                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 15-3891
                                     _____________

                                    GUY SILEO, JR.,
                                            Appellant

                                             v.

    SUPERINTENDENT SOMERSET SCI; THE DISTRICT ATTORNEY OF THE
   COUNTY OF MONTGOMERY; THE ATTORNEY GENERAL OF THE STATE
                       OF PENNSYLVANIA
                         _____________

               APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                        (D.C. Civ. Action No. 2-12-cv-03803)
                      District Judge: Honorable Joel H. Slomsky

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 4, 2016
                                  ______________

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

                              (Opinion Filed: July 26, 2017)

                                     ______________

                                        OPINION *
                                     ______________



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

       In this ineffective assistance of counsel case, Guy Sileo, Jr., Appellant, appeals

from the denial of his Petition for a Writ of Habeas Corpus. For the reasons set forth

below, we affirm the judgment of the District Court.

                                   I.   BACKGROUND

       On December 26, 1996, Jim Webb was murdered on the third floor of the General

Wayne Inn (“Inn”) in Lower Merion, Pennsylvania between 7:00 PM and 12:00 AM. On

August 1, 2001, a jury found Appellant guilty of Webb’s murder in the first degree and of

possessing an instrument of a crime.

       Since that time, Appellant has challenged his sentence in three ways. First, with a

counsel different from the one who represented him at trial, he filed a direct appeal that

raised eighteen arguments. The state courts rejected each of these arguments. None of

these arguments are before us.

       Second, after having failed on his direct appeal, Appellant filed a timely Post

Conviction Relief Act (“PCRA”) petition. In that petition, Appellant sought relief on six

grounds. The state courts found these grounds unpersuasive. One of these arguments is

before us.

       Third, after he exhausted his state remedies, Appellant filed the instant Petition for

a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The District Court referred the

case to a magistrate judge, who recommended that the District Court deny the Petition.

The District Court adopted the recommendation. Appellant sought a Certificate of
                                              2
Appealability and we granted the request to one question: “[W]hether appellant was

prejudiced by the absence of [an alibi] instruction in light of the prosecutor’s arguments

at closing . . . .” App. 46. To that question, we now turn.

                                   II.   JURISDICTION

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

                            III.   STANDARD OF REVIEW

       The parties do not agree on the proper standard of review. They agree that

Appellant raised this issue in front of the state courts in his PCRA petition and that the

Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”) applies and

denies relief sought on the merits unless the state court decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding[s],” 28 U.S.C. § 2254(d)(2).

       The parties disagree about whether the second exemption applies. 1 For the

purposes of this appeal, we need not resolve this debate because, even under the less

deferential de novo test, Appellant’s argument fails.



       1
         Appellant concedes that the first exception to AEDPA, § 2254(d)(1), does not
apply because he did not raise it on appeal and because appellants generally waive issues
that they do not reference in their opening briefs. See, e.g., FDIC v. Deglau, 207 F.3d
                                              3
                                     IV.    ANALYSIS

       To claim the denial of effective counsel, as guaranteed by the Sixth Amendment,

Appellant must prove that the “representation fell below an objective standard of

reasonableness and that the deficient performance prejudiced the defense.” McAleese v.

Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993). To prove prejudice, Appellant must show

“a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694

(1984). To meet this threshold, “The likelihood of a different result must be substantial,

not just conceivable,” Harrington v. Richter, 562 U.S. 86, 112 (2011), and, “In making

this determination, a court hearing an ineffectiveness claim must consider the totality of

the evidence before the judge or jury.” Strickland, 466 U.S. at 695. Finally, “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice .

. . that course should be followed.” Id. at 697. Pursuant to the Supreme Court’s

instruction, we decide Appellant’s claim on the test’s second prong.

       Appellant argues that his trial counsel ineffectively represented him because the

trial counsel presented an alibi defense but failed to request an alibi instruction and

because the Commonwealth exploited this error by shifting the burden of proof onto

Appellant.




153, 169 (3d Cir. 2000) (stating that if appellants “did not raise this issue in their opening
brief on appeal[,] [t]hey have therefore waived it, and we will not address it”).

                                              4
       This argument fails. Under Pennsylvania law, “[A] trial court, faced with alibi

evidence, should instruct a jury generally that it should acquit if [defendant’s] alibi

evidence, even if not wholly believed, raise[s] a reasonable doubt of his presence at the

scene of the crime at the time of its commission and, thus, of his guilt.” Commonwealth

v. Hawkins, 894 A.2d 716, 717–18 (Pa. 2006) (alterations in original) (footnote omitted)

(internal quotation marks omitted). Pennsylvania’s highest court requires this alibi

instruction because “infer[ing] guilt based upon a failure to establish an alibi contravenes

the presumption of innocence and the Commonwealth’s burden of proving the offense

beyond a reasonable doubt.” Id. at 718 (internal quotation marks omitted).

       Appellees argue that Appellant failed to present an alibi defense and, as a result,

that the obligation to provide an alibi instruction never arose. As Appellees concede,

however, Pennsylvania’s intermediate court of review held that Appellant had provided

sufficient evidence to raise an alibi defense at trial. We need not resolve this dispute

because Appellant’s claim fails even if his trial counsel did present an alibi defense.

       Appellant has not provided any evidence that the missing alibi instruction played a

conceivable—let alone a substantial—role in the jury’s decision and that adding a proper

alibi instruction would have affected the outcome in any way. We have previously

rejected similarly unsubstantiated pleas for relief. Palmer v. Hendricks, 592 F.3d 386,

394 (3d Cir. 2010) (rejecting an ineffective assistance of counsel claim because “[w]hat is

not fleshed out in the petition, however, is a factual basis suggesting that [Petitioner] was

prejudiced by his attorney’s alleged conduct” (second emphasis added)); Thomas v.
                                              5
Horn, 570 F.3d 105, 122 (3d Cir. 2009), as corrected (July 15, 2009) (finding that

defendant had not proven prejudice because “[Petitioner] has provided not a shred of

evidence suggesting any probability that, had his trial counsel life-qualified every juror, at

least one juror would have voted to sentence [Petitioner] to life imprisonment” (emphasis

added)); Fahy v. Horn, 516 F.3d 169, 198 (3d Cir. 2008) (“agree[ing] with the District

Court that [Petitioner] has not presented evidence of a reasonable probability that, despite

the strength of the other evidence . . . , the exclusion of the confession would have altered

the results of the trial” (emphasis added)).

       Indeed, contrary to Appellant’s argument, the available evidence suggests that the

jury may have dismissed the alibi defense altogether; hence, the absence of an alibi

instruction. The strength of the alibi defense rested largely on the jury’s perception of

Appellant’s credibility. The jury could have reasonably questioned Appellant’s

credibility because Appellant had been convicted of perjury when he lied about owning a

gun that was implicated in Webb’s murder. Because Appellant had already committed

perjury, the jury may have ignored the alibi defense entirely.

       Even if the absence of an alibi instruction did have a conceivable impact on the

jury’s decision, this impact did not make the likelihood of a different result substantial

because the Commonwealth presented overwhelming evidence of Appellant’s guilt.

       In the District Court, the Magistrate Judge detailed the evidence presented at trial

and reviewed each aspect that supported the jury’s verdict, and concluded that “[t]he

verdict here was not ‘weakly supported by the record.’” Sileo v. Rozum, 2014 WL
                                               6
10741099 at *20 (E.D. Pa. Sept. 22, 2014) (quoting Rolan v. Vaughn, 445 F.3d 371, 681

(3d Cir. 2006), adopted by Sileo v. Rozum, 2015 WL 7444820 (E.D. Pa. Nov. 24, 2015)).

“Rather, the jury was presented with a substantial quantum of evidence of Petitioner’s

guilt from a variety of sources.” Id. The District Court adopted the Magistrate Judge’s

Report and Recommendation. Although the District Court noted a few factual

discrepancies in the Magistrate Judge’s Report, it agreed with the Magistrate Judge’s

views of the record’s clear support for the verdict. We agree with the Magistrate and

District Court Judges. Assuming a de novo standard, we now review this evidence, albeit

in a summary fashion.

       First, the Commonwealth presented evidence of Appellant’s financial motivations

for murdering Webb. Webb and Appellant purchased the Inn together as business

partners in 1995 for $1,286,000. To finance the purchase, they borrowed over a million

dollars and received a $100,000 payment from Appellant’s father. Webb bought a

$650,000 life insurance plan and made the partnership’s creditors the highest priority

beneficiaries. In 1996, Webb and Appellant opened the Inn. The Inn showed early signs

of insolvency and Appellant asked Webb to sign a document that characterized the

father’s payment as a loan, rather than as a gift. Webb refused to sign the document.

After Webb’s death and as the partnership’s surviving partner, Appellant signed the

document himself and turned the father into a creditor. As one of the partnership’s

creditors, the father could then claim a portion of Webb’s life insurance plan. After

Webb’s death, the Inn received a large infusion of cash from Webb’s life insurance plan
                                             7
and approximately $215,000 remained from the plan to satisfy other business debts, like

the one purportedly owed to Appellant’s father. These financial windfalls, precipitated

by Webb’s death, constituted financial motivations for murdering Webb, according to the

Commonwealth.

       Second, the Commonwealth proffered evidence of Appellant’s personal

motivation for killing Webb. By the time of Webb’s death, his relationship with

Appellant had deteriorated and had become hostile. Webb’s sister testified that Webb

told Appellant that he would not pay Appellant because he neglected his professional

duties, drank excessively, and engaged in an extramarital affair. Webb’s wife testified

that Webb and Appellant “were not getting along” and the two physically fought in the

Inn. App. 9. This animosity could have motivated Appellant to kill Webb, the

Commonwealth argued.

       Third, the Commonwealth provided evidence that Appellant had planned Webb’s

murder. A bartender at a bar frequented by Appellant testified that Appellant asked him,

weeks before the murder, “[D]o you know of countries that we don’t have any extradition

treaties with, like if you wanted to—where—somewhere you could hide-out if you

wanted to kill somebody[?]” App. 13. Similarly, the Inn’s pastry chef swore during the

trial that Appellant told her two to three weeks before the murder, “I really feel like I

need to shoot someone.” App. 29. The Commonwealth presented this testimony as

evidence of Appellant’s plan to murder Webb.


                                              8
       Fourth, the Commonwealth offered evidence that Appellant determined, despite

ambiguous evidence, that a murder had occurred before a police investigation and a

trained nurse had seen the same evidence and had assumed that the victim had had an

accident. Appellant discovered Webb’s body on the third floor of the Inn when he

arrived at work on the day after the murder. Appellant told the Inn’s pastry chef, a

registered nurse, that Webb had died and that they should call the police. The pastry chef

ran upstairs, found Webb’s body, and called the police. On the phone with the 911

operator, the pastry chef reported that Webb had “fallen and hit his head.” Transcript of

Notes of Testimony at 84, Sileo v. Rozum, No. CV 12-3803, 2015 WL 7444820 (E.D. Pa.

Nov. 24, 2015), ECF. No. 29. At trial, the pastry chef explained that she had concluded

that Webb had merely fallen because “he did not have a visible wound but had blood

coming out of his nose and mouth” and because “[h]is head was very close to the desk.”

Id. When police officers arrived and saw Webb’s body, they came to a similar

conclusion because they noticed a large bulge on Webb’s forehead and did not see a

weapon.

       Despite the absence of a weapon, the large bulge on Webb’s forehead, and the

short distance between Webb’s body and the table, Appellant told one of the officers that

someone had killed Webb and later informed Webb’s wife that “Jim’s been shot.” App.

11. An innocent man would likely not have known about the murder’s existence when a

trained nurse and law enforcement officers had failed to discern the actual cause of

Webb’s death. Appellant’s knowledge, the Commonwealth argued, proved his guilt.
                                             9
       Fifth, the Commonwealth submitted evidence that Appellant spread

misinformation about the murder’s investigation. When local police officers arrived at

the crime scene, they found expensive wine in the bar, thousands of dollars in the Inn’s

safe, over five hundred dollars in Webb’s pocket, and a gold chain around his neck. Yet,

Appellant told an officer and later friends that it must have been a robbery because wine

was missing.

       Similarly, Appellant shared erroneous information with the officers investigating

the murder by denying that he possessed a weapon that could have fired the murder

bullet. Appellant told investigators and a grand jury that he only owned one .25-caliber

pistol. A wiretap, however, recorded Appellant admitting that he owned another .25-

caliber pistol, and Appellant was convicted of perjury. During trial, the Commonwealth

presented expert testimony that there was a high probability that the murder bullet and

some bullets in Appellant’s recovered .25-caliber, Phoenix pistol had come from the

same box of bullets and that a weapon, other than Appellant’s recovered .25-caliber

pistol, had left imprints in Appellant’s holster and may have fired the murder bullet. 2 The

Commonwealth presented Appellant’s spread of misinformation and possession of the

possible murder weapon as evidence of Appellant’s guilt.

       In response to this evidence, Appellant denied his guilt and recounted his story of

purported innocence. He claimed that he and the staff closed the kitchen at 8:30 PM and

       2
         In a Post-Trial Hearing, Appellant confirmed this physical evidence by admitting
that his hidden .25-caliber pistol had fired the murder bullet but attempted to deny guilt
by claiming that his former and now deceased girlfriend had pulled the trigger.
                                            10
the rest of the restaurant at 9:30 PM. After everyone but Webb, Appellant’s former

girlfriend, and Appellant had left, the former girlfriend and Appellant asked Webb if he

would like to join them at a local bar. Webb denied the invitation. Appellant drove the

former girlfriend to her car in a nearby parking lot. The former girlfriend turned on her

car but the car stalled. Appellant and the former girlfriend restarted the car and parted

ways at approximately 10:00 PM. The former girlfriend drove to a friend’s house.

Appellant drove approximately eighteen minutes to a local bar and testified that he

arrived at about 10:20 PM. During the cross-examination, Appellant stated that no one

could confirm where he was after the former girlfriend 3 left the parking lot and before he

arrived at the bar. Appellant stayed at the local bar until around 11:00 PM. A detective

testified that Appellant had told a similar story when interviewed on the day after the

murder. Under Appellant’s timeline, he spent no time alone at the crime scene.

       The Commonwealth refuted Appellant’s timeline by presenting evidence to

question Appellant’s representations of when the former girlfriend and Appellant left the

parking lot. The Commonwealth undermined Appellant’s testimony about when the

former girlfriend departed by examining the former girlfriend’s friend, whom the former

girlfriend had visited on the night of the murder. According to the friend, the former

girlfriend must have left the parking lot at sometime between 9:45 PM and 10:00 PM

because she had arrived at the friend’s house sometime between 10:00 PM and 10:15 PM



       3
           The former girlfriend passed away before trial.
                                              11
and because it took approximately fifteen minutes to drive from the Inn to the friend’s

house.

         The Commonwealth challenged Appellant’s testimony about when he left the

parking lot by examining a bartender employed by the local bar. According to the

bartender, Appellant must have left the parking lot sometime between 10:12 PM and

10:27 PM because Appellant arrived at the bar between 10:30 PM and 10:45 PM and

because it takes approximately eighteen minutes to drive from the Inn to the local bar.

During cross-examination, Appellant’s lawyer asked the bartender how he remembered

this time and the bartender testified that he looked at the clock when Appellant arrived

because “it was a slow night.” Transcript of Notes of Testimony at 27, Sileo v. Rozum,

No. CV 12-3803, 2015 WL 7444820 (E.D. Pa. Nov. 24, 2015), ECF. No. 36. Under the

Commonwealth’s timeline, Appellant spent between twelve and forty-two minutes alone

at the crime scene. Taken together, these facts amount to overwhelming evidence of guilt

and a conclusion that the alibi evidence was weak.

A.       Appellant’s Counterarguments

         Appellant provides three counterarguments. First, Appellant argues that the

evidence of guilt could not have been overwhelming because it was circumstantial.

Second, Appellant contends that the evidence of guilt could not have been overwhelming

because the jury deliberated for seven hours and eight minutes before delivering a

verdict. Third, Appellant asserts that the alibi defense must have played a substantial role

in the jury’s decision because the prosecution focused on it in its closing argument.
                                             12
       We find these three arguments unpersuasive. Appellant’s first argument fails

because we do not distinguish between circumstantial and direct evidence. See, e.g.,

Lukon v. Pennsylvania R. Co., 131 F.2d 327, 329 (3d Cir. 1942) (“[C]ircumstantial

evidence . . . . has probative value equal to that of testimonial evidence.”); see also Third

Circuit Model Criminal Jury Instructions § 1.09 (“The law makes no distinction between

the weight that you should give to either direct or circumstantial evidence.”).

       Similarly, Appellant’s second contention does not persuade because, as Appellant

concedes, “[T]his Circuit has not specifically used the length of jury deliberations as a

factor in assessing Strickland prejudice,” Appellant’s Br. at 18, and because the non-

binding circuit cases cited by Appellant all involve jury deliberations that lasted at least

two days 4—more than twice as long as the deliberations here.

       Appellant’s final assertion lacks merit because of a logical fallacy. The

prosecution’s focus on the alibi defense in its closing argument may prove the alibi

defense’s strength relative to Appellant’s other arguments, assuming that the prosecution

would focus its attention on the defense’s strongest arguments, but it cannot establish the

alibi’s absolute strength. Courts must consider prejudice in light of the totality of the

evidence and not just relative to Appellant’s other defenses. Strickland, 466 U.S. at 695.


       4
         Thomas v. Chappell, 678 F.3d 1086, 1093 (9th Cir. 2012) (five days of jury
deliberations); Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir. 2005) (three days); Silva v.
Woodford, 279 F.3d 825, 829 (9th Cir. 2002) (two days); Mayfield v. Woodford, 270 F.3d
915, 938 (9th Cir. 2001) (nearly two days); Murtishaw v. Woodford, 255 F.3d 926, 968
(9th Cir. 2001) (two days).

                                              13
As a result, showing the relative strength of Appellant’s alibi argument does little to

further his claim. For these reasons, we find Appellant’s counterarguments unavailing.

                                    IV. CONCLUSION

       We affirm the District Court’s decision to deny Appellant’s Petition for a Writ of

Habeas Corpus because Appellant has not proven, as required by Strickland, “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 466 U.S. at 694.




                                             14
