                                                         NOT PRECEDENTIAL


                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 11-3845
                                      _____________

                                   FRANK HUGHLEY,
                                       Appellant

                                             v.

                      GOVERNMENT OF THE VIRGIN ISLANDS
                              _______________

                     On Appeal from the Appellate Division of the
                           District Court of the Virgin Islands
                           District Court No. 1-06-cv-00110
                    District Judge: The Honorable Curtis V. Gomez
                   District Judge: The Honorable Raymond L. Finch
                Superior Court Judge: The Honorable Audrey L. Thomas

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   December 3, 2012

               Before: SMITH, HARDIMAN, and ROTH, Circuit Judges

                                 (Filed: August 23, 2013)

                                _____________________

                                       OPINION
                                _____________________


SMITH, Circuit Judge.

       In 1995, a jury convicted Frank Hughley of three counts of aggravated rape in the

first degree and six counts of unlawful sexual contact in the first degree in violation of 14

V.I. Code §§ 1700(a)(1) and 1708(2).         The Territorial Court of the Virgin Islands
sentenced Hughley to 26 years’ imprisonment without parole. On appeal to the Appellate

Division of the District Court of the Virgin Islands, Hughley argued that his convictions

should be set aside because of the ineffectiveness of his trial counsel. He asserted that his

counsel was ineffective for several reasons, including his counsel’s decision to empanel

an all-female jury. Because ineffective assistance claims are usually not heard on direct

appeal in light of the undeveloped record, the Appellate Division dismissed Hughley’s

appeal.

       Thereafter, he filed a habeas petition under 5 V.I. Code § 1303 in the Superior

Court of the Virgin Islands, asserting the same ineffective assistance of counsel claim.1

Consistent with Strickland v. Washington, 466 U.S. 668, 687 (1984), the Superior Court

considered whether Hughley had been deprived of the effective assistance of counsel and,

if so, whether he had been prejudiced by counsel’s deficient performance. The Superior

Court determined that counsel’s performance was “the product of a reasoned trial

strategy” and that Hughley had not complained about counsel’s decisions at trial.

Alternatively, the Superior Court concluded that “[e]ven if [counsel’s] decisions

constituted serious errors, it is clear that Hughley did not establish prejudice from these

errors.” For these reasons, the Superior Court denied his habeas petition.

       A timely appeal to the Appellate Division followed, 48 U.S.C. § 1613a(a), which

remanded Hughley’s case to the Superior Court to rule on Hughley’s request for a


1
   On October 29, 2004, when the Virgin Islands legislature established the Supreme
Court of the Virgin Islands as an appellate court, it changed the name of the Territorial
Court of the Virgin Islands to the Superior Court of the Virgin Islands. See Act of Oct.
29, 2004, No. 6687, sec. 6, § 2, 2004 V.I. Legis. 6687 (2004).
                                             2
certificate of probable cause under Virgin Islands Rule of Appellate Procedure 14(b).2

Although the Superior Court denied the certificate, Hughley’s notice of appeal

constituted “a request to the Appellate Division for a certificate” of probable cause. V.I.

R. App. P. 14(b). The Appellate Division implicitly concluded that a constitutional

question warranted review and proceeded to address the merits of Hughley’s ineffective

assistance of counsel claim.

       The Appellate Division disagreed with the Superior Court’s determination that

Hughley’s counsel’s performance was based on a reasonable trial strategy. It concluded

that “[i]n the aggregate,” counsel’s “representation fell below the objective threshold of

reasonably competent representation.” Nonetheless, the Appellate Division affirmed the

Superior Court’s judgment because it agreed that Hughley could not satisfy the prejudice

prong of Strickland. It cited the testimony of the examining physician, the statements to

the examining physician by one of the child victims about what had occurred, the

testimony of the child psychologist who worked with the second child victim, the

identification of Hughley by one of the child victims, and the damning testimony of the

two child victims.

       Proceeding pro se, Hughley filed a timely appeal to this Court pursuant to 48

U.S.C. § 1613a(c) and 28 U.S.C. § 1291. Hughley again asserts that the ineffectiveness

of his counsel warrants vacating his convictions.


2
    A “certificate of probable cause” was the predecessor of the “certificate of
appealability” required under 28 U.S.C. § 2253(c)(1). The certificate of probable cause
required the petitioner “to make a ‘substantial showing of the denial of a federal right.’”
Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (brackets and internal citation omitted).
                                            3
                                               I.

       Before turning to the merits, we examine our jurisdiction over this appeal in light

of our “independent responsibility” to confirm our jurisdiction.3        In re Flat Glass

Antitrust Litig., 288 F.3d 83, 88 n.5 (3d Cir. 2002) (quoting In re Ford Motor Co., 110

F.3d 954, 958–59 (3d Cir. 1997)). Our colleague’s thoughtful dissent contends that we

lack jurisdiction because a territorial law eliminated the District Court’s appellate

jurisdiction over Hughley’s appeal. We disagree.

       Congress authorized the Virgin Islands legislature to vest original jurisdiction over

territorial actions in the territorial courts. See 48 U.S.C. § 1612(b); Callwood v. Enos,

230 F.3d 627, 631 (3d Cir. 2000). The Virgin Islands legislature eventually did so by

passing 4 V.I. Code § 76(a), which gave the Superior Court “original jurisdiction in all

civil actions regardless of the amount in controversy” and “in all criminal actions.” 4 V.I.

Code § 76(a), (b). In Callwood, we interpreted § 76(a) as implicitly repealing the District

Court’s original jurisdiction under 5 V.I. Code § 1303 to hear territorial habeas petitions.

230 F.3d at 632. As a result, we concluded that the District Court lacked original

jurisdiction over territorial habeas petitions. Id.

       But Callwood’s holding does not extend to the District Court’s appellate

jurisdiction over Superior Court rulings on territorial habeas petitions.         Callwood

involved only a question about the District Court’s original jurisdiction under 5 V.I. Code


3
 Of course, our discussion in this section pertains only to appeals filed before January
27, 2007, the date on which the Virgin Islands Supreme Court officially assumed
appellate jurisdiction over appeals from the Superior Court. See Hypolite v. People of
Virgin Islands, 2009 WL 152319, at *2 (V.I. Jan. 21, 2009).
                                               4
§ 1303 over territorial habeas petitions. The case had nothing to do with the District

Court’s appellate jurisdiction under 4 V.I. Code § 33 over territorial habeas petitions. See

48 U.S.C. § 1613a(a) (“[T]he District Court of the Virgin Islands shall have such

appellate jurisdiction over the courts of the Virgin Islands established by local law to the

extent now or hereafter prescribed by local law . . . .”); 4 V.I. Code § 33 (granting,

pursuant to 48 U.S.C. § 1613a(a), appellate jurisdiction to the District Court “to review

the judgments and orders of the [Superior Court] in all . . . civil cases and criminal cases

in which the defendant has been convicted, other than on a plea of guilty”); Gov’t of

Virgin Islands v. Warner, 48 F.3d 688, 692 (3d Cir. 1995) (holding that under the

Revised Organic Act, 4 V.I. Code § 33’s limitation on cases involving guilty pleas does

not preclude appellate jurisdiction over such cases where colorable constitutional claims

are raised). Nor can Callwood’s holding be extended to divest the District Court of its

appellate jurisdiction over territorial habeas petitions. By its plain text, § 76(a) alters

only the “original jurisdiction” of the District Court. As we previously acknowledged in

Parrott v. Government of Virgin Islands, § 76(a) has no effect on the District Court’s

appellate jurisdiction under 4 V.I. Code § 33 over territorial habeas petitions. 230 F.3d

615, 619 & n.5 (3d Cir. 2000) (noting that, although “the District Court loses jurisdiction

to the Territorial Court over local matters” to the extent that the Virgin Islands legislature

divests the District Court of “original jurisdiction,” the District Court “continues,

however, to sit as an appellate court to review local matters decided by the Territorial

Court” under 48 U.S.C. § 1613a(a)).4

4
    We recognize that under Walker v. Government of the Virgin Islands, 230 F.3d 82, 89
                                           5
       We therefore conclude that the District Court properly exercised appellate

jurisdiction over Hughley’s appeal.

                                            II.

       Having confirmed our jurisdiction, we now turn to the merits of Hughley’s claim.

We exercise plenary review over the adjudication of Strickland’s performance and

prejudice prongs.    Duncan v. Morton, 256 F.3d 189, 200 (3d Cir. 2001).              After

consideration of the briefs of the parties and the record before us, we will not disturb the

judgment of the Appellate Division, which affirmed the Superior Court’s denial of

Hughley’s habeas petition under 5 V.I. Code § 1303. We agree with the Appellate

Division that Hughley cannot demonstrate prejudice in light of the overwhelming

evidence against him.5

       For the reasons set forth above, we will affirm the judgment of the Appellate

Division of the District Court.




(3d Cir. 2000), a habeas petitioner in custody pursuant to a sentence of the Territorial
Court of the Virgin Islands who is seeking to appeal the denial of his petition for habeas
corpus under § 2254 must obtain a certificate of appealability to proceed before this
court. A certificate of appealability is not necessary here because the District Court did
not deny relief under § 2254. Instead, the District Court, acting in its capacity under 48
U.S.C. § 1613a(a) as the Appellate Division, affirmed the judgment of the Superior Court
denying Hughley’s habeas petition under 5 V.I. Code § 1303.
5
  We are mindful that Hughley’s brief focuses on the deficient performance prong of his
Strickland claim. Because we agree with the Appellate Division that Hughley cannot
show that he was prejudiced, we need not address the deficient performance prong. 466
U.S. at 697 (instructing that courts need not “address both components . . . if the
defendant makes an insufficient showing on one”).
                                             6
Hughley v. Government of the Virgin Islands, No. 11-3845
HARDIMAN, Circuit Judge, dissenting.

       I would dismiss this appeal for lack of jurisdiction. The majority contends that

jurisdiction lies pursuant to Virgin Islands law (5 V.I.C. § 1303). In my view, the District

Court of the Virgin Islands has jurisdiction to hear habeas petitions—whether initially or

on appeal—only pursuant to federal law (28 U.S.C. §§ 2241, 2254). Because federal law

(28 U.S.C. § 2253) requires that a certificate of appealability issue before the Court of

Appeals may consider a habeas petition, dismissal of this appeal is required.

                                              I

       Pursuant to the Revised Organic Act of 1954, the District Court, with limited

exceptions, exercised general jurisdiction over all causes of action authorized by local

law, and its federal jurisdiction was strictly limited to hearing cases arising under the

Constitution, treaties, and laws of the United States. See Act of July 22, 1954, ch. 558,

§ 22, 68 Stat. 497; see also Callwood v. Enos, 230 F.3d 627, 630 (3d Cir. 2000)

(explaining history); Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1057 (3d Cir. 1982),

superseded in part by statute, 48 U.S.C. § 1612 (explaining that the District Court acted

“more like a state court of general jurisdiction than a United States district court”). In

this era, the District Court “heard the majority of cases brought in the Virgin Islands,

whether they were brought under federal or local law, civil law or criminal law.”

Callwood, 230 F.3d at 630 (citing Carty, 679 F.2d at 1057). Its jurisdiction included

habeas petitions, which the District Court heard pursuant to local law, 5 V.I.C. § 1303,




                                              1
which provides: “The writ of habeas corpus may be granted by the district court, upon

petition by or on behalf of any person restrained of his liberty.”

       In 1984, Congress rewrote the jurisdictional provisions of the Revised Organic

Act. See Act of Oct. 5, 1984, Pub. L. No. 98-454, 98 Stat. 1732. It expanded the federal

jurisdiction of the District Court to make it coextensive with United States District

Courts. See 48 U.S.C. § 1612(a); Callwood, 230 F.3d at 631. At the same time,

Congress empowered the Virgin Islands legislature to vest jurisdiction over local actions

exclusively in the local courts. See 48 U.S.C. § 1612(b); Callwood, 230 F.3d at 631. The

Virgin Islands legislature did just that in 1990, vesting jurisdiction over all local civil

actions in the Superior Court as of October 1, 1991. See 4 V.I.C. § 76(a); Callwood, 230

F.3d at 631.

       In a trilogy of cases decided October 13, 2000, we explained the impact of these

jurisdictional changes on the relationship between the local courts and the District Court

relative to the adjudication of habeas petitions. See Callwood v. Enos, 230 F.3d 627 (3d

Cir. 2000); Parrott v. Gov’t of Virgin Islands, 230 F.3d 615 (3d Cir. 2000); Walker v.

Gov’t of Virgin Islands, 230 F.3d 82 (3d Cir. 2000).

       In Callwood, we considered whether the District Court could continue to exercise

habeas jurisdiction pursuant to local law over petitions filed by prisoners convicted of

local crimes. See 230 F.3d at 631–32. Because the newly enacted 4 V.I.C. § 76(a) vested

jurisdiction over all civil actions in the local courts, we held that “the District Court of the

Virgin Islands was divested of jurisdiction to consider petitions for writs of habeas corpus

under territorial habeas corpus law. . . . [T]o the extent that [5 V.I.C.] § 1303 vests


                                               2
jurisdiction in the District Court over a habeas corpus action brought under that section, it

. . . has been repealed.” Id. at 632. In Parrott, we made clear that such habeas petitions

must be brought in the Superior Court, even if the petitioner had been convicted of a local

crime in the District Court at a time when it exercised general jurisdiction. 230 F.3d at

624.1

        In Walker, we considered whether the District Court could nonetheless exercise

jurisdiction pursuant to federal habeas law over petitions filed by prisoners who had

violated local law. See 230 F.3d at 85–87. Citing Callwood, we found that “the District

Court properly held that it was without jurisdiction to grant Walker relief under § 1303.”

Id. at 85. However, after examining the amendments to the Revised Organic Act enacted

in 1984, we held that the District Court could exercise jurisdiction over habeas corpus

petitions from those in custody on account of Superior Court judgments pursuant to

federal habeas law, specifically 28 U.S.C. § 2254. Id. at 87. We based this holding, in

part, on the fact that Congress expanded the jurisdiction of the District Court of the

Virgin Islands to make it coextensive with United States District Courts, and that

Congress “specifically provided that, with respect to the granting of writs of habeas

corpus, the relationship between the District Court of the Virgin Islands and the

[Superior] Court shall be equivalent to that of the district courts of the United States and

the courts of the several States.” Id.; see also 48 U.S.C. § 1612(a) (vesting expanded


        1
        Prisoners convicted of federal crimes in the District Court may challenge their
convictions directly in the District Court under 28 U.S.C. § 2255, as would any prisoner
convicted of a federal crime in a district court of the United States. George v. Sively, 254
F.3d 438, 441 (3d Cir. 2001).

                                              3
federal jurisdiction); id. § 1613 (clarifying the relationship between the District Court of

the Virgin Islands and the local courts). Having found that jurisdiction in the District

Court was proper under § 2254, we dismissed the appeal for lack of appellate jurisdiction

because the petitioner had not been granted a certificate of appealability, as required by

28 U.S.C. § 2253(c). See Walker, 230 F.3d at 89–90.

       Relying on Walker, we also found in Callwood that the District Court had

jurisdiction under federal habeas law over petitions attacking local parole proceedings.

Callwood, 230 F.3d at 632–33. Citing Walker’s discussion of the jurisdictional changes

to the Revised Organic Act made by Congress in 1984, “we conclude[d] that although the

District Court of the Virgin Islands does not have jurisdiction over Callwood’s petition

under § 1303, . . . it does have jurisdiction under 28 U.S.C. § 2241.” Id. at 633 (footnote

omitted). Because Callwood had not exhausted his local remedies as required under

federal habeas law, we dismissed his petition without prejudice to his ability to “refil[e]

his challenge under § 2241 after exhaustion.” Id. at 634.

                                              II

       Applying the aforementioned principles to this appeal, certain conclusions are

apparent. Had Hughley’s habeas petition been filed initially in the District Court

invoking 5 V.I.C. § 1303 as its jurisdictional basis, Callwood, Parrott, and Walker would

mandate dismissal. E.g., Callwood, 230 F.3d at 632. Likewise, had Hughley exhausted

local remedies by filing a § 1303 petition in the Superior Court and then filed a separate

habeas petition in the District Court, as a state prisoner in one of the fifty states would do,

the District Court could hear the case under 28 U.S.C. § 2254. Walker, 230 F.3d at 87.


                                              4
Thereafter, a certificate of appealability under 28 U.S.C. § 2253(c) would be required

before we could hear any appeal. Id. at 89.

       The majority distinguishes Hughley’s case from either of these two scenarios

because his petition was first filed in the Superior Court under 5 V.I.C. § 1303 and the

District Court heard the case in its appellate capacity under 48 U.S.C. § 1613a(a).2 See

Maj. Typescript at 5. I find the majority’s distinction in conflict with the relevant trilogy.

       To be sure, both Walker and Callwood dealt with habeas petitions that had been

filed directly in the District Court under § 1303, whereas here the District Court

considered Hughley’s § 1303 habeas petition on appeal from the Superior Court via

§ 1613a(a). But this distinction makes no difference because the underlying ability of the

District Court to grant habeas relief is still grounded in local law—§ 1613a(a) gives the

District Court the power only to hear the appeal; § 1303 provides the substantive basis for

habeas relief. Under the majority’s analysis, the District Court would be empowered to

grant a habeas petition under § 1303. But Callwood held that the District Court has no

power to grant relief under § 1303. See Callwood, 230 F.3d at 632; see also Walker, 230

F.3d at 85 (“[T]he District Court properly held that it was without jurisdiction to grant

Walker relief under § 1303.”). Indeed, Callwood made no distinction between the

District Court acting in its appellate capacity or hearing a habeas petition as a quasi

territorial court under § 1303. Rather, we stated unequivocally that “to the extent that


       2
         In the 1984 amendments to the Revised Organic Act, Congress provided that
until the Virgin Islands legislature established an appellate court, the District Court would
exercise appellate jurisdiction over the decisions of the local courts. See Act of Oct. 5,
1984, Pub. L. No. 98-454, § 704, 98 Stat. 1732 (codified at 48 U.S.C. § 1613a).

                                              5
§ 1303 vests jurisdiction in the District Court over a habeas corpus action brought under

that section, it . . . has been repealed,” and also “that the District Court of the Virgin

Islands does not have jurisdiction under § 1303 over petitions filed under that section

after October 1, 1991.” 230 F.3d at 632.

       Furthermore, if § 1613a(a) granted the District Court jurisdiction over habeas

actions brought under § 1303, there would have been no need for Walker and Callwood

to hold that jurisdiction was proper under § 2254 and § 2241, respectively. Walker, 230

F.3d at 85, 87; Callwood, 230 F.3d at 632–33. Instead, the petitioners in both cases could

have gone to the Superior Court under § 1303 and then appealed to the District Court.

Likewise, Callwood’s statement that the petitioner could refile his habeas petition under

§ 2241 in the District Court after he exhausted local remedies, 230 F.3d at 634, would

have been unnecessary—the petitioner could have appealed the Superior Court decision

without any need to invoke § 2241. These principles are reinforced by the fact that in

Parrott, we required petitioners convicted of local crimes to file habeas petitions in the

Superior Court. 230 F.3d at 624. If the majority’s view were correct, petitioners never

would have to invoke § 2254 or § 2241 to obtain review in the District Court, a result

which cannot be squared with Walker and Callwood.3



       3
        This is not to say, of course, that the District Court is deprived of jurisdiction to
hear habeas appeals. Rather, the District Court may hear habeas appeals pursuant to
§ 2254 or § 2241. The oddity that this seems to implicate is only temporary; now that the
Virgin Islands Supreme Court has been established, the District Court will soon be
without any appellate jurisdiction once its last appellate case is closed. See 48 U.S.C.
§ 1613a(d). Thereafter, cases like Hughley’s will be subject to review in the District
Court only through § 2254.

                                               6
                                             III

       In sum, the statutory framework, as interpreted by Walker, Callwood, and Parrott,

mandates the following procedure. A petitioner—like Hughley—who collaterally attacks

his local law conviction must file a habeas petition under 5 V.I.C. § 1303 in the Superior

Court. Parrott, 230 F.3d at 624. Thereafter, he can obtain review in the District Court

pursuant to 28 U.S.C. § 2254 or 28 U.S.C. § 2241. Callwood, 230 F.3d at 234; Walker,

230 F.3d at 87. If a petitioner wishes to appeal to the Third Circuit, he must comply with

the certificate of appealability requirement imposed by 28 U.S.C. § 2253. Walker, 230

F.3d at 89.

       My reading of the statutory framework is buttressed by my confidence that

Congress could not have intended to give preferential treatment to prisoners in the Virgin

Islands over prisoners in the fifty States. In enacting the amendments to the Revised

Organic Act in 1984, Congress “specifically provided that, with respect to the granting of

writs of habeas corpus, the relationship between the District Court of the Virgin Islands

and the [Superior] Court shall be equivalent to that of the district courts of the United

States and the courts of the several States.” Walker, 230 F.3d at 87; see also 48 U.S.C.

§ 1613. And by enacting the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) with its certificate of appealability requirement, “Congress confirmed the

necessity and the requirement of differential treatment for those appeals deserving of

attention from those that plainly do not.” Miller-El v. Cockrell, 537 U.S. 322, 337

(2003). The majority’s reasoning eviscerates both of these principles by enabling

prisoners convicted of Virgin Islands crimes to obtain review in our Court as of right


                                              7
while prisoners in the fifty States must satisfy the onerous gatekeeping requirements of

AEDPA. By doing so, the majority guarantees that this Court will hear all habeas

appeals filed by Virgin Islands prisoners, not just the ones “deserving of attention.”

       I respectfully dissent.




                                             8
