                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2008

Harris v. DiGuglielmo
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4357




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                                                     NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                     No. 07-4357


                            GEORGE LESTER HARRIS,
                                               Appellant

                                           v.

         DAVID DIGUGLIELMO, SUPERINTENDENT GRATERFORD SCI;
        THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
         THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY


                   On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             District Court No. 07-cv-00213
                  District Judge: The Honorable Donetta W. Ambrose


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 9, 2008

                 Before: McKEE, SMITH, and ROTH, Circuit Judges

                             (Filed: December 23, 2008 )


                                      OPINION


SMITH, Circuit Judge.

      George Harris was arrested and, after an uncounseled preliminary hearing,

charged with a number of Pennsylvania crimes arising from the shooting of Matthew

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Smith. Harris was then tried and convicted of aggravated assault, criminal attempt,

recklessly endangering another person, and a firearms violation. He was sentenced to

13.5 to 27 years imprisonment.

       After an unsuccessful direct appeal and challenge under the Pennsylvania Post-

Conviction Relief Act (“PCRA”), Harris filed a writ of habeas corpus in the Western

District of Pennsylvania. A Magistrate Judge recommended the dismissal of all Harris’s

claims for either procedural default or lack of merit. The District Judge adopted the

reasoning of the Magistrate Judge and dismissed the claims. This Court granted a

Certificate of Appealability on a single issue: whether trial and appellate counsel were

ineffective for failing to raise Harris’s claim that he was denied counsel during his

preliminary hearing. We will affirm.1

       Inasmuch as we write primarily for the parties, who are familiar with this case, we

need not recite additional factual or procedural background.

       Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must establish

the following two elements to succeed on an ineffective assistance of counsel claim: (1)

“counsel’s performance was deficient,” namely that “counsel made errors so serious that


       1
               The District Court exercised jurisdiction pursuant to 28 U.S.C. § 2254, and
we have jurisdiction under 28 U.S.C. § 2253. Under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), a federal court may grant habeas corpus relief only if the
state court proceeding “‘resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law. . .; [or] 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.’” Appel v. Horn, 250 F.3d 203, 209 (3d Cir.
2001) (quoting 28 U.S.C. § 2254(d)).

                                              2
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment,” and (2) “the deficient performance prejudiced the defendant,” such that

“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. at 687. Although the Supreme Court “discussed the performance

component of an ineffectiveness claim prior to the prejudice component,” it instructed

that “there is no reason for a court . . .to approach the inquiry in the same order or even

address both components of the inquiry if the defendant makes an insufficient showing on

one.” Id. at 697.

       In the present case, the state PCRA court found that Harris had not demonstrated

prejudice. It stated that, while Smith identified Harris during the preliminary hearing,

this was not prejudicial because: (1) Smith’s identification was based on his prior

acquaintance with Harris, rather than on the preliminary hearing; and (2) Harris was

“unable to demonstrate that some action by counsel at his preliminary hearing would

have changed the outcome of this case.” Applying AEDPA’s deferential standard of

review, we do not find that this analysis is contrary to or an unreasonable application of

federal law.

       The evidence supports the state court’s determination that Harris was not

prejudiced by Smith’s identification during the preliminary hearing: Smith was

acquainted with Harris prior to the shooting, identified Harris based on his voice, and

immediately conveyed his identification of Harris as the shooter to a resident of the home

where the shooting occurred and to police shortly thereafter. Nevertheless, Harris argues

                                              3
that, if he had counsel during the preliminary hearing, counsel would have subjected

Smith to cross-examination, revealed weaknesses in Smith’s identification, and

developed testimony that could have been used to impeach Smith at trial. These

arguments, however, are unpersuasive. Trial counsel extensively cross-examined Smith

to undermine the identification. Thus, it is unlikely that doing so at the preliminary

hearing as well would have changed the trial outcome. Furthermore, the impeachment

value of Smith’s preliminary hearing testimony is weak. As the Magistrate Judge noted,

the “incremental value of such impeachment is negligible, and essentially cumulative, in

light of the actual impeachment done at trial and in light of the actual challenges to the

victim’s credibility raised in the defense closing.” Because we find that the state PCRA

court’s determination that Harris did not establish prejudice is not contrary to or an

unreasonable application of federal law , we need not consider whether Harris’s counsel

was deficient for failing to raise this claim.

       Harris also argues that, rather than consider his case under Strickland, this Court

must apply a presumption of prejudice under United States v. Cronic, 466 U.S. 648, 650

(1984). In Ditch v. Grace, 479 F.3d 249 (3d Cir. 2007), this Court determined that a

preliminary hearing is a critical stage in a criminal prosecution in Pennsylvania such that

a defendant is entitled to the assistance of effective counsel. Id. at 253. Nonetheless, the

denial of counsel at a preliminary hearing does not require automatic vacatur. Id. at 254.

We stated that “Cronic should be read in a more limited fashion,” such that prejudice

should be presumed “only with regard to those critical stages of litigation where a denial

                                                 4
of counsel would necessarily undermine the reliability of the entire criminal proceeding.”

Id. at 256. For the reasons stated above with regard to the Strickland prejudice analysis,

we cannot conclude that Harris’ denial of counsel during the preliminary hearing

undermined the entire criminal proceeding. Accordingly, we will affirm the District

Court’s judgment, denying Harris’s § 2254 petition.




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