                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-2003

Philson v. Barbo
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3658




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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                     No. 01-3658


                       PATRICE PHILSON, a/k/a JUSTICE ALLAH
                                                  Appellant

                                           v.

            JAMES BARBO, Administrator, Northern States Prison; and
          THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

                                                      Patrice Philson,
                                                                    Appellant
                                  _______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                           (D.C. Civ. No. 98-cv-02249 )
                  District Judge: Honorable William H. Walls
                                  ____________

                    Submitted Under Third Circuit L.A.R. 34.1(a)
                                 October 3, 2003
               Before: RENDELL, WEIS and GARTH, Circuit Judges.
                        Filed: October 9, 2003
                                  ____________

                                      OPINION


WEIS, Circuit Judge.

             In 1990, a jury in the Superior Court of New Jersey convicted petitioner



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Philson of murder. After direct appeal and post-conviction proceedings in state court

were unsuccessful, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in

the District Court of New Jersey.

              The District Court held an evidentiary hearing and denied the petition. We

granted a certificate of appealability limiting the issue, however, to whether Philson’s trial

lawyer’s failure to interview certain witnesses constituted an inadequate defense.

              The murder occurred about 2:30 a.m. on a street in downtown Newark,

New Jersey. The victim had driven his automobile to the scene to collect some money.

He was accompanied by two teenage girls, Aisha Jones and Erica Dawson. As the victim

returned from his collection errand, he was accosted by three individuals, petitioner

Philson, Hassan Carter and Damian Wise. The victim was shot while resisting an

apparent robbery attempt, and died at the scene.

              Philson and Carter were both indicted for the murder, but Carter was

acquitted at trial. Philson retained John Vantuno, a former prosecutor and an experienced

defense attorney, for representation at trial.

              Both of the teenage girls, Jones and Dawson, testified that they saw Philson

shoot the victim. In addition, witness Glenn Copeland said that he heard an individual

threaten the victim shortly before the shot was fired. In the courtroom, Copeland

identified Philson as that person.

              There were numerous inconsistencies in the evidence at trial. Witnesses



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differed as to whether the shooter wore a brown or green jacket and whether Philson and

Wise had switched jackets. Wise testified that Philson had shot the victim and soon

afterwards they encountered each other in an apartment near the scene occupied by

Carolyn Moore and Loretta Barber. Wise said that Philson made damaging, inculpatory

statements at that time. In their statements to the police, Barber and Moore denied that

Philson and Wise had actually entered their apartment.

              One and one-half years after the trial, Cawana Dawson submitted an

affidavit disputing her sister Erica’s alleged prior acquaintanceship with Philson and her

identification of him as the person who had shot the victim.

              In his post-trial proceedings, Philson contended that his attorney Vantuno

was ineffective in failing to interview Cawana Dawson and call her as a witness. In

addition, Philson challenged his lawyer’s failure to call Moore and Barber. He asserts

that they would have testified that they had refused him entry into their apartment and,

thus, would have contradicted Wise’s allegations about Philson’s inculpatory statements.

              Additionally, another witness, Quintina Holden, was not called. In her

statement to the police she related that she had seen two girls take the coat from the

victim after he was shot. She had not, however, witnessed the actual shooting.

              These contentions were raised at the state post-conviction proceeding.

After oral argument and a thorough review of the record, the state judge concluded that

trial counsel had satisfied the minimum standards for effective assistance of counsel. The



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judge concluded that, “[i]t was the large corpus of insurmountable and incontrovertible

evidence presented at trial, which included several eyewitnesses to the murder, which

resulted in the defendant’s conviction and [it] was not due to defense counsel’s

performance.” Further, the judge found that “defense counsel could have reasonably

chosen not to explore the specific avenues of examination proposed by [Philson] for fear

that further inquiry might have exposed information detrimental to the defense.” The

state court’s denial of Philson’s post-conviction relief was affirmed on appeal. The New

Jersey Supreme Court denied certification.

               At the conclusion of Vantuno’s testimony and extended argument in the

District Court, the judge announced his decision from the bench. Assessing the record in

accordance with Strickland v. Washington, 466 U.S. 668 (1984), the district judge stated,

“I don’t believe Vantuno’s representation fell below an objective standard of

reasonableness . . . [Even] assuming that it did, certainly the outcome would not have

been different in all likelihood . . ..”

               The court observed that Mr. Vantuno strongly denied ever hearing Philson

speak of calling Cawana Dawson as a witness. The judge found, “I do not believe the

name [of Cawana] was given to [Vantuno] by [Philson] in the context of being called as a

defense witness.” Even assuming that Philson was correct in stating that he gave

Cawana’s name to his lawyer, the judge noted that she had another sister who might have

been associated with Philson. In any event, the eyewitness testimony of the two teenage



                                             4
girls would not have been weakened to the extent of producing a different result at trial.




                With respect to Barber and Moore, the judge noted that their testimony

might have cast doubt on Wise’s statements, but it would not have affected that of the two

girls. Moreover, Vantuno said that he did not call Barber and M oore because their

testimony would have provided the state with evidence of Philson’s flight from the scene

of the crime.

                The district judge also discounted any value to the alleged knowledge of

Quintina Holden. She did not see the shooting and her sighting of two girls taking a coat

from the victim as he lay on the street would not have affected Jones and Dawson’s

testimony about the murder.

                Our review of state habeas corpus claims is limited by the A.E.D.P.A., 28

U.S.C. § 2254. A petition may not be granted on claims adjudicated on the merits in state

court unless the decision was contrary to or involved an unreasonable application of

clearly established federal law or was based on an unreasonable determination of the facts

in light of the evidence presented in the state proceeding. 28 U.S.C. § 2254(d). As the

Supreme Court explained “[t]he state court’s application must have been ‘objectively

unreasonable.’” Wiggins v. Smith, 123 S. Ct. 2527, 2534 (2003).

                Strickland v. Washington, 466 U.S. 668 (1984) provides the legal standard

applicable to claims of ineffective counsel. First, counsel’s performance must have been



                                              5
deficient and, second, must have prejudiced the defense. As the Court said, “[s]tragetic

choices made after less than complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations on investigation . . .

[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary. In any ineffectiveness case, a particular

decision not to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at

690-91.

                The state court followed federal law as articulated in the Strickland

opinion. The issue here, therefore, is whether the decision was based on an unreasonable

determination of the facts in light of the evidence presented in the state court. 28 U.S.C.

§ 2254(d)(2).

                The state judge performed a very thorough review of the trial record after

hearing extensive argument by counsel in the post-conviction proceeding. The only

weakness in the case at that point was the absence of testimony from Vantuno. That

deficiency, however, was remedied in the district court hearing where Mr. Vantuno

testified at length on his conduct of the defense.

                We have reviewed this case very carefully and conclude that the District

Court did not err in dismissing the petition. Philson focused his challenge on three areas

where counsel was allegedly ineffective and we will comment on each in turn.



                                               6
              First, Philson contends that he told Vantuno that Cawana Dawson should

have been called as a witness. Vantuno denied that allegation and the district judge

accepted that disavowal, “in the context of being called as a defense witness.”

Nonetheless, even assuming that Philson’s allegation is correct, we feel that Cawana’s

impeaching testimony would not have been enough to affect the result.

              We have examined the affidavit of Cawana Dawson and are inclined to

view it with some skepticism. The affidavit was not filed until one and one-half years

after the conviction without any explanation for the delay. Essentially, it states that the

two teenagers were unsure of the identity of the shooter and whether he wore a brown or

green jacket. That discrepancy, while significant, was already revealed in the statements

given to the police, and was explored during the testimony at trial.

              Moreover, the affidavit accused Erica of misstating the fact that she had

known Philson because he “used to go with my sister Cawana.” The affidavit is incorrect

in this respect because at trial Erica did not mention Cawana at all. Rather, it was Aisha

Jones who testified that she had known Philson because he “used to go with Felicia, . . .

Erica’s sister” – not Cawana. A crucial point of the affidavit, therefore, was incorrect and

undermines much of Cawana’s accusations that Erica had lied on the witness stand.

Although Jones’ testimony varied from that which she gave before the Grand Jury, where

she linked Cawana rather than Felicia Dawson with Philson, it was the trial testimony

which Cawana specifically challenged. We conclude that, even if called, Cawana’s



                                              7
impeaching testimony would not have affected the result of the trial.




              Philson also criticizes the decision not to call Barber and Moore to the

stand. In the course of discovery, Vantuno had read the statements they had given to the

police. Both statements allege that Philson and Wise came to their apartment in the early

morning hours but had been refused entry because of the lateness of the hour. Philson

contends that their testimony would have undermined Wise’s damaging allegations of the

petitioner’s inculpatory statements made in that apartment.

              As a matter of trial strategy, Vantuno decided not to call these women as

witnesses because their testimony would have supplied evidence of Philson’s flight.

Giving appropriate deference to counsel’s judgment in light of all the circumstances here,

we cannot say he was ineffective in his strategic decision. Moreover, as the district judge

pointed out, the testimony of these two women “would not have knocked out [Aisha]

Jones and Erica Dawson’s eyewitness testimony.”

              The third alleged dereliction of counsel was his failure to call Quintina

Holden. While Ms. Holden did supply police with information about events immediately

following the shooting, she could not furnish any evidence about the perpetrator because

it was the shot that alerted her and caused her to go from her house to the scene. The fact

that she saw two girls take the victim’s coat and flee the scene would not have aided the

defense. That evidence would have merely reflected upon the character of the two



                                             8
teenagers. It would not, as the district judge noted, have “undermine[d] the basic

believability of their assertion that they saw petitioner shoot the victim.” According to

the district judge, the allegation that such testimony would weaken their identification of

the shooter “makes no professional sense to me and I don’t buy it both as a lawyer and as

a judge.” We cannot disagree with that assessment.

              The trial of this case was marked by a number of inconsistencies in the

testimony of witnesses who were at the scene. These contradictions were explored by

counsel at length and were submitted to the jury that had the duty to resolve them.

              After our study of the record, we are satisfied that the district judge

conducted a comprehensive hearing, giving petitioner and his counsel every opportunity

to present the case. We note that the district judge even permitted Philson, acting pro se,

to argue personally in addition to counsel’s comprehensive presentation.

              We find no reversible error and, accordingly, the judgment of the District

Court will be affirmed.

______________________________

TO THE CLERK:


              Please file the foregoing Opinion.




                                           /s/ Joseph F. Weis, Jr.__
                                           United States Circuit Judge



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