                                                            NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 07-1271
                                    _____________

                                   JERREL JAYNES,

                                           Appellant

                                           v.

                      JAMES L. GRACE; 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. 05-CV-2567)
                     District Judge: Honorable J. Curtis Joyner
                                   ____________

                                  Argued June 5, 2008


            Before: AMBRO, CHAGARES, and COWEN, Circuit Judges.

                                (Filed: August 19, 2011)

Teri B. Himebaugh, Esq. (Argued)
220 Stallion Lane
Schwenksville, PA 19473
Counsel for Appellant

David C. Glebe, Esq. (Argued)
District Attorney=s Office
Three South Penn Square
Philadelphia, PA 19107
Counsel for Appellee
                                      ____________

                               OPINION OF THE COURT
                                    ____________

CHAGARES, Circuit Judge.

       Jerrel Jaynes appeals the order of the U.S. District Court for the Eastern District of

Pennsylvania denying his petition for writ of habeas corpus. For the reasons set forth

below, we will vacate the order and remand for the District Court to conduct an

evidentiary hearing.

                                              I.

       Because the facts are well known to the parties, we will discuss them only briefly.

On July 20, 1995 at about 1:00 a.m., William McClam was parking his car, when another

car pulled up and the man in the passenger seat shot McClam, hitting him in the back.

The car then sped off.

       When the police arrived at the scene, McClam identified the shooter as “Jerrel.”

McClam subsequently explained that he and Jerrel Jaynes‟ girlfriend, Brooky Price, had

been in an altercation and he believed that Jaynes had shot him in retaliation for the

incident. The gun, car, and clothing McClam described the shooter as wearing were

never found.

       Jaynes was convicted of aggravated assault and other offenses in January 1997

after a trial in the Court of Common Pleas of Pennsylvania. The sole evidence against




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Jaynes at trial was the victim‟s identification of him. Jaynes subsequently appealed to the

Pennsylvania Superior Court, arguing, inter alia, that trial counsel, Louis T. Savino,

rendered ineffective assistance because he failed to introduce James Wing as an alibi

witness at trial.

       In support of his ineffective assistance claim, Jaynes attached an affidavit by

Wing, explaining that he lived in the same house as Jaynes and had seen Jaynes at home

on the night of shooting. According to Wing, Jaynes was babysitting his niece that night

and “[t]here was no way possible that Jerrel Jaynes left the house that night, without me

seeing him go down the stairs or asking [his mother] or myself to watch the child.”

Supplemental Appendix (“SA”) 7.

       According to Wing, he gave counsel this information several weeks before trial,

and counsel told Wing that “he would get back to [him],” but Wing never heard from

counsel again. SA 7-8. Although Wing did not receive a subpoena to appear in court, he

decided to attend the trial. During a recess, Jaynes told his counsel that Wing was

present, and Jaynes‟ counsel interviewed Wing about his recollection of the night of the

shooting. Counsel did not, however, ask Wing to testify.

       The Superior Court affirmed the Court of Common Pleas‟ judgment of sentence.

The court concluded that Wing‟s affidavit “fail[ed] to allege sufficient facts to create an

alibi defense that would, if absent from trial, so prejudice defendant that he could not

receive a fair trial.” SA 19. According to the court, “Mr. Wing alleges that he saw

appellant between 8:30 and 9:30, but does not claim with assurance that appellant did not



                                             3
leave the house. Therefore, appellant has not fulfilled the threshold requirements to

establish a claim for relief due to counsel‟s ineffectiveness.” SA 19 (citation omitted).

The Pennsylvania Supreme Court denied Jaynes‟ request for allocatur.

       Jaynes subsequently filed a petition under the Pennsylvania Post Conviction Relief

Act (“PCRA”). Counsel was appointed, but did not raise the issue of trial counsel

ineffectiveness for failure to notice the alibi witness. The PCRA court dismissed the

petition and the Superior Court affirmed its decision. Jaynes‟ request for allocatur was

again denied by the Pennsylvania Supreme Court.

       Jaynes then filed this federal habeas petition. With respect to the issue on appeal

here, Jaynes argued that trial counsel was ineffective for failing to notice and present

Wing as an alibi witness. The District Court referred the petition to Magistrate Judge

Jacob P. Hart. Magistrate Judge Hart issued a Report and Recommendation (R&R),

recommending that the District Court grant Jaynes a new trial to allow the alibi witness

testimony to be presented. The Magistrate Judge rejected the Superior Court‟s

conclusion that Wing‟s affidavit was insufficient to establish an alibi defense and

determined that Jaynes was prejudiced by counsel‟s failure to call Wing.

       The Commonwealth objected to the R&R, and the District Court sustained the

objections, denying the habeas petition in its entirety. The District Court agreed with the

Magistrate Judge that “[c]ontrary to the finding of the Superior Court, . . . Mr. Wing did

claim with assurance that Mr. Jaynes did not leave the house. Thus, we find that in this

respect, the state court‟s decision was erroneous.” Appendix (“App.”) 35 (emphasis in



                                              4
original). The District Court, however, determined that “Mr. Wing=s alibi testimony may

not have been as air-tight as Petitioner would have us believe.” App. 37. The District

Court concluded that “as we are required to give deference to trial counsel=s strategy, we

cannot say with assurance that Mr. Savino=s representation and trial strategy was

objectively unreasonable.” App. 37.

       This timely appeal followed.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253.

We review de novo whether the District Court applied the appropriate standard of review

in light of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See

Taylor v. Horn, 504 F.3d 416, 428 (3d Cir. 2007).

       Under 28 U.S.C. ' 2254, as amended by AEDPA, a state court‟s legal and factual

determinations on the merits are entitled to deference. Lambert v. Blackwell, 387 F.3d

210, 238 (3d Cir. 2004). Federal courts cannot grant habeas relief in claims adjudicated

on the merits “[u]nless 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)(1),(2).

       We have plenary review of the District Court=s determination regarding

exhaustion. Holloway v. Horn, 355 F.3d 707, 713 (3d Cir. 2004).



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                                             III.

       Before a federal court can review a habeas petition under § 2254, a petitioner must

“exhaust[] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

A petitioner must “„fairly present‟ all federal claims to the highest state court before

bringing them in federal court.” Stevens v. Del. Corr. Ctr., 295 F.3d 361, 369 (3d Cir.

2002) (quoting Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002)). Jaynes raised his

claim regarding counsel‟s ineffectiveness for failure to present the alibi witness on direct

appeal, the Superior Court rejected the claim on the merits, and the Pennsylvania

Supreme Court denied the petition for leave to appeal. Jaynes therefore exhausted his

state court remedies, and we next consider the merits of his ineffective assistance of

counsel claim.

                                             IV.

       Jaynes argues that the District Court erred in denying his habeas petition, claiming

that counsel‟s representation fell below an objective standard of reasonableness and he

was prejudiced by his counsel=s failure to call the alibi witness. In the alternative, Jaynes

requests that we remand this case for an evidentiary hearing. For the reasons stated

below, we will grant Jaynes‟ request for remand.

       At the outset, we consider whether AEDPA deference is appropriate. As both the

District Court and the Magistrate Judge correctly observed, the Superior Court erred in

finding that Wing “d[id] not claim with assurance that appellant did not leave the house.”

SA 19. Indeed, Wing asserted that “[t]here was no way possible that Jerrel Jaynes left the



                                              6
house that night.” SA 7. Upon considering this error, the Magistrate Judge determined

that “the Superior Court‟s conclusion regarding prejudice was based on an unreasonable

determination of the facts which resulted in an unreasonable application of the

[Strickland v. Washington, 466 U.S. 668 (1984)] standard.” App. 6 (citing 28 U.S.C. §

2254(d)(2)). The District Court disagreed and deferred to the state court‟s decision. We

need not decide this issue, however, as we reach the same result either under de novo

review or in light of AEDPA deference. See Taylor, 504 F.3d at 453 (explaining that

“under either standard of review,” AEDPA or de novo, habeas petitioner=s claim was

meritless) (citing Holloway, 335 F.3d at 719 & n.6, 729 (determining that under either de

novo or AEDPA standard of review, result in habeas case would be the same)).

       It is well-established that under Strickland, a “defendant must overcome the

presumption that, under the circumstances, the challenged action might be considered

sound trial strategy.” Strickland, 466 U.S. at 689 (quotation marks omitted).

Significantly, however, there is a “tiered structure with respect to Strickland‟s strategic

presumptions.” Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005). If the record

indicates that counsel has conducted a “thorough investigation of the relevant law and

facts,” then a “strong,” “virtually unchallengeable” presumption attaches to counsel‟s

actions. Id. at 500. Otherwise, “strategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91.




                                              7
       The current record in this case indicates that the extent of Savino‟s investigation

involved calling Wing three to four weeks before trial, listening to Wing‟s account of

events, and never following up – a far cry from the kind of “thorough investigation of the

law and facts” to which a “strong presumption” of reasonability attaches. As a result,

Savino‟s conduct is “reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Strickland, 466 U.S. at 691. A

“defendant can rebut this „weak‟ presumption by showing either that the conduct was not,

in fact, part of a strategy or by showing that the strategy employed was unsound.”

Thomas, 428 F.3d at 499-500 (footnote omitted). In regard to the former approach, we

have explicitly noted “that an inquiry into whether counsel actually had some strategy is

permissible.” Id. at 499 n.7. Such an inquiry seems particularly appropriate in a case

such as this, in which the record discloses little and that virtual silence is attributable

neither “to lack of diligence on the part of the petitioner [n]or . . . to the unavailability of

counsel,” id. at 500, but rather to the frustration of petitioner‟s attempts to develop the

requisite facts. Indeed, the record before this Court only casts doubt on Savino‟s decision

not to provide notice of an alibi or call Wing as a witness at trial. Wing‟s testimony

would have directly contradicted the only evidence presented at trial against Jaynes – the

victim‟s identification testimony. Significantly, “„an attorney‟s failure to present

available exculpatory evidence is ordinarily deficient, unless some cogent tactical or

other consideration justified it.‟” Pavel v. Hollins, 261 F.3d 210, 220 (2d Cir. 2001)

(quoting Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir. 1992)).



                                                8
       The District Court does not appear to have previously considered the necessity of

an evidentiary hearing, at least not explicitly.1 Both of the considerations identified by

this Court in Palmer v. Hendricks, 592 F.3d 386 (3d Cir. 2010), however, counsel in

favour of such a hearing. Specifically, (1) assuming that Jaynes‟ factual allegations are

true, “the petition presents a prima facie showing which, if proven, would enable the

petitioner to prevail on the merits of the asserted claim,” and (2) “the factual allegations

are [not] „contravened by the existing record‟” in this case. Palmer, 592 F.3d at 393

(quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). Accordingly, rather than

engage in speculation regarding Savino‟s strategy, we will remand to the District Court to

conduct an evidentiary hearing.

                                             V.

       For the foregoing reasons, we will vacate the order denying Jaynes‟ petition and

remand to the District Court to conduct an evidentiary hearing.




1
  This failure may be attributable to two factors: first, the case came before the District
Court in the form of the Magistrate Judge‟s R&R granting Jaynes habeas relief without
the aid of an evidentiary hearing, and second – and perhaps related – Jaynes did not
request an evidentiary hearing before the District Court. Jaynes did, however, request an
evidentiary hearing before the state court, and was thus “diligent in his attempt to develop
a factual basis for his claim in the state court proceedings.” Palmer v. Hendricks, 592
F.3d 386, 392 (3d Cir. 2010). As a result, the District Court is not barred from holding an
evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2).


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