                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-3400
                                     ____________

                             DAVID RUSSELL DANNER,

                                                  Appellant

                                            v.

              KENNETH P. CAMERON; DANIEL J. BARRETT, Esq.;
           ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
                DISTRICT ATTORNEY BRADFORD COUNTY
                            _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (Civil Action No. 1-11-cv-00946)
                     District Judge: Honorable Sylvia H. Rambo
                                    _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  March 21, 2014

     Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges

                                 (Filed April 29, 2014)
                                      ___________

                                       OPINION
                                      ___________

VANASKIE, Circuit Judge.

      David Russell Danner appeals the denial of his petition for a writ of habeas corpus

submitted pursuant to 28 U.S.C. § 2254. The District Court granted a certificate of
appealability as to Danner’s claim that his constitutional right to counsel was violated

when, at Danner’s state-court trial for the rape of his daughter, his defense attorney failed

to present the testimony of witnesses which Danner contends would have impeached the

credibility of the victim. Because we agree with the District Court’s finding that the

proffered testimony would have been cumulative and would not have affected the

outcome of the trial, we will affirm the District Court’s denial of Danner’s habeas

petition.

                                              I.

       We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

       The evidence presented by the prosecution at Danner’s trial showed that on

Wednesday, October 17, 2007, Danner set out on a four-day hunting trip in Bradford

County, Pennsylvania, with the victim, his fifteen-year-old daughter. Prior to the trip the

two had discussed the possibility that the victim might move out of the home of Danner’s

ex-wife, with whom the victim had been quarrelling, and begin living with Danner.

       At trial, the victim testified that on the evening of Thursday, October 18, she and

Danner consumed alcohol together at the Bradford County home of Danner’s friends,

John Biechy and Tracey Davidson. They then traveled to the nearby home of the

victim’s grandmother, with whom they were staying, and continued drinking. The victim

eventually retired to the attic bedroom and fell asleep. The victim testified that in the

early morning hours of Friday, October 19, she was awoken by the sensation of Danner

rubbing her leg. After a period of conversation, Danner began to pull down the victim’s

                                              2
sweatpants. Despite the victim’s protests, Danner finished pulling off the victim’s pants,

climbed on top of her, and inserted his penis into her vagina. The victim pushed Danner

away and fled to the basement. She did not discuss the rape with anyone until after her

return home two days later, when she told friends about the incident.

       Shortly thereafter Danner was arrested by Pennsylvania authorities and charged

with rape, sexual assault, and indecent assault. At trial in Pennsylvania state court in

April 2008, Danner presented testimony from Biechy and Davidson, who said they had

noticed nothing unusual about the victim’s behavior or demeanor during the course of the

trip. Judy Muffley, Danner’s mother-in-law, likewise testified that when she spoke to the

victim on the day after the hunting trip, the victim had seemed excited about the prospect

of living with Danner. Danner himself testified that the incident described by the victim

had simply not occurred.

       On April 24, 2008, the jury found Danner guilty on all counts. The trial judge

imposed an indeterminate sentence of 11 to 22 years’ imprisonment. Danner did not file

a direct appeal.

       On September 9, 2008, Danner filed a petition under Pennsylvania’s Post-

Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541–46 (West 2014), and

later filed an amended petition with the assistance of counsel. Among the issues raised

was Danner’s claim that his attorney should have presented testimony from three family

members regarding the victim’s actions and demeanor in the aftermath of the hunting

trip. On November 11, 2008, the PCRA Court dismissed the petition without a hearing.



                                             3
The Pennsylvania Superior Court affirmed. See Commonwealth v. Danner, 988 A.2d 716

(Table) (Pa. Super. Ct. 2009), allocatur denied, 995 A.2d 351 (Table) (Pa. 2010).

       Danner filed a habeas corpus petition on May 17, 2011, which he supplemented on

July 25, 2011 and again on August 18, 2011. In a comprehensive opinion entered on July

1, 2013, the District Court thoroughly addressed and rejected, either on procedural

grounds or on the merits, each of the many claims presented by Danner. In denying

habeas relief, the District Court found that only one issue presented by Danner merited a

certificate of appealability. That issue is whether Danner “is entitled to habeas relief as a

result of trial counsel’s failure to secure and call additional lay witnesses at trial.” (App.

74.) This appeal followed.

                                              II.

       The District Court had jurisdiction under 28 U.S.C. §§ 2241(a) and 2254(a). We

have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary

review over the District Court’s legal conclusions. See Coombs v. Diguglielmo, 616 F.3d

255, 260 (3d Cir. 2010).

       Where, as here, a state court has decided the merits of a petitioner’s habeas claim,

relief in federal court may be granted only if the state court’s adjudication of the claim:

              (1) resulted in a decision that was contrary to, or involved an
              unreasonable application of, clearly established Federal law,
              as determined by the Supreme Court of the United States; or

              (2) 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.



                                               4
28 U.S.C. § 2254(d). A state court decision is an “unreasonable application” of clearly

established federal law “if the state court unreasonably applies the correct legal rule to the

particular facts, unreasonably extends a legal principle to a new context, or unreasonably

refuses to extend the principle to a new context where it should apply.” McMullen v.

Tennis, 562 F.3d 231, 236 (3d Cir. 2009). This test “is an objective one—a federal court

may not grant habeas relief merely because it concludes that the state court applied

federal law erroneously or incorrectly.” Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005).

Instead, “[a] state court's determination that a claim lacks merit precludes federal habeas

relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court's

decision.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786 (2011) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

                                             III.

       Danner argues that the PCRA Court’s rejection of his Sixth Amendment claim was

an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), which

constitutes “clearly established Federal law” for purposes of relief under § 2254(d). See

Williams v. Taylor, 529 U.S. 362, 391 (2000). Under Strickland, a habeas petitioner must

first establish that counsel's performance was deficient, such that it “fell below an

objective standard of reasonableness.” Strickland, 466 U.S. at 688. The reviewing court

“must indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. The defendant then must show that the

deficient performance deprived the defendant of a fair trial. Id. at 687. In practice this

requires “a reasonable probability that, but for counsel's unprofessional errors, the result

                                              5
of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

       The substance of Danner’s claim is that he was prejudiced by his trial counsel’s

failure to call certain witnesses—Danner’s cousins, Pamela and Gaylen Hoff, and

Danner’s father-in-law, Carl Muffley—who would have provided testimony that (1) the

victim’s demeanor seemed ordinary immediately after the hunting trip at issue; and (2)

the victim did not disclose the incident at issue to them despite the opportunity to do so.

The Pennsylvania Superior Court affirmed the denial of PCRA relief on this basis,

finding that Danner had failed to establish that the witnesses were willing to cooperate

and available to appear on his behalf at the time of trial. Danner pressed the same claim

before the District Court, but at that stage produced sworn affidavits from the witnesses

proffering their testimony and certifying that they were willing and able to testify at the

time of trial. The District Court concluded that the testimony was cumulative, and that

Danner had therefore failed to satisfy Strickland’s prejudice prong. (App. 70.)

       Pennsylvania courts have defined cumulative evidence as “additional evidence of

the same character as existing evidence and that supports a fact established by the

existing evidence.” Commonwealth v. G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super. Ct.

2007) (quoting Black's Law Dictionary 577 (7th ed. 1999)).           In this case, it was

undisputed that the victim kept silent as to the rape until days after returning home from

the hunting trip on which it occurred.1 Three defense witnesses—Biechy, Davidson, and


       1
        Under Pennsylvania law, both a prompt complaint of sexual assault and the lack
thereof are relevant factors for the jury to consider when assessing an alleged victim’s
                                            6
Judy Muffley—testified at trial that they interacted with the victim during this time and

perceived nothing unusual about her demeanor.           Defense counsel emphasized this

testimony in summation. (App. 277.) The prosecutor responded to that argument and

offered reasons justifying the victim’s silence, (App. 286), but did not challenge the

credibility of Biechy, Davidson, and Muffley, or the accuracy of their testimony.

       We conclude that the proffered testimony of Danner’s cousins and father-in-law is

virtually indistinguishable from uncontested testimony already in the trial record. Thus,

because the proffered testimony merely “support[ed] a fact established by the existing

evidence[,]” namely, the victim’s post-incident silence and demeanor, that testimony is

cumulative. G.D.M. Sr., 926 A.2d at 989. We have previously recognized that a failure

to present cumulative evidence does not render counsel’s performance ineffective under

Strickland. See Brown v. Wenerowicz, 663 F.3d 619, 631 (3d Cir. 2011). Accordingly,

the District Court properly denied Danner’s petition for habeas relief. 2




credibility at trial. See Commonwealth v. Dillon, 863 A.2d 597, 602–03 (Pa. Super. Ct.
2004).
       2
         Danner also presented to the District Court an affidavit from his wife, Laurie
Danner, who is the victim’s stepmother. (App. 438–39.) This affidavit also concerns the
victim’s demeanor after the hunting trip, which Danner asserts was inconsistent with the
conduct expected of a fifteen-year-old who had just been raped by her father. There is no
indication that Danner presented, as a ground of ineffective assistance of trial counsel
during the PCRA proceeding, the failure to call his wife as a witness. The District Court,
although acknowledging the submission of Laurie Danner’s undated affidavit, did not
separately address it in its analysis of the uncalled-witnesses claim. Because the
significance of the failure to call Laurie Danner during the trial was not presented to the
PCRA Court, we find no error in the District Court’s failure to discuss her affidavit.
Moreover, we conclude that the failure to call Laurie Danner was not prejudicial because
it would have been cumulative testimony from an obviously biased source.
                                             7
                                    IV.

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




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