                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-4-2004

Affinito v. Hendricks
Precedential or Non-Precedential: Precedential

Docket No. 01-2066




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Recommended Citation
"Affinito v. Hendricks" (2004). 2004 Decisions. Paper 670.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/670


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                                        Peter C. Harvey
                        PRECEDENTIAL      Attorney General of New Jersey
                                        Nancy A. Hulett (Argued)
         UNITED STATES                    Deputy Attorney General
        COURT OF APPEALS                P.O. Box 086
      FOR THE THIRD CIRCUIT             Office of Attorney General of New
                                        Jersey
                                        Department of Law & Public Safety
              No. 01-2066               Division of Criminal Justice
                                        Appellate Bureau
                                        Richard J. Hughes Justice Complex
         THOMAS AFFINITO,               Trenton, NJ 08625
                                               Attorneys for Appellee
                    Appellant

                   v.
                                              OPINION OF THE COURT
   ROY HENDRICKS; ATTORNEY
     GENERAL OF THE STATE
        OF NEW JERSEY
                                        AM BRO, Circuit Judge
                                                Thomas Affinito was convicted in
         On Appeal from the             1998 of murder and kidnapping in New
     United States District Court       Jersey state court. After exhausting his
    for the District of New Jersey      state court remedies, Affinito petitioned
  D.C. Civil Action No. 99-cv-02560     for a writ of habeas corpus in the United
 (Honorable Joseph A. Greenaway, Jr.)   States District Court for the District of
                                        New Jersey. The District Court denied
                                        Affinito’s petition, but granted a
         Argued July 28, 2003           certificate of appealability as to whether
                                        Affinito received ineffective assistance of
   Before: SCIRICA, Chief Judge,        counsel at his trial. While we conclude
RENDELL and AMBRO, Circuit Judges       that Affinito’s counsel failed to provide
                                        effective assistance, that failure was not
                                        sufficiently prejudicial to warrant granting
(Opinion filed: May 4, 2004)            a writ of habeas corpus.
                                               I. Factual and Procedural
Jean D. Barrett, Esquire (Argued)
                                                      Background
Ruhnke & Barrett
47 Park Street                                 On February 22, 1985, Affinito,
Montclair, NJ 07042                     John Cupsie, and Michael Perez were
      Attorney for Appellant            drinking at a bar called Stash’s Tavern in
Carteret, New Jersey. What follows was             Affinito was sitting in the back seat, as he
related primarily by Perez, who was an             had on the car ride from Stash’s to City
eyewitness to what occurred throughout             Line. While parked outside his residence,
that evening and the early morning hours           Affinito pulled out a pipe and asked
of February 23.                                    Cupsie if he wanted to smoke marijuana.
                                                   Cupsie responded in the affirmative.
        The three men were regular patrons
                                                   Affinito, however, did not have any
at Stash’s Tavern and had met one another
                                                   marijuana. He pretended to put marijuana
there. It appears, though, that they neither
                                                   in the pipe and told Cupsie to pass the
were good friends nor had they known
                                                   pipe to Perez. At this point, Affinito
each other very long. On the evening in
                                                   grabbed Cupsie from behind and pulled
question, they had been at Stash’s for
                                                   him into the back seat of the car. Cupsie
several hours and eventually began talking
                                                   began struggling frantically, and the fight
over a game of pool. They decided to
                                                   spilled out of the car. During the course
drive to another bar in Carteret called the
                                                   of the fight, Affinito pinned Cupsie to the
City Line. Cupsie drove. The three men
                                                   ground and repeatedly punched his face
arrived just before last call and ordered
                                                   and head until he was bloodied and
drinks. Almost immediately, Affinito and
                                                   unconscious. Affinito then said he had to
Cupsie began arguing for some unknown
                                                   kill Cupsie and strangled him with a shirt
reason, but the two seemingly reconciled
                                                   until he began foaming at the mouth.
their differences within a few minutes.
                                                   With Perez’s help, Affinito put Cupsie in
       Shortly thereafter, Affinito and            the trunk of the car and drove to a nearby
Perez left Cupsie at the bar and walked            junkyard.1
outside. Neither Affinito nor Perez
                                                          By the time Affinito arrived at the
wanted to go home, and the suggestion
                                                   junkyard, however, Cupsie had regained
was made that they could drive around in
                                                   consciousness. When Affinito opened the
Cupsie’s car. The two checked the car
                                                   trunk, Cupsie punched him in the face in
doors, but they were locked. Affinito then
                                                   an attempt to fight his way out of the
stated he could give Cupsie a “sleeper
                                                   trunk. He was unsuccessful. Affinito
hold” (a wrestling term), render him
                                                   again strangled Cupsie, this time killing
unconscious, and take his keys. Perez
expressed uncertainty in the plan, but
Affinito insisted he could knock Cupsie                   1
                                                             Perez testified that he told
out and do so without hurting him. Perez           Affinito to stop several times, thought
acceded.                                           about running away, and did not wish to
        The two men soon rejoined Cupsie           assist in putting Cupsie’s body in the
inside, and he informed them of his desire         trunk. But it appears Perez was either
to go home. All three returned to Cupsie’s         frozen by fear, in partial shock, or both.
car, and he drove to Affinito’s house.             After Affinito cursed at him, Perez agreed
                                                   to help.

                                               2
him. After throwing Cupsie’s body on the          and quality of his acts or to know that they
ground, Affinito drove the car from the           were wrong.”
junkyard. He and Perez wiped the car of
                                                         In 1987, John P. Russell was
fingerprints and abandoned it. Affinito
                                                  substituted as Affinito’s defense counsel.3
also threw the shirts used to strangle
                                                  Russell hired a different psychiatrist,
Cupsie and clean the car into a sewer
                                                  James Ferretti, M.D.4 Ferretti based his
catch basin. He returned to his home
around 4:30 a.m. on February 23.
       After finding Cupsie’s body in the                3
                                                             At Affinito’s Post Conviction
junkyard later that day and conducting a          Relief Act (“PCRA”) hearing, Bronson
preliminary investigation, the police took        testified that he “felt uncomfortable trying
Affinito into custody.         At police          a death penalty case” and that his turning
headquarters, Affinito gave two                   the case over to Russell had nothing to do
statements. In the first, he admitted             with the fact his fee had not been paid in
leaving the bars with Cupsie, but he              full. Bronson highly recommended that
claimed that Cupsie dropped him off at            Affinito accept Russell as his new
home around 4:00 a.m. In his second               counsel. At the PCRA hearing, Bronson
statement, Affinito admitted that he killed       stated his belief that Russell was more
Cupsie. Affinito alleged, however, that he        than capable because he had seen Russell
attacked Cupsie only after Cupsie made            “spellbind juries with his skills.”
homosexual advances toward him.2                          To bolster his argument about
        Larry Bronson, the counsel retained       Russell’s ineffectiveness, Affinito points
by Affinito’s family, hired Stanley L.            out that, prior to the 1988 trial, Russell
Portnow, M.D., to perform a psychiatric           had committed several ethical violations.
evaluation of Affinito.         Portnow’s         Further, Russell was disbarred in 1990 for
evaluation of Affinito’s mental status at         a misappropriating funds from his trust
the time of the incident was based on two         account in 1982. See Matter of Russell,
interviews with him, numerous sets of             579 A.2d 1228 (N.J. 1990). Russell also
medical and psychiatric records, and              had been sanctioned twice prior to
police statements given by Affinito and           Affinito’s trial for tampering with a
witnesses.     Portnow concluded that             witness and failing to perfect an appeal.
Affinito suffered from a major psychiatric        See Matter of Russell, 282 A.2d 42 (N.J.
disorder that “substantially impaired his         1971); Matter of Russell, 541 A.2d 665
ability to know or appreciate the nature          (N.J. 1988).
                                                         4
                                                          There is no evidence why Russell
                                                  retained Ferretti, but it is alleged Portnow
       2
         As will become relevant later,           refused to testify until the bill for his
Affinito claims to suffer from auditory,          evaluation of Affinito was paid.
but not visual, hallucinations.                   Apparently neither Russell nor Bronson

                                              3
evaluation on a single, fifty-five minute          susceptible to the effects of intoxicants.
interview with Affinito. During this               Ferretti concluded that such a “vulnerable
interview, Ferretti relied on Affinito to          brain” – coupled with intoxication, the
provide the facts of the crime. To                 described personality disorder and stress
underscore his reliance, Ferretti provided         from a fight – would result in a person
a disclaimer in his report that the                lacking the capacity to “knowingly and by
“opinions and diagnosis recommendations            design perpetrate a murder.”
and commentary contained in this report
                                                           On cross-examination, Ferretti
are based on the assumption that the
                                                   testified that his opinion might change if
patient has been reasonably accurate and
                                                   the facts were materially different from
truthful in his narration. If this was not
                                                   those provided by Affinito.             The
the case, my opinions and diagnosis
                                                   prosecution then questioned Ferretti
conceivably could be altered.” While
                                                   regarding Affinito’s altercation and
Ferretti later reviewed Affinito’s medical
                                                   strangling of Cupsie in the junkyard.
and psychiatric records, Russell never
                                                   (Ferretti was not even aware of these facts
provided Ferretti with Affinito’s post-
                                                   because Affinito omitted mention of them
arrest statements to the police.
                                                   during their interview, and Russell had
        Affinito was ultimately charged            failed both to mention them to Ferretti and
with: (1) purposeful or knowing murder,            provide him with Affinito’s statements to
N.J. Stat. Ann. § 2C:11-3(a)(1) and (2);           the police.) Ferretti responded that he
(2) first-degree kidnapping, N.J. Stat. Ann.       “would not apply diminished capacity at
§ 2C:13-1(b)(1) and(2); and (3) felony             that point because I would think [Affinito]
murder, N.J. Stat. Ann. § 2C:11-3(a)(3).           formulated intent.” Ferretti reiterated this
He stood trial in the New Jersey Superior          position on redirect, though with the
Court in September 1988.                           qualifying assumption that the additional
                                                   facts were true.
       At trial, Russell used Ferretti’s
testimony to present diminished capacity                  In its case in rebuttal, the State
and intoxication defenses. Ferretti opined         called Dr. Irwin N. Perr as a psychological
during direct examination that Affinito:           expert. After reviewing medical records
(1) was intoxicated the night of the               a n d interviewing Affinito f o r
murder; (2) had a personality disorder of          approximately three hours, Perr concluded
the “epileptoid variety” which caused him          that Affinito was not an epileptic per se
to have “difficulty with impulse control”;         and did not suffer from any type of brain
and (3) had suffered permanent brain               damage or cognitive disorder.
tissue injury brought about by epilepsy
                                                          A jury convicted Affinito on all
and past alcohol abuse, making him more
                                                   counts. The purposeful or knowing
                                                   murder conviction was merged with the
                                                   felony murder conviction, for which
paid Portnow for his services.

                                               4
Affinito received a sentence of life                       In early 1996 the Superior Court
imprisonment with parole ineligibility             denied Affinito’s request for relief,
lasting thirty years. (He received a               concluding that he failed to sustain his
consecutive sentence of twenty-five years          burden of proving ineffective assistance of
for the first degree kidnapping                    counsel. Significantly, the Court found
conviction.)                                       Russell’s choice of Ferretti was strategic
                                                   and that Affinito failed to prove whether
        In 1989 Affinito appealed his
                                                   Portnow was available at the time of the
convictions and sentences. In his brief to
                                                   trial and prepared to testify. The Court
the Appellate Division of the New Jersey
                                                   also found that Affinito failed to
Superior Court, Affinito alleged the trial
                                                   demonstrate Portnow’s testimony would
court committed several errors, including
                                                   have differed from Ferretti’s had Portnow
an improper jury charge regarding
                                                   been called as Affinito’s expert.
diminished capacity (erroneously placing
on Affinito the burden of proving lack of                 Affinito appealed once more to the
intent in establishing diminished capacity).       Appellate Division of the Superior Court,
In February 1991 the Appellate Division            which affirmed for the same reasons.
affirmed Affinito’s convictions and                Later that year, the New Jersey Supreme
sentences. Later that year, the Supreme            Court, as it had done in the direct appeal
Court of New Jersey denied Affinito’s              of Affinito’s convictions, denied his
petition for certification.                        request for certification.
        Nearly three years later Affinito                  Affinito then filed a petition
filed in the Superior Court a petition for         seeking a writ of habeas corpus in the
post-conviction relief under New Jersey’s          United States District Court for the
Post-Conviction Relief Act (“PCRA”),               District of New Jersey. He argued that his
N.J. Stat. Ann § 2A:67-16. In the petition         Sixth Amendment right to effective
he alleged his trial counsel was ineffective       assistance of counsel was violated for the
by not presenting a viable diminished              same reasons he asserted in the New
capacity defense. Specifically, Affinito           Jersey courts. As noted, the District Court
argued Russell failed to prepare Ferretti          denied Affinito’s petition. We granted a
properly. At the PCRA hearing, Affinito            certificate of appealability on the issue of
offered the testimony of a criminal lawyer         whether Russell provided ineffective
as an expert. That expert opined that              assistance of counsel.5
Russell was ineffective because he failed
                                                              II. Standard of Review
to provide, inter alia, Ferretti with a copy
of Affinito’s statements to the police, did               We exercise plenary review over
not require Ferretti to consult with
Portnow and called Ferretti as an expert
instead of the (presumably) more prepared                 5
                                                           We have jurisdiction under 28
Portnow.                                           U.S.C. §§ 1291 and 2253(a).

                                               5
the District Court’s decision denying               indistinguishable facts.” Williams, 529
Affinito’s habeas petition. Stevens v.              U.S. at 413; see also Werts, 228 F.3d 196.
Del. Corr. Ctr., 295 F.3d 361, 368 (3d Cir.         Further, “it is not sufficient for the
2002). Overlaying our review standard,              petitioner to show merely that his
however, is the Antiterrorism and                   interpretation of Supreme Court precedent
Effective Death Penalty Act of 1996                 is more plausible than the state court’s;
(“AEDPA”). For matters of fact, a federal           rather, the petitioner must demonstrate that
court reviewing a habeas petition must              Supreme Court precedent requires the
“presume that the . . . findings of both            contrary outcome.” Werts, 228 F.3d at 197
state trial and appellate courts are correct,       (quoting Matteo, 171 F.3d at 888).
a presumption that can only be overcome
                                                             “If we determine that the state court
on the basis of clear and convincing
                                                    decision is not ‘contrary to’ the applicable
evidence to the contrary.” Id. (citing 28
                                                    Supreme Court precedent, then we are
U.S.C. § 2254(e)(1)); see also Williams v.
                                                    required to advance to the second step in
Taylor, 529 U.S. 362, 402-13 (2000).
                                                    the analysis — whether the state court
       As for legal conclusions, Williams           decision was based on an ‘unreasonable
instructs that a federal court may only             application of’ Supreme Court precedent.”
grant habeas relief if the state adjudication       Id. (citing Matteo, 171 F.3d at 888). Here,
“resulted in a decision that was contrary           “a federal habeas court [may] grant the
to, or involved an unreasonable                     writ if the state court identifies the correct
application of, clearly established Federal         governing legal principle from [the
Law, as determined by the Supreme Court             Supreme] Court’s decision but
of the United States.” Williams, 529 U.S.           unreasonably applies that principle to the
at 402-03 (quoting 28 U.S.C. §                      facts of the prisoner’s case.” Williams,
2254(d)(2)); see also Werts v. Vaughn,              529 U.S. at 413. In this inquiry, “we are
228 F.3d 178, 196 (3d Cir. 2000). Under             not authorized to grant habeas corpus
AEDPA, “we must first identify the                  relief simply because we disagree with the
applicable Supreme Court precedent and              state court’s decision or because we would
determine whether it resolves the                   have reached a different result if left to our
petitioner’s claim.” Werts, 228 F.3d at 197         own devices.” Werts, 228 F.3d at 197
(citing Matteo v. Superintendent, SCI               (citing Matteo, 171 F.3d at 889); see also
Albion, 171 F.3d 877, 888 (3d Cir. 1999)).          Williams 529 U.S. at 411. Rather, the state
A decision is “contrary to” clearly                 court’s application of Supreme Court
established federal law “if the state court         precedent must have been “objectively
arrives at a conclusion opposite to that            unreasonable.” Werts, 228 F.3d at 197
reached by [the Supreme] Court on a                 (citations omitted). In other words, a
question of law or if the state court               “federal habeas court should not grant the
decides a case differently than [the                petition unless the state court decision,
Supreme] Court has on a set of materially           evaluated objectively and on the merits,


                                                6
resulted in an outcome that cannot                    standard is met if counsel’s performance
reasonably be justified under existing                “fell below an objective standard of
Supreme Court precedent.” Id.                         reasonableness.” Id. at 688. Judicial
                                                      scrutiny in this regard, however, is highly
III. Affinito’s Ineffective Assistance of
                                                      deferential. Id. at 689.
             Counsel Claim
                                                             It is all too tempting for a
        Affinito alleges a violation of his
                                                             defendant to second-guess
Sixth Amendment right to effective
                                                             counsel’s assistance after
assistance of counsel. Although a number
                                                             convic tion or advers e
of issues are raised, Affinito essentially
                                                             sentence, and it is all too
argues that Russell provided ineffective
                                                             easy for a court, examining
assistance because he decided to use
                                                             counsel’s defense after it
Ferretti as the defense expert witness
                                                             has proved unsuccessful, to
rather than Portnow and failed to provide
                                                             conclude that a particular
Ferretti with all relevant discovery
                                                             act or omission of counsel
documents. We conclude that Russell’s
                                                             was unreasonable. A fair
performance was deficient. Nonetheless,
                                                             assessment of attorney
this does not require a contrary outcome,
                                                             performance requires that
even in the face of an erroneous jury
                                                             every effort be made to
instruction relating to diminished capacity.
                                                             eliminate the distorting
 A. Ineffective Assistance of Counsel                        effects of hindsight, to
Standard                                                     reconstruct            the
                                                             circumstances of counsel’s
       The Sixth Amendment right to
                                                             challenged conduct, and to
effective assistance of counsel is not
                                                             evaluate the conduct from
intended “to improve the quality of legal
                                                             counsel’s perspective at the
representation, although that is a goal of
                                                             time.
considerable importance to the legal
system. The purpose is simply to ensure               Id. (internal citation omitted). Therefore,
that criminal defendants receive a fair               a court “must indulge a strong
trial.” Strickland v. Washington, 466 U.S.            presumption that counsel’s conduct falls
668, 689 (1984). In Strickland, the                   within the wide range of reasonable
Supreme Court established a two-prong                 professional assistance.” Id.
test to determine when a defense counsel’s
                                                            The second Strickland prong is
representation was so inadequate as to
                                                      reached only when the first exists. If so, a
warrant reversal of a conviction.
                                                      defendant must demonstrate a “reasonable
         A defendant first must establish his         probability that, but for counsel’s
c o u n s e l ’ s r e p r e se n t at io n wa s       unprofessional errors, the result of the
constitutionally deficient. Id. at 687. This          proceeding would have been different.”


                                                  7
Id. at 694. In adopting this standard, the                 At the outset, we are unpersuaded
Strickland Court determined that a                  that Ferretti was inherently unqualified as
defendant must show more than “that the             an expert witness or that hiring him was
errors had some conceivable effect on the           unreasonable. Strickland provides that
outcome of the proceeding.” Id. at 693.             counsel has wide latitude in making
While a defendant need not show the error           strategic and tactical decisions. 466 U.S.
“more likely than not altered the outcome           at 669. Determining which psychiatric
in the case,” id. at 693, it nonetheless must       expert to consult is such a decision, be it
be “sufficient to undermine confidence in           strategic or tactical.6 See United States v.
the outcome.” Id. at 694.                           Kirsh, 54 F.3d 1062, 1072 (2d Cir. 1995).
B. Application       of   the    Strickland                 In order to circumvent the
Standard                                            teachings of Strickland, Affinito attempts
                                                    to paint Ferretti as incompetent by
       Affinito argues the District Court
                                                    isolating a single statement from his direct
erred in concluding that the New Jersey
                                                    testimony. Answering a question on
Courts reasonably applied Strickland. As
                                                    Affinito’s mental capacity, Ferretti stated
stated previously, each individual
                                                    that Affinito “was not acting with mature
argument derives from Russell’s decision
                                                    decision-making capacity and good
to use Ferretti as an expert witness and
                                                    judgment, [and] therefore had diminished
failure to provide him with all relevant
                                                    capacity.”        Affinito claims this
discovery documents. First, Affinito
                                                    demonstrates Ferretti lacked an
alleges Ferretti was not qualified to testify
                                                    understanding of the legal definition of
in support of a diminished capacity
                                                    diminished capacity — a mental disease or
defense and that Portnow’s prior
                                                    defect that negates the relevant state of
evaluation should not have been ignored.
Affinito also claims it was unreasonable to
have Ferretti testify when he had spent                    6
                                                              Affinito argues that, because
only fifty-five minutes interviewing                Portnow refused to testify until he was
Affinito, reviewed “no documents,”                  paid, the decision to retain Ferretti was a
including Affinito’s “medical and mental            financial, not strategic, one. Regardless
health history,” and supported his                  whether financial considerations played
testimony with the unknown diagnosis of             some part in Russell’s decision, his choice
“vulnerable brain.” Finally, Affinito               remained a strategic one. (Affinito uses
contends that Russell’s failure to provide          “strategic” throughout his briefing, though
Ferretti with Affinito’s statements to              one could argue that the decision to use
police fell below any objective standard of         Ferretti, as opposed to Portnow, was a
reasonableness.                                     tactical means of carrying out the strategy
1) Was the Performance of Affinito’s                of rebutting the prosecution’s case. In this
Counsel Constitutionally Deficient?                 context, we use the words
                                                    interchangeably.)

                                                8
mind required for an offense (here intent).        Affinito’s claim of no review is incorrect.
See N.J. Stat. Ann. § 2C:4-2; State v.             Ferretti admitted that he had no written
Galloway, 628 A.2d 735, 743 (N.J. 1993).           background information at the time of his
                                                   examination. He testified, however, that
        But in answering the very next
                                                   he reviewed “background material later
question, Ferretti stated that — in light of
                                                   on, and that involves virtually every aspect
Affinito’s medical history, his intoxication
                                                   of [Affinito’s] life, medical history, work
at the time of the crime and the stress of a
                                                   history, legal history and family history.”
fight — Affinito lacked the capacity “to
                                                   This background material, Ferretti opined,
knowingly and by design perpetrate a
                                                   supported his independent conclusions.
murder.” This demonstrates Ferretti did
understand the diminished capacity                        Further, selecting Ferretti to testify
defense. In fact, Ferretti’s uncontroverted        was a reasonable tactical decision because
testimony establishes him as an expert             his and Portnow’s evaluations, while not
qualified in the field of psychiatry who has       identical, are similar. Both noted Affinito
testified in “several hundred” court cases.        had seizures in the past and a personality
In this context, retaining him was                 disorder that lowered his impulse control.
reasonable.                                        Both stated Affinito was an alcoholic and
                                                   long-time abuser of various drugs. Both
        In addition, Ferretti’s examination
                                                   based their conclusions on the fact that, on
of Affinito was sufficient based on the
                                                   the night of the murder, Affinito was
record before us. One complaint of
                                                   suffering from a convulsive disorder, was
Affinito’s is that Ferretti interviewed him
                                                   highly intoxicated and was attempting to
for only fifty-five minutes. While Ferretti
                                                   thwart a perceived homosexual advance
may have interviewed Affinito for a
                                                   from Cupsie. In addition, Ferretti’s use of
shorter period of time than either Portnow
                                                   the phrase “vulnerable brain” is not that
or the State’s psychiatric expert, Affinito
                                                   dissimilar from Portnow’s report
does not state why, or even if, a fifty-five
                                                   describing Affinito as a “congenitally
minute interview is insufficient or contrary
                                                   damaged individual” and a “central
to professional standards. And as just
                                                   nervous system damaged individual.” One
stated, Ferretti’s uncontroverted testimony
                                                   could take issue with Ferretti’s choice of
establishes him as a psychiatric expert.
                                                   words, but this does not demonstrate that
While a short interview suggests the
                                                   Russell’s reliance on Ferretti’s expert
possibility of a less than thorough
                                                   opinion was unreasonable.
evaluation and an unprepared expert
witness, Affinito fails to make a                         We conclude, however, that
persuasive case that, even at this low             Russell’s failure to provide Ferretti with
threshold, his counsel was ineffective.            Affinito’s statements to the police fell
                                                   below any constitutionally required
     As for whether Ferretti reviewed
                                                   standard of reasonable representation.
any medical or personal documents,
                                                   Affinito’s statement to the police differed

                                               9
in several respects from the version of the         mental health expert should be familiar. It
incident told to Ferretti. Specifically,            is almost inconceivable that Ferretti could
Affinito failed to mention the second               take the witness stand without knowing
strangling at the junkyard. On cross-               Affinito engaged in a second struggle with
examination, Ferretti was asked a series of         Cupsie at the junkyard and strangled him
hypothetical questions to determine if his          again. This was not a trial tactic, it was
diagnosis of diminished capacity would              gross incompetence. Even assuming the
change, including the following:                    decision not to provide Ferretti these
                                                    statements was deliberate, it satisfies the
       [I]f Affinito further threw
                                                    first prong of Strickland. See United
       [the victim] in the trunk,
                                                    States v. Tucker, 716 F.2d 576, 586 (8th
       drove him several blocks
                                                    Cir. 1983) (stating that some “defense
       away from that location in a
                                                    strategies may be so ill-chosen that they
       deserted area, opened the
                                                    m a y r e n d e r c o u n s e l ’ s o v e r al l
       trunk and [the victim] was
                                                    representation constitutionally deficient”).7
       still alive and tried to get
                                                    Any intimation to the contrary by the New
       out of the trunk and Affinito
                                                    Jersey Courts is an unreasonable
       beat him and strangled him
                                                    application of Strickland.
       and killed him at that spot,
       how about those factors?                     2) Did Affinito Suffer Prejudice Because
                                                    of His Counsel’s Error?
Unbeknownst to Ferretti, this hypothetical
mirrored the actual facts of the case.                     Having concluded that Russell’s
Ferretti replied that, under those facts, he        failure to provide Affinito’s statements to
“would not apply diminished capacity at             Ferretti was constitutionally deficient, we
that point because I would think he                 examine whether this error satisfies the
formulated intent.”                                 second, or prejudice, prong of Strickland.
                                                    To constitute prejudice, Russell’s error
       When the key issue in a criminal
                                                    must undermine our confidence in the
case is whether the defendant suffered
                                                    outcome of the case. Strickland, 466 U.S.
from diminished capacity, we can think of
                                                    at 694. Admittedly, this error (leading to
nothing more critical than ensuring that
                                                    Ferretti’s reversal of opinion on cross-
the defense’s psychiatric expert has as
                                                    examination) de facto prevented Affinito
complete and accurate a description of the
facts and circumstances surrounding the
crime as possible. The decision not to
                                                           7
avail Ferretti of Affinito’s statements                       All of this, of course, begs the
defies logic.       A defendant’s own               question of why Russell did not simply tell
statements to the police have to be some of         Ferretti all the pertinent facts surrounding
the most, if at times not the most, crucial         Cupsie’s murder. This alone underscores
documents with which an evaluating                  Russell’s lack of adequate assistance to
                                                    Affinito.

                                               10
from presenting any diminished capacity                   Portnow’s written report contained
defense.                                           many omissions and inconsistencies when
                                                   compared to Perez’s eyewitness testimony.
        In the New Jersey Courts and
                                                   In Portnow’s report, Affinito is quoted as
before us, Affinito points to Portnow’s
                                                   stating that Perez took out a pipe, put
evaluation, made with full knowledge of
                                                   white powder into it, and smoked it. But
the facts of the case, as strong evidence
                                                   Perez testified Affinito had pulled out a
supporting his diminished capacity defense
                                                   pipe and pretended to fill it with
and undermining his conviction.          In
                                                   marijuana. Affinito is also quoted as
response, the Appellate Division of the
                                                   saying that Cupsie started “to climb out of
Superior Court concluded on PCRA appeal
                                                   his seat to get in the back with me.” Once
that, had Portnow been called to testify,
                                                   again, Perez testified that Affinito was
“his conclusion would have been subject
                                                   unprovoked and grabbed Cupsie unaware
to a similarly damaging cross-examination
                                                   from behind. Portnow’s report also fails to
as was” Ferretti’s. Therefore, Affinito had
                                                   address any of the specific facts that
not demonstrated “a reasonable likelihood
                                                   provide the context for Cupsie’s death —
that a different result would have been
                                                   such as Affinito’s expressed desire to take
reached.” Under AEDPA, it is not for us
                                                   the car, his talk of being able to render
to determine whether we agree with, or
                                                   Cupsie unconscious with a sleeper hold,
would rule identically to, the New Jersey
                                                   lulling Cupsie into a vulnerable position
Courts. Our only inquiry is whether their
                                                   with the ruse of smoking marijuna, the
application of Strickland was objectively
                                                   statement (when Cupsie was already
unreasonable. It was not, even assuming
                                                   bloody and unconscious) that Cupsie had
that Portnow would have testified with full
                                                   to be killed, the decision to dispose of the
knowledge of the facts and would not have
                                                   body in a junkyard, and the second
abandoned the diminished capacity
                                                   strangling upon discovering that Cupsie
defense as Ferretti did.8
                                                   was not, in fact, dead.
                                                              Unlike our dissenting colleague, we
       8
          We reject as unreasonable the            believe these omissions and
Appellate Division of the Superior Court’s         inconsistencies terminally undermine
conclusion on direct appeal that “it must          A f f i n ito’ s def ens e.       First, the
be assumed that Dr. Portnow’s opinion is
not based upon a complete recitation of
the facts.” Portnow’s written report states        have significantly discredited Portnow’s
that Affinito’s and Perez’s statements to          testimony), it is unreasonable nonetheless
the police were a source of information.           to assume Portnow had no knowledge of
While it is certainly ironic that Portnow’s        the information contained in these
report omitted mention of the effect of            statements, or that he would have
those statements (and, as noted below,             abandoned his diminished capacity
cross-examination on this point would              diagnosis as Ferretti did.

                                              11
inconsistencies noted in the preceding               the overwhelmingly one-sided nature of
paragraph involve physical actions (who              the evidence in this case and the failure of
did what), not Affinito’s alleged auditory           Portnow’s report to address this evidence
hallucinations (who said what). (Per                 adequately, Affinito has failed to meet his
Portnow’s report, Affinitio “denies visual           demanding burden to demonstrate that the
hallucinations and paranoid ideation.”)              PCRA Court unreasonably applied
Further, Portnow premised his opinion on             Strickland.
Cupsie initiating the altercation, writing in
                                                     C. Erroneous Jury Instruction
the “Conclusions” section of his report that
“Cupsie made a physical advance towards                      On direct appeal, the prosecution
Affinito which sparked off a seizure like            conceded that Affinito was erroneously
rage in Affinito.” But as just discussed,            required to prove diminished capacity by a
Perez testified that Cupsie made no                  preponderance of the evidence, violating
physical advances in the car and was the             his due process right to have the
victim of an unprovoked attack. Because              prosecution prove intent beyond a
Affinito admittedly was not suffering from           reasonable doubt. See Humanik v. Beyer,
visual hallucinations, the lynchpin of               871 F.2d 432, 443 (3d Cir. 1989).10 The
Portnow’s entire analysis is suspect. In             Superior Court found harmless error,
addition, Perez’s testimony is internally            largely based on Ferretti’s admission on
consistent, painting the story of a joyriding        cross-examination that the actual facts of
plan gone horribly wrong. Portnow’s                  the case were inconsistent with diminished
report makes little attempt to put the               capacity.    But this only covers one
events of the evening in context.                    cons titutional error (the incorrect
        Affinito had the opportunity to call
Portnow, or another psychological expert,            appropriate records . . . , it would have had
to testify at the PCRA hearing, but failed           a significant [e]ffect on the jury.” Yet the
to do so (for whatever reason). In this              preceding discussion demonstrates that
context, we will not speculate on the                Portnow’s report leaves much to be
outcome of th eoretical testimony,                   desired. As Affinito had the opportunity
especially when many of Affinito’s                   to put the opinion of a second expert in
arguments on appeal are based on the                 play, we decline to offer him a third bite at
supposed thoroughness and quality of                 the apple.       We are not, however,
Portnow’s evaluation and report. 9 Given             unsympathetic to Affinito’s position.
                                                     Were other psychological evidence
                                                     favorable to Affinito in the record, our
       9
         For example, Affinito argues in             conclusion might have been different.
his brief that “had counsel . . . called an
                                                            10
expert witness, like Dr. Portnow, who was                      As noted by the Superior Court,
capable and qualified to support the                 Affinito did not object to the jury
defense and who had been provided with               instruction at trial.

                                                12
instruction) with another (the failure to           (1946)).12 Overwhelming evidence that a
provide Ferretti with all the facts of the          defendant acted with intent may also
case). Indeed, our dissenting colleague             render an erroneous jury instruction
argues that “[h]ad a properly prepared              harmless. See id. at 118.
expert testified, Affinito would have
                                                              Based on the strong evidence in the
obtained a new trial based on the
                                                    record, and with scant evidence putting a
erroneous diminished capacity instructions
                                                    contrary outcome in play, we conclude that
that infected his first trial.”
                                                    the trial court’s erroneous instruction did
        This interrelating (some might say          not have a substantial and injurious effect
compounding) of errors, however, is                 on the jury’s verdict (even absent Ferretti
ultimately harmless.11 “Humanik does not            giving up Affinito’s diminished capacity
compel or even permit us to grant [a writ           defense). As detailed in the previous
of habeas corpus] without considering               section, the written report of Dr. Portnow
whether the error was harmful. A contrary           c o n t a in ed ma ny, a n d m a j o r,
holding would violate well-settled                  inconsistencies and omissions when
Supreme Cou rt precedent that ‘a                    compared to Perez’s uncontroverted
constitutional error does not automatically         eyewitness testimony.
require reversal of a conviction.’”
                                                          Further, the testimony of Dr. Perr,
Kontakis v. Beyer, 19 F.3d 110, 115 (3d
                                                    the State’s psychological expert, was
Cir. 1994) (quoting Arizona v. Fulminante,
                                                    comprehensive.13 Based upon extensive
499 U.S. 279, 306 (1991)). An error is
harmless unless it “had [a] substantial and
injurious effect or influence in determining               12
                                                              As we recognized in Kontakis,
the jury’s verdict.” Id. (quoting Kotteakos         the Supreme Court has ruled that in a
v. United States, 328 U.S. 750, 776                 habeas case, as opposed to a direct appeal,
                                                    federal courts should apply the Kotteakos
                                                    “substantial and injurious effect” test as
                                                    opposed to the Chapman v. California,
                                                    386 U.S. 18 (1967), “beyond a reasonable
       11
          Despite AEDPA, we conduct an              doubt” test used by the Superior Court.
independent harmless error analysis                 See Brecht v. Abrahamson, 507 U.S. 619,
because the Superior Court’s analysis was           637-38 (1993).
based on an improper consideration — i.e.,
                                                           13
Ferretti’s cross-examination testimony.                     While the record does not contain
See Cone v. Bell, No. 99-5279, 2004 U.S.            Dr. Perr’s written evaluation, his trial
App. LEXIS 3882 at *33-34, 359 F.3d                 testimony covers seventy-five pages in the
785 (6th Cir. Mar. 1, 2004) (concluding             record.    Contrary to our dissenting
the AEDPA standard of review did not                colleague’s assertion, we believe this
apply when no state court had considered            testimony covers broadly, and at times in
the particular issue to be decided).                depth, Affinito’s medical health history.

                                               13
testing and evaluation, Dr. Perr concluded                      IV. Conclusion
that Affinito was of normal intelligence,
                                                          Despite the two constitutional
had issues with impulse control, and had
                                                   errors before us, we nonetheless conclude
an anti-social personality. Perr concluded,
                                                   that the evidence of diminished capacity
however, that Affinito did not suffer from
                                                   was so threadbare, and the evidence of
brain damage of any kind or from any
                                                   knowing and purposeful intent to murder
disorder that prevented him from forming
                                                   so strong, that the jury’s guilty verdict was
the requisite intent to commit knowing or
                                                   not undermined. The errors — slipshod as
purposeful murder. In addition, Perr noted
                                                   they were and normally requiring a new
that Affinito was not an epileptic per se,
                                                   trial — in the circumstances of this unique
had suffered only one possible seizure in
                                                   case were harmless. Accordingly, we
the seven years prior to the murder, and
                                                   affirm the District Court’s denial of
was not more susceptible to the influence
                                                   Affinito’s petition for a writ of habeas
of drugs and/or alcohol as a result of his
                                                   corpus.
past seizures. Finally, this conclusion was
not in any way based upon the second
strangling.14
                                                   RENDELL, Circuit Judge - dissenting.
       In this context, the evidence of
                                                           As the majority notes, I disagree
Affinito’s diminished capacity is so
                                                   with its analysis of prejudice. In my view,
underwhelming and remote that, even with
                                                   but for the ineffectiveness of counsel,
Ferretti’s concession aside and a correct
                                                   there is a reasonable probability that the
jury instruction in place, we perceive no
                                                   outcome of Affinito’s trial would have
reasonable likelihood of it prevailing.
                                                   been different – namely, that Affinito
Thus we disagree with the dissent’s
                                                   would have been convicted of
conclusions that Affinito had a “seemingly
                                                   manslaughter, rather than murder.15 At the
ironclad” winning argument on direct
appeal and that there is a reasonable
probability Affinito would have been
                                                          15
convicted of a lesser included offense at a                  I note that diminished capacity
new trial.                                         would only be a defense to those crimes
                                                   where his mental disease or defect
                                                   effectively negated the required mental
                                                   state. N.J. Stat. Ann. § 2C:4-2 (2003).
                                                   Here, it would appear to be a defense to
       14
         The following exchange occurred           crimes requiring intent or knowledge, such
on redirect examination: “Q. So, for your          as murder and kidnapping, see id. §§
purposes you didn’t care if John Cupsie            2C:11-3, :13-1, but it would not shield
died at Liberty Street or at the junkyard?         Affinito from a conviction for some form
A. That’s correct, that’s irrelevant to my         of manslaughter where the requisite mens
evaluation of the person, that is correct.”        rea is recklessness, see id. § 2C:11-4.

                                              14
very least, our confidence in the outcome             why the woeful preparation of Ferretti,
is undermined by the combined errors that             leading to his abandonment of Affinito’s
plagued his trial – an expert who                     major theory of defense, was so very
abandoned Affinito, sealing his fate, and             damaging.
an erroneous jury instruction. As such,
                                                                Several aspects of the way in which
these errors were prejudicial, the state
                                                      the trial played out as a result of counsel’s
appellate court’s determination in
                                                      ineffectiveness compel the conclusion I
connection with the prejudice prong was
                                                      reach. First, an expert psychiatrist in
unreasonable, and habeas relief should
                                                      possession of all relevant documents had
have been granted.
                                                      previously rendered an opinion stating that
        When we assess “reasonable                    A f f i n i t o e x p e r i e n c ed a u d i t o ry
probability,” we are of necessity                     hallucinations, suffered from a major
hypothesizing, or speculating to a certain            psychotic disorder, and was congenitally
extent, about another likely outcome. We              damaged.         This raises the distinct
must imagine what alternative scenario                probability that a similar opinion was
might have played out if the claimed error            obtainable (with proper preparation) and
had not occurred. In a situation such as              should have been offered. Moreover,
this, the requisite mental state of intent and        Portnow’s opinion referred to previous
its relationship to any mental disease or             hospitalizations and diagnoses of “major
defect of the defendant is admittedly an              affective disorder” and “borderline
issue requiring expert testimony. The                 psychotic disorder.” This was quite unlike
question of intent was critical here, and I           the opinion of Dr. Perr, which the majority
cannot help but believe that the outcome              found to be comprehensive, as Perr
would have been different if Affinito’s               referenced no such mental health history
mental condition and history had been                 or previous diagnoses. In addition,
explained by an expert who had been                   counsel’s cross examination of Perr was
properly prepared, to a jury that had been            totally inept, concentrating only on
properly instructed.                                  sustained drug and alcohol use as the
                                                      possible root of Affinito’s problems.
       The majority’s contention that there
                                                      Absent the aid of a defense expert who
was compelling evidence from which
                                                      could provide an opinion supporting the
intent could be determined is faulty.
                                                      idea that Affinito suffered from
Certainly, there were Affinito’s actions –
                                                      diminished capacity, counsel was left with
gruesome, cruel actions, which were
                                                      no other basis for attacking Perr’s
described to the jury by Perez. But do
                                                      conclusions or challenging his testimony.
these actions alone necessarily speak to
Affinito’s state of mind at the time the                     The majority questions whether
crime took place? The difficulty here is              Portnow would have been effective on
that without an expert to explain                     cross examination because the version of
otherwise, they do. And that is precisely             events outlined in the body of his report,

                                                 15
where he describes the story as related to           the majority when asked about them at
him by Affinito, differed from the version           trial.
relayed by Perez in his testimony. But to
                                                             Further, the Superior Court
me, any such variations between the two
                                                     completely discounted the effect of
accounts – and especially Affinito’s
                                                     counsel’s obtaining another expert, such
recounting of hearing voices, with the
                                                     as Portnow, to testify. It incorrectly, and
“sexy” voices getting louder and louder, as
                                                     unreasonably, assumed that Portnow based
described in Portnow’s report – would not
                                                     his opinion on something other than a
cast doubt on the basis for Portnow’s
                                                     complete factual record.             Such a
opinion; rather, they would bolster the fact
                                                     determination is clearly unfounded, since
that, although he may not have been
                                                     Portnow’s report explicitly indicates that
experiencing visual hallucinations,
                                                     he considered all of the pertinent
Affinito perceived the events differently
                                                     material.16 Having reached that incorrect
from Perez. And, that was precisely the
                                                     conclusion, the state court unreasonably
point of Affinito’s diminished capacity
                                                     stopped short of considering how an
defense.
                                                     explanation of the relevant history and
         Moreover, we should not assume,             diagnoses by a qualified expert would
based on the fact that Portnow primarily             have impacted the trial. Such testimony,
recounts the incident as Affinito described          which I would by no means characterize
it, that Portnow did not also take Perez’s           as evidence that is underwhelming or
version of the events into account. We do            remote, would have provided a basis for
know from his report that Portnow –                  the jury to find that Affinito’s actions were
unlike Ferretti – did review Perez’s                 the product of his compromised mental
statement to the police. If he did, then the         functioning.
inconsistencies in Affinito’s tale would
                                                            The prejudice caused by the
not be problematic as far as Portnow’s
                                                     ineffectiveness of Affinito’s counsel was
opinion is concerned. Since he was
                                                     compounded by the trial court’s
already aware of the contents of Perez’s
                                                     instructions to the jury, which incorrectly
statement, Portnow would presumably
                                                     placed the burden of proof regarding
state on cross examination that, while he
                                                     mental state on Affinito. The trial court
referenced Affinito’s account in the body
of his report, he considered the facts
relayed by Perez as well when he formed
                                                            16
his opinion. Unless Perez’s trial testimony                   The majority concedes as much,
differed dramatically from the story he              yet curiously still defends as reasonable
told police initially, it is not a stretch to        the state court’s assumption that Portnow
assume that Portnow would have been                  would have been susceptible to the same
prepared to explain or reconcile any of the          damaging cross examination as Ferretti
perceived inconsistencies referenced by              based on his failure to explicitly reference
                                                     certain facts in the body of his report.

                                                16
expounded at length – for nearly seven               erroneous instructions by the trial court
pages of the trial transcript – on the law of        doomed Affinito, when he had presented
diminished capacity, repeatedly stating              no expert opinion to fulfill his purported
that it was the defendant’s burden to prove          “burden” of proving mental state. Thus,
that his mental disease or defect had                Ferretti’s testimony not only robbed
prevented him from forming the intent                Affinito of a defense, it also robbed him of
required by the murder and kidnaping                 a seemingly ironclad argument on direct
statutes. In other words, the trial court            appeal based on the improper allocation of
instructed the jury that the defendant had           the burden of proof on this very issue!
to disprove the mental state elements of
                                                               Had a properly prepared expert
the crimes charged. This instruction was
                                                     testified, Affinito would have obtained a
admittedly erroneous in light of our
                                                     new trial based on the erroneous
decision in Humanik, because it
                                                     diminished capacity instructions that
improperly relieved the prosecution of the
                                                     infected his first trial. And, had a proper
burden of proving an element of the crime,
                                                     jury instruction been given at his new trial,
as the Superior Court recognized.
                                                     requiring the Commonwealth to prove that
Additionally, with Ferretti’s collapse and
                                                     Affinito’s crime was not the result of a
no expert testimony supporting a
                                                     mental disease or defect, there is a
diminished capacity defense, the defense
                                                     reasonable probability that, given
had offered no proof whatsoever with
                                                     Portnow’s diagnosis of his mental
regard to mental state.
                                                     disorder, the jury would have convicted
        Here, again, the Superior Court              Affinito of a lesser included offense.
failed to comprehend the significance of             Thus, the error here was not clearly
the combined effect of these two errors.             harmless, as the majority concludes. Since
On direct appeal, the court determined that          the state court’s analysis and
the jury instruction error was harmless.             d e t e r m i n a t i o n r e g a r d in g t h e
The court based this conclusion on its               ineffectiveness of Affinito’s counsel was
observation that Ferretti’s testimony,               an unreasonable application of Strickland,
offered by the defense, had proven that              I submit that the writ should issue
Affinito had formed intent, presumably               affording Affinito a new trial.
meeting the Commonwealth’s burden.
Then, during the state post-conviction
proceedings, the Superior Court
unreasonably determined that any
ineffectiveness on the part of Affinito’s
trial counsel had not caused Affinito
prejudice, without considering how the
proceedings on direct appeal were
impacted by counsel’s incompetence. The
court failed to realize that the prolonged
                                                17
