                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-1996

Sistrunk v. Vaughn
Precedential or Non-Precedential:

Docket 95-1848




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                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                             N0. 95-1848


                            EDWARD SISTRUNK

                                 v.

          DONALD VAUGHN, SUPERINTENDENT, SCI GRATERFORD;
      ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA;
         AND THE DISTRICT ATTORNEY OF PHILADELPHIA COUNTY

                              Appellants
           (Caption amended per the Clerk's 2/26/96 order)



           On Appeal From the United States District Court
              For the Eastern District of Pennsylvania
                 (D.C. Civil Action No. 90-cv-01415)


                         Argued June 11, 1996

   BEFORE:    STAPLETON, GREENBERG, and ALDISERT, Circuit Judges

                  (Opinion Filed September 19, 1996)




                                                       Peter Goldberger
(Argued)
                                                       Pamela A. Wilk
                                                       Law Office of Peter
Goldberger
                                                       50 Rittenhouse Place
                                                       Ardmore, PA 19003-2276
                                                        Attorneys for Appellee

                                                       Lynne Abraham
                                                       District Attorney
                                                       Arnold H. Gordon
                                                       First Assistant District
Attorney
                                                       Ronald Eisenberg
                                                       Deputy District Attorney
                                                       Donna G. Zucker (Argued)
                                                       Chief, Federal
Litigation
                                                  Office of the District
Attorney
                                                  1421 Arch Street
                                                  Philadelphia, PA 19102
                                                   Attorneys for
Appellants



                       OPINION OF THE COURT




STAPLETON, Circuit Judge:


         Respondent appeals from the grant of habeas corpus
relief to Petitioner Edward Sistrunk, a state prisoner.
Sistrunk's petition alleges three grounds for relief. First, he
asserts that the prosecutor at his trial exercised peremptory
challenges to exclude black venirepersons from the jury in
violation of the Equal Protection Clause. Second, he contends
that he was denied effective assistance of counsel in violation
of the Sixth Amendment because his appellate counsel failed to
press his Equal Protection claim on direct appeal. Finally,
Sistrunk insists that other misconduct of the prosecutor at his
trial deprived him of his liberty without due process of law. We
will reverse the judgment granting relief.

                                I.
         In 1971, Sistrunk was convicted for participating in
the robbery and arson of a furniture store, during which one
employee was murdered and others assaulted. On state collateral
review, he was awarded a new trial due to ineffective assistance
of trial counsel. In 1981, he was tried again on the same
charges. During jury selection, Sistrunk's new defense counsel
objected to the prosecutor's use of peremptory challenges to
remove black venirepersons. The court overruled the objections
in accordance with the then-prevailing law of Swain v. Alabama,
380 U.S. 202 (1965). Under Swain, the defendant, in order to
show a violation of the Equal Protection Clause, was required to
show a pattern and practice of racial discrimination in jury
selection across multiple prosecutions, evidence that was not
tendered by Sistrunk during his second trial. As a result,
petitioner, who is black, went to trial with an all-white jury.
He was again convicted.
         On direct appeal, the defendant's newly appointed
appellate counsel did not pursue the jury selection, equal
protection claim despite a request from petitioner that it be
pursued. In April 1985, after the appellate brief had been filed
but before oral argument, the United States Supreme Court granted
certiorari in Batson v. Kentucky, 471 U.S. 1052 (1985).
Petitioner's conviction was affirmed by the Pennsylvania Superior
Court. He then sought discretionary review by the Pennsylvania
Supreme Court. While his petition for review was pending, the
U.S. Supreme Court decided Batson, holding that the Equal
Protection Clause is violated whenever a state prosecutor
exercises a peremptory challenge to exclude a venireperson from
the jury because of his or her race. See 476 U.S. 79, 96-98
(1986). A year after deciding Batson, but before the
Pennsylvania Supreme Court had ruled on petitioner's application
for review, the United States Supreme Court decided Griffith v.
Kentucky, 479 U.S. 314 (1987), which applied Batson retroactively
to all cases pending on direct review at the time Batson was
announced. Accordingly, if petitioner's jury selection claim had
been pressed on direct appeal, and the state supreme court had
granted review, Batson would have been governing precedent.
         The Pennsylvania Supreme Court denied review, and
Sistrunk filed a Pennsylvania Post-Conviction Relief Act (PCRA)
petition raising two issues: whether he was entitled to direct
relief under Batson, and whether he was denied effective
assistance of appellate counsel when his court-appointed attorney
failed to pursue the jury selection issue on direct appeal. The
PCRA court held a hearing in 1992, during which both the
petitioner and the prosecutor testified, but not the petitioner's
appellate counsel. With respect to the first claim, the court
held that petitioner was not entitled to relief under Batsonbecause the
issue had not been urged on appeal. The court
nonetheless found that, even if Batson applied, the prosecutor
had "presented credible and racially neutral reasons for each
peremptory challenge she exercised," and that she "did not
exercise peremptory challenges in a purposefully racially
discriminatory manner." Commonwealth v. Sistrunk, Feb. Term,
1971, No. 0794-0820, slip op. at 9-10 (Pa. C.P. Sept. 13, 1993).
With respect to the second issue, the court held that performance
of Sistrunk's appellate counsel was not ineffective because she
was not required to predict future developments in the law.
         On appeal from the adverse judgment in the PCRA
proceeding, the Superior Court held that because the adverse
determination of the direct Batson claim by the trial court had
not been appealed, that claim had been "previously litigated"
within the meaning of the PCRA, and could not be a basis for
relief in a PCRA proceeding. See Commonwealth v. Sistrunk, 647
A.2d 267 (Pa. Super. 1994) (table). On the ineffective
assistance claim, the court applied Pennsylvania's three-pronged
ineffective assistance analysis. The first prong is a threshold
test requiring the court to determine if the issue underlying the
ineffective assistance claim has arguable merit. Only if the
underlying claim has merit does a Pennsylvania court go on to
assess whether counsel's performance was constitutionally
ineffective and whether defendant was prejudiced thereby, as
required by Strickland v. Washington, 466 U.S. 668, 687 (1984).
See Commonwealth v. McNeil, 487 A.2d 802, 806 (Pa. 1985). The
Superior Court held that the underlying Batson issue was
meritless, and counsel's performance could not, therefore, be
deemed ineffective. In reaching this conclusion, the Superior
Court first found that Batson applied to petitioner's ineffective
assistance claim, and that he had established a prima facie case
under Batson. The court then deferred to the PCRA trial court's
findings that the prosecutor had advanced credible and racially
neutral reasons for exercising each of her peremptory challenges
and that the prosecutor did not exercise her peremptories in a
purposefully discriminatory manner. The Superior Court did not
determine whether appellate counsel's conduct met professional
standards of reasonableness. The state Supreme Court refused to
grant review, see Commonwealth v. Sistrunk, 655 A.2d 987 (1995),
thus exhausting Sistrunk's state remedies.
         Sistrunk then pursued the present federal habeas corpus
petition. Without holding a hearing, the magistrate judge issued
a report and recommendation concluding that the prosecutor's use
of peremptory challenges violated Batson and that Sistrunk's
appellate counsel had rendered constitutionally ineffective
assistance. The magistrate judge acknowledged that 28 U.S.C.
§ 2254 requires a federal habeas court to defer to state court
findings of fact, but nonetheless held that a review of the
record did not fairly support the state court's findings of fact
regarding the motivation behind the state's peremptory
challenges. Relying on 28 U.S.C. § 2254(d)(8), the magistrate
judge substituted its own fact-finding for that of the PCRA
court. The magistrate judge did not address the prosecutorial
misconduct claim. The district court adopted the magistrate
judge's report and recommendation, and ordered that petitioner be
retried or released.

                               II.
         To establish ineffective assistance of counsel, a
defendant must show both that: (1) counsel's representation fell
below an objective standard of "reasonableness under prevailing
professional norms;" and (2) the defendant suffered prejudice as
a result -- that is, there is a reasonable probability that, but
for counsel's deficient performance, the result of the proceeding
would have been different. Strickland, 466 U.S. at 668, 694. In
reviewing counsel's performance, we "must be highly deferential."
Id. at 689. We "must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case, viewed as
of the time of counsel's conduct." Id. at 690. Moreover, we
"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. at 689 (citation omitted).
         In the context of this case, two additional principles
are relevant to our inquiry into the reasonableness of counsel's
conduct. First, in a criminal defense, certain litigation
decisions are considered "fundamental" and are for the client to
make. These include decisions on whether to plead guilty,
whether to testify, and whether to take an appeal. After
consultation with the client, all other decisions fall within the
professional responsibility of counsel. See Jones v. Barnes, 463
U.S. 745, 751 (1983); Government of the Virgin Islands v.
Weatherwax, 77 F.3d 1425, 1433 (3d Cir. 1996). In particular, it
is a well established principle that counsel decides which issues
to pursue on appeal, see Jones, 463 U.S. at 751-52, and there is
no duty to raise every possible claim. See id. at 751. An
exercise of professional judgment is required. Appealing losing
issues "runs the risk of burying good arguments . . . in a verbal
mound made up of strong and weak contentions." Id. at 753.
Indeed, the "process of 'winnowing out weaker arguments on appeal
and focusing on' those more likely to prevail, far from being
evidence of incompetence, is the hallmark of effective appellate
advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting
Jones, 463 U.S. at 751-52). Thus, as a general matter, it is not
inappropriate for counsel, after consultation with the client, to
override the wishes of the client when exercising professional
judgment regarding "non-fundamental" issues.
         Second, in making litigation decisions, "there is no
general duty on the part of defense counsel to anticipate changes
in the law." Government of the Virgin Islands v. Forte, 865 F.2d
59, 62 (3d Cir. 1989) (citing Morse v. Texas, 691 F.2d 770, 772
n.2 (5th Cir. 1982)), cert. denied, 500 U.S. 954 (1991); see alsoBrunson
v. Higgins, 708 F.2d 1353 (8th Cir. 1983) (holding that
failure to anticipate striking down of jury selection system that
excluded women not ineffective assistance); Honeycutt v. Mahoney,
698 F.2d 213, 216-17 (4th Cir. 1983) (holding that failure to
anticipate change in law "foreshadowed by" Supreme Court and
federal appellate court precedent not ineffective assistance).
"Only in a rare case" would it be ineffective assistance by a
trial attorney not to make an objection that would be overruled
under prevailing law. Forte, 865 F.2d at 62.
         In the present case, petitioner's counsel was required
to decide what issues would be advanced on appeal when she was
drafting petitioner's opening brief in the Superior Court. As
petitioner's present counsel acknowledged at oral argument, any
issues not asserted in an appellant's opening appellate brief are
thereafter waived under Pennsylvania law. When she was
preparing petitioner's opening brief, counsel had before her the
opinion of the trial court denying Sistrunk's post-verdict
motions and she attached that opinion to her appellate brief.
The district court's opinion focused on ten issues, including the
jury selection issue. After conferring with her client,
appellate counsel chose to appeal only the first and eighth of
those issues in her 44-page brief.
         Under the governing law at the time counsel filed her
appellate brief, any effort to overturn petitioner's conviction
on the basis of his jury selection claim would have been doomed
to failure. Under Swain v. Alabama, 380 U.S. 202 (1965), a
defendant, to be successful on an Equal Protection claim, was
required to prove a pattern or practice of purposeful
discrimination across multiple cases, and petitioner does not
suggest that the evidence necessary under Swain was available to
him. Moreover, when counsel was preparing her brief, the
Pennsylvania Supreme Court had previously ruled in no uncertain
terms that a prosecutor might exercise peremptory challenges on
the basis of race under both the federal and state constitutions.
See Commonwealth v. Henderson, 438 A.2d 951, 953 (Pa. 1981)
("[T]he race, creed, national origin, sex or other similar
characteristics of a venireman may be proper considerations in
exercising peremptory challenges. . . ."), overruled in part byBatson, 476
U.S. 79 (1986).
         There is thus every reason to believe that petitioner's
appellate counsel made an informed judgment call that was
counsel's to make. Even if the record did not provide this
affirmative assurance, however, we would be required to so assume
unless the petitioner has come forward with evidence to the
contrary sufficiently probative to overcome the "strong
presumption" required by Strickland. We conclude that he has
not. As we have indicated, petitioner failed to call his
appellate counsel as a witness at the state PCRA evidentiary
hearing, and there is very little other evidence tending to
support his claim of ineffective assistance of counsel.
Accordingly, a grant of habeas relief on ineffective assistance
grounds would be inappropriate.
         Sistrunk's arguments to the contrary are unpersuasive.
He first points to several dissents sur denial of certiorari in
which Justice Marshall urged reconsideration of Swain, and a
number of press reports speculating that the Court might
reconsider and overturn that decision. Sistrunk suggests, on the
basis of this documentary evidence, that his counsel should have
realized that the governing law might change and, accordingly,
should have preserved the issue for as long as possible. He
stresses that he specifically asked for the issue to be
preserved, hoping that the law would change.
         In essence, Sistrunk's first argument is that his
counsel could and should have anticipated a change in the law.
While we do not dispute that there were criminal defense lawyers
who, like petitioner's trial counsel, predicted that a case like
Batson might be decided as it was, we decline to hold that the
performance of petitioner's appellate counsel was
constitutionally deficient because she did not find the
likelihood of that eventuality sufficient to alter her appellate
advocacy strategy. So far as we are aware, every court that has
addressed the issue under similar circumstances has held that the
failure to anticipate the result in Batson did not constitute
ineffective assistance. See, e.g., Ruff v. Armontrout, 77 F.3d
265 (8th Cir. 1996); Clark v. Collins, 19 F.3d 959 (5th Cir.),
cert. denied, ___U.S. ___, 115 S. Ct. 432 (1994); Wiley v.
Puckett, 969 F.2d 86 (5th Cir. 1992); Poole v. United States, 832
F.2d 561 (11th Cir. 1987), cert. denied, 488 U.S. 817 (1988).
         Sistrunk's second argument is based on a letter of
appellate counsel written to him in 1987. On February 19, 1987,
after Batson had been decided and while Sistrunk's petition for
review was pending before the Pennsylvania Supreme Court, he
wrote to counsel asking her to pursue the jury selection issue
before the Supreme Court. In her reply letter, dated February
24, 1987, she told him, incorrectly, that the issue had not been
preserved at trial. This letter, Sistrunk argues, shows that
counsel's failure to press the jury selection issue was
attributable not to professional judgment, but rather to a
misreading of the trial court record.
         If viewed in isolation, one inference that could
conceivably be drawn from counsel's 1987 letter is that she
misunderstood the state of the trial court record when drafting
her brief, and, accordingly, did not realize that the jury
selection issue could be pursued on appeal. Given the two year
gap between counsel's Superior Court brief and her 1987 letter,
however, we find the letter to be an unreliable indication of the
state of her knowledge when she was preparing her brief.
Considering, in addition, that counsel attached the trial court's
opinion to her brief, and that the opinion affirmatively
demonstrated that the issue had been properly preserved at trial,
the inference Sistrunk would have us draw seems an unlikely one.
Clearly, it alone is too attenuated to overcome Strickland's
strong presumption that counsel properly exercised her
professional judgment.
         Finally, Sistrunk relies heavily on our decision in
Forte, 865 F.2d at 59, to show that counsel's performance was
constitutionally deficient. Forte, who is white, was accused of
rape. At the time of jury selection in his case, certiorari had
been granted in Batson. He retained an attorney to consult with
his trial counsel, and both requested trial counsel to object if
the prosecutor used his peremptories to strike white jurors.
Trial counsel agreed to do so, but when the prosecutor challenged
white venirepersons, she failed to object. She later explained
to the retained attorney in a letter that she had not objected
because she was "too embarrassed" to do so since she herself had
used challenges to remove whites from the jury when the defendant
was black. On collateral review, Forte, like Sistrunk, pressed
an ineffective assistance claim, and we found that he had stated
a viable claim for relief.
         In Forte, we recognized that counsel, when exercising
his or her professional judgment about an objection to a
peremptory challenge, can properly override even a reasonable
directive of the client in the interest of "sound trial
strategy." 865 F.2d at 63. We held, however, that this
proposition did not fit Forte's case. Co-counsel and Forte had
expressly called trial counsel's attention to the Batson issue,
they had anticipated that the prosecution would exercise
peremptory challenges to exclude whites, and they had reached a
decision that it would be in Forte's best interest to raise a
Batson type claim. Most important, this strategy had been
abandoned by trial counsel for a reason wholly unrelated to
professional judgment, trial strategy, or Forte's best interest.
Counsel abandoned the agreed upon trial strategy because of
"personal embarrassment." Id. at 61-62.
         We cautioned in Forte that the case was "extraordinary
on the facts" and that our opinion "should not be broadly read."
Id. at 63. It should not be read to encompass a case, like
Sistrunk's, where the petitioner has offered no substantial
reason to believe that the challenged decision of counsel was not
the product of a professional judgment.
         After a thorough review of the record and applicable
law, we conclude that the denial of petitioner's ineffective
assistance claim by the state court was in accord with the proper
resolution of the claim under established federal law.
Accordingly, it was error to grant federal habeas relief on this
claim.

                               III.
         The district court granted relief on Sistrunk's direct
Batson claim as well as on his ineffective assistance claim.
Accordingly, we now turn to that claim. We conclude that the
district court was foreclosed from addressing Sistrunk's Batsonclaim, as
are we.
         In Coleman v. Thompson, 501 U.S. 722 (1991), petitioner
Coleman was convicted of murder and his conviction was affirmed
by the Virginia Supreme Court. He then filed a state post-
conviction relief petition alleging a number of federal
constitutional claims that he had not raised on direct appeal.
After an evidentiary hearing and an adverse judgment on the
merits of his federal claims, Coleman filed an untimely appeal
that advanced these claims. The respondent moved to dismiss the
appeal for want of jurisdiction. The Virginia Supreme Court
granted the motion "[u]pon consideration of" the filed papers.
Id. at 728. The Supreme Court of the United States held that the
federal courts were barred from considering the federal claims on
their merits because Coleman had failed to show cause for and
prejudice from the late filing and had not demonstrated that
failure to consider the claims would result in a fundamental
miscarriage of justice. This conclusion followed from
application of the adequate and independent state ground
doctrine: if the final state court presented with a federal
claim refuses to decide its merits based on an established state
rule of law independent of the federal claim and adequate to
support the refusal, federal habeas review is foreclosed unless
there is cause and prejudice or a showing of innocence. Id. at
750.
         In Harris v. Reed, 489 U.S. 255 (1989), the Supreme
Court pointed out that the adequate and independent state ground
doctrine applies whenever the state court relies upon such an
adequate and independent state ground, even when it goes on to
address the federal claim in an alternative holding:
              [A] state court need not fear reaching
         the merits of a federal claim in an
         alternative holding. By its very definition,
         the adequate and independent state ground
         doctrine requires the federal court to honor
         a state holding that is a sufficient basis
         for the state court's judgment, even when the
         state court also relies on federal law.
489 U.S. at 264 n.10 (emphasis in original).
         In this case, the last state court to have Sistrunk's
Batson claim before it and to articulate a rationale for
disposition was the Pennsylvania Superior Court. It disposed of
this claim as follows:
         . . . Appellant contends that he was denied
         his state and federal constitutional right of
         equal protection under the law when the
         prosecutor used her thirteen peremptory
         challenges in a racially discriminatory
         manner to exclude African-Americans from the
         jury. Specifically, he contends that this
         was in violation of the United States Supreme
         Court's mandate in Batson v. Kentucky, 476
         U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
         (1986), and, therefore, that he should be
         granted a new trial. However, regardless of
         whether Batson is applicable to this case,
         Appellant has failed to demonstrate that he
         is eligible for collateral relief on this
         equal protection issue.

              To be eligible for relief under the
         PCRA, Appellant must plead and prove by a
         preponderance of the evidence that his
         allegation of error has not been previously
         litigated. See, 42 Pa.C.S.A. § 9543(a)(3).
         For the purposes of the PCRA, "an issue has
         been previously litigated if it has been
         raised in the trial court, the trial court
         has ruled on the merits of the issue and the
         petitioner did not appeal." 42 Pa.C.S.A.
         § 9544(a)(1). The record clearly indicates
         that counsel for Appellant raised an
         objection at trial that the prosecutor
         allegedly used peremptory challenges in a
         racially discriminatory manner, that counsel
         raised this issue in his post-trial motions,
         that the trial court ruled on the merits of
         this issue and denied the post-trial motions,
         and that Appellant did not raise this issue
         on nunc pro tunc appeal. Therefore,
         Appellant's equal protection issue has been
         previously litigated. Accordingly, we find
         that Appellant is not eligible for collateral
         relief on this issue.
Commonwealth v. Sistrunk, No. 71-02-794-820, slip. op. at 3-4.
         Like Coleman, Sistrunk, by failing to satisfy a state
procedural requirement, forfeited his right to secure appellate
consideration of the merits of his federal claim in a state
collateral relief proceeding. The consequence in Coleman was
that the federal courts were barred from entertaining the
petitioner's federal claims on their merits absent a showing of
cause and prejudice or a demonstration of innocence. The
consequence must be the same here.
         The only difference we perceive between this case and
Coleman is that the Superior Court here did address the merits of
Sistrunk's Batson claim in the course of deciding his
constitutional claim of ineffective assistance of counsel. We
know from Harris, however, that the doctrine applied in Colemanbars
federal review even when the state court addresses the
merits of the petitioner's federal claim in an alternative
holding. If federal review of a federal claim is foreclosed when
the state court addresses the merits of that claim in an
alternative holding directed to that claim, surely federal review
must also be foreclosed when the state court addresses the merits
of the federal claim only in the course of resolving another,
independent claim.
         It necessarily follows that the district court was not
free to consider Sistrunk's Batson claim on its merits absent a
showing of cause and prejudice or a demonstration that Sistrunk
was innocent of the crimes for which he was convicted.
         To show cause, a petitioner must prove "that some
objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule." Murray v.
Carrier, 477 U.S. 478, 488 (1986). Counsel's error cannot
constitute cause for procedural default unless the error was also
constitutionally ineffective under Strickland. Id. at 492.
Sistrunk offers no proof of cause and prejudice other than
counsel's failure to preserve the issue on direct appeal. Since
we have concluded that that performance was not ineffective, and
since the record contains no new evidence about the events
underlying Sistrunk's conviction, petitioner may not raise the
direct Batson claim on federal habeas.

                               IV.
         The district court did not reach Sistrunk's
prosecutorial misconduct claim that specific statements by the
prosecution deprived him of a fair trial. It will have an
opportunity to address that claim on remand.
         We will reverse the judgment of the district court and
remand for further proceedings consistent with this opinion.
