                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2004

Nolen v. Meyers
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2118




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Recommended Citation
"Nolen v. Meyers" (2004). 2004 Decisions. Paper 783.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/783


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                                                             NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 03-2118

                              CHRISTOPHER NOLEN,

                                               Appellant

                                          v.

                               ROBERT W. MEYERS


                       _________________________________

                   On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                  District Judge: The Honorable James F. McClure, Jr.
                                (D.C. No. 00-cv-00196)
                       _________________________________

                       Submitted under Third Circuit LAR 34.1
                                 on March 25, 2004

              Before: FUENTES, SMITH, and GIBSON,* Circuit Judges

                                (Filed: April 23, 2004)

                              ______________________

                             OPINION OF THE COURT
                             _______________________




      *
       The Honorable John R. Gibson, Senior Circuit Judge for the United States Court
of Appeals for the Eighth Circuit, sitting by designation.

                                          1
GIBSON, Circuit Judge.

       Christopher Nolen appeals the denial of his petition for a writ of habeas corpus

claiming his Sixth Amendment right to effective assistance of counsel was violated by

counsel's failure to request an alibi jury instruction. We affirm.

       In the early evening of November 21, 1981, two masked men armed with

handguns entered Ritchie's Tavern in Londonderry Township, Pennsylvania. One of the

men ordered, "Don't move or I'll shoot." When the proprietor of the tavern, Carroll

Ritchie, approached the two men, each one fired his gun. One of the men fired his gun a

second time, and this bullet struck and killed Ritchie.

       Nolen was identified as one of the shooters by David Crater, who confessed to

being the driver of the getaway car. Crater testified that he, Nolen, Dauntel Evans, and

Joey Boyer had originally planned to rob a country grocery store that evening. As they

drove toward the store, Boyer decided that he no longer wanted any part of the robbery,

got out of the vehicle and walked home. The other three men reached the grocery store

but abandoned their plan to rob it after noticing the number of people inside. They turned

their attention to nearby Ritchie's Tavern instead. Crater testified that he entered the

tavern first to survey the premises, then returned to the car to wait while Nolen and

Evans, faces concealed, entered the tavern with the handguns. Crater heard three shots

fired, then Nolen and Evans ran from the tavern and the three men drove off.

       Nolen was tried and convicted in Pennsylvania state court of second-degree



                                              2
murder, robbery, and criminal conspiracy. However, his conviction was vacated by the

Pennsylvania Supreme Court, which concluded that the trial court erred in not allowing

defense counsel to cross-examine Crater about his role in the incident and his expectation

of leniency in return for his testimony. Commonwealth v. Evans, 512 A.2d 626 (Pa.

1986). On remand, Nolen was tried and convicted again.

       During the second trial, there was testimony presented from both Nolen's sister and

grandmother. 1 Nolen's sister testified that Nolen had been at her home by 5:30 p.m. on

the night of the shooting and had stayed there for the remainder of the night. Nolen's

grandmother, who lived separately from his sister, testified that Nolen was at her home by

7:00 p.m. on the night in question and stayed there for the remainder of the night. She

also testified that he had been at her home from 7:00 onward every night during the

weeks surrounding the shooting, despite Nolen's admission that he committed two other

robberies during that time. Nolen's attorney did not request an alibi jury instruction, and

later explained that he consciously chose not to request such an instruction on account of

the inconsistencies between the sister's and grandmother's testimony.

       In August 1993, Nolen filed a petition for relief under the Pennsylvania Post

Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541 et seq., alleging that he was denied

effective assistance of counsel based in part on counsel’s failure to request an alibi jury




       1
        The grandmother only appeared at the first trial; her testimony was read into the
record in the second.

                                              3
instruction. Following the adverse rulings of state courts, including the Pennsylvania

Supreme Court's denial of a petition for allowance of appeal, Nolen filed this habeas

corpus petition. The district court found that Nolen had properly exhausted his state

remedies but that his ineffective assistance of counsel claim lacked merit and therefore

dismissed his petition.

       We review de novo the district court’s denial of habeas corpus relief. Steele v.

Blackman, 236 F.3d 130, 133 (3d Cir. 2001). "[A] federal court may grant habeas relief

only if the state court's decision was 'contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United

States,' or was 'based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.'" Chadwick v. Janecka, 312 F.3d 597,

606-07 (3d Cir. 2002) (quoting 28 U.S.C. § 2254(d)(1), (d)(2)), cert. denied 123 S.Ct.

1914 (2003). In order to succeed on an ineffective assistance of counsel claim, the

Supreme Court has held that a defendant must show: 1) that the performance of counsel

fell below an objective standard of reasonableness; and 2) that the errors of counsel

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984).

       We cannot conclude that the state court’s decision denying post-conviction relief

was contrary to, or an unreasonable application of, Supreme Court precedent on

ineffective assistance of counsel claims under the Sixth Amendment. Nolen’s trial

counsel testified during the state post-conviction proceedings that he made a conscious



                                             4
decision not to pursue an alibi defense based on the inconsistencies in the alibi testimony.

He thought that an alibi jury instruction would serve only to highlight these

inconsistencies. While this strategy may not have been ideal, the state court certainly did

not err in concluding that it was objectively reasonable, especially in light of the Supreme

Court’s mandate that “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland, 466 U.S. at 689. Indeed, “[t]here are countless ways to provide

effective assistance in any given case. Even the best criminal defense attorneys would not

defend a particular client in the same way.” Id.

       We affirm the district court’s denial of Nolen’s petition for a writ of habeas

corpus.




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