                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-4590
                                   ________________

                                    VEGAS GIBSON,
                                                           Appellant

                                             v.

                     SUPERINTENDENT DALLAS SCI;
           ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
              THE DISTRICT ATTORNEY OF DAUPHIN COUNTY

                                   ________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D. C. Civil No. 1-12-cv-02443)
                        District Judge: Honorable Yvette Kane
                                   ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                 on February 12, 2016

                Before: FUENTES, KRAUSE and ROTH, Circuit Judges

                             (Opinion filed: March 30, 2016)

                                   ________________

                                       OPINION*
                                   ________________




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

                Vegas Gibson appeals the District Court’s denial of his petition for writ of

habeas corpus, challenging his July 2005 conviction on the basis of ineffective assistance

of counsel. We conclude that Gibson has not demonstrated that counsel was ineffective

and therefore we will affirm the judgment of the District Court.

                                               I.

         Gibson is an inmate at State Correctional Institute in Dallas, Pennsylvania, serving

a life sentence for first-degree murder, aggravated assault, firearm possession and

reckless endangerment. Following his conviction, Gibson filed a petition for post-

conviction relief on the basis of ineffective assistance of counsel pursuant to

Pennsylvania’s Post-Conviction Relief Act (PCRA). The PCRA court denied Gibson’s

petition and the Pennsylvania Superior Court affirmed the PCRA court’s ruling. Gibson

then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the U.S.

District Court for the Middle District of Pennsylvania, which denied the petition.

Gibson’s present appeal asserts three grounds upon which the lower courts should have

found ineffective assistance of counsel.1 We review Gibson’s claims de novo.2

                                              II.

         To demonstrate that counsel was ineffective, Gibson must establish that “counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the




1
    We have appellate jurisdiction under 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291.
2
    Werts v. Vaughn, 228 F.3d 178, 191 (3d Cir. 2000).
                                               2
defendant by the Sixth Amendment” and “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”3

The Supreme Court in Strickland cautioned that “[b]ecause of the difficulties inherent in

making the evaluation [of effectiveness of counsel], a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance”; therefore “[j]udicial scrutiny of counsel’s performance must be highly

deferential.”4 Where, as here, we review proceedings from a state court, “[t]he pivotal

question is whether the state court’s application of the Strickland standard was

unreasonable.”5

       Gibson first alleges that his trial counsel was ineffective in failing to object to

certain closing statements by the prosecution. During closing arguments in Gibson’s

trial, the prosecutor stated, “the first time you heard even a word about self-defense with

respect to Gibson was this afternoon . . . . Four and a half days into the trial, Vegas

Gibson gets on the stand. That is when we hear self-defense.” Gibson claimed these

statements improperly relied on his post-arrest silence, in violation of Doyle v. Ohio.6

Gibson previously raised this argument before the PCRA court, the Pennsylvania

Superior Court and the District Court, all of which found no error given that the


3
  Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
4
  Id. at 689.
5
  Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state court must be granted a
deference and latitude that are not in operation when the case involves review under the
Strickland standard itself.”).
6
  426 U.S. 610, 618-19 (1976) (“[I]t would be fundamentally unfair and a deprivation of
due process to allow the arrested person’s silence to be used to impeach an explanation
subsequently offered at trial.”).
                                               3
prosecutor did not mention Gibson’s post-arrest conduct, but rather simply referred to his

conduct at trial. We agree that the prosecutor’s comments were an allowable response to

Gibson’s conduct at trial and therefore his counsel was not ineffective for failing to object

to them.

       Gibson also claims that his trial counsel was ineffective on two grounds related to

Jason Brown, a witness critical to Gibson’s self-defense argument. At trial, Gibson’s

self-defense claim was predicated in part on the actions of Brown, whom Gibson believed

to be “exceptionally dangerous.” Gibson claims that his counsel was ineffective in

failing to discover that criminal charges had been filed against Brown. The PCRA court

addressed this issue and found that because the charges against Brown had been

dismissed for lack of evidence, there was no basis for bringing those charges to the jury’s

attention. Furthermore, the PCRA court concluded that Gibson’s counsel was able to

elicit testimony at trial showing that Brown had been involved in violent crimes in the

past, which supported Gibson’s self-defense claim. We therefore agree that Gibson has

not shown that he was prejudiced by any failure to discover that criminal charges had

been filed against Brown.

       Additionally, Gibson argues that counsel was ineffective in failing to object to the

trial court’s exclusion of his proposed testimony about Brown’s violent character. The

Pennsylvania Superior Court agreed with Gibson that the testimony in question was

offered to establish Gibson’s state of mind, rather than the truth of the matter asserted,

and therefore held that the trial court erred in finding the testimony inadmissible hearsay.

However, the Superior Court also concluded that because the jury did hear evidence

                                              4
about “instances in which [Gibson] personally observed Brown commit acts of violence

and other witnesses testified at [Gibson’s] trial about violent episodes in which Brown

was involved,” the excluded evidence was merely cumulative. We agree with the District

Court’s holding that Gibson has failed to establish that he was prejudiced by his counsel’s

failure to object to the trial court’s exclusion of his testimony.

         Gibson has failed to demonstrate that the PCRA court’s ruling was unreasonable

in its application of Strickland. We will therefore affirm the judgment of the District

Court.




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