                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-2757
                                      _____________

                            UNITED STATES OF AMERICA


                                             v.

                                SHEVAUN E. BROWNE,
                                           Appellant

                                     ______________

                               Appeal from the District Court
                                    of the Virgin Islands
                           Division of St. Thomas and St. John
                              (D.V.I. No. 3-12-cr-00002-001)
                        District Judge: Honorable Curtis V. Gomez
                                     ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                    Dec. 13, 2018
                                   ______________

            Before: CHAGARES, HARDIMAN, RESTREPO, Circuit Judges.

                                  (Filed: April 17, 2019)

                                     ______________

                                        OPINION*
                                     ______________


*
 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
RESTREPO, Circuit Judge.

       Appellant Shevaun Browne conspired with two other men to commit an armed

robbery of a bank. A jury convicted Browne of bank robbery and conspiracy. The

District Court denied his motion filed pursuant to 28 U.S.C. § 2255. We will affirm.

                                              I.

       On January 11, 2011, Keven Fessale and Kadeem Thomas, brandishing guns,

robbed the Merchants Commercial Bank in St. John, Virgin Islands. The two men fled

the scene in a blue SUV, which one of the bank employees identified as belonging to

Browne.

       Fessale ultimately pled guilty to his involvement in the robbery and agreed to

testify against Browne and Thomas. At their trial, Fessale told the jury that Browne was

instrumental in the planning of the crime. He testified that Browne provided the guns and

arranged for them to use his blue SUV as the getaway car. Fessale stated that he, Browne

and Thomas met later that night to count the robbery’s proceeds, which were later

distributed between the three men.

       The government and defense counsel referenced Fessale’s plea agreement at trial,

during opening arguments, direct and cross examinations of Fessale, and closing and

rebuttal arguments. Prior to the closings, the District Court instructed the jury that

Fessale’s testimony “must be considered with greater caution and care than that of the

ordinary witness.” SA. 604.

       The jury convicted Browne of the above-cited charges. He appealed to this Court,

which affirmed his judgment of sentence. Browne filed a timely § 2255 motion to

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vacate, set aside or correct his sentence, in which he raised eleven grounds for post-

conviction relief. The District Court denied the motion. Browne again appealed to this

Court, which granted a certificate of appealability with respect to one of his claims:

whether his counsel was ineffective for failing to request a cautionary instruction after

evidence of Fessale’s guilty plea was presented at trial.

                                             II.

       Relief under § 2255 is warranted only when “the claimed error of law was ‘a

fundamental defect which inherently results in a complete miscarriage of justice,’ and . . .

‘present[s] exceptional circumstances where the need for the remedy afforded by the writ

. . . is apparent.’” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v.

United States, 368 U.S. 424, 428 (1962)).

       “In a [§ 2255] proceeding, we exercise plenary review of the district court’s legal

conclusions and apply a clearly erroneous standard to the court’s factual findings.”

United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014) (quoting Lambert v.

Blackwell, 134 F.3d 506, 512 (3d Cir. 1997)). Here, we review the District Court’s legal

conclusion that Browne’s counsel was not ineffective for failing to request a cautionary

instruction after the government introduced Fessale’s guilty plea.

       To prevail on an ineffective assistance of counsel claim, Browne must prove (1)

that his counsel’s errors were so serious that counsel did not function “as the ‘counsel’

guaranteed [to him] by the Sixth Amendment” and (2) that the deficient performance

prejudiced Browne to the extent that he was deprived of a fair trial. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Regarding the deficient performance prong,

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Browne must demonstrate that his counsel’s performance fell below an objective

standard of reasonableness, assessed while considering the circumstances of the case. Id.

at 688–89. As for the prejudice prong, Browne must establish there was “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

       It is well established that the government cannot introduce a co-conspirator’s

guilty plea as evidence of a defendant’s guilt. United States v. Werme, 939 F.2d 108, 113

(3d Cir. 1991). However, the plea may be introduced, inter alia, to allow the jury to

accurately assess the credibility of a co-conspirator’s testimony or to allow the

government to undermine an anticipated challenge to the co-conspirator’s credibility.

United States v. Jackson, 849 F.3d 540, 555–56 (3d Cir. 2017); Virgin Islands v.

Mujahid, 990 F.2d 111, 115 (3d Cir. 1993). “While evidence of a guilty plea may be

introduced for impeachment and other permissible purposes, the party against whom the

evidence is offered is entitled to a limiting instruction upon request.” Werme, 939 F.3d at

114. The instruction should explain that the plea is “no proof whatsoever of the

defendant’s guilt and must be disregarded completely when determining his guilt or

innocence.” Mujahid, 990 F.2d at 115–16. In extreme cases, the introduction of a guilty

plea into evidence can be found to violate a defendant’s constitutional rights. Id. at 116

(citing Bisaccia v. Atty. Gen. of N.J., 623 F.2d 307, 313 (1980)).

       In its opening statement, the government stated that Fessale would be called as a

witness and that he had pled guilty to bank robbery. Browne’s counsel, in his opening,

also raised Fessale’s guilty plea and cited the possibility that his agreement with the

                                              4
government could facilitate his receiving a reduced sentence. During Fessale’s direct

examination, the government elicited testimony that he entered into a cooperation

agreement. On cross examination, Browne’s counsel emphasized that the agreement

allowed for the government to file a motion for a lesser sentence in exchange for Fessale

testifying as part of the government’s case. SA. 276, 338–39. Thomas’ counsel also

cross-examined Fessale on his agreement, emphasizing that Fessale had to “convince the

Government” he was telling the truth and “sell them” a version of events consistent with

the other evidence in order to benefit from the plea. SA. 366–67. During closing

arguments, the government made no reference to the plea agreement, whereas Browne’s

counsel argued that Fessale was an incredible witness who was motivated to testify

against his friends to receive a more lenient sentence. On rebuttal, the government

argued that Fessale confessed to his role in the robbery prior to pleading guilty, and the

agreement required him to testify truthfully.

       Prior to closing arguments, the District Court instructed the jury with regard to

Fessale’s testimony:

              You’ve heard the testimony from a witness who either may
              receive benefits from the Government in connection with this
              case, or was involved in the commission of offenses related to
              the crimes alleged against the defendants.

              You may give the testimony of that witness such weight as you
              feel it deserves. Keeping in mind that such testimony must be
              considered with greater caution and care than that of an
              ordinary witness.

SA. 604. This instruction failed to inform the jury that Fessale’s plea could not serve as

proof of Browne’s guilt, and for this reason, the instruction was legally deficient.

                                                5
Mujahid, 990 F.2d at 293. However, given the circumstances of how Fessale’s plea was

raised at trial, we agree that Browne cannot prove that his counsel’s failure to object to

the defective charge and to request a curative instruction when Fessale’s guilty plea was

introduced rendered his performance deficient. See Strickland, 466 U.S. at 689. It is

undisputed that Fessale’s plea was not introduced to establish Browne’s guilt at trial.

Instead, the plea agreement was properly raised first by the government to undermine an

anticipated attack on Fessale’s credibility and second by defense counsel to execute such

an attack on Fessale’s incriminating testimony. Moreover, the District Court’s

instruction, albeit defective, emphasized to the jury that Fessale’s testimony should be

viewed with caution, thus reinforcing Browne’s own defense strategy at trial. Although

counsel’s objection to the Court’s instruction would have had merit, the absence of one in

this context does not warrant a finding that Browne was effectively deprived of counsel.

Upon review of the record, we conclude that Browne cannot overcome the “strong

presumption” that his counsel’s failure to request a curative instruction fell outside “the

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

       Similarly, we find that Browne has not met his burden of establishing the requisite

prejudice. Because the evidence of Fessale’s plea agreement was not improperly

introduced at trial, this case does not present a case where the specter of the guilty plea

amounted to a constitutional error. Browne cannot establish that, had his counsel

requested an instruction consistent with the precedent of this Court, there was a

reasonable probability that the outcome of the proceeding would have been different.

The government did not exploit the plea to prove Browne’s guilt, and his own counsel

                                              6
argued the plea established that Fessale was an incredible witness, which was a proper

use of the evidence. While the instruction the Court provided was indeed deficient,

counsel’s failure to object or request a proper instruction did not undermine confidence in

the trial’s outcome. United States v. Bui, 795 F.3d 363, 366 (3d Cir. 2015).

                                           III.

       Because the District Court properly found that Browne did not prove his counsel

was ineffective, the denial of his motion filed pursuant to 28 U.S.C. § 2255 will be

affirmed.




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