                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-18-2006

Rolan v. Vaughn
Precedential or Non-Precedential: Precedential

Docket No. 04-4322




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                                   PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 04-4322


              FLORENCIO ROLAN,

                        v.

      DONALD T. VAUGHN, State Correctional
Institution-Graterford; THE DISTRICT ATTORNEY
                OF PHILADELPHIA,
                                    Appellants.




  On Appeal from the United States District Court
     for the Eastern District of Pennsylvania
      (D.C. Civil Action No. 01-cv-00081)
      District Judge: Hon. Berle M. Schiller


           Argued on November 7, 2005

    BEFORE: ROTH, FUENTES and GARTH,
                        Circuit Judges

               (Opinion Filed: April 18, 2006)




Samuel W. Silver, Esquire
Bruce P. Merenstein, Esquire (ARGUED)
Schnader, Harrison, Segal & Lewis
1600 Market Street - Suite 3600
Philadelphia, PA 19103

       Attorneys for Appellee

Helen T. Kane, Esquire (ARGUED)
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107

       Attorney for Appellants




                 OPINION OF THE COURT




ROTH, Circuit Judge:

       The Commonwealth of Pennsylvania has appealed the
District Court’s grant of the writ of habeas corpus to Florencio

                                -2-
Rolan. For the reasons stated below, we will affirm.




I. Background

       Florencio Rolan was convicted in Pennsylvania state
court of first-degree murder and of possession of an instrument
of crime for the 1983 death of Paulino Santiago. The
Commonwealth’s theory of the crime was that Rolan shot and
killed Santiago during an attempted robbery of the proceeds of
a five-dollar drug deal. Rolan was sentenced to death by a jury,
but in 1997 the Pennsylvania post-conviction relief court
vacated the sentence, holding that Rolan’s attorney provided
ineffective assistance during the penalty phase of the trial. In
2003, the penalty phase was retried and, following a unanimous
jury verdict, Rolan was re-sentenced to life imprisonment.
Rolan then brought a federal habeas action under 28 U.S.C. §
2254, alleging that he also received ineffective assistance of
counsel at the guilt stage of his original trial.

        The crux of Rolan’s ineffective assistance claim was that
his trial counsel, Melvin Goldstein, failed to investigate two
witnesses who would have supported Rolan’s self-defense
claim. As a result, Goldstein never called the witnesses to
testify at trial. Rolan also alleged ineffective assistance of
counsel because Goldstein prevented Rolan from testifying on
his own behalf and because Goldstein did not properly cross-
examine Francisco Santiago, the prosecution’s key witness,
concerning a deal with the Commonwealth for his testimony.


                               -3-
       Rolan’s version of events, which corroborates his self-
defense claim, is that he and his cousin, Robert Aponte, were
involved in a dispute with brothers, Paulino and Francisco
Santiago, over the proceeds of a petty drug sale. A buyer drove
by the street corner on which Rolan, Aponte, and the Santiago
brothers were selling marijuana. The driver held out a five
dollar bill, and Paulino Santiago and Aponte both tossed a
“nickel bag” of marijuana into a car. Paulino grabbed the bill as
the driver drove away with the two bags, leaving Paulino and
Aponte to resolve their claims to the money. In the ensuing
dispute Rolan sided with Aponte, and Francisco Santiago with
his brother, Paulino.

       According to Rolan, at some point during the argument,
an intoxicated Paulino grew angry and walked away, and
Francisco went to urinate in an abandoned building in which
neighborhood residents kept guns and drugs. Rolan followed
Francisco into the building to continue discussing the payment
incident. Paulino then entered the building. He was carrying
what Rolan believed to be a knife, shouted a threat at Rolan, and
charged at him. Rolan claims that he noticed a loaded rifle lying
nearby, picked it up in time, and felled Paulino with a single
shot.

       Prior to trial, Goldstein and Rolan spoke on two
occasions for short periods of time. Goldstein asked Rolan
whether there were any people with whom he should speak
about the crime. Rolan provided two names: Robert Aponte
and Daniel Vargas. Goldstein wrote a letter to the prosecutor’s
office in which he disclosed these names as potential alibi
(rather than self-defense) witnesses in accordance with

                               -4-
Pennsylvania law. See P A. R. C RIM. P. 573 (formerly R. 305).
Rolan claims that he did not tell Goldstein that Vargas and
Aponte were alibi witnesses but instead that he wanted to call
them in furtherance of his self-defense claim.

        There is no indication that Goldstein ever attempted to
contact Vargas or Aponte. A detective for the Commonwealth
did, however, interview them. Vargas refused to cooperate with
the detective. The detective reported that Vargas knew
absolutely nothing about Rolan and was not an alibi witnesses.
When Aponte was interviewed, he told the detective that “[a]s
I started walking home [after the shooting] I saw my cousin
[Rolan] and I asked him was he alright, [Paulino Santiago]
didn’t stab you or anything.” 1

       For reasons that are not clear from the record, the
prosecution initially did not disclose having interviewed Aponte,
stating on the eve of trial that he could not be found. At the
close of the case, the prosecution did admit that detectives had
interviewed Aponte, but reported that he was not an alibi
witness and that neither Vargas nor Aponte knew anything about
Paulino Santiago’s death. Goldstein did not dispute the
prosecution’s claim.

       At trial, the Commonwealth presented evidence that


       1
        Rolan asserts that this establishes that Aponte believed
Paulino Santiago was armed with a knife at the time of his
death; thus, Aponte’s statement bolstered Rolan’s claim that
Paulino Santiago charged him with a knife.

                               -5-
Rolan killed Paulino Santiago after following him into an
abandoned house with the intention of robbing him of the five
dollars from the drug deal. The main witness for the state was
Francisco Santiago, who testified that he and Paulino were in
the abandoned house when Rolan burst in carrying a 3-foot rifle
and demanded that Paulino give him the drug money.
According to Francisco, Rolan then fired a single shot to
Paulino’s chest, killing him. Francisco further testified that
Rolan fled out of the back of the house and down an alley.2
Francisco was given immunity from prosecution for the drug
activities described in the testimony and other charges related to
his brother’s murder. At trial, the prosecution stated that the
only thing the Commonwealth gave in exchange for Francisco’s
testimony was a letter to the Parole Board to let them know that
Francisco had cooperated in the investigation and trial. This
misrepresentation was never corrected by the Commonwealth or
challenged by Goldstein.

       The Commonwealth also called Edwin Rosado.
Rosado’s testimony was largely inconsistent with Francisco’s
account. Rosado claimed to have heard Paulino and Rolan
arguing over a woman and stated that Rolan entered the house,
without a weapon, before Paulino. Rosado then heard a single
shot and saw Paulino emerge from the front of the house, at


       2
           Francisco had told investigators at the crime scene that
he had no first-hand knowledge of the events surrounding the
death of Paulino. Rolan complains that Goldstein failed to
investigate this inconsistency or to cross-examine Francisco on
it at trial.

                                -6-
which point Francisco came to aid his brother – but not from
inside the house, as Francisco claimed.

       Rolan pressed his attorney in open court to call Vargas
and Aponte after Goldstein said he had no witnesses to call on
Rolan’s behalf. Rolan declared, “Yes, I have two other
witnesses who are willing to come and testify.” Goldstein
explained to the court that Rolan was referring to Vargas and
Aponte but that neither were alibi witnesses. After some
wrangling between counsel and the court, Goldstein refused to
call the witnesses. The jury returned a verdict of guilty and
sentenced Rolan to death. Melvin Goldstein died while the
direct appeal of Rolan’s conviction was pending. After the
direct appeal was denied, Commonwealth v. Rolan, 549 A.2d
553 (1988), Rolan sought post-conviction collateral relief under
Pennsylvania’s Post Conviction Relief Act (PCRA), 42 P A .
C ONS. S TAT. A NN. § 9541 et seq. In the meantime, Robert
Aponte died.

       In 1997, the Pennsylvania Court of Common Pleas held
an evidentiary hearing on Rolan’s PCRA petition. At the
hearing, Vargas testified that he was never asked to testify on
behalf of Rolan but would have testified if he had been asked to
do so. Vargas also stated that the detective asked him to testify
against Rolan and that he did not voluntarily go to the police
with his knowledge of the case “because at that time [he] didn’t
want to get involved in that ... because the families was [sic]
hurt and [he] knew both families.” Vargas also testified at the
PCRA hearing that, when Rolan went into the abandoned house,
he was not carrying anything except a quart of beer; Francisco
followed Rolan into the house; then Paulino came around the

                               -7-
corner carrying a kitchen knife; Paulino went into the house
after Rolan, screaming, “I’ll kill you, motherfucker!” Vargas
then heard a shot. When Vargas went into the house with
Aponte, Paulino was lying on the ground and there was a knife
at his feet.




        On cross-examination, the Commonwealth questioned
Vargas concerning his recalcitrance when interviewed by
detectives before Rolan’s criminal trial. The Commonwealth
noted that the detective who interviewed Vargas gave him a
piece of paper that said “You’re being questioned concerning a
possible alibi witness for the defendant Florencio Rolan. Are
you willing to give a statement to the District Attorney’s
Office.” Vargas, who stated that he understood “alibi” to mean
“lie,” testified that he thought this meant that the detective had
approached him to testify against Rolan.

       The PCRA trial court found that Goldstein’s assistance
was constitutionally defective during the penalty phase of
Rolan’s trial and vacated the death sentence but held that Rolan
had waived his claims regarding the guilt phase of his trial. The
court nevertheless reviewed Rolan’s claims regarding the guilt
phase for purpose of providing the state appellate court with a
complete record.      Although its analysis was brief and
conclusory, the PCRA trial court rejected Rolan’s
ineffectiveness claims. See Commonwealth v. Rolan, Nos.
2893-2896, slip op. (C.P. Phila. Feb. 4, 1998).

       Rolan appealed the denial of PCRA relief as to his guilt

                               -8-
to the Pennsylvania Superior Court. The Superior Court held
that the Court of Common Pleas erred in finding that Rolan’s
claims for ineffective assistance were waived. It then proceeded
to the merits and rejected the claims both because the court was
unable to “conclude that Vargas was willing to appear on
Rolan’s behalf at trial” and because Aponte’s statements were
irrelevant to the self-defense claim. The court declared that
Aponte’s statement “establishes merely that Aponte was aware
that Rolan had engaged in an altercation and was not immune to
the potential danger posed by life on the street. Any suggestion
that Aponte’s question establishes his awareness that the victim
had actually attempted to stab Rolan is entirely unsubstantiated.”
The Superior Court also found that Goldstein was not
ineffective as counsel for interfering with Rolan’s right to testify
because Rolan’s decision was knowing and voluntary. In
addition, although the Superior Court conceded that the
prosecution should have articulated to the jury the details of its
deal with Francisco, its failure to do so did not so undermine the
truth-determining process as to require a new trial.
See Commonwealth v. Rolan, No. 4591 Phila. 1997, slip op.
(Pa. Super. Ct., June 9, 1999).

       Rolan then filed his federal habeas petition under 28
U.S.C. § 2254. The District Court exercised jurisdiction under
28 U.S.C. §§ 2241(a) and 2254(a). The District Court granted
Rolan’s habeas petition pursuant to § 2254 because of
Goldstein’s ineffective assistance of counsel. Claims of
ineffective assistance of counsel are reviewed under the two-part
test of Strickland v. Washington, which examines whether
assistance was ineffective and, if so, whether it prejudiced the
defendant. 466 U.S. 668 (1984). The District Court concluded

                                -9-
that there was no finding of fact on Vargas’s willingness to
testify to which it was required to defer under the Anti-
Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2241 et seq., because the “finding” was made by the PCRA
appellate court rather than by the PCRA trial court as required
by Pennsylvania post-conviction procedure. The District Court
then conducted an evidentiary hearing at which Vargas testified,
and credited Vargas’s testimony that he would have testified if
he had been called on Rolan’s behalf at trial. Having rejected
the state court’s prejudice analysis, the District Court proceeded
to Strickland’s ineffectiveness prong and concluded that
Goldstein’s performance was unconstitutionally defective
because he failed to conduct any pretrial investigation. This
meant that his decision to forgo the self-defense claim was not
a strategic choice entitled to a presumption of validity.
Strickland, 466 U.S. at 690-91. The District Court rejected or
did not address Rolan’s other claims of constitutional error.

       The Commonwealth of Pennsylvania appealed. We have
jurisdiction over the appeal under 28 U.S.C. §§ 1291 and
2253(c)(1)(A). We undertake a plenary review over a district
court’s grant of habeas corpus, Duvall v. Elwood, 336 F.3d 228,
229 (3d Cir. 2003), and review any factual findings resulting
from the district court’s evidentiary hearing for clear error, Love
v. Morton, 112 F.3d 131, 133 (3d Cir. 1997).




                               -10-
II. Discussion

       This appeal by the Commonwealth presents several
issues: (1) Did the District Court err in failing to defer to the
Superior Court’s appellate factual determination that Vargas was
unwilling to testify at trial; (2) Did the District Court err in
holding an evidentiary hearing to determine whether Vargas was
willing to testify at the guilt phase of Rolan’s trial; (3) Did the
District Court err in holding that Rolan’s trial counsel was
ineffective for failing to investigate the potential self-defense
witnesses. First, however, we must determine whether the
PCRA courts considered Rolan’s claims on the merits so that
AEDPA applies to the District Court’s consideration of this
habeas petition.

       A. Does AEDPA Apply to the District Court’s
       Determination to Grant Habeas Relief?

        To determine whether AEDPA, 28 U.S.C. § 2241 et seq.,
applies to Rolan’s claim of ineffective assistance of counsel, it
is necessary to assess whether the Pennsylvania state courts
adjudicated the claim on the merits. Everett v. Beard, 290 F.3d
500, 507-08 (3d Cir. 2002). On appellate review of Rolan’s
PCRA petition, the Pennsylvania Superior Court concluded that
Rolan was not prejudiced by his attorney’s failure to interview
Vargas, a possible self-defense witness, because Rolan could not
establish that Vargas was willing to testify on Rolan’s behalf at
trial. A court can choose to address the prejudice prong before
the ineffectiveness prong and reject an ineffectiveness claim
solely on the ground that the defendant was not prejudiced. See
Strickland, 466 U.S. at 668. Here, because the PCRA appellate

                               -11-
court found that Vargas was not willing to testify at the guilt
phase of Rolan’s trial, its decision to deny habeas relief on that
basis constituted an adjudication on the merits. See Rompilla v.
Horn, 355 F.3d 233, 247 (3d Cir. 2004), rev’d on other grounds,
Rompilla v. Beard, 125 S. Ct. 2456 (2005). Therefore, AEDPA
applies to Rolan’s habeas petition.

        AEDPA limits a federal court’s authority to grant habeas
relief when a state court has previously considered and rejected
the federal claim on the merits. 28 U.S.C. § 2254(d). If the
petitioner’s legal claims were presented but not addressed by the
state courts, 28 U.S.C. § 2254(d) does not apply, and federal
courts undertake a de novo review of the claim. Everett, 290
F.3d at 507-08.

       If AEDPA does apply, however, the writ cannot be
granted unless the adjudication:

               (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).



                               -12-
       AEDPA also has a provision relating specifically to a
federal court’s review of state court factual findings:

              In a proceeding instituted by an application
       for a writ of habeas corpus by a person in custody
       pursuant to the judgment of a State court, a
       determination of a factual issue made by a state
       court shall be presumed to be correct. The
       applicant shall have the burden of rebutting the
       presumption of correctness by clear and
       convincing evidence.

28 U.S.C. § 2254(e)(1).

       These limitations on review of the state courts’ factual
findings applied to the District Court’s consideration of Rolan’s
petition and also to our review here.

       B. The District Court Erred in Failing to Defer to the
          Pennsylvania PCRA Appellate Court’s Findings
           of Fact.

       The District Court declined to defer to the Pennsylvania
Superior Court’s factual determination at the appellate level that
Vargas was not willing to testify on Rolan’s behalf at the guilt
stage of Rolan’s criminal trial. The District Court, citing
Campbell v. Vaughn, 209 F.3d 280, 287-88 (3d Cir. 2000), first
determined that, according to Pennsylvania post-conviction
review procedure, an appellate court should remand a case to the
PCRA trial court for factual determinations rather than make
them in the first instance. Because the Superior Court made its

                              -13-
decision upon review of the cold record from the PCRA trial
court, rather than remanding, the District Court did not believe
that it was bound to defer.

        When earlier presented with this issue of deference to
appellate factual findings in Campbell, we specifically declined
to rule on whether a federal court must defer to a Pennsylvania
PCRA appellate court’s finding of fact made on a cold appellate
record. 209 F.3d at 288.

        Generally, federal courts defer to state appellate court
determinations of fact. In Sumner v. Mata, the Supreme Court
addressed whether a federal court should defer to state appellate
court determinations of fact. 449 U.S. 539, 545-46 (1981). In
that pre-AEDPA case, the California Court of Appeal made the
factual determinations at issue after review of the trial court
record. Id. at 546. The Supreme Court held that state appellate
court fact finding should receive deference on habeas review
because “[§ 2254(d)] makes no distinction between the factual
determinations of a state trial court and those of a state appellate
court.” Id. Moreover, important interests in comity and
federalism require deference to factual determinations made by
“all state courts.” Id.

       Similarly, in Dickerson v. Vaughn, we reviewed a habeas
petition following a Pennsylvania PCRA proceeding. 90 F.3d
87 (3d Cir. 1996). In that case, the PCRA trial court made
findings of fact following an evidentiary hearing. Id. at 90. On
review, the PCRA appellate court specifically rejected these
findings “based on the same record.” Id. Dickerson cited both
Sumner and Parke v. Raley, 506 U.S. 20, 36 (1993), for the

                               -14-
proposition that § 2254 draws no distinction between state trial
and appellate court factual determinations. 90 F.3d at 90.

       When there are conflicting findings by state courts, we
       believe that according proper deference requires us to
       accept the version reached by the higher court. To rule
       otherwise would be to insert our Court into the state
       appellate system and take onto ourselves the role
       entrusted to the state Superior Court.

Id. As we felt bound in Dickerson to defer to the state appellate
court’s determination of fact that was contrary to the state trial
court’s determination, the District Court here was bound to defer
to the PCRA appellate court’s factual determination, even
though the PCRA appellate court made that determination in the
first instance.

        Our discussion of deference to state court factual
determinations in Lambert v. Blackwell, 387 F.3d 210 (3d Cir.
2004), also supports the conclusion that the District Court
should have deferred to the PCRA appellate court’s
determination that Vargas was not willing to testify at Rolan’s
trial. The habeas petitioner in Lambert argued that the factual
findings of the PCRA trial court and the PCRA appellate court
were not entitled to deference because those courts lacked
jurisdiction to hear the petition. Id. at 236.

       We began our analysis in Lambert by noting that
“AEDPA does not provide that a federal habeas court should,
before affording deference to state court determinations,
evaluate the procedural adequacy of state court proceedings or

                              -15-
whether the state court properly exercised its jurisdiction.” Id.
at 237. AEDPA, unlike prior law, has no requirement that the
state court hold a hearing or comply with other prerequisites to
deference listed in the previous habeas statute. Id. at 238-39.
Thus, after AEDPA, state fact-finding procedures may be
relevant when deciding whether the determination was
“reasonable” or whether a petitioner has adequately rebutted a
fact, but the procedures are not relevant in assessing whether
deference applies to those facts. Id. at 239. In Lambert, we
deferred to the findings of fact from state proceedings even
though the District Court found that the Pennsylvania courts
lacked jurisdiction under Pennsylvania law. Id. “Whatever our
residual ability to examine state court jurisdiction in other
instances, the exercise of jurisdiction by the state court in this
instance does not call into question the adequacy of the state
court proceeding under section 2254(d) and (e).” Id.

       Even though Lambert focused on the question of
jurisdictional adequacy, its reasoning is informative in this case.
Here, the District Court declined to defer to the PCRA appellate
court’s factual determinations based on the PCRA trial court’s
record because, under Pennsylvania law, the PCRA appellate
court should have remanded the case. While this may be an
accurate assessment of Pennsylvania law, the District Court
should have deferred, despite the apparent procedural mistake,
unless the District Court was prepared to find that the failure
went so far as to impugn the integrity of the entire proceeding –
something it clearly was not prepared to do, given its decision
to apply AEDPA. Therefore, conforming with our sister circuits
that have addressed the issue, see, e.g., Mason v. Mitchell, 320
F.3d 604, 614 (6th Cir. 2003) (citing Sumner, 440 U.S. at 546-

                               -16-
47); Turner v. Crosby, 339 F.3d 1247, 1273 (11th Cir. 2003);
Avila v. Roe, 298 F.3d 750, 753 (9th Cir. 2002), we hold that a
district court judge must defer to state appellate court fact-
finding.

       The fact that the District Court erred in declining to defer
to the PCRA appellate court’s factual determination does not,
however, warrant reversal in and of itself. But as we proceed to
the next step, we confront the fact that it was the District Court’s
determination that it need not defer to the Superior Court’s fact
finding that allowed the District Court, under AEDPA, to hold
an evidentiary hearing; the testimony by Daniel Vargas at that
hearing, consistent with his testimony and affidavit at the PCRA
hearing, was cited by the District Court in determining that
Vargas would have been willing to testify.

        The ability of a federal district court to hold an
evidentiary hearing in habeas review is limited under AEDPA.
The Commonwealth argues that, pursuant to 28 U.S.C. §
2254(e)(2), the District Court should not have undertaken an
evidentiary hearing and that the PCRA appellate court’s
determination of facts was reasonable based on the evidence
before it. Section 2254(e)(2) would apply, however, only if
Rolan had failed to develop the factual basis for his claim in his
state court PCRA proceedings.3 Section 2254(e)(2) simply does


       3
           28 U.S.C. § 2254(e)(2) provides:
              If the applicant has failed to develop the
       factual basis of a claim in State court proceedings,
       the court shall not hold an evidentiary hearing on

                               -17-
not apply to this case because Rolan did develop the factual
basis for his claim in the state court.

       The District Court held an evidentiary hearing because,
under its incorrect reading of the record, there were no
legitimate state court findings of fact concerning Vargas’
willingness to testify. As discussed above, the District Court
wrongly determined that the Superior Court factual findings
could not be recognized because they were made in
contravention of Pennsylvania law. Thus, we cannot support the
holding of the hearing on the basis relied on by the District
Court.




       the claim unless the applicant shows that–
                      (A) the claim relies on–
                      (i) a new rule of constitutional law,
       made retroactive to cases on collateral review by
       the Supreme Court, that was previously
       unavailable; or
                      (ii) a factual predicate that could not
       have been previously discovered through the
       exercise of due diligence; and
                      (B) the facts underlying the claim
       would be sufficient to establish by clear and
       convincing evidence that but for constitutional
       error, no reasonable fact-finder would have found
       the applicant guilty of the underlying offense.

See also Lambert v. Blackwell, 387 F.3d 210, 234-36 (3d Cir. 2004).

                               -18-
       This conclusion sends us back to the review that the
District Court should then have undertaken. After concluding
that there were state court findings of fact, the District Court
should have reviewed those findings to ascertain whether or not
they were reasonable. Because the District Court did not do so,
we will, based on the PCRA record before the District Court.

       C. Were the Superior Court’s Factual Findings on
        Vargas’s Unwillingness to Testify Unreasonable?

       Our reading of the PCRA court records convinces us that
the Superior Court made an unreasonable finding of fact. The
Superior Court’s finding that Vargas was not willing to testify
on behalf of Rolan was objectively unreasonable because it was
not supported by the record. The Superior Court concluded that
Vargas was unwilling to testify on behalf of Rolan based on
Vargas’s unwillingness to cooperate with a detective. The court
conflated Vargas’s unwillingness to cooperate with the police
with a purported unwillingness to testify for the defendant. The
court then discredited Vargas’s testimony and affidavit that he
would have testified for Rolan had Goldstein called him.

       Contrary, however, to the Superior Court’s conclusion,
the exchange between Vargas and the detective is not probative
of whether Vargas would have testified on Rolan’s behalf in
1984 if asked to do so by Goldstein. It demonstrates only that
he would not testify for the prosecution. The sole evidence
before the PCRA courts on the issue of testifying for Rolan is
Vargas’s testimony and affidavit that he would do so.
Therefore, the Superior Court’s finding of fact that Vargas
would not have testified for Rolan was not supported by the

                              -19-
record. Indeed, because Vargas’s testimony and affidavit
establishes that Vargas would testify for Rolan and there is no
evidence that Vargas would not testify for Rolan, it was
unreasonable for the Superior Court to find that Vargas was
unwilling to testify for Rolan. From our examination of the
record, we find that Rolan rebutted the conclusion of the
Superior Court by clear and convincing evidence. The PCRA
record was sufficient to support this finding of unreasonableness
and the District Court hearing was superfluous.

       D. Was Trial Counsel Ineffective for Failing to
       Investigate Potential Self-Defense Witnesses?

       Because we are not bound by the unreasonable factual
finding that led the Superior Court to determine that Rolan was
not prejudiced by Goldstein’s failure to investigate Vargas and
Aponte as witnesses in support of Rolan’s self-defense claim,
we can proceed with the review of whether Goldstein was
ineffective in his representation of Rolan. In Strickland, the
Supreme Court articulated a two-pronged test for ineffective
assistance of counsel claims. 466 U.S. 668. A habeas petitioner
must show “(1) that counsel’s representation fell below an
objective standard of reasonableness; and (2) that there is a
reasonable probability that, but for counsel’s error, the result
would have been different.” United States v. Nino, 878 F.2d
101, 103 (3d Cir. 1989).

              1. Objective Reasonableness

       Strickland and its progeny make clear that counsel’s
strategic choices will not be second-guessed by post-hoc

                              -20-
determinations that a different trial strategy would have fared
better. 466 U.S. at 689. However, there is a prerequisite to this
rule’s application. Only choices made after a reasonable
investigation of the factual scenario are entitled to a
presumption of validity. Id. at 690-91. “[S]trategic choices
made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. Thus, our inquiry
must begin by assessing the objective reasonableness of
Goldstein’s failure to interview both Vargas and Aponte.

       Failure to conduct any pretrial investigation is objectively
unreasonable. E.g., United States v. Gray, 878 F.2d 702, 711
(3d Cir. 1989). The District Court noted that Goldstein never
attempted to contact either Vargas or Aponte after Rolan gave
Goldstein their names. Goldstein did turn their names over to
the prosecution as potential alibi witnesses, as required by
Pennsylvania law, but after the prosecution told Goldstein that
they were not alibi witness, Goldstein made no attempt to
determine whether they might have other information potentially
valuable to the defense. Although the decision to forgo a self-
defense claim is of the type that may be entitled to a
presumption of validity, Goldstein’s decision not to present the
defense cannot be according the normal deference to strategic
choices because it was uninformed. See United States v.
Kauffman, 109 F.3d 186, 190 (3d Cir. 1997). Thus, we
conclude that Goldstein’s representation of Rolan fell below the
objective standard of reasonableness.

              2. Prejudice


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        In order to show Strickland prejudice, Rolan must show
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 694. We have defined
a reasonable probability as a probability “sufficient to
undermine confidence in the outcome.” Hull v. Kyler, 190 F.3d
88, 110 (3d Cir. 1999). Rolan’s “showing may not be based on
mere speculation about what the witnesses [that counsel] failed
to locate might have said.” Gray, 878 F.2d at 712. Rather, it
must be made based on the potential witness’s testimony to the
habeas court. Id. Furthermore, in considering whether a
petitioner suffered prejudice, “[t]he effect of counsel’s
inadequate performance must be evaluated in light of the totality
of the evidence at trial: ‘a verdict or conclusion only weakly
supported by the record is more likely to have been affected by
errors than one with overwhelming record support.’” Id. at 710-
711 (quoting Strickland, 466 U.S. at 696).

       The PCRA appellate court relied upon a lack of prejudice
in dismissing Rolan’s state post-conviction claim of ineffective
assistance. The court found that Rolan was not prejudiced
because he could not establish that Vargas was willing to testify
on his behalf at trial. Moreover, it found that Rolan was not
prejudiced by the failure of Goldstein to call Aponte because
“Aponte’s testimony was not relevant” to Rolan’s self-defense
claim.

       As discussed above, the PCRA appellate court’s finding
that Vargas was not willing to testify at trial is not supported by
the record and is in contradiction to Vargas’s affidavit. Had
Goldstein called Vargas to testify at trial, Vargas stated he

                               -22-
would have given the testimony on behalf of Rolan that he did
before the PCRA trial court: There was a dispute over drug
money between Aponte, Rolan, and the Santiago brothers; in the
course of the dispute, Rolan followed Francisco into the
abandoned building; Rolan was carrying only a quart of beer;
Paulino came around the corner wielding a kitchen knife and ran
up the steps of the abandoned building after Rolan, screaming
“I’m going to kill you, motherfucker!”; Vargas then heard a shot
and when he and Aponte entered the building they saw Paulino
lying alone on the ground with a knife at his feet.

       Vargas’s testimony would have bolstered Rolan’s
affirmative defense and undermined the prosecution’s claims of
a pre-meditated murder during a robbery. As the District Court
noted, “[t]hese facts were crucial to refute the prosecution’s
theory that Rolan entered the house intending to kill Paulino
during the commission of a robbery.”

        Vargas’s testimony also shows the relevance of Aponte’s
testimony, had he been called by Goldstein. We do not and
cannot know what Aponte would have stated had he lived to
testify before a habeas court; his statement to the detective is not
admissible itself as double hearsay. See F ED. R. E VID. 805.
Nonetheless, we note that Aponte’s statement to the police
bolsters Vargas’s testimony to the PCRA trial court and
indicates that Aponte believed that Paulino Santiago was armed
with a knife and that Paulino attempted to assault Rolan. Had
Aponte testified to this, it would have conformed with Vargas’
testimony and supported Rolan’s self-defense claim as well as
undermined the prosecution’s theory of the case.


                               -23-
        Vargas’s testimony alone, much less in conjunction with
Aponte’s, would have substantiated Rolan’s self-defense claim
and undermined the Commonwealth’s witnesses. Goldstein’s
failure to investigate Vargas and Aponte as witnesses precluded
him from calling them to testify, and thus prejudiced Rolan
because the jury never heard evidence that supported this
alternative account of the killing. While we marvel at Rolan’s
serendipitous rifle, we note that there were significant
contradictions among the Commonwealth’s witnesses. We
believe that Rolan’s conviction was only “weakly supported by
the record” and that the testimony of Vargas (and Aponte) is
“sufficient to undermine confidence in the outcome.” Gray, 878
F.2d at 710-11, 712. Therefore, it is manifest that the Superior
Court’s decision was based on an unreasonable determination of
the facts in light of the evidence presented in the PCRA trial
court proceeding. 28 U.S.C. § 2254(d)(2).

V. Conclusion

        Because we conclude that the Superior Court’s findings
of fact on Vargas’s unwillingness to testify were unreasonable
and that, when looked at under the Strickland standard, Rolan’s
attorney’s failure to investigate self-defense witnesses fell below
an objective standard of reasonableness, and that there is a
reasonable probability that but for that failure the result would
have been different, we will affirm the grant of the writ of
habeas corpus by the District Court.




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