                                                             NOT PRECEDENTIAL


                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                    ____________

                                     No. 13-3140
                                    ____________

                         ANTHONY P. PAGLIACCETTI,
                                           Appellant

                                         v.

           JOHN KERESTES, SUPERINTENDENT, SCI MAHANOY;
      THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA;
       THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                             (D. C. No. 2-11-cv-06381)
                  District Judge: Honorable Eduardo C. Robreno


                             Argued on April 8, 2014

              Before: AMBRO, JORDAN and ROTH, Circuit Judges


                        (Opinion filed: September 4, 2014)

Michael Wiseman, Esquire (Argued)
P.O. Box 120
Swarthmore, PA 19081

            Counsel for Appellant

Thomas W. Dolgenos, Esquire
Anne Palmer, Esquire    (Argued)
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107

             Counsel for Appellees



                                     OPINION


ROTH, Circuit Judge:

      Anthony Pagliacetti appeals the District Court’s denial of his petition for a writ of

habeas corpus. We will affirm.

I.    Background

      In the early morning hours of December 24, 2002, Jason McFarland, the victim,

was at a tavern in South Philadelphia with his cousin, Michael Piazza, and his uncle,

Michael McFarland. Pagliacetti, a lifelong friend of the victim who had grown up in the

same neighborhood, and Pagliacetti’s girlfriend were also at the bar. The parties were

drinking heavily and talking. Jason McFarland’s brother, Joseph McFarland, arrived,

intending to drive Jason home.     At some point, Pagliacetti asked Jason and Joseph

McFarland if they knew anything about the recent robbery of Pagliacetti’s sister’s cell

phone. Pagliacetti became angry when they denied knowing anything about it and a

heated argument began.

      Joseph McFarland attempted to break up the argument by getting the parties to

leave the bar.   Pagliacetti grabbed Jason McFarland’s shoulder as the confrontation

moved outdoors. Joseph McFarland tried to separate Pagliacetti and Jason McFarland by


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ushering Jason to his car. While Jason was near the car roughly twenty feet away from

Pagliacetti, Pagliacetti pulled an unlicensed handgun from his waistband and shot twice,

fatally striking Jason McFarland in the chest and the head. Pagliacetti then ran down the

street, stashing his gun and sweatshirt in the wheel-well of a car as he ran. Piazza ran

after him, ultimately catching him and leading him back to the scene. Pagliacetti’s

defense focused on a self-defense theory, with Pagliacetti arguing that Jason McFarland

had punched him and that Pagliacetti had seen Jason reach for something, possibly a

weapon, in his waistband when he was near the car. Pagliacetti did have an injury on or

near his left eye, but other testimony indicated that this was from a punch from Piazza

that occurred after the shooting, either during a scuffle when Piazza caught Pagliacetti or

from when Pagliacetti had been brought back to the scene and denied shooting Jason.

       On April 5, 2004, a jury in the Philadelphia Court of Common Pleas convicted

Pagliacetti of third-degree murder and three weapons offenses. Pagliacetti was sentenced

to 15 to 30 years in prison, with no additional sentence for the weapons charges.

       He appealed to the Pennsylvania Superior Court, arguing that the conviction was

based on insufficient evidence in light of his self-defense claim. The court affirmed his

conviction and the Pennsylvania Supreme Court denied his request for allowance of

appeal. Pagliacetti then filed a petition under the Pennsylvania Post Conviction Relief

Act, claiming, inter alia, ineffective assistance of trial counsel for failing to object to an

allegedly improper jury instruction on self-defense and ineffective assistance of appellate

counsel for not litigating the issue of trial counsel’s ineffectiveness. The PCRA court



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denied relief. His appeal to the Superior Court also failed and the Supreme Court denied

allowance of appeal.

       On October 12, 2011, Pagliacetti, still represented by the attorney who handled his

PCRA claim, filed a federal habeas petition in U.S. District Court for the Eastern District

of Pennsylvania. The District Court agreed with Pagliacetti that the jury instruction on

self-defense was improper, but held that the error was harmless and denied the petition.

Pagliacetti appeals.

II.    Discussion1

       We review Pagliacetti’s habeas petition under the standard set forth in the

Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254.              A state court’s

rejection of a constitutional claim provides a basis for relief if the state-court adjudication

was contrary to, or involved an unreasonable application of, clearly established Supreme

Court precedent. Id. § 2254(d)(1).

       Pagliacetti’s habeas petition raises two grounds for relief: (1) a due process

violation based on the improper jury instruction on self-defense, and (2) a derivative

ineffective assistance of counsel claim.

       An error in the jury instructions is not grounds for habeas relief if the error is

harmless. Yohn v. Love, 76 F.3d 508, 522 (3d Cir. 1996). An error is harmless unless it

“had substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In determining whether there is


1
 We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction under
28 U.S.C. § 2254(a).
                                              4
harmless error, we examine the impact of the error on the trial as a whole. Yohn, 76 F.3d

at 523. Thus, we ask whether the error had a substantial influence on the verdict despite

sufficient evidence to support the result apart from the error. Id.

       In addition to the due process claim related to the jury instruction, Pagliacetti also

argues that his Sixth Amendment right to effective assistance of counsel was infringed.

To prove this, he must show that (1) his counsel’s performance was deficient and (2) that

the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 686 (1984). To show prejudice, the petitioner must demonstrate that the ineffective

assistance of counsel actually had an adverse effect on the defense such that the result of

the proceeding would have been different but for counsel’s errors. Id. at 693–94.

       In these cases, rather than applying the Brecht and Strickland tests separately, we

have held that an error that is harmless under Brecht is also considered non-prejudicial

under Strickland. See Whitney v. Horn, 280 F.3d 240, 258 (3d Cir. 2002) (explaining that

the purpose of both tests is to determine whether the error affected the jury’s verdict).

       We agree with the District Court that, to the extent there was error in the jury

instruction, it was harmless. The prosecutor presented sufficient evidence showing that

Pagliacetti did not abide by the duty to retreat and did not hold a reasonable belief that he

was in immediate danger of death or serious bodily harm.

       There was considerable evidence that Pagliacetti could have retreated from the

conflict at several points during the encounter. He could have reentered the bar at any

point or retreated down the street, which he did after the shooting. Even crediting



                                              5
Pagliacetti’s testimony that Jason McFarland punched him when they were standing near

each other, Pagliacetti still could have retreated.

       There is also little evidence that Pagliacetti reasonably believed that Jason

McFarland was about to seriously injure him by reaching for something in his waistband.

As the District Court noted, “it defies logic to argue that Jason would punch Petitioner,

then run away from him, only to pull a gun on him from a distance of twenty feet.”

Pagliacetti v. Kerestes, 948 F. Supp. 2d 452, 460 (E.D. Pa. 2013).

       Even if the jury had not received erroneous instructions, Pagliacetti’s self-defense

claim would still fail because there was substantial evidence showing that he violated his

duty to retreat and did not have a reasonable belief that McFarland was going to seriously

injure or kill him. Therefore, the error in the jury instruction was harmless and did not

have a substantial influence on the verdict. See Brecht, 507 U.S. at 637. Because the

error was harmless under Brecht, counsel’s failure to object to the jury instruction was

not prejudicial under Strickland.

       Pagliacetti argues that the jury should have also been instructed on imperfect self-

defense, that is, when there is an unreasonable, rather than a reasonable, belief that deadly

force was necessary. This argument fails for the same reasons. First, there was still

sufficient evidence that Pagliacetti did not adhere to his duty to retreat. Second, there

was also sufficient evidence for the jury to find that Pagliacetti did not even unreasonably

believe that deadly force was necessary.

       Pagliacetti also argues that his joint ineffective assistance of appellate counsel

claim means we should employ the harmless error standard that should have been applied

                                               6
on direct appellate review, namely the standard in Chapman v. California, 386 U.S. 18

(1967), rather than the standard in Brecht. Under Chapman, the government must show

that an error is harmless beyond a reasonable doubt. 386 U.S. at 24. Under Brecht, an

error is harmless unless it had a “substantial and injurious effect” in determining the

jury’s verdict. 507 U.S. at 637.

       Pagliacetti points to no binding case that has taken this approach. Indeed, there

are precedents that hold otherwise. See Fry v. Pliler, 551 U.S. 112, 121–22 (2007)

(federal habeas court must use the Brecht standard regardless of whether state appellate

court recognized the error and reviewed it under Chapman); Hassine v. Zimmerman, 160

F.3d 941, 952 (3d Cir. 1998) (“[I]t is anomalous to say that a Chapman standard should

apply in any habeas case . . . . [N]ot to apply Brecht, and to apply instead a less

deferential standard, is to nullify not merely the policies that the Court has advanced, but

the very import of the Brecht decision.”). Thus, the District Court was correct to review

harmless error using Brecht rather than Chapman or another standard.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s denial of the

petition.




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