                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-15-2002

DeFoy v. McCullough
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2832




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Recommended Citation
"DeFoy v. McCullough" (2002). 2002 Decisions. Paper 738.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/738


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                                                   NOT PRECEDENTIAL

                THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 01-2832
                           ___________

                         ROBERT DEFOY,

                                                Appellant

                               v.

                JOHN MCCULLOUGH, Superintendent,
              of SCI Houtzdale; D. MICHAEL FISHER,
                Attorney General of Pennsylvania
                           ___________


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                   (D.C. Civil No. 98-cv-01492)
         District Judge: The Honorable A. Richard Caputo

                           ___________

            Submitted Under Third Circuit LAR 34.1(a)
                         October 28, 2002

      BEFORE: NYGAARD, GARTH, and   MICHEL,   Circuit Judges.



                    (Filed: November 15, 2002)

                           ___________

                       OPINION OF THE COURT
                           ___________


NYGAARD, Circuit Judge.
         Appellant Robert DeFoy appeals the June 18, 2001 order of the District
Court, which denied Mr. DeFoy’s request for habeas corpus relief. In state court, Robert
was convicted of statutory rape, corruption of minors, and involuntary sexual deviate
intercourse involving his minor step-daughter, Deanna. Robert’s former wife, Gloria
DeFoy, participated in the corruption of Deanna through involving her in sexual acts with
her and Robert. She pled guilty to the charge of corruption of minors and testified against
Robert at trial. Robert’s trial counsel failed, however, to request an accomplice jury
instruction, i.e., that Gloria’s testimony should be viewed as coming from a corrupt
source and weighted accordingly.
         We granted DeFoy a certificate of appealability, pursuant to 28 U.S.C.
2253(c), limited to whether his trial counsel was ineffective for not requesting a jury
instruction on the accomplice testimony of his former wife who testified against him and
whether his appellate counsel was ineffective for not appealing the lack of such
instruction. We will affirm.
         The facts and prior procedure of this case are known to the parties and
counsel. The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996
provides the applicable standard of review for reviewing state court judgments in federal
habeas corpus petitions. Essentially, under the AEDPA the petitioner must show that the
state court proceedings either resulted in a decision that involved as 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. 28 U.S.C. 2254(d); see also Scarbrough v. Johnson, 300 F.3d 302,
305-06 (3d Cir. 2002). In this case, because Robert claims that his trial and appellate
counsel were ineffective, the question is whether the state decision denying Robert’s
ineffective assistance of counsel claim was contrary to Strickland v. Washington, 466
U.S. 668 (1984).
         The District Court agreed with the state court decision on ineffective
assistance of counsel that "counsel’s failure to request such a charge did not prejudice
petitioner to the extent that it is likely the result would have been different absent such an
error." By so holding, the District Court confirmed that the state court’s decision did not
involve an unreasonable interpretation of Strickland. The District Court similarly found
that there was ineffective assistance of counsel, but that counsel’s failure to request the
accomplice charge did not prejudice DeFoy to the extent that it is likely the result would
have been different absent the error. We agree. The District Court ably points out how
DeFoy fails to show how he was prejudiced. The complainant’s testimony presented more
than sufficient evidence for the jury to find DeFoy guilty, and the testimony of the
accomplice, Gloria DeFoy, merely corroborated that of her daughter, the victim. In
addition, during cross-examination of Gloria DeFoy, DeFoy’s counsel raised several
possible motives for her testimony, including that she may receive leniency at her
sentencing in exchange for her testimony. And finally, the trial court gave extensive
instructions concerning the credibility of witnesses, including the witnesses’ interest in
the outcome of the case and any possible bias, prejudice, or motives that may have
affected their testimony.
         In sum, whatever deficiencies there may have been in counsel’s
performance, did not affect the outcome of the trial. We will affirm.

_________________________


TO THE CLERK:

         Please file the foregoing opinion.




                               /s/ Richard L. Nygaard
                               Circuit Judge
