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


11-13-2008

Steward v. Grace
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3632




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Recommended Citation
"Steward v. Grace" (2008). 2008 Decisions. Paper 238.
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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 07-3632


                                    DAVID STEWARD,

                                             Appellant

                                               v.

                              JAMES GRACE;
            DISTRICT ATTORNEY OF THE COUNTY OF MONTGOMERY;
           THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA


                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              District Court No.: 04-CV-3587
                     District Judge: The Honorable Cynthia M. Rufe




                  Submitted Pursuant to the Third Circuit L.A.R. 34.1(a)
                                   October 21, 2008


                      Before: SMITH and COWEN, Circuit Judges,
                              THOMPSON, District Judge *


                                (Filed: November 13, 2008)



       *
        The Honorable Anne E. Thompson, Senior District Judge for the United States District
Court of New Jersey, sitting by designation.

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                                      ____________

                                       OPINION
                                     _____________

SMITH, Circuit Judge.

       This case arises out of the very violent murder of Dr. Michael Groll. The

Commonwealth of Pennsylvania charged and tried David Steward in connection with the

crime. During the government’s presentation of its case, Steward’s counsel challenged

the prosecution’s witnesses and evidence. Concerned that his client might be sentenced

to death because of the substantial evidence implicating Steward, counsel shifted tactics

and, without consulting Steward or obtaining his consent, conceded Steward’s guilt

during closing argument and asked the jury to find Steward guilty of second-degree

murder. Steward was convicted of first-degree murder, aggravated assault, robbery,

burglary, theft by unlawful taking, possessing instruments of crime, criminal conspiracy,

receiving stolen property, reckless endangerment, and carrying a firearm without a

license. He was sentenced to life plus 15.5 to 45 years.

       Steward’s direct appeal was unsuccessful, and his conviction became final on

March 2, 2002. He filed a pro se petition for relief under the Pennsylvania Post

Conviction Relief Act (“PCRA”) on a number of grounds, including the ineffective

assistance of counsel. The state court dismissed his claims. Subsequently, Steward filed

an application for the writ of habeas corpus in the Eastern District of Pennsylvania

pursuant to 28 U.S.C. § 2254. The District Court denied Steward’s petition, and Steward

                                             2
filed this timely appeal. We have jurisdiction under 28 U.S.C. § 2253, and we will affirm.

       Inasmuch as we write primarily for the parties, who are familiar with this case, we

need not recite additional factual or procedural background.

       In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court considered

the circumstances in which a defendant’s conviction may be set aside due to the

ineffective assistance of counsel.1 A defendant must show: (1) “counsel’s performance

was deficient,” namely that “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2)

“the deficient performance prejudiced the defendant,” such that “counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at

687. These prongs may be evaluated as the circumstances warrant: “Although we have

discussed the performance component of an ineffectiveness claim prior to the prejudice




       1
        Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal
court may grant habeas corpus relief only if the state court proceeding “‘resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law…; [or] resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.’” Appel v. Horn, 250 F.3d 203, 209 (3d Cir. 2001) (quoting 28 U.S.C. §
2254(d)). More specifically, a state court decision is “contrary to” clearly established
federal law if it is “‘substantially different from the relevant precedent.’” Id. (quoting
Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an “unreasonable
application” if: (1) “‘the state court identifies the correct governing legal rule from [the]
Court’s cases but unreasonably applies it to the facts;’” or (2) “‘the state court either
unreasonably extends a legal principle from our precedent to a new context where it
should not apply or unreasonably refuses to extend that principle to a new context where
it should apply.’” Id. (quoting Williams, 529 U.S. at 407).

                                                3
component, there is no reason for a court. . . to approach the inquiry in the same order or

even address both components of the inquiry if the defendant makes an insufficient

showing on one.” Id. at 697.

       In the present case, the state court considered and adjudicated Steward’s Strickland

claim on the merits. While it did not cite to Strickland,2 the court considered the correct

governing legal principles. It noted that Pennsylvania law requires the defendant to

prove: “(1) the underlying claim is of arguable merit; (2) counsel’s course of conduct was

without a reasonable basis designed to effectuate his client’s interest; and, (3) he was

prejudiced by counsel’s ineffectiveness.” Accordingly, under AEDPA, this decision must

be upheld unless it is contrary to or an unreasonable application of federal law.

       The state court, in its PCRA opinion, found that Steward had demonstrated neither

deficient performance nor prejudice. It found that counsel’s strategy “was a reasonable

tactical decision given the uncontroverted evidence that easily supported a verdict of first-

degree murder.” It also noted that Steward “very probably would have been sentenced to

death but for those tactics.” Applying AEDPA’s standard of review, we do not find that

this analysis is contrary to or an unreasonable application of federal law. Steward appears

to concede in his appellate brief that counsel’s decision to admit his guilt was reasonable

under the circumstances: “In the face of overwhelming evidence of guilt in a horrific


       2
        The state court need not cite to relevant Supreme Court cases so long as it
identifies the correct legal principles. Priester v. Vaughn, 382 F.3d 394, 398 (3d Cir.
2004).

                                              4
murder case, trial strategy aimed at avoiding facing a single jury with conflicting

positions [of insufficient evidence during the guilt phase, but a plea for mercy at

sentencing]. . . is not an illogical choice.” (Br. of Appellant 33.) Furthermore, there was

overwhelming evidence of the defendant’s guilt in this case—including his signed

confession, his hand-drawn rendering of the victim’s bedroom, a strong eyewitness

identification, and ballistics evidence—such that it is unlikely the trial outcome would

have been different absent counsel’s concession.

       Steward argues that, rather than apply Strickland’s two-pronged analysis, the Court

must evaluate his case under United States v. Cronic, 466 U.S. 648, 650 (1984). Cronic

provides a narrow exception to Strickland’s prejudice requirement when “circumstances

[] are so likely to prejudice the accused that the cost of litigating their effect in a

particular case is unjustified.” Cronic, 466 U.S. at 658. In such circumstances, prejudice

may be presumed. Steward contends that counsel’s concession of guilt, made without his

consent, during closing argument falls under Cronic because counsel failed to subject the

prosecution’s case to meaningful adversarial testing and constructively denied him

counsel.

       Contrary to Steward’s argument, this case need not be considered under Cronic. In

announcing the limited exception to Strickland, the Cronic Court cited a number of cases

to demonstrate the circumstances in which prejudice may be presumed. Id. at 658 n.24.

The cited cases involved Sixth Amendment violations, inter alia, such as the



                                                5
disqualification of the defendant’s counsel of choice; a defendant wearing prison attire

and shackles for the duration of his trial; jury exposure to news stories; and the admission

into evidence of one co-defendant’s statement, implicating the other, in a joint trial. In

each of these cases, the error tainted the proceeding as a whole such that it could

undermine faith in the outcome, possibly in ways that the parties could not perceive or

control. An error like the present one does not fall under this rubric, however, because

the error occurred at a discrete stage and only after adversarial testing failed to decrease

the likelihood of a death sentence. See Ditch v. Grace, 479 F.3d 249, 256 (3d Cir. 2007)

(“[W]e read Cronic in a limited fashion. . . . [A] presumption of prejudice applies only in

cases where the denial of counsel would necessarily undermine the reliability of the entire

criminal proceeding.”).

       This reading is consistent with the Court’s decision in Bell v. Cone, 535 U.S. 685

(2002). The Bell Court stated that “[w]hen we spoke in Cronic of the possibility of

presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we

indicated that the attorney’s failure must be complete. We said ‘if counsel entirely fails to

subject the prosecution’s case to meaningful adversarial testing.’” Id. at 697 (quoting

Cronic, 466 U.S. at 659). The Court then rejected the defendant’s claim, which it

characterized as arguing “not that his counsel failed to oppose the prosecution throughout

the sentencing proceeding as a whole, but that his counsel failed to do so at specific

points.” Id.



                                              6
      For the foregoing reasons, we will affirm the District Court’s judgment, denying

Steward’s § 2254 petition.
