                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 11-1221
                                      __________

                                 THOMAS E. WOODS,
                                            Appellant
                                        v.

    SUPERINTENDENT DAVID DIGUGLIELMO; ATTORNEY GENERAL OF THE
     STATE OF PENNSYLVANIA; DISTRICT ATTORNEY OF THE COUNTY OF
                              FAYETTE
                             __________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 2-08-cv-00121)
                      District Judge: Hon. Donetta W. Ambrose
                                     __________

                       Submitted under Third Circuit LAR 34.1(a)
                                  February 12, 2013

    Before: HARDIMAN and ALDISERT, Circuit Judges, and STARK, District Judge.

                                (Filed February 20, 2013)

                                       __________

                              OPINION OF THE COURT
                                    __________


 Honorable Leonard P. Stark, Judge of the United States District Court for the District of
Delaware, sitting by designation.
ALDISERT, Circuit Judge.

          Petitioner Thomas E. Woods was convicted in the Court of Common Pleas of

Fayette County, Pennsylvania on one count of first degree murder and is currently

serving a life sentence. He was unsuccessful in his direct appeal and also in state post-

conviction proceedings at the trial and appellate levels. Thereafter he was unsuccessful in

obtaining habeas relief in the United States District Court for the Western District of

Pennsylvania. This Court granted in part Woods’s request for a Certificate of

Appealability, stating that:
          Jurists of reason could debate whether: the prosecutor’s comments to the
          jury regarding [accomplice] Herbert Green’s plea agreement “so infec[ted]
          the trial with unfairness as to make the resulting conviction a denial of due
          process[,]” Greer v. Miller, 483 U.S. 756, 765 (1987) (quotation marks and
          citation omitted); . . . whether the Trial Court’s accomplice instruction
          violated Appellant’s constitutional rights under Cool v. United States, 409
          U.S. 100, 102-04 (1972); and whether trial counsel was constitutionally
          ineffective for failing to raise those issues . . . .
          After reviewing the record and the parties’ arguments, we conclude that the state

court decision was neither “contrary to, [nor] an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,” 28

U.S.C. § 2254(d)(1), nor was it reached “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)(2). Accordingly, we will affirm the District Court’s order denying habeas

relief.
          Because the parties are familiar with the facts and prior proceedings of this case

we will not reiterate them here.

                                                 I.

          “[The Supreme] Court has recognized that prosecutorial misconduct may so

infec[t] the trial with unfairness as to make the resulting conviction a denial of due

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process.” Greer, 483 U.S. at 765 (internal quotation marks and citation omitted). Woods

argues that the prosecutor’s use of accomplice Herbert Green’s plea agreement in his

closing argument did just that. Petitioner relies on the rules and facts of Bisaccia v. Att’y

Gen. of N.J., 623 F.2d 307 (3d Cir. 1980), to support his contention. “To constitute a due

process violation, the prosecutorial misconduct must be of sufficient significance to result

in the denial of the defendant’s right to a fair trial.” Greer, 483 U.S. at 765 (internal

quotation marks and citation omitted). We are not persuaded that this occurred here.

       In Bisaccia, this Court held that “the admission of the co-defendant’s guilty plea,

the failure of the trial judge to give cautionary instructions to the jury about this evidence

and the prosecutor’s comments on this evidence so exceeded the tolerable level of

ordinary trial error as to amount to a denial of constitutional due process.” 623 F.2d at

313. However, the facts of Bisaccia are different from the facts here. In Bisaccia, the

prosecutor used a co-conspirator’s testimony regarding his own guilty plea to establish

that the defendant participated in a conspiracy. Id. at 308. Furthermore, the prosecutor’s

closing statement contained inflammatory remarks that the defendants were treating the

jury like “a bunch of five year old children” by denying the crime ever happened, given

the co-conspirator’s guilty plea. Id. at 309. Here, the prosecutor referred to accomplice
Green’s nolo contendere plea1 to third degree murder and his five to ten year term of

imprisonment to impeach Green’s own trial testimony, which was inconsistent with and

less incriminating than the prior statement that he had given to the police officer as part

of his plea agreement. The prosecutor here did not use inflammatory remarks as did the

prosecutor in Bisaccia, and did not use the plea agreement as substantive proof that

Woods killed the victim, but rather to impeach Green’s credibility. Even if we agreed that

1
 The prosecutor misspoke and said that Herbert Green “pled guilty” rather than “no
contest,” App. 720, but this does not affect our analysis.
                                               3
the prosecutor’s actions constituted misconduct, we nevertheless would not conclude that

the alleged misconduct “so infec[ted] the trial with unfairness as to make the resulting

conviction a denial of due process.” See Greer, 483 U.S. at 765.

                                             II.

       In Cool v. United States, 409 U.S. 100 (1972), the Supreme Court held that

accomplice instructions that predicate consideration of exculpatory accomplice testimony

on finding that testimony to be true beyond a reasonable doubt violate a defendant’s Sixth

Amendment and due process rights. Id. at 102-104. Woods argues, relying on the facts of

Cool, that the trial judge’s accomplice instructions violated his rights under the teachings

of Cool. We disagree.

       In Cool the accomplice, called by the defendant, provided completely exculpatory

testimony, “freely admit[ing] his own guilt, but steadfastly insist[ing] that neither

petitioner nor her husband had anything to do with the crime.” Id. at 101. The trial judge

then provided the jury with the following instruction regarding the accomplice’s

testimony: “If the testimony carries conviction and you are convinced it is true beyond a

reasonable doubt . . . it is your duty [] not to throw this testimony out because it comes

from a tainted source.” Id. at 102 (emphasis added in original). The Supreme Court
concluded that this instruction violated the defendant’s Sixth Amendment right because it

infringed upon the defendant’s right to present exculpatory accomplice testimony, and

violated due process because given that the defendant’s case depended almost entirely on

the accomplice’s testimony, the instruction required the defendant to establish his

innocence beyond a reasonable doubt, lowering the Government’s burden. Id. at 104.

       Here, Green clearly implicated Woods by testifying that the victim “got shot while

he was engaging with a fight with Woods. Woods had to got his hand, got it away long


                                              4
enough to take a shot into the man’s neck.” App. 633. Woods contends, however, that

this testimony was exculpatory as to first degree murder, even if it was inculpatory as to

Woods’s commission of a crime. In support of this position, Woods quotes Cool, which

states that “even if it is assumed that [the accomplice’s] testimony was to some extent

inculpatory, the instruction was still fundamentally unfair in that it told the jury that it

could convict solely on the basis of accomplice testimony without telling it that it could

acquit on this basis.” Cool, 409 U.S. at 103 n.4. Undoubtedly, a standard accomplice

instruction may be confusing when, as here, accomplice testimony is exculpatory as to

one count and inculpatory as to another. Nevertheless, we do not believe that the trial

judge’s instruction was a constitutional error, because, as a whole, Green’s testimony was

far more inculpatory than the testimony in Cool, which the Court stated it was willing to

assume was inculpatory. Id.

       Additionally, the instruction in Cool suggested to the jury that it was not to

consider the accomplice’s testimony unless it found it to be true beyond a reasonable

doubt. Id. at 104. Here, however, the jury instruction merely stated that accomplice

testimony should be viewed with “disfavor” and that if there was no independent

evidence to support an accomplice’s testimony, the jury could “still find [Woods] guilty
solely on the basis of [the accomplice’s] testimony, if . . . [it was] satisfied beyond a

reasonable doubt that the accomplice testified truthfully and that [Woods] is guilty.” App.

733. Accordingly, unlike in Cool, nothing in the instruction here suggested to the jury

that it was not to consider the exculpatory elements of Green’s testimony without first

finding such testimony to be true beyond a reasonable doubt. Lastly, even if we agreed

with Woods that the instruction was in error, we would not conclude that the error “had




                                               5
substantial and injurious effect or influence in determining the jury’s verdict.” See Fry v.

Pliler, 551 U.S. 112, 116 (2007) (internal quotation marks and citation omitted).

                                                III.

       Woods argues his trial counsel was constitutionally ineffective for failing to raise

the issues above, such that his Sixth Amendment right to counsel was violated. In

Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court articulated a two-part

test for determining whether counsel was constitutionally ineffective. First, the defendant

must show that “trial counsel’s representation fell below an objective standard of

reasonableness.” Id. at 687-688. We have said: “It is [] only the rare claim of ineffective

assistance of counsel that should succeed under the properly deferential standard to be

applied in scrutinizing counsel’s performance.” United States v. Kauffman, 109 F.3d 186,

190 (3d Cir. 1997) (internal quotation marks and citation omitted). Second, the defendant

must prove prejudice, or “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 693-694.

       Woods cannot meet the requirements of Strickland for ineffective assistance of

counsel. For the reasons stated above, trial counsel’s representation did not fall below an
objective standard of reasonableness. Neither the prosecutor’s statements regarding

Green’s testimony nor the trial judge’s accomplice instructions violated Woods’s

constitutional rights, and accordingly trial counsel’s failure to object does not fall

“outside the wide range of professionally competent assistance.” Id. at 690. Moreover,

Woods cannot demonstrate prejudice, as he cannot show that but for these alleged errors,

the trial’s result would have been different.

                                          *****


                                                 6
       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. The judgment of the District Court will be

AFFIRMED.




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