                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-3648
                                      _____________

                                      CRAIG ELIAS,

                                                  Appellant

                                             v.

                      SUPERINTENDENT FAYETTE SCI;
           THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
                             _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. No. 2-14-cv-01337)
                        Magistrate Judge: Hon. Lisa P. Lenihan
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 22, 2019

               Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.

                                   (Filed: May 30, 2019)
                                     _______________

                                        OPINION ∗
                                     _______________




       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Craig Elias, serving a life sentence for murder and related serious crimes, appeals

the order of the District Court denying his petition for a writ of habeas corpus. For the

reasons that follow, we will affirm.

I.     Background 1

       A.     The Underlying Charges

       Elias, Jared Henkel, and Jared Lischner were drug dealers. After a dispute with

their suppliers, Anthony Brownlee and Andrew Jones, the three men kidnapped and beat

them. Jones ended up dead. Jared Henkel enlisted his brother, Matthew Henkel, to

borrow a pickup truck to help dispose of Jones’s body. Elias and Matthew Henkel

wrapped Jones’s body in garbage bags and put it in the pickup truck. The pair procured




       1
          Elias claims ineffective assistance of counsel. We review his claim according to
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, and
we consider “the facts in light of the evidence presented in the State court proceeding.”
Id. at § 2254(d)(2). A state court’s factual determinations are afforded a presumption of
correctness that can only be rebutted by clear and convincing evidence. Lambert v.
Blackwell, 387 F.3d 210, 235 (3d Cir. 2004). As the District Court noted, the “Petitioner
does not argue that he is entitled to relief, nor should he be, under § 2254(d)(2)[]” (App.
at 50), which allows for a habeas writ to issue if the state court proceedings “resulted in a
decision that was based on an unreasonable determination of the facts in light of the
evidence presented … .” 28 U.S.C. § 2254(d)(2). Thus, we accept the state court’s
factual findings. Because the Pennsylvania Superior Court adopted the “thorough and
well-reasoned opinion dated February 17, 2012 of the distinguished Judge Jeffrey A.
Manning[]” (App. at 60,) we adopt the facts concerning the crime as described in the
Pennsylvania Superior Court’s decision and those of the trial as described by Judge
Manning, presiding in the Post Conviction Relief Act (“PCRA”) Court, and adopted by
the Superior Court.

                                              2
chains and weights, drove to a bridge in Steubenville, Ohio, and dropped Jones’s

weighted corpse into a river. Brownlee was let go.

       Jones’s disappearance was investigated by the police. Eventually, Matthew

Henkel agreed to cooperate with police and led them to Jones’s body. The

Commonweath brought charges, and Elias’s case was joined with Jared Henkel’s and

Lischner’s. Matthew Henkel was granted full immunity in exchange for his cooperation

and testimony.

       B.     Elias’s Trial

       At trial, Elias was represented by attorney Duke George. Their agreed-upon

strategy was for Elias to testify that he did not murder Jones and, instead, that Matthew

Henkel was the murderer. In keeping with that, during his opening statement, George

told the jury that Elias would testify that Matthew Henkel – not Elias – was responsible

for Jones’s death.

       The prosecution presented only one witness who testified that Elias killed Jones.

That was Matthew Henkel. After the close of the prosecution’s case, Jared Henkel

presented his defense first. Unexpectedly, Jared and Matthew Henkel’s older brother,

Bruce Henkel, Jr. (“Bruce Junior”), and their father, Bruce Henkel, Sr. (“Bruce Senior”),

took the stand in an effort to discredit Matthew’s testimony.

       Jared Henkel’s lawyer began by recalling Matthew to the stand and asking him

whether he had told Bruce Junior that he wanted to kill Jones, which Matthew denied.

The lawyer then called Bruce Junior, who testified that Matthew had been upset with

Jones for making fun of him for being gay and that Matthew had told Bruce Junior on

                                             3
multiple occasions that he wanted to kill Jones. Next, Bruce Senior testified that

Matthew had confessed to him that he had killed Jones and had recounted the gruesome

details of the murder. The jury was instructed to consider Bruce Junior’s and Bruce

Senior’s testimony only for its effect on the credibility and weight of Matthew’s

testimony, and not as substantive evidence. Jared Henkel’s defense then rested.

       At that point, Elias was scheduled to present his defense, but George asked for and

was given a five-minute recess to use the restroom. In requesting that recess, George

reiterated, in front of the jury, that he was going to call Elias to the stand. But, once out

of the courtroom, the testimony just given by Bruce Junior and Bruce Senior prompted

George to “reconsider calling his client to the stand.” (App. at 71.) During the recess,

which lasted much longer than the stated five-minutes, George counseled Elias to change

course and not testify. 2 He felt, and apparently advised Elias that, “it would be in

[Elias’s] best interest for him not to testify[,]” because Bruce Senior’s testimony “was

pretty strong evidence with relationship to the defense of all three of the defendants[,]”

(App. at 72,) and was all that was “needed to argue that the Commonwealth failed to

meet its burden.” (App. at 81.) George did not explain the difference between

substantive and impeachment evidence to Elias, but he also did not represent that Bruce



       2
         Before the PCRA Court, Elias and George presented different versions of how
long and what occurred during the recess. Judge Manning, however, made a credibility
determination that George’s version of events was accurate. Here, those explicit
“finding[s] [are] presumptively correct and should not be disturbed by a federal court on
habeas review if [they are] fairly supported by the record[,]” McAleese v. Mazurkiewicz,
1 F.3d 159, 172 (3d Cir.1993), which they are.

                                               4
Senior’s testimony was admissible as substantive evidence. Upon hearing about the

proposed change in strategy, both co-defendants’ attorneys tried to convince George that

he was making a mistake. George was adamant, however, and, after a lengthy

conversation, Elias heeded his advice. When the trial resumed, Elias rested.

       The court immediately conducted a colloquy to ensure that Elias understood his

rights and that he himself had made the decision not to testify, in spite of the promise to

the jury that he would. 3 The court also instructed the jury that it could not use Elias’s

decision not to testify as evidence against him. 4 After deliberating, the jury found Elias



       3
           The colloquy included this exchange:
            The Court: Mr. Elias, it is perhaps somewhat slightly more troublesome
            in your instance because your attorney did make representations that you
            would testify.…
            Elias:      Yes, sir.
            Court:      Do you understand that the Court will be very careful in
            instructing the jury that they can’t … hold your decision to remain silent
            at this time against you. You have to understand this, and Mr. George
            knows this, he cannot argue to the jury any of the facts that he intended
            to portray through your testimony in closing.
            Elias:      I understand. (App. at 1385.)
       4
         The trial court instructed the jury: “Uniquely, we had an issue, as you recall,
attorney Duke George on behalf of Mr. Elias opened and he told you that his client would
take the stand and he made statements concerning what his client would say. Keep in
mind that those statements that he made are not evidence. And since Mr. Elias chose,
which is his constitutional right, to remain silent, you may not consider any of those
statements regarding what he was proposed to have said had he testified in any fashion
whatsoever. You must exclude them from your consideration. You must not consider
any statements or representations about what Mr. Elias allegedly would have said either
presented to you by Mr. George or by any other counsel, and you should not speculate or
consider any motivation which you may or may not believe that he had which led to his
decision not to testify. As I told you, he has an absolute right not to testify and you
cannot infer or presume that he must be guilty from his decision to remain silent.” (App.
at 1430-31.)

                                               5
guilty of first-degree murder, criminal conspiracy, two counts of kidnapping, robbery,

aggravated assault, simple assault, and abuse of a corpse. He was sentenced to life in

prison for first-degree murder and 10 to 20 years for the other offenses.

       C.     Post-Trial Proceedings

       After his conviction, Elias filed a direct appeal in the Superior Court of

Pennsylvania. Commonwealth v. Henkel, 938 A.2d 433, 436 (Pa. Super. Ct. 2007).

While that appeal was pending, he petitioned the Superior Court to remand the case in

light of after-discovered evidence. Id. at 437. The Superior Court remanded the case, but

the trial court, following a three-day hearing, concluded that no new material evidence

existed. Id. at 437-38. The Superior Court then affirmed Elias’s judgment of sentence,

id. at 447, and the Supreme Court of Pennsylvania denied Elias’s petition for allowance

of appeal, Commonwealth v. Elias, 955 A.2d 356 (Pa. 2008) (Table).

       Elias next filed a petition pursuant to Pennsylvania’s Post Conviction Relief Act

(“PCRA”). Among his arguments was that George was ineffective for advising him to

not testify, especially after promising the jury that he would. The PCRA Court, Judge

Manning presiding, held an evidentiary hearing on that claim, at which George, Elias,

and other witnesses testified. After the hearing, Judge Manning denied post-conviction

relief, concluding that Elias’s ineffective assistance claim failed on the merits. The

Superior Court upheld that ruling on appeal, adopting Judge Manning’s decision as its

own. Elias moved for reargument, which was denied, and the Supreme Court of

Pennsylvania denied review.



                                             6
       In 2014, Elias filed a timely habeas petition in the United States District Court for

the Western District of Pennsylvania. He asserted that “his trial counsel provided

ineffective assistance when he advised him not to testify[,] rendering his waiver of that

right unknowing and unintelligent.” (App. at 16 (District Court’s opinion recounting

Elias’s argument).) In November 2017, the District Court denied Elias’s habeas petition

on the merits. 5 This appeal followed.

II.    Discussion 6

       Elias has been granted a certificate of appealability on one issue: whether the

Superior Court, through adoption of Judge Manning’s opinion, unreasonably applied the

United States Supreme Court’s test for ineffective assistance of counsel in deciding that

attorney George’s advice to Elias to forego testifying did not support an ineffectiveness

claim, even though George had repeatedly told the jury that Elias would take the stand. 7

We agree with the District Court’s conclusion that Elias is not entitled to relief.

       A.       Legal Standard

       The Supreme Court held in Strickland v. Washington that claims of ineffective

assistance of counsel are evaluated under a two-pronged test. 466 U.S. 668, 687-88

(1984). First, the complaining “defendant must show that counsel’s representation fell


       5
           A Magistrate Judge sat as the District Court pursuant to 28 U.S.C. § 636(c).
       6
          The District Court had jurisdiction under 28 U.S.C. §§ 2254(a) and 2241(a). We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. “We review de novo whether
the District Court appropriately applied [28 U.S.C. § 2254’s] standards of review[,]” in
cases involving AEDPA. Taylor v. Horn, 504 F.3d 416, 428 (3d Cir. 2007).
       7
           We denied a certificate of appealability for Elias’s claim of trial-court error.
                                                7
below an objective standard of reasonableness” “under prevailing professional

norms.” Id. at 688. Second, the defendant must show that prejudice resulted, such “that

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

the proceeding would have been different.” Id. at 687, 694. To qualify for relief, the

defendant must satisfy both prongs of the test.

       In the context of this habeas petition, we review Elias’s ineffective assistance

claim through the lens of the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

28 U.S.C. § 2254. See Harris v. Ricci, 607 F.3d 92, 96 (3d Cir. 2010) (“Because this

case arises from a state court proceeding in which the merits of [petitioner’s] sole claim

on appeal were adjudicated, the standards established by [AEDPA] apply.”). Hence, we

cannot disturb a ruling of the state court unless it “was contrary to, or involved an

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

Supreme Court of the United States[,]” or it “was based on an unreasonable

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

proceeding.” 28 U.S.C. § 2254(d). When reviewing a habeas petition based on

ineffective assistance of counsel, AEDPA requires that we “give wide deference to the

state court’s conclusions, disturbing them only if the state court unreasonably applied …

the prongs of Strickland.” Collins v. Sec’y of Pa. Dep’t of Corr., 742 F.3d 528, 546-47

(3d Cir. 2014). We generally review only “[t]he highest state court decision reaching the

merits of a habeas petitioner’s claim[.]” Adamson v. Cathel, 633 F.3d 248, 255 (3d Cir.

2011) (citation omitted). Here, because the Superior Court adopted Judge Manning’s

decision on Elias’s ineffective assistance claim, Judge Manning’s decision is the relevant

                                              8
state ruling. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (“To decide the present case,

therefore, we begin by asking which is the last explained state-court judgment on the …

claim.”).

       B.     Strickland Analysis

       Under AEDPA, to satisfy the deficiency prong of Strickland, Elias must show that

Judge Manning unreasonably held that Elias was not denied “reasonably effective

assistance” of counsel. 466 U.S. at 687. Judge Manning concluded that attorney

George’s assistance was not constitutionally deficient because George’s “advice that the

testimony of Bruce [Senior] gave the defense the opportunity to argue that the defendant

did not commit the murder was accurate and not wholly unreasonable.” (App. at 79.)

The Judge explained that, “[i]f believed, Bruce [Senior’s] testimony would have

impeached the testimony of the only witness that said … Elias killed … Jones[.]” (App.

at 79.) Thus, as the Judge saw it, it was reasonable for George to advise Elias that the

unexpected testimony provided Elias what he “‘needed’ with regard to damage and

credibility of Matthew Henkel.” (App. at 80.) Judge Manning further found as a fact that

George had not advised Elias as to whether Bruce Senior’s testimony was substantive

evidence.

       Elias contends that Judge Manning’s conclusions were unreasonable, first, because

George broke his promise to the jury that Elias would testify, and second, because Elias

was unaware that Bruce Senior’s testimony was not substantive evidence, which rendered

the waiver of his right to testify unknowing and involuntary. Both of Elias’s arguments,



                                             9
however, fall short, given the deference afforded to state court conclusions on AEDPA

review of a habeas petition.

       Turning to Elias’s first argument, it is true that a failure by counsel to produce

promised evidence to the jury can support a claim of ineffective assistance. McAleese v.

Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993). But, backing off of a promise to give

certain evidence is unlikely to support an ineffective assistance claim when there are

changed circumstances, because “unexpected developments sometimes may warrant

changes in previously announced trial strategies.” Ouber v. Guarino, 293 F.3d 19, 29

(1st Cir. 2002). 8

       Here, we cannot say that the state court was unreasonable in concluding that an

unexpected development could justify a change in strategy. The decision by Bruce Junior

and Bruce Senior to come forward and testify was unexpected. Those two witnesses

testified that Matthew Henkel, and not Elias, had killed Jones. Both, as close relatives of


       8
          Elias’s arguments to the contrary are unavailing. He relies on six circuit cases to
argue that failing to present promised evidence necessitates a finding of ineffective
assistance. But in three of those cases no changed circumstances were present. See U.S.
ex rel. Hampton, 347 F.3d at 238 (“[N]othing occurred during the State’s case against
Hampton that altered the pros and cons of Hampton taking the stand.”); Ouber, 293 F.3d
at 35-36 (no changed circumstances from two earlier trials where the defendant did
testify); Anderson v. Butler, 858 F.2d 16, 19 (1st Cir. 1988) (same). In two other cases,
the court found no promise was made at all. McAleese, 1 F.3d at 167; Saesee v.
McDonald, 725 F.3d 1045, 1050 (9th Cir. 2013). The sixth case, Harris v. Reed, 894
F.2d 871 (7th Cir. 1990), reviewed a district court’s, not a state court’s, determination
that counsel’s performance was adequate and concluded it was not since “counsel’s
overall performance, including his decision not to put on any witnesses in support of a
viable theory of defense, falls outside the wide range of professionally competent
assistance.” Id. at 878. No federal court has found it unreasonable for a state court to
conclude that a change in circumstances warranted a change in trial strategy.

                                             10
Matthew’s, were also arguably more powerful witnesses against Matthew than Elias

would have been, since Elias’s testimony would obviously have been self-serving.

Furthermore, putting Elias on the stand would have opened him to cross-examination, a

not insignificant risk. 9 It was thus not unreasonable for Judge Manning to conclude that

the testimony of Matthew’s brother and father constituted a change in circumstances

allowing George to change his trial strategy. See Diggs v. Owens, 833 F.2d 439, 446 (3d

Cir. 1987) (noting that a decision not to call a self-interested witness was strategically

sound since it could cause “the jury to focus its attention on a defense that seemed

contrived rather than on the possible weakness of the state’s case”).

       Elias, however, argues that the change of circumstances did not force an

abandonment of the earlier agreed-on trial strategy and that his testimony would only

have bolstered his case. According to Elias, “Judge Manning could not identify anything

gained from counsel’s approach not to call [Elias] to the witness stand.” (Opening Br. at

21 (citation omitted).) But, as just noted, there was something to be gained: the

avoidance of cross-examination. More importantly, even if George’s advice that Elias

should not testify was wrong in retrospect, the state court was bound to “judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case,

reviewed as of the time of counsel’s conduct.” Parrish v. Fulcomer, 150 F.3d 326, 328


       9
         While Judge Manning did not explicitly mention the risk of cross-examination
as a separate reason that George’s change in strategy was reasonable, we understand that
the inherent risk of cross-examination was implicit in his discussion of the relative
benefits of Elias taking the stand after Bruce Senior had testified. See Taylor, 504 F.3d at
433 (explaining that AEDPA deference applies to implicit as well as explicit factual
findings).
                                             11
(3d Cir. 1998) (citations omitted). “The defendant bears the burden of overcoming the

presumption that ‘the challenged action might be considered sound trial strategy.’”

Jacobs v. Horn, 395 F.3d 92, 118 (3d Cir. 2005) (citation omitted). Under that standard,

Judge Manning did not unreasonably apply Strickland in concluding that George’s

decision to shift trial strategy was within the bounds of the broad latitude trial attorneys

have to advise their clients.

       Elias’s second argument – that, had he known the difference between substantive

evidence and impeachment evidence, he would have testified and thus he did not

voluntarily waive his right to testify – is also unpersuasive. We cannot label as

unreasonable Judge Manning’s conclusion that Elias voluntarily waived his right to

testify. Judge Manning found, based on evidence in the record, that George had only

“advise[d] [Elias] that the impeachment value of the testimony of Bruce [Senior]

provided [Elias] with what they ‘needed,’” and that he did not tell him the evidence could

be used substantively. (App. 79-80.) Here, “[t]he factual record to which we must defer

demonstrates that [George’s] advice went no further than counseling” about risk, as

George “did not suggest to [Elias] that he could not testify[.]” Campbell v. Vaughn, 209

F.3d 280, 291 (3d Cir. 2000). Thus, it was reasonable to decide that such advice did not

render involuntary Elias’s decision to forego testifying.

       Because Elias’s argument fails on the deficiency prong, we need not determine

whether he was prejudiced. Judge Manning’s determination that Elias was not denied

reasonably effective assistance of counsel was itself within the bounds of reason, and that

is all that Strickland and AEDPA demand.

                                              12
III.   Conclusion

       For the foregoing reasons, the District Court properly denied Elias’s habeas corpus

petition. We will therefore affirm the judgment.




                                           13
