                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-4-2005

Thomas v. Varner
Precedential or Non-Precedential: Precedential

Docket No. 04-2856




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                                           PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 04-2856


                     CLAYTON THOMAS

                                v.

    BEN VARNER; THE DISTRICT ATTORNEY OF THE
     COUNTY OF PHILADELPHIA; THE ATTORNEY
     GENERAL OF THE STATE OF PENNSYLVANIA,

                            Appellants


        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                    (D.C. No. 02-cv-04778)
        District Judge: Honorable Bruce W. Kauffman




                  Argued April 22, 2005
 Before: ROTH, FUENTES, and STAPLETON, Circuit Judges.

                   (Filed: November 4, 2005)

Helen T. Kane (Argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
District Attorney
1421 Arch St.
Philadelphia, PA 19102-1582

ATTORNEYS FOR APPELLANTS

Daniel Silverman (Argued)
1429 Walnut St.
Suite 1001
Philadelphia, PA 19102

ATTORNEY FOR APPELLEE

                               ____

                   OPINION OF THE COURT


FUENTES, Circuit Judge.

        Following a jury trial, Clayton Thomas was convicted of the
shooting death of Harry James, the owner of a speakeasy in
Philadelphia. He was also convicted of crimes related to the
wounding of Peter Fuller, a patron of the speakeasy. Thomas
alleges that his identification by Fuller was tainted by an
unconstitutionally suggestive photo array and that his trial counsel
was ineffective for failing to move to suppress or otherwise object
to Fuller’s identification at trial. After finding defense counsel’s
performance deficient, the District Court issued a writ of habeas
corpus directing the Commonwealth to retry or release Thomas.
Because we agree with the District Court that counsel’s error in
failing to move to suppress or object to the identification at trial
fatally undermined the reliability of the verdict, we will affirm.

                                 I.

     The facts underlying this appeal were succinctly
summarized by the Pennsylvania Superior Court in rejecting
Thomas’s appeal in his state post-conviction proceedings:

       The charges stemmed from the robbery of a

                                 2
       speakeasy located in the City of Philadelphia.
       Accompanied by a person who acted as lookout,
       [Thomas] entered the speakeasy brandishing a
       firearm and ordered the occupants to the floor. The
       proprietor of the establishment, Harry James, had
       been playing chess with a customer, Peter Fuller.
       Mr. James was fetching a beer for another customer
       when [Thomas] arrived. Instead of complying with
       [Thomas’s] order, Mr. James leaped at [Thomas] and
       began to struggle with him. During the course of
       this altercation, [Thomas] shot Mr. James in the
       chest. The victim subsequently died of his wound.
       [Thomas] also shot Mr. Fuller in the shoulder. Mr.
       Fuller survived.

(App. 684-85.)

        After the robbery and shooting, the police talked with at
least two eyewitnesses, Christopher Young and Fuller. Young, an
acquaintance of Thomas, originally failed to identify Thomas as
one of the assailants, but, after making several inconsistent
statements about the incident, did identify Thomas. He later
testified that he was threatened by the police, and that he feared
being arrested if he did not name someone. He also had several
criminal charges pending against him when he testified on behalf
of the Commonwealth at Thomas’s trial.

        Fuller, the surviving shooting victim, described his assailant
as a black male, and was shown some 750 pictures of black males
arrested for robbery, but made no identification at that time.1
Weeks later, he was shown about 10-12 more photos, but still could
not identify anyone. At that time, the detective allegedly pulled
two pictures from the group and asked Fuller to take a “real good”




       1
        There appears to be some confusion in the record as to
whether Fuller was shown approximately 750 photographs at that
time, or closer to 100 photographs. (App. 573, 489-90).

                                  3
look at them, and Fuller made a tentative identification.2 At the
pretrial hearing and at trial, Fuller testified that he would not have
made the identification if the detective had not strongly suggested
that the two pictures highlighted were of the perpetrators. Fuller
could not make an in-court identification at the pre-trial hearing.
Because no identification was made, counsel for Thomas withdrew
his pre-trial suppression motion as to identification, as there was no
identification to be suppressed. However, at trial, Fuller made a
spontaneous in-court identification of Thomas, and counsel failed
to object or move to suppress the identification. At trial, the
testimony of Young and Fuller’s in-court identification were the
only evidence connecting Thomas to the crime.

       Thomas was convicted by a jury of second-degree murder,
robbery, aggravated assault, and possession of an instrument of
crime, and was sentenced to imprisonment for life. Thomas’s co-
defendant, his son Shaurn, was acquitted of all charges against him,
which arose from his alleged role as the lookout.

        Thomas appealed from his conviction, and the Superior
Court affirmed; Thomas did not seek certification with the
Pennsylvania Supreme Court. Thomas thereafter filed pro se for
state post-conviction relief, and then retained counsel, who filed an
amended petition and a supplemental petition. The post-conviction
court summarily denied relief on all claims, including his
ineffective assistance of counsel claim, without holding an
evidentiary hearing. The Superior Court affirmed and the
Pennsylvania Supreme Court denied certification.

        After exhausting his state remedies to no avail, Thomas filed
a petition for habeas corpus in the Eastern District of Pennsylvania,
making claims of (1) ineffective assistance of counsel, based on (a)
trial counsel’s failure to object to an alleged Bruton violation,3 and


       2
         The detective disputed Fuller’s account of this incident,
stating that Fuller picked out the pictures without his prompting.
       3
        In Bruton v. United States, the Supreme Court held “that,
because of the substantial risk that the jury, despite instructions to
the contrary, looked to the incriminating extrajudicial statements in

                                  4
(b) counsel’s failure to move to suppress an unreliable witness
identification, and (2) prosecutorial misconduct in improperly
bolstering the credibility of certain witnesses.4 The District Court
referred the case to a Magistrate Judge, who held an evidentiary
hearing. The Magistrate Judge recommended granting the habeas
petition solely with respect to the ineffective assistance claim for
failure to move to suppress the in-court identification and
recommended denying it with respect to all other claims. The
Commonwealth filed objections to the recommendation that the
petition be granted, while Thomas did not file any objections. The
District Court adopted the recommendation with respect to denying
the specified claims, and, after conducting a de novo review,
agreed that the petition should be granted as to the ineffective
assistance claim based on the failure to move to suppress the
identification for the reasons presented in its memorandum and
order. The Commonwealth appeals.

                                 II.

        The Commonwealth argues that: (1) the Magistrate Judge
erred in granting an evidentiary hearing and the District Court erred
in relying on evidence from that hearing, as it failed to honor the
presumption of correctness accorded to state court findings; (2) the
District Court erred in finding that counsel’s conduct was
objectively unreasonable simply because a better strategy may have
existed; (3) the District Court improperly placed the burden of
proof on the Commonwealth to show that the evidence should not
have been suppressed; and (4) Fuller’s identification was
cumulative, making its suppression harmless and non-prejudicial.


determining petitioner’s guilt, admission of [the co-defendant’s]
confession in this joint trial violated petitioner’s right of
cross-examination secured by the Confrontation Clause of the Sixth
Amendment.” 391 U.S. 123, 126 (1968).
       4
         Thomas also made an ineffective assistance claim in his
petition based on counsel’s failure to use an adverse witness’
criminal history to impeach him. However, this claim was never
pursued in his filings before the District Court, and he does not
raise it here.

                                 5
After setting forth the general habeas corpus standards applicable
here, we will consider the arguments in that order.

      Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”):

       An application for a writ of habeas corpus on behalf
       of a person in custody pursuant to the judgment of a
       State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State
       court proceedings unless the 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.

28 U.S.C. § 2254(d). The District Court decided this case under
the unreasonable application provision of the statute’s first section.
A state court decision is an unreasonable application under
§ 2254(d)(1) if the court “identifies the correct governing legal rule
from the Supreme Court’s cases but unreasonably applies it to the
facts of the particular case or if the state court either unreasonably
extends a legal principle from the Supreme Court’s precedent to a
new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.”
Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002). “The
unreasonable application 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).

       “AEDPA’s deferential standards of review do not apply
‘unless it is clear from the face of the state court decision that the
merits of the petitioner’s constitutional claims were examined in

                                  6
light of federal law as established by the Supreme Court of the
United States.’” Id. (quoting Everett v. Beard, 290 F.3d 500, 508
(3d Cir. 2002)). In other cases, “federal habeas courts apply
pre-AEDPA standards of review.” Id. Under those standards,
“federal habeas courts conduct[] a de novo review over pure legal
questions and mixed questions of law and fact.” Id.

       A.     The Presumption of Correctness and the Federal
              Evidentiary Hearing

       According to the habeas corpus statute:

       In a proceeding instituted by an application for a writ
       of habeas corpus by a person in custody pursuant to
       the judgment of a State court, a determination of a
       factual issue made by a State court shall be presumed
       to be correct. The applicant shall have the burden of
       rebutting the presumption of correctness by clear and
       convincing evidence.

28 U.S.C. § 2254(e)(1).

       As noted, the Commonwealth contends that the presumption
of correctness from § 2254(e)(1) was ignored by the Magistrate
Judge in granting the evidentiary hearing, and that evidence from
this hearing should not have been considered by the District Court.
Although the Commonwealth rests its arguments entirely on
§ 2254(e)(1), the propriety of the grant of an evidentiary hearing is
the province of § 2254(e)(2). That section proscribes a federal
court from holding an evidentiary hearing “[i]f the applicant has
failed to develop the factual basis of a claim in State court
proceedings.” § 2254(e)(2).

        By its terms § 2254(e)(2) “applies only to prisoners who
have ‘failed to develop the factual basis of a claim in State court
proceedings.’” Williams v. Taylor, 529 U.S. 420, 430 (2000). Our
first inquiry is “whether the factual basis was indeed developed in
state court, a question susceptible, in the normal course, of a simple
yes or no answer.” Id. at 431. The Commonwealth appears to be
arguing that the factual basis for Thomas’s claim was in fact

                                  7
developed in state court because the subjective intent and
motivation of counsel in taking (or not taking) actions during trial,
that are later challenged as ineffective assistance, are irrelevant to
the Strickland inquiry.5 However, as we discuss in the next section,
the intent or motivation of counsel is relevant to the Strickland
inquiry, and therefore the factual basis for the ineffective assistance
claim here was not developed in the Pennsylvania proceedings. As
we observed in Marshall v. Hendricks, in the course of declining
to defer to a state court “strategy” determination similar to the one
reached here:

              We conclude that Strickland requires an
       analysis based on a complete record. The reviewing
       court’s reasoning under the first prong needs to be
       made with an understanding of counsel’s thought
       process, . . . so that a conclusion whether counsel
       was ineffective can be made based on facts of
       record, rather than on assumptions.

307 F.3d 36, 115 (3d Cir. 2002).

        The “failure” inquiry does not end once it is determined that
the factual basis of a claim had not been developed in state court.
Because “[i]n its customary and preferred sense, ‘fail’ connotes
some omission, fault, or negligence on the part of the person who
has failed to do something,” “a person is not at fault when his
diligent efforts to perform an act are thwarted, for example, by the
conduct of another or by happenstance.” Williams, 529 U.S. at
431-32. Accordingly, “[u]nder the opening clause of § 2254(e)(2),
a failure to develop the factual basis of a claim is not established
unless there is lack of diligence, or some greater fault, attributable
to the prisoner or the prisoner’s counsel.” Id. at 432. Here,
Thomas requested an evidentiary hearing before the
Commonwealth PCR court to develop the record with respect to



       5
        In other words, the Commonwealth asserts that the case
could have been resolved entirely with reference to the state court
record, as done by the Commonwealth PCR courts, obviating any
need to hold an evidentiary hearing.

                                  8
counsel’s choice not to object to or file a motion to suppress the
identification. The hearing was denied, and therefore Thomas is
not at fault for failing to develop the factual basis for his claim.
Section 2254(e)(2) is thus inapplicable. See, e.g., Mason v.
Mitchell, 320 F.3d 604, 621 n.6 (6th Cir. 2003). Accordingly, we
find no fault in the Magistrate Judge’s holding of a hearing.

       B.     The Ineffective Assistance Claim

       In Strickland v. Washington, the Supreme Court held:

       A convicted defendant’s claim that counsel’s
       assistance was so defective as to require reversal of
       a conviction . . . has two components. First, the
       defendant must show that counsel’s performance
       was deficient. This requires showing that counsel
       made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the
       defendant by the Sixth Amendment. Second, the
       defendant must show that the deficient performance
       prejudiced the defense. This requires showing that
       counsel’s errors were so serious as to deprive the
       defendant of a fair trial, a trial whose result is
       reliable.

466 U.S. 668, 687 (1984). Accordingly, we must undertake the
familiar two-step inquiry by considering (1) whether counsel’s
performance was so deficient as to constitute a denial of counsel
and (2) whether the alleged errors prejudiced Thomas by depriving
of a fair trial.

       1.     Deficient Performance

        With respect to the deficient performance prong, “the
defendant must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. “A fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.” Id. at 689.

                                 9
However, “[b]ecause of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. (quotation omitted).
“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.” 6
Id. at 690.

       To overcome the Strickland presumption that, under the
circumstances, a challenged action might be considered sound trial
strategy, a habeas petitioner must show either that: (1) the
suggested strategy (even if sound) was not in fact motivating
counsel or, (2) that the actions could never be considered part of a
sound strategy. It is the former showing that we are presented with
here.

        Our review reveals a tiered structure with respect to
Strickland’s strategic presumptions. At first, the presumption is
that counsel’s conduct might have been part of a sound strategy.
The defendant can rebut this “weak” presumption by showing
either that the conduct was not, in fact, part of a strategy7 or by


       6
         We have previously considered the subjective and objective
facets of the Strickland standard. Compare Marshall v. Hendricks,
307 F.3d 36, 105 (3d Cir. 2002) (“[T]he task of the reviewing court
is to take each of the claimed failures and measure them against
counsel’s stated rationale to determine whether the choices were
objectively unreasonable.”), with Buehl v. Vaughn, 166 F.3d 163,
176 (3d Cir. 1999) (finding that the strategic presumption could not
be overcome because “[a]n objection to [the] brief portions of
testimony might have simply highlighted the statements for the
jury”).
       7
        We believe that an inquiry into whether counsel actually
had some strategy is permissible. Cf. United States v. McCoy, 410
F.3d 124, 135 (3d Cir. 2005) (stating, in a 28 U.S.C. § 2255 case,
that “[w]ithout the opportunity to evaluate the rationale given by
trial counsel, the issue of possible ineffectiveness cannot be

                                 10
showing that the strategy employed was unsound. See, e.g., Rice
v. Marshall, 816 F.2d 1126, 1132 (6th Cir. 1987). In cases in
which the record does not explicitly disclose trial counsel’s actual
strategy or lack thereof (either due to lack of diligence on the part
of the petitioner or due to the unavailability of counsel), the
presumption may only be rebutted through a showing that no sound
strategy posited by the Commonwealth could have supported the
conduct.8 See Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (noting
that the strategic presumption “has particular force where a
petitioner bases his ineffective-assistance claim solely on the trial
record, creating a situation in which a court ‘may have no way of
knowing whether a seemingly unusual or misguided action by
counsel had a sound strategic motive’”) (quoting Massaro v. United
States, 538 U.S. 500, 505 (2003)). However, if the Commonwealth
can show that counsel actually pursued an informed strategy (one
decided upon after a thorough investigation of the relevant law and
facts), the “weak” presumption becomes a “strong” presumption,
which is “virtually unchallengeable.” See Strickland, 466 U.S. at
690; see also Bullock v. Carver, 297 F.3d 1036, 1046-48 (10th Cir.
2002) (discussing the Strickland presumptions).

       Here, Thomas rebutted the weak presumption that counsel’s
actions might have been strategic by offering testimony from
counsel that his “actions,” in failing to move to suppress or object,
were not in fact part of a strategy. Indeed, counsel testified at the
federal evidentiary hearing that he did not see the need to go
forward with his already submitted suppression motion once Fuller
recanted his identification in the pre-trial hearing and that he
believed he was not permitted to object or move to suppress the


conclusively determined.”). Otherwise, incompetency of defense
counsel could be rewarded by ingenuity on the part of a State’s
attorneys in supplying hypothetical strategies to explain defense
counsel’s uninformed prejudicial oversights.
       8
        To be clear, in opposing a petitioner’s attempt to disprove
the existence of a possible sound strategy, it is entirely proper for
the Commonwealth to engage in record-based speculation as to
what counsel’s strategy might have been. See Buehl, 166 F.3d at
176.

                                 11
identification once it had already been made.9 We note also that
the purported strategy–allowing the identification in order to cross-
examine Fuller about the improper police efforts in obtaining the
identification–does not even appear to be reasonable. Even if the
identification was never made or was suppressed, counsel was still
free to question Fuller about the police tactics in procuring his
since-disavowed identification during the photo array. See
Rodriguez v. Young, 906 F.2d 1153, 1160 (7th Cir. 1990) (finding
that failure to move to suppress an identification was objectively
unreasonable, and noting that the petitioner’s “defense could not
have been compromised or hurt by a motion to suppress” as
“[c]ross examination was still available”). In any case, because
Thomas has shown that counsel was not acting pursuant to an
informed strategy, the weak presumption that counsel’s actions
might be part of a strategy was properly rebutted.

       Of course, overcoming the strategic presumption does not,
in itself, entitle Thomas to relief. It merely gives him the
opportunity to show that counsel’s conduct fell below objective
standards of attorney conduct.10 “Strickland teaches that a court


       9
       The Pennsylvania Rules of Criminal Procedure allow for
motions to suppress to be made after the commencement of trial if
“the opportunity did not previously exist, or the interests of justice
otherwise require.” Pa. R. Crim. P. 581(B) (formerly Rule 323).
       10
         We note that evidentiary hearings regarding counsel’s
strategy will not be required in all cases, as the objective
reasonableness inquiry may obviate the need for such a hearing.
Similar to instances in which a court disposes of an ineffective
assistance claim by analyzing the prejudice prong without
considering whether counsel’s performance was deficient, it is
appropriate for a court to dispose of a case in which conduct is
objectively reasonable without considering counsel’s strategy . See
Strickland, 466 U.S. at 697 (“[A] court need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered . . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be
followed.”). Put differently, no hearings as to counsel’s strategy

                                 12
deciding any ineffectiveness claim must ‘determine whether, in
light of all the circumstances, the identified acts or omissions [of
counsel] were outside the wide range of professionally competent
assistance.’” Jacobs, 395 F.3d at 106 (quoting Strickland, 466 U.S.
at 690).

        Courts have routinely declared assistance ineffective when
“the record reveals that counsel failed to make a crucial objection
or to present a strong defense solely because counsel was
unfamiliar with clearly settled legal principles.” 3 Wayne LaFave
et al., Criminal Procedure § 11.10(c), at 721 (2d ed. 1999); see
also Cofske v. United States, 290 F.3d 437, 443 (1st Cir. 2002)
(“[C]ourts tend to be somewhat less forgiving where counsel
altogether overlooks a possible objection or opportunity.”) (citing
LaFave, supra, § 11.10(c), at 714-15). “[T]he defendant is most
likely to establish incompetency where counsel’s alleged errors of
omission or commission are attributable to a lack of diligence
rather than an exercise of judgment.” LaFave, supra, § 11.10(c), at
714.

        Our review of whether counsel’s conduct was objectively
unreasonable is de novo, as the Pennsylvania courts never reached
this issue, having denied the claim on strategy grounds. Here,
counsel decided to withdraw his motion to suppress an
identification by Fuller after Fuller failed to identify Thomas at the
pre-trial hearing. At trial, when Fuller did in fact make an
identification, counsel did not object to the identification or move
to suppress it because he erroneously believed that he could not
take either of those actions once the identification had been made.
We need not decide whether the withdrawal of the original
suppression motion itself constitutes objectively unreasonable
behavior. Instead, we agree with the District Court that failure to
move to suppress or otherwise object to an in-court identification



are necessary in cases in which the conduct challenged is
objectively reasonable, as courts can simply reject the claims on
reasonableness grounds. Cf. McCoy, 410 F.3d at 134 (discussing
whether a hearing is necessary in the context of the federal custody
habeas section, 28 U.S.C. § 2255).

                                 13
by the prosecution’s central witness, when there are compelling
grounds to do so, is not objectively reasonable representation,
absent some informed strategy.11 See Morrison v. Kimmelman
(Morrison), 752 F.2d 918, 922 (3d Cir. 1985) (suggesting that
“proper norms of advocacy” required a “timely [motion] to
suppress” where there was a valid basis for suppression), aff’d on
other grounds 477 U.S. 365 (1986) (Kimmelman); Rodriguez, 906
F.2d at 1160 (“[W]e think it is obvious that in a case like this
one–with no murder weapon in evidence and only one witness
naming the defendant as the murderer–even the most withering
cross examination could not substitute for suppression.”); see also
Cossel v. Miller, 229 F.3d 649, 654 (7th Cir. 2000). Of course, it
would not be objectively unreasonable for counsel to decline to
make a motion to suppress during a trial when either the motion is
plainly without merit or the evidence is of little probative value.
Here, however, that is not the case, as the motion was colorable,
given Fuller’s failure to make an identification at the pre-trial
hearing and his testimony regarding the photo arrays and the lack
of any evidence other than Young’s testimony connecting Thomas
to the shooting.

       2.     Prejudice

       The prejudice component requires Thomas to show “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. He “need not show that
counsel’s deficient performance ‘more likely than not altered the
outcome in the case’–rather, he must show only ‘a probability
sufficient to undermine confidence in the outcome.’” Jacobs, 395
F.3d at 105 (citing Strickland, 466 U.S. at 693-94). “This standard



       11
         Although the Commonwealth suggests that motions to
suppress made after presentation of evidence are rare, they are
certainly permitted. See, e.g., Commonwealth v. Long, 753 A.2d
272, 279 (Pa. Super. Ct. 2000) (“[A] motion to suppress evidence
must be made pretrial, unless the opportunity did not previously
exist, or the interests of justice otherwise require.”) (internal
quotation omitted).

                                14
is not a stringent one.” Id. (internal quotations omitted). Although
Strickland does not set a high bar with respect to the prejudice
inquiry, Thomas must show that he would likely have prevailed on
the suppression motion and that, having prevailed, there is a
reasonable likelihood that he would not have been convicted. See
Morrison, 752 F.2d at 922; see also Belmontes v. Brown, 414 F.3d
1094, 1121 (9th Cir. 2005) (requiring a “reasonable probability that
a motion to suppress would have succeeded and that the
suppression . . . would have led to a different out-come at the trial”)
(citing Kimmelman, 477 U.S. at 375); Howard v. Bouchard, 405
F.3d 459, 481 (6th Cir. 2005) (“[Petitioner] cannot establish
prejudice under Strickland, because he cannot show that a motion
to exclude [the] identifications would have succeeded.”).

        The District Court found, however, that counsel was
ineffective for failing to move to suppress or object to the
identification, and then found prejudice, stating that “[f]ailure to
object to an unreliable eyewitness identification is manifestly
prejudicial where, as here, there was no physical evidence linking
Petitioner to the crime and the only other eyewitness was also
unreliable.” App. at 11. That analysis skips a step, in assuming
that the objection would have likely resulted in suppression of the
identification. Indeed, were it likely that the suppression motion
would have been denied (or the objection overruled), then Thomas
could not show prejudice.12 The Magistrate Judge, on the other
hand, did consider the merits of the motion. As with objective
reasonableness, we review prejudice de novo, as it is a legal issue
never considered in the Pennsylvania court proceedings.

        In order to determine whether a motion to suppress would
have been granted, we must determine (1) whether the
identification process was unduly suggestive and, if so, (2) whether
the totality of the circumstances nonetheless renders the



       12
        Relatedly, as it is the petitioner’s burden to show
prejudice, it is his responsibility to develop a record under which
the merits of the suppression motion can be determined.
Availability of a hearing for such purposes should be determined
under the standards discussed in Part II.A.

                                  15
identification reliable. See Neil v. Biggers, 409 U.S. 188 (1972).
As to the first inquiry, “convictions based on eye-witness
identification at trial following a pretrial identification by
photograph will be set aside only if the photographic identification
was so impermissibly suggestive as to give rise to a very substantial
likelihood of . . . misidentification.” Simmons v. United States,
390 U.S. 377, 384 (1968). The determination of whether the
circumstances give rise to undue suggestiveness must be made on
a case-by-case basis, considering the particular conduct in each
case. Id. Here, we agree with the District Court and the Magistrate
Judge that the detective’s alleged insistence to Fuller to look “real
good” at the photograph of Thomas after failing to get an
identification from Fuller on several prior occasions constitutes
undue suggestiveness. Although the Commonwealth notes that the
detective refuted this allegation, Fuller’s testimony clearly shows
that he believed that the detective was urging him to make the
photographic identification, and that he would not otherwise have
made it.13

      The Supreme Court has made clear, however, that undue
suggestiveness alone does not require suppression; rather, this
Court must consider “whether under the ‘totality of the
circumstances’ the identification was reliable even though the
confrontation procedure was suggestive.” Biggers, 409 U.S. at
199. In Biggers, the Supreme Court held that

       the factors to be considered in evaluating the
       likelihood of misidentification include [(1)] the
       opportunity of the witness to view the criminal at the
       time of the crime, [(2)] the witness’ degree of
       attention, [(3)] the accuracy of the witness’ prior
       description of the criminal, [(4)] the level of



       13
        The Commonwealth asserts that the Magistrate Judge
improperly placed the burden on the Commonwealth to establish
the propriety of challenged evidence, thereby shifting the burden
of showing prejudice away from Thomas. See Pa. R. Crim. P.
581(H). However, we find that Thomas offered enough evidence
of undue suggestiveness to carry his burden on prejudice.

                                 16
       certainty demonstrated by the witness at the
       confrontation, and [(5)] the length of time between
       the crime and the confrontation.

Id. at 199-200. Here, both the District Court and the Magistrate
Judge conducted an inquiry into these factors and concluded that
there was a substantial likelihood of irreparable misidentification.14
(App. 9-10, 38-45.) We agree. Under the first two factors,
although Fuller did have an opportunity to see his assailant, he
testified that he was facing the assailant only for a short time and
was concentrating first on his chess game and then on attempting
to flee. The third factor does weigh in favor of reliability, as
Fuller’s initial description of the shooter is an accurate description
of Thomas. However, the fourth factor strongly negates any
reliability evidenced by the third factor: Fuller expressly disavowed
his identification at the pre-trial hearing, and his certainty at trial
cannot be reconciled with his testimony and the earlier hearing. As
to the last factor, a significant amount of time passed between the
shooting and the in-court identification, with Fuller failing to
identify an assailant in the intervening period, including during the
time immediately after the incident. Considering each of the
factors, we find that the identification was the product of unduly
suggestive photographic lineups and was unreliable given the
totality of the circumstances.

        Assuming that the identification would likely have been
suppressed we believe that there is a reasonable likelihood that the
result of the trial would have been different. As noted, this is not
a stringent standard. Once Fuller’s identification is excluded, the
only remaining evidence inculpating Thomas is the testimony of
Young. That testimony was very questionable; indeed, the
prosecution had to impeach him with his own prior statements at
the outset of his testimony. He also stated his apprehension
towards police officers and stated that he was threatened before
identifying Thomas. Importantly, Thomas’s co-defendant was
acquitted by the jury notwithstanding Young’s implication of him



       14
        Although the Magistrate Judge relied on cases other than
Biggers to derive the factors, he undertook the same analysis.

                                  17
in the criminal activity. We conclude that counsel’s error in failing
to move to suppress or object to the identification at trial clearly
undermined the reliability of the verdict.

                                III.

       For the foregoing reasons, we affirm the District Court’s
grant of Thomas’s petition for habeas corpus.




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