                                                              NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                  ________________

                                     No. 09-2865
                                  ________________

                         DANIEL BERNARD MANCHAS, III,
                                         Appellant

                                           v.

                  SUPERINTENDENT OF SCI HUNTINGDON;
             ATTORNEY GENERAL OF THE STATE PENNSYLVANIA
                           ________________

                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                              (D.C. Civil No. 2-07-cv-01112)
                   District Judge: The Honorable Amy Reynolds Hay
                                    _______________

                            ARGUED OCTOBER 20, 2010

    BEFORE: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges.

                                  (Filed: May 3, 2011 )

David R. Fine, Esq. (Argued)
K & L Gates
17 North Second Street
18th Floor, Market Square Plaza
Harrisburg, PA 17101

             Counsel for Appellant

Jack R. Heneks, Jr., Esq. (Argued)
Nancy D. Vernon, Esq.
Office of the District Attorney of Fayette County
61 East Main Street
Fayette County Courthouse
Uniontown, PA 15401

             Counsel for Appellees

                                   _______________

                              OPINION OF THE COURT
                                  _______________

NYGAARD, Circuit Judge.

      We granted a certificate of appealability to address certain claims raised by

Petitioner, Daniel Manchas, who was convicted of first-degree murder in 2001. After a

thorough review of this case and oral argument, we will affirm the judgment of the

District Court denying Manchas‘ petition for habeas relief.

                                            I.

      Following a jury trial, Manchas, then 18 years old, was convicted

in the Court of Common Pleas of Fayette County of first degree murder, aggravated

assault, criminal conspiracy to commit murder and six counts of recklessly endangering

another person. On October 19, 2001, he was sentenced to life in prison without parole

and six consecutive terms of one to two years each on the reckless endangerment charges.

No further penalty was imposed on the aggravated assault or conspiracy convictions. The

Pennsylvania Superior Court reported the facts underlying Manchas‘ conviction as

follows:

             [O]n the evening of February 3, 2001, [Manchas] met with
             the victim [Robert Cumberland, Sr.], Catherine McKenna and
             George Simon for the purpose of selling cocaine to the
             victim. When the victim allegedly shorted [Manchas] by $20,

                                            2
              [Manchas] became enraged and threw the money to the
              ground. The victim then picked up the money and told
              [Manchas] that he intended to keep both the money and the
              cocaine. Simon testified that as the victim and his two
              associates drove away, [Manchas] followed the trio and
              threatened Simon [that] he would ―get his boys and come and
              see me [Simon] and shoot me or us.‖

              Later that same evening, [Manchas] went to the home of
              Robert Cumberland, Jr., screaming that Cumberland, Sr., and
              his friends had ―ripped him off on a drug deal.‖ Cumberland,
              Jr. then telephoned Simon at his home and allowed
              [Manchas] to speak with him. [Manchas] advised Simon that
              he and Cumberland, Jr. intended to come to [Simon‘s] home
              and, there was ―going to be a bad scene.‖ In the wee hours of
              the morning, [Manchas] drove to Simon‘s home,
              accompanied by Cumberland, Jr., and toting a scoped rifle
              owned by same. [Manchas] fired a bullet through the lighted
              window of Simon‘s home, striking [Robert Cumberland, Sr.]
              in the head and killing him instantly.

              [Manchas] then drove past Simon‘s home, turned around,
              drove back, stopped in front of the home, got out of the car
              and fired a second shot into the home.

       At trial, Manchas testified that he fired the first shot through the front wall of the

trailer without seeing anyone. The Commonwealth maintained that Manchas saw the

victim in the window and shot him. Additionally, Manchas testified that although he

fired first, the second shot through the window was fired by Robert Cumberland, Jr.

Manchas argued that even if his co-conspirator‘s testimony is to be credited, Manchas

fired the first (and fatal) shot through the wall of the trailer, not the window, and,

therefore, any killing was accidental and not intentional.

       After Manchas‘ conviction and sentence were affirmed on direct appeal, he filed a

pro se PCRA petition. Counsel was appointed and filed an amended PCRA petition.


                                               3
Manchas then retained private counsel, who filed a second amended PCRA petition. The

PCRA court held a hearing at which Manchas, his mother, his sister and his trial counsel

testified. The PCRA court denied his petition and the Superior Court affirmed.1 After

the conclusion of his PCRA proceedings, Manchas filed a habeas petition in the United

States District Court for the Middle District of Pennsylvania, which transferred it to the

Western District, where Manchas was located at the time of filing. The Magistrate Judge

reached all of Manchas‘ claims on the merits, recommending that relief be denied. Over

Manchas‘ objections, the District Court agreed. Manchas timely filed a notice of appeal

and requested a certificate of appealability.

                                                II.

       Our certificate of appealability permitted Manchas to brief the following issues

relating to his trial counsel‘s alleged ineffectiveness:

              1.      counsel‘s failure to retain a forensic expert or crime
                      scene investigator to testify on Manchas‘ behalf;
              2.      counsel‘s failure to interview Chad Simon or call him
                      as a witness; and
              3.      counsel‘s failure to cross-examine the
                      Commonwealth‘s witnesses on the question of where
                      the first shot came from.

We also permitted Manchas to address the issue of whether he was entitled to an

evidentiary hearing in the District Court. On appeal, Manchas‘ arguments concerning

ineffectiveness are all based on the proposition that ―he himself fired the first and fatal

shot through the wall of the trailer and the second shot was fired through the window

1
 The Pennsylvania Superior Court adopted the trial court‘s PCRA opinion as its own.
Therefore, our reference to the PCRA court in this opinion contemplates the trial court‘s
opinion.
                                                4
after the victim was already dead.‖ According to Manchas‘ theory, he lacked the specific

intent to kill and cannot be legally guilty of first degree murder. This position is in

contrast to the Commonwealth‘s theory, which held that Manchas fired the first shot

through the uncovered and lighted window with the intent to shoot and kill the victim.

       Additionally, we granted his request for the appointment of counsel. New counsel

filed another request for a certificate of appealability, seeking to challenge the sufficiency

of the evidence. We granted this certificate as well.

                                             A.

       Before getting to the discussion of the ineffective assistance of counsel issues, we

briefly detour. Manchas argues that a de novo standard of review applies to his appeal,

not the more deferential standards of AEDPA. His argument is that the state courts did

not address some of his claims on the merits. Specifically, he maintains that the state

courts misunderstood his claims as presented and, therefore, failed to adjudicate them on

the merits. He is mistaken. The PCRA court correctly found the nature of his claims to

be that of ineffective assistance of counsel and decided the claims under the applicable

standards. AEDPA applies.

       Under AEDPA, an application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a state court shall not be granted with respect to any

claim that was adjudicated on the merits in state court proceedings unless the

adjudication of the claim resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States. See Greene v. Palakovich, 606 F.3d 85, 97-8 (3d

                                              5
Cir. 2010) (citing 28 U.S.C. § 2254(d)(1)). For AEDPA purposes, the clearly established

federal law for ineffective assistance of counsel claims is the two-prong test enunciated in

Strickland v. Washington, 466 U.S. 668, 687, (1984). Under Strickland,

              the defendant must show that counsel‘s performance was
              deficient. This requires showing that counsel made errors so
              serious that counsel was not functioning as the ―counsel‖
              guaranteed the defendant by the Sixth Amendment. Second,
              the defendant must show that the deficient performance
              prejudiced the defense. This requires showing that counsel's
              errors were so serious as to deprive the defendant of a fair
              trial, a trial whose result is unreliable.2

Id.
                                             B.

       Manchas first argues that trial counsel was ineffective for failing to consult or

retain a forensic expert or crime scene investigator to testify on his behalf. He

specifically faults his trial counsel for her failure to call expert witnesses who could have

corroborated Manchas‘ theory of the case, namely that, of the two shots fired, his was

first and it went through the front of the trailer, near the kitchen. He maintains that since

he fired through the wall and did not know what was on the other side, he did not have

specific intent to kill anyone.

       Manchas argued at his PCRA evidentiary hearing that he ―thought‖ experts might

have helped his case. His problem, however, is that he failed to provide any support for

his speculation. The PCRA court made the following findings of fact:


2
 Our analysis of the deficiency and prejudice prongs does not have to proceed in any
specific order; it is likely often ―easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice.‖ Strickland, 466 U.S. at 697.

                                              6
              3.      At the evidentiary hearing, the defendant offered no
              evidence that a forensic or DNA expert would have provided
              testimony that would have raised a question as to the
              reliability of the conviction.
              4.      At the evidentiary hearing, the defendant offered no
              evidence that a crime scene investigator would have provided
              testimony that would have raised a question as to the
              reliability of the conviction.

       Because Manchas failed to provide evidence in support of this claim, the PCRA

court held that he failed to carry his burden to show prejudice. Put another way, to obtain

PCRA relief, Manchas had the burden of establishing that an expert‘s testimony would

have, in fact, been helpful to his defense. He presented no such evidence and, therefore,

he provided no basis to conclude that he suffered prejudice. The PCRA court‘s ruling

was not contrary to nor an unreasonable application of federal law. The PCRA court

found that, by failing to identify specific factual prejudices, Manchas‘ claims for

ineffective assistance of counsel could not stand. The PCRA court‘s holding comports

with the requirements of Strickland and, therefore, the District Court did not err by

denying habeas relief.

       In support of his habeas petition in the District Court, Manchas belatedly produced

a purported ―expert report‖ from Robert Hicks, who identifies himself as an

―investigative forensic reporter and publisher.‖ The Magistrate Judge correctly

determined that this late-produced ―expert‖ report could not be considered given that it

was not presented to the PCRA court. The Magistrate Judge further did not err by not

holding an evidentiary hearing on this report. AEDPA forbids a federal court from




                                             7
holding an evidentiary hearing on any claim where the petitioner has failed to develop a

factual basis for that claim in state court proceedings. See 28 U.S.C. § 2254(e)(2).

                                             C.

       Next, Manchas argues that trial counsel was ineffective for failing to call Chad

Simon (one of the four adults in the trailer at the time of the shooting) as a defense

witness.3 Simon made several statements—both oral and written—to the police on the

night of the murder. At the PCRA hearing, Manchas testified that, before the trial, he

learned of Simon‘s statements to the police and discussed with counsel calling Simon as a

defense witness. Manchas maintained that Simon had ―first-hand knowledge of where

the first and fatal shot came from,‖ and believed that Simon‘s testimony would be ―vital.‖

       At the PCRA hearing, trial counsel expressed her belief that Simon‘s testimony

would not be helpful to the defense:

              Q:     And do you recall if there were any statements that
                     were given by Mr. Chad Simon that appeared in the
                     discovery?




3
  The other adults in the trailer at the time of the shooting included George Simon
(Chad‘s older brother), Cathy McKenna, and Robert Cumberland Sr. (the victim and
father of Manchas‘ co-conspirator). George Simon testified at trial that he was taking a
bath when he heard Chad say that a car pulled up in front of the house. As he was
coming out of the bathroom, George heard the first shot. He stated that he believed the
bullet came through the window because he saw a hole in the window and the victim
lying in front of it on the floor. Cathy McKenna testified that she was sitting in the living
room when she heard the first shot. She heard the victim fall to the floor. She then got
off the couch and onto the floor herself, dialing 911. While she was on the phone, she
heard the second shot. She did not testify as to the direction from which the bullets came
or whether either of the bullets entered the trailer through the window.
                                              8
             A:    I no longer have the discovery, however, what I
                   recall are two typewritten interviews by two
                   different police officers and I believe a
                   handwritten statement by Mr. Simon.
             Q:    And based on the statements that you reviewed
                   in the police report, and particularly the
                   handwritten statement given by Mr. Simon, did
                   you make a determination as to whether or not
                   he would be a witness who would be helpful to
                   the defense?
             A:    Yes.
             Q:    And what decision did you come to in that regard?
             A:    That it would not be helpful.
             Q:    What led you to that conclusion that he
                   would not be a helpful witness?
             A:    I don‘t have the handwritten statement, so I don‘t
                   recall exactly what was said in it; however, the two
                   typed reports, one by Trooper Cross, I believe, and I
                   believe the other one was Trooper Urey, but I‘m not
                   certain; they both had the first shot – no matter where
                   – if it came from kind of the front of the trailer through
                   a window, was the first shot that the victim
                   encountered.
             Q:    The first shot?
             A:    The first shot.
             Q:    And
             A:    And that was in both typed statements and I believe
                   also the handwritten.

App. at 52-53. Counsel continued:

             Q:    I‘m going to show you what I marked as
                   commonwealth‘s exhibit Number 1 and ask you to
                   look over that. Tell me if you recall ever seeing that.
             A:    Yes.
             Q:    And is that the handwritten statement that was
                   provided in discovery from Chad Simon?
             A:    Yes.
             Q:    Okay. And was that the statement that you were
                    referring to where Mr. Chad Simon indicates in there,
                   about halfway through, that he heard the first shot by
                   the window and that was the shot that hit the victim?

                                           9
              A:     Right, and that he saw, in the living room, saw [the
                     victim] on the floor.
              Q:     And was that the statement that you indicated was a
                     factor, of course, in not calling Mr. Chad Simon?
              A:     Yes.

Counsel also testified that Manchas himself agreed with this decision:

              THE COURT:           Did you discuss that with the defendant?
              A:                   Yes.
              THE COURT:           Did the defendant agree with you not to
                                   call [Simon]?
              A:                   Yes.

Appendix at 54-55.

       A defendant who alleges that counsel was ineffective due to strategic errors, such

as the failure to call a particular witness, must show both that the attorney‘s performance

was lacking, and that this deficient performance resulted in prejudice. Hess v.

Mazurkiewicz, 135 F.3d 905, 907-08 (3d Cir. 1998) (citing Strickland, 466 U.S. at 687

(1984)). Witness selection is entrusted to counsel‘s sound judgment, not to the

defendant. Virgin Islands v. Weatherwax, 77 F .3d 1425, 1434 (3d Cir.), cert. denied,

519 U.S. 1020 (1996). We have held that ―it is critical that courts be ‗highly deferential‘

to counsel‘s reasonable strategic decisions and guard against the temptation to engage in

hindsight.‖ Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002) (quoting Strickland,

466 U.S. at 689-90). Given that Manchas never denied firing the first shot, trial counsel‘s

decision not to call Simon as a witness fell within the wide range of reasonable

professional assistance as contemplated by Strickland’s first prong.




                                            10
       The PCRA Court specifically held that trial counsel exercised her professional

judgment as to the exclusion of Chad Simon‘s testimony and made a strategic decision

not to call him at trial:

                At the evidentiary hearing, Trial Counsel testified that she
                was familiar with the three statements given by Chad Simon
                to the police and that those statements reflected that it was the
                first shot (the one that the defendant admitted firing) that
                struck the victim. By virtue of the statements, counsel
                determined that the witness would not be helpful to the
                defense. After making that determination, counsel discussed
                not calling Simon with the Defendant, and the Defendant
                agreed with her not to call Simon.

                                              ***

                [T]his Court finds that the proffered testimony of Simon was
                corroboration of the Commonwealth‘s evidence and would
                have been prejudicial to the Defense. Trial counsel exercised
                her professional judgment and properly determined that
                Simon‘s testimony would have harmed, rather than aided in
                the Defendant‘s defense, a decision made with the agreement
                of the Defendant.

       We agree with the District Court here that this was not ―an unreasonable

determination of the facts in light of the evidence presented‖ or an unreasonable

application of Supreme Court precedent under AEDPA‘s deferential standard of review.

§ 2254(d)(2).

                                                    D.

       Manchas next argues that trial counsel was ineffective for failing to cross-examine

any of the Commonwealth witnesses as to the order of the gunshots, where the first shot

came from, and which shot struck the victim. This claim is closely related to the others.



                                               11
       The PCRA court concluded that Manchas‘ claim failed to show how he was

prejudiced by counsel‘s cross-examination as conducted. Specifically, the court found

that Manchas made no offer of proof alleging facts that would have rendered counsel‘s

performance ineffective.

       We affirm the District Court‘s conclusion that this decision was not contrary to, or

an unreasonable application of, federal law. The PCRA and Superior Court‘s test for

prejudice is indistinguishable from the prejudice analysis in Strickland. See 466 U.S. at

687. The PCRA court‘s finding of a lack of prejudice was not an unreasonable

application of Strickland. Id. at 694 (requiring defendant to show ―that there is a

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

proceeding would have been different‖).4

                                             III.

       Upon motion by appointed habeas counsel, we granted an additional certificate of

appealability to review whether the evidence was sufficient on specific intent to convict

Manchas of first-degree murder. Finding the evidence sufficient, the petition will be

denied on this claim as well.

       Here, there was ample evidence for the jury to find that Manchas had specific

intent. First, there is Manchas‘ statement that he was going to shoot George Simon.

4
  We granted Manchas a certificate of appealability on the question of whether he was
entitled to an evidentiary hearing in the District Court on these issues. To be entitled to
an evidentiary hearing, Manchas must make a prima facie showing that would enable him
to prevail on the merits of the asserted claim. 28 U.S.C. § 2254(e)(2). If the record
refutes his factual allegations or otherwise precludes habeas relief, however, no
evidentiary hearing is required. See id. Since we have determined that there is no merit
to Manchas‘ claims, Manchas was not entitled to an evidentiary hearing.
                                             12
Second, Manchas told Simon that he would be coming to his house and it would be a

―bad scene.‖ Third, Manchas was angry at the victim and at Simon for ripping him off

during a drug deal. Further, Cumberland testified that he heard Manchas tell Simon that

he was going to kill him (Simon). Fifth, Manchas took a rifle with a high-powered scope,

aimed it and fired two shots into the trailer. From this evidence, a jury could have

reasonably found that Manchas intended to kill when he fired the shots into the trailer.

                                            IV.

       After our independent review, we will affirm the judgment of the District Court

substantially for the reasons set forth in the Magistrate Judge‘s thorough and thoughtful

Report and Recommendation, which the District Court rightly adopted.




                                            13
