                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 16-1062
                                  _____________

                              TERRANCE FOWLER,
                                           Appellant

                                         v.

               SUPERINTENDENT SMITHFIELD SCI;
     THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
              DISTRICT ATTORNEY OF ERIE COUNTY
                         _____________


                 On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                          District Court No. 1-14-cv-00151
                District Judge: The Honorable Terrence F. McVerry

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 July 13, 2017

    Before: SMITH, Chief Judge, NYGAARD, and FUENTES, Circuit Judges

                               (Filed: July 17, 2017)
                             _____________________

                                   OPINION*
                             _____________________




This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
*


not constitute binding precedent.
SMITH, Chief Judge.

      Terrance Fowler appeals a District Court order denying a petition for a writ

of habeas corpus. Fowler claims that he received ineffective assistance of counsel

because trial counsel failed to move to suppress an improper identification by the

prosecution’s primary witness. The District Court denied Fowler’s petition because

Fowler could not show that he was prejudiced. For the following reasons, we will

affirm the District Court’s judgment.

                                          I.

      In July 2011, following a two-day jury trial in the Court of Common Pleas

of Erie County, Pennsylvania, Fowler was convicted of various crimes associated

with the robbery of a jewelry store and was sentenced to a term of 27½ to 55 years

of imprisonment.1 At trial, the prosecution’s first witness was the jewelry store

owner, Aleksandr Cheremnykh. Cheremnykh testified that on July 7, 2010, two

African American men entered his store wearing ski masks, baseball caps, and

sunglasses. One man pointed a gun at Cheremnykh and ordered him to open his

safe. When Cheremnykh refused, the man shot him in the chest. The two men

seized several silver certificates and keys to display shelves before fleeing the

scene. Because the men wore masks, Cheremnykh was not able to identify them.


1
 The jury found Fowler guilty of attempted homicide, aggravated assault,
conspiracy to commit robbery, and possession of instruments of crime.
                                          2
       The primary evidence tying Fowler to the crime was provided by Bruce

Wagner, who lived around the corner from the jewelry store. Wagner testified that

he saw two African American men park a small green car outside his house on the

morning of July 7, 2010. He observed the men walk away from the car, one

wearing a black t-shirt and the other wearing a white t-shirt. After about ten

minutes, the men returned to the car and drove away. About five minutes later,

they returned to the same spot outside Wagner’s house, parked, and walked away

again. Becoming suspicious, Wagner wrote down the car’s license plate number.

Another ten minutes later, Wagner saw the two men run back to the car and drive

off. Wagner turned on his police scanner, heard about the nearby jewelry store

robbery, and went outside to flag down a passing police officer. The officer,

Officer Velez, inspected the area where the green car had been parked and found a

silver certificate.

       Officer Don Sorberger testified that the police traced the license plate

number Wagner reported and discovered that the car belonged to Fowler. When

police arrived at Fowler’s house, they found a small green car matching Wagner’s

description parked in the driveway. The car’s license plate number was identical to

the number Wagner had reported. Fowler admitted to the police that he had been in

control of the car all day. When police searched the car, they found a white t-shirt.



                                           3
      Despite providing the information leading to Fowler’s arrest, Wagner did not

identify Fowler as one of the men who parked outside his house until Fowler’s

preliminary hearing. By the time he testified at that hearing, Wagner had already

seen news footage of Fowler’s arrest, and he knew that Fowler was one of the

individuals charged.2 When Wagner identified Fowler during the trial, Fowler’s

attorney did not move to suppress the in-court identification.

      After Fowler was convicted and sentenced, he filed a pro se petition for

relief under Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat.

§§ 9541–46, which was denied in June 2013. He appealed to the Superior Court of

Pennsylvania, which affirmed the decision denying PCRA relief. Commonwealth

v. Fowler, No. 1330 WDA 2013, 2015 WL 10979824 (Pa. Super. Ct. Mar. 3,

2015). Fowler then filed a petition for writ of habeas corpus in the U.S. District

Court for the Western District of Pennsylvania, where he raised four claims. The

Magistrate Judge filed a report and recommendation on November 2, 2015,

recommending that the petition be denied, and the District Court adopted the report

and recommendation on December 18, 2015.




2
  At the preliminary hearing, Wagner also misidentified Fowler’s accomplice and
testified that he was “as certain of his identification of Fowler as he was of his
identification of Fowler’s accomplice.” Fowler, 2014 WL 109798242013 at *6.
                                          4
         This Court granted a certificate of appealability as to Fowler’s claim that he

was denied effective assistance of counsel when counsel failed to file a motion to

suppress Wagner’s in-court identification.3

                                             II.

         We exercise plenary review over the District Court’s Order denying a writ of

habeas corpus. Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010). Our review

is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28

U.S.C. § 2254(d). Under AEDPA, if a state court has adjudicated the merits of a

habeas claim, a reviewing court must deny the petition for a writ of habeas corpus

unless the state’s adjudication “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.” 28 U.S.C. § 2254(d)(1).

         A state court’s decision is contrary to clearly established federal law if it

“‘applies a rule that contradicts the governing law set forth’ in Supreme Court

precedent, or if it ‘confronts a set of facts that are materially indistinguishable from

a decision of the Supreme Court and nevertheless arrives at a result different’ from

that reached by the Supreme Court.” Eley v. Erickson, 712 F.3d 837, 846 (3d Cir.

2013) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). A state court’s

decision unreasonably applies clearly established federal law if “no fairminded


3
    The District Court exercised jurisdiction pursuant to 28 U.S.C. § 2254. We have
                                             5
jurist” could agree with the state court’s decision. Harrington v. Richter, 562 U.S.

86, 101 (2011). “[E]ven a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. at 102. “If this standard is difficult to

meet, that is because it was meant to be. . . . Section 2254(d) reflects the view that

habeas corpus is a ‘guard against the extreme malfunctions in the state criminal

justice systems,’ not a substitute for ordinary error correction through appeal.” Id.

at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens J.,

concurring in the judgment)).

      The Supreme Court set forth the rule governing Fowler’s ineffective

assistance claim in Strickland v. Washington. See 466 U.S. 668 (1984). There, the

Court recognized that “the right to counsel is the right to the effective assistance of

counsel.” Id. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14

(1970)). Counsel’s assistance is constitutionally ineffective only when “counsel’s

conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Id. at 686.

      In Strickland, the Supreme Court created a two-part test for ineffective

assistance claims. First, the defendant must show that counsel’s errors were so

egregious that he was not functioning as the “counsel” guaranteed by the Sixth

Amendment. Id. at 687. This is done by demonstrating that counsel’s decisions


jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253.
                                           6
were not reasonable “under prevailing professional norms.” Id. at 688. Second,

“the defendant must show that the deficient performance prejudiced the defense.

This requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Id. at 687. A trial’s result is

unreliable when a defendant can show that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694.

       The Superior Court applied Strickland and rejected Fowler’s claim of

ineffective assistance of counsel, concluding that he could not show that he was

prejudiced by counsel’s failure to file a motion to suppress Wagner’s in-court

identification. See Fowler, 2014 WL 10979824, at *4-6. Because the Superior

Court applied the correct test and did not confront a set of facts materially

indistinguishable from those of a Supreme Court case, the question here is whether

the Superior Court’s analysis was an unreasonable application of Strickland. “This

is different from asking whether defense counsel’s performance fell below

Strickland’s standard. . . . For purposes of § 2254(d)(1), ‘an unreasonable

application of federal law is different from an incorrect application of federal

law.’” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S.

at 410). Therefore, we do not consider whether counsel’s failure to move to

suppress the impermissible identification prejudiced Fowler, but whether a

                                             7
fairminded jurist could agree with the Superior Court’s conclusion that Fowler was

not prejudiced by his counsel’s error.

                                         III.

      The Superior Court concluded that Wagner’s identification of Fowler was an

“impermissible suggestive identification”4 and that the trial court had failed to

properly assess whether Fowler had an independent basis for identifying Fowler as

the perpetrator. Fowler, 2014 WL 10979824, at *5-6 (citing Commonwealth v.

Carter, 643 A.2d 61, 71 (Pa. 1994)). Nonetheless, the Superior Court rejected

Fowler’s claim of ineffective assistance, concluding that Fowler failed to show that

he suffered prejudice as a result of counsel’s failure to move to suppress the

identification.

      Specifically, the Superior Court observed that, even if Wagner’s

identification of Fowler as one of the perpetrators had been excluded, there


4
 Under Pennsylvania law, “identifications made only after a witness has seen the
defendant in the media” are “impermissible suggestive identification[s].” Carter,
643 A.2d at 71. Applying Carter, the Superior Court held that Wagner’s
identification of Fowler was impermissible because
      Wagner identified Fowler for the first time at his preliminary hearing.
      Between the time of the robbery and the initial identification, Wagner
      watched a news program that depicted Fowler, in handcuffs, being
      arrested for the crimes at issue. The record further reflects that . . . on
      at least one occasion, Wagner saw Fowler at the Magistrate’s office
      and knew he was one of the individuals charged. Thus, as in Carter,
      Wagner’s subsequent identification of Fowler was an “impermissible
      suggestive identification.
                                          8
remained significant evidence tying Fowler to the robbery. Wagner testified about

a small green car that was parked only blocks away from the jewelry store at the

time of the robbery, and the license plate number of that car was later found to

match Fowler’s. Moreover, Fowler himself admitted that he had been the sole

person in control of his car on that day. In the face of this evidence, the Superior

Court held that “there is no basis for concluding that there is a reasonable

probability that the outcome would have been different if counsel had filed a

motion to suppress the identification.” Id. at *6. When the District Court reviewed

the Superior Court’s decision, it concluded that, confronted with all the evidence

against Fowler, the Superior Court’s decision was not an “unreasonable application

of” Strickland.

      On appeal, Fowler simply reargues Strickland. He stresses that Wagner’s

identification of Fowler was not reliable and contends that, had the identification

been excluded, “there is a reasonable likelihood that Fowler’s trial would have had

a different outcome.” Brief for Appellant at 24, 27. This argument misses the mark.

Under AEDPA, our task is not to consider whether the Superior Court was correct

in holding that Fowler could not show prejudice. Rather, affording “deference and

latitude” to the Superior Court, we must determine whether a fairminded jurist

could agree with that holding. See Harrington, 562 U.S. at 101.


Fowler, 2014 WL 10979824, at *5 (citations omitted).
                                           9
      Fowler primarily relies upon our decision in Thomas v. Varner in support of

his claim. Thomas v. Varner, 428 F.3d 491 (3d Cir. 2005). In Thomas, we affirmed

the District Court’s grant of Thomas’s habeas petition on the ground that counsel

rendered ineffective assistance when he failed to object to or move to suppress an

improper in-court witness identification made by Peter Fuller. Id. at 504.

      We held that Thomas suffered prejudice from counsel’s failure to move to

suppress Fuller’s identification because, if the improper identification had been

excluded, the sole remaining evidence inculpating Thomas was the “very

questionable” testimony of a second witness, Christopher Young. Id. Young only

identified Thomas after “making several inconsistent statements about the

incident,” and later testifying that he feared being arrested himself if he did not

name someone. Id. at 495. In addition, Young had implicated Thomas’s co-

defendant, and the jury had acquitted the co-defendant notwithstanding Young’s

testimony. Id. at 504. Given this “very questionable” evidence, we concluded that

there was “a reasonable likelihood that the result of [Thomas’s] trial would have

been different” if the identification had been excluded. Id.

      Fowler posits that his situation is identical to Thomas. We do not agree for

two important reasons. First, in Thomas, the Pennsylvania state courts had never

considered the issue of whether Thomas had suffered prejudice as a result of the

failure to suppress the identification. Id. at 501. Accordingly, Thomas was required

                                          10
to demonstrate only “a probability [of prejudice] sufficient to undermine the

outcome.” Id. at 502. That standard was “not a stringent one.” Id. Here, in contrast,

the Pennsylvania Superior Court considered and rejected Fowler’s claim that he

suffered prejudice. Accordingly, Fowler’s claim is subject to an entirely different,

more stringent, standard of review. Under AEDPA, we must afford great deference

to the Superior Court, and we therefore may consider only whether a fairminded

jurist could agree with its decision. See Harrington, 562 U.S. at 101.

      Second, we cannot agree with Fowler’s implication that Wagner’s testimony

apart from the identification is comparable to the “very questionable” testimony

presented by Young in Thomas. Fowler argues that, absent the identification, “the

jury would have been left with Wagner’s testimony of two non-descript African

American men parked in a car on his street.” Brief for Appellant at 29. Yet Wagner

testified to much more than that. Wagner observed a small green car parked only

blocks away from the jewelry store at the time of the robbery, bearing a license

plate number that was later found to match Fowler’s. Fowler thus suggests that we

should discredit Wagner’s testimony linking his car—and, by Fowler’s admission

to the police that he had been in control of his car all that day, Fowler himself—to

the scene of the crime.

      AEDPA instructs that a state court’s findings of fact, including its

assessment of witness credibility, are presumed to be correct absent clear and

                                         11
convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). The Superior Court

treated Wagner’s testimony concerning Fowler’s car as reliable, and Fowler has

not presented clear and convincing evidence showing that the Superior Court was

wrong to do so. Given the evidence supporting Fowler’s conviction apart from the

impermissible identification, we cannot conclude that the Superior Court reached a

decision with which no fairminded jurist could agree.

                                        IV.

      Because Fowler presents no other arguments addressing AEDPA’s standard,

we will affirm the Order of the District Court denying Fowler’s habeas petition.




                                        12
