See Strickland,

466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice . . . that course should be followed.”).

        In Batson, the Supreme Court articulated a three-step burden shifting process by

which a trial court should evaluate an objection to race-based juror exclusion:

       First, a defendant must make a prima facie showing that a peremptory
       challenge has been exercised on the basis of race. Second, if that showing
       has been made, the prosecution must offer a race-neutral basis for striking
       the juror in question. Third, in light of the parties’ submissions, the trial
       court must determine whether the defendant has shown purposeful
       discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (citing Batson, 476 U.S. at 96-98).

       Responding to Boggs’ Batson objection, the trial court proceeded directly to

Batson’s second step and asked the prosecutor to answer the objection. The prosecutor

                                               6
then provided race-neutral reasons for the peremptory strikes of the three African-

American venirepersons.6 See Purkett v. Elem, 514 U.S. 765, 768 (1995) (“At this second

step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a

discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be

deemed race neutral.”) (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)

(plurality opinion)). Accordingly, the prosecutor satisfied Batson’s second prong.

       Once the prosecutor offers a race-neutral basis for his exercise of peremptory

challenges, “the persuasiveness of the justification becomes relevant.” Purkett, 514 U.S.

at 768. At the third step, “the trial court determines whether the opponent of the strike

has carried his burden of proving purposeful discrimination.” Id.; see also Hardcastle v.

Horn, 368 F.3d 246, 259 (3d Cir. 2004) (explaining that a court conducting a Batson

inquiry must “address and evaluate all evidence introduced by each side . . . that tends to

show that race was or was not the real reason and determine whether the defendant has

met his burden of persuasion”) (quoting Riley v. Taylor, 277 F.3d 261, 286 (3d Cir. 2001)

(en banc)). Based on the prosecutor’s explanations, oral argument by counsel,




   6
    In response to the Batson objection, the prosecutor stated that (1) the first juror was
struck because he was reluctant to apply the death penalty, he had a brother who was a
juvenile advocate, he had a financial hardship, and he was concerned about police bias in
the treatment of African-Americans; (2) the second juror was struck because her son was
in prison for a similar incident and because she stated that she would not impose the death
penalty in a case where drugs were involved; (3) the third juror was struck because of her
demeanor, personality, and perceived hostility toward the prosecutor, as well as her
assistance to drug users through her church.

                                              7
observations of the voir dire and review of the record, the trial court concluded that the

Commonwealth did not violate Batson.7 As noted, the PCRA court concluded Boggs

failed to meet his burden of proving purposeful discrimination because the prosecutor’s

race-neutral explanations were supported by the record.8 We agree. Accordingly,

because Boggs is unable to satisfy the prejudice prong of Strickland, his ineffective

assistance of counsel claim is without merit.

                                             II.

       We will affirm the denial of the petition for writ of habeas corpus.




   7
    The trial court concluded the Commonwealth properly struck the first juror because
he had a philosophical “problem” with capital punishment. Next, it found the
Commonwealth had valid reasons for striking the second juror because she would not
impose a death penalty in a case where drugs were involved and because she had a son in
a similar position as the defendant. Finally, after noting the third juror’s demeanor during
voir dire, the trial court expressed concern over her ability to follow jury instructions and
found the Commonwealth’s assertion to be a “legitimate concern.”
   8
    Boggs also contends that the third step in a Batson analysis requires the trial court to
conduct a comparison analysis between seated jurors and those struck. As an appellate
court, we have used a comparative analysis at Batson’s third step. See e.g., Holloway v.
Horn, 355 F.3d 707, 724 (3d Cir. 2004); Riley v. Taylor, 277 F.3d 261, 282 (3d Cir. 2001)
(en banc). But a comparative analysis “is one of many tools that a court may employ to
determine whether the government exercised its peremptory challenges for a
discriminatory purpose.” United States v. You, 382 F.3d 958, 969 (9th Cir. 2004). “Trial
courts, however, are not required to conduct such an analysis.” Id.

                                                8
