                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 09-3727
                                     _____________

                                   ANTHONY REID,
                                               Appellant,

                                           v.

                 JEFFREY BEARD, THE DISTRICT ATTORNEY
             OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY
                 GENERAL OF THE STATE OF PENNSYLVANIA
                             _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 04-cv-2924)
                         District Judge: Hon. Robert F. Kelly
                                   _______________


                                Argued February 7, 2011

      Before: JORDAN, GREENAWAY, JR., and STAPLETON, Circuit Judges.

                            (Opinion Filed: March 25, 2011)

Cristi Charpentier (Argued)
Matthew Lawry
Leigh Skipper
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 545 West – The Curtis Building
Philadelphia, PA 19106
        Attorneys for Appellant

Joshua S. Goldwert (Argued)
Thomas W. Dolgenos
Ronald Eisenberg
Joseph E. McGettigan, III
R. Seth Williams
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107
       Attorneys for Appellee

                                       _______________

                                           OPINION
                                       ________________

GREENAWAY, JR., Circuit Judge

       Appellant Anthony Reid (“Reid”) appeals the September 2, 2009 order of the

District Court, rejecting his objections to the Magistrate Judge’s Report and

Recommendation (“R&R”) and dismissing, with prejudice, his Petition seeking the

issuance of a Writ of Habeas Corpus. Reid is only appealing his “claim that he is entitled

to relief from his conviction and sentence because of the prosecutor’s allegedly improper

arguments and statements.” (App. Vol. I 26). We cannot say that the state courts’

decisions are “contrary to, or involv[e] an unreasonable application of, clearly established

Federal law.” See 28 U.S.C. § 2254(d). Therefore, we will affirm the District Court’s

denial of Reid’s petition.

                                  I.      BACKGROUND

       Reid and a co-conspirator, Kevin Bowman, both members of the Junior Black

Mafia (“JBM”), were accused of the March 13, 1989 shooting of fellow JBM members

Neil Wilkinson (“Wilkinson”) and Darryl Woods (“Woods”). That shooting left

Wilkinson dead and Woods seriously injured. On April 19, 1990, after a jury trial before


                                              2
the Court of Common Pleas of Philadelphia County, Reid and Bowman were convicted

of first degree murder, criminal conspiracy, and possessing an instrument of a crime.

Because the jury was deadlocked with respect to the appropriate sentence, the trial judge

entered a sentence of life imprisonment for both defendants.

       Reid made several post-verdict motions for relief from judgment and from the

imposition of a life sentence. In its January 21, 1993 opinion, the trial court examined

the various legal arguments put forth by Reid to support his motions for relief, including

a claim of prosecutorial misconduct based on the prosecutor’s use of evidence of other

crimes and evidence of Reid’s membership in JBM, the general “disgraceful performance

by the District Attorney,” specifically, in the examination of Woods and in the

prosecutor’s response to defense contentions that the police were lying. Commonwealth

v. Reid, No. 8907-008-012, 1993 WL 1156018, *152-59 (Ct. Com. Pl., Phila. Cnty., Jan.

21, 1993).

       In reviewing those claims, the trial court asked whether the prosecutorial

misconduct resulted in “unavoidable prejudice” to the defendant. Id. at *155 (citing

Commonwealth v. Johnson, 533 A.2d 994, 997 (Pa. 1987)). The trial court recognized

that, at times, the prosecutor went beyond what is considered permissible, and noted that,

when those instances occurred, it sustained objections, issued careful instructions to the

jury to disregard information it had ruled irrelevant, and made every effort to guarantee a

fair trial. The trial court determined that the alleged prosecutorial misconduct did not

result in “unavoidable prejudice” to the defendant because it did not rise to the level that

would prevent the jury from entering an objective and true verdict. Id. at *155-56.

                                              3
       Reid then filed a direct appeal to the Superior Court of Pennsylvania, claiming that

the trial court erred by: (1) admitting Wood’s prior inconsistent statement as substantive

evidence; (2) admitting evidence of Reid’s membership in the JBM; and (3) admitting

evidence of the unrelated murder of Michael Waters (“Waters”). Reid further argued that

both he and Bowman were denied a fair trial by the prosecutor’s misconduct. The

Superior Court issued an opinion on October 14, 1993, finding that the Trial Court

opinion adequately and comprehensively disposed of those arguments and that the first

and second claims were resolved by the Pennsylvania Supreme Court in Reid’s death

penalty appeal of his murder of another individual. The Superior Court denied Reid’s

appeal and affirmed the Trial Court’s judgment of sentence.1

       Reid next filed a petition for allowance of appeal to the Supreme Court of

Pennsylvania, raising the same claims as he had in Superior Court. The Supreme Court

denied the petition on March 22, 1994. 2

       On July 1, 2004, Reid filed a pro se petition seeking the issuance of a federal writ

of habeas corpus. Counsel was appointed to represent Reid, and a Consolidated


1
 Woods’s prior inconsistent statements and evidence of the Wilkinson shooting with the
10-millimeter weapon were both deemed admissible evidence in Reid’s death penalty
appeal of his conviction for the murder of Waters. See Commonwealth v. Reid, 626 A.2d
118 (Pa. 1993). The use of the 10-millimeter weapon in each case was permitted to
establish Reid’s presence at both murder scenes. Woods’s testimony was also used to
help the government establish Reid as the shooter in each case. Id. at 120.
2
 Beginning in December of 1996, Reid filed multiple petitions under Pennsylvania’s
Post Conviction Relief Act (“PCRA”), 42 PA. CONS. STAT. § 9541. His claims of
prosecutorial misconduct were found to have been previously litigated and, accordingly,
were not addressed on their merits in the resulting opinions resolving the petitions.”

                                             4
Amended Petition for a Writ of Habeas Corpus was filed on March 21, 2005. The stated

grounds for relief in the amended petition included prosecutorial misconduct, flawed jury

instructions, ineffective assistance of counsel, newly discovered evidence, and the

improper admission of hearsay and other evidence.

       On April 9, 2009, the Magistrate Judge issued an R&R recommending the denial

of Reid’s petition and concluding that there were no grounds for the issuance of a

Certificate of Appealability.3 After noting that much of what Reid presented in his briefs

was little more than “extensive fragments and summations of objections and trial court

instructions … with little or no explanation or legal analysis,” the Magistrate Judge

parsed the seventy pages Reid devoted to prosecutorial misconduct into five claims: 1)

the improper admission of references to the JBM; 2) the improper references to, and

production of, evidence of Reid’s other crimes; 3) the improper questioning of Woods; 4)

the improper questioning of Daniel McKay about the murder of Michael Waters, a

murder in which Reid was involved; and 5) the denial, through consistent prosecutorial

misconduct, of Reid’s constitutional right to be presumed innocent. 4 (App. Vol. II 99-

105). In the R&R, the Magistrate Judge determined that each claim failed to support the

grant of habeas relief.

3
 In the intervening period, the District Court stayed Reid’s federal petition while he
pursued a pro se successor petition, pursuant to the PCRA, in the Pennsylvania state
courts. On May 11, 2007, after dismissal of the state petition was affirmed on appeal,
Reid moved to reactivate his federal petition. The District Court reactivated Reid’s
petition and he filed a supplement to his amended petition on October 1, 2007. Briefing
on the matter concluded on February 26, 2008.
4
 Only those findings of the R&R that relate to prosecutorial misconduct are recounted
here as that is the only issue for which appeal was granted.

                                             5
       On September 2, 2009, the District Court rejected Reid’s objections to the R&R

and adopted the recommendations. The District Court also dismissed Reid’s petition for

a Writ of Habeas Corpus, with prejudice.

       On January 22, 2010, this Court granted a Certificate of Appealability “on

[Reid’s] claim that he is entitled to relief from his conviction and sentence because

of the prosecutor’s allegedly improper arguments and statements.” (App. Vol. I

26). Reid argued that the prosecutor’s misconduct was both systematic and

severe, that the Trial Court’s attempts at “curative” instructions were ineffectual,

and that the prosecution’s case was relatively weak. (Appellant’s Br. at 3.) Reid

contended that the cumulative effect of the misconduct resulted in a deprivation of

due process because it eroded the fairness of the trial, and that habeas relief is

warranted.

                        II.    STANDARD OF REVIEW5

       We exercise plenary review when a District Court dismisses a habeas petition

without an evidentiary hearing. Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001).

Here, the state court has arguably considered the petitioner’s federal claims on the




5
 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254(a). We
granted a Certificate of Appealability as to Reid’s claim of prosecutorial misconduct and,
now have jurisdiction, relative to that claim, pursuant to 28 U.S.C. §§ 2291 and 2253.

                                              6
merits.6 Thus, the deferential standard of review set forth in the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) is applicable. 28 U.S.C. § 2254(d).

       The application for a writ of habeas corpus shall not be granted absent a finding

that the state court 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 evidence presented in the state court

proceeding.” Id. Further, “[a]n application for a writ of habeas corpus may be denied on

the merits, notwithstanding the failure of the applicant to exhaust the remedies available

in the courts of the State.” 28 U.S.C. § 2254(b)(2).

                                    III.   DISCUSSION7

       Reid’s claim on appeal is limited to prosecutorial misconduct. The Supreme Court

has held that prosecutorial misconduct is insufficient to overturn a conviction unless it

“so infect[s] the trial with unfairness as to make the resulting conviction a denial of due

process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). It is not enough to

6
  It is not clear that Reid fairly characterized his claims at the state level as federal ones.
With respect to the prosecutorial misconduct claim, the state courts applied the state
standard – the “unavoidable prejudice test” – for finding prosecutorial misconduct.
Because that standard is “materially indistinguishable” from the federal one, see Gee v.
Kerestes, 722 F. Supp. 2d 617, 624-25 (E.D. Pa. 2010), we consider the state courts’
opinions to have addressed Reid’s now clearly articulated federal claim on the merits.
7
 As an initial matter, we note that the Commonwealth urges that we find Reid’s claim
procedurally defaulted for failure to exhaust the remedies available in state court.
Because we deny Reid’s Petition for Habeas Corpus on the merits, we will not comment
on whether Reid’s claims are procedurally defaulted.
                                               7
show that a prosecutor’s remarks were inappropriate or even deserving of universal

condemnation. Darden v. Wainwright, 477 U.S. 168, 181 (1986). A reviewing court

must “examine the prosecutor’s offensive actions in context and in light of the entire trial,

assessing the severity of the conduct, the effect of the curative instructions, and the

quantum of evidence against the defendant” to determine if prosecutorial conduct rises to

a level that infects the trial with such unfairness as to make the resulting conviction a

denial of due process. Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).

       The trial court, in its post-verdict opinion, and every other state court that later

examined the record, determined that the prosecutorial misconduct in this case – and

there was clearly misconduct – did not rise to a level that would require the new trial

Reid seeks.8 The trial court, which was in the best position to consider the effect of any

misconduct, carefully considered Reid’s allegations, recognized that in some instances

the prosecutor went beyond what was permissible, but found that, through curative

instructions and other efforts to guarantee a fair trial, the prosecutor’s misconduct did not

prevent the jury from weighing “the evidence objectively and render[ing] a true verdict.”

Commonwealth v. Reid, 1993 WL 1156018 at *155.

       Under the standard articulated in Donnelly, that determination, which was

affirmed and adopted by the Superior Court, did not result in a decision that was contrary

to, or involved an unreasonable application of clearly established federal law. It does not



8
 Indeed, reference to the Pennsylvania Bar’s ethics committee for disciplinary
proceedings may well be in order, and we encourage that, at a minimum, the Philadelphia
District Attorney’s office take appropriate steps to counsel and discipline this prosecutor.

                                               8
matter that the trial court applied a state standard,9 adopted by the Superior Court on

direct appeal, for determining prosecutorial misconduct, rather than the federal one

articulated in Donnelly and its progeny. (Appellant’s Br. at 51). The state standard has

been found to be consistent with and materially indistinguishable from the federal one.

Kerestes, 722 F. Supp. 2d at 624 (citing Corredor v. Coleman, No. 09-CV-1817, 2010

WL 391413, at *8 n.7 (E.D. Pa. Jan. 26, 2010) (“both focus on the fundamental fairness

of the trial based on potential prejudice from the alleged prosecutorial misconduct.”)).10

Therefore, we reject Reid’s contention that the application of that state standard alone

renders the state courts’ opinions contrary to federal law.

       We agree with the state courts’ conclusion that the prosecutor’s missteps were

effectively ameliorated when the trial court sustained objections and issued curative

instructions. Further, the record does not support Reid’s contention that the evidence




9
  As articulated in Johnson, that state standard – the “unavoidable prejudice test” – is that
prosecutorial misconduct will undermine a verdict when a prosecutor engages in conduct
or uses language whose “unavoidable effect would be to prejudice the jury, forming in
their minds fixed bias and hostility toward the defendant, so that they could not weigh the
evidence and render a true verdict.” 533 A.2d at 997 (citations and quotations omitted).
10
  See also, Simmons v. Diguglielmo, No. 08-CV-5911, 2009 WL 2835261, at *12 n.10
(E.D. Pa. Aug. 28, 2009) (noting Pennsylvania’s state test and the federal test for
prosecutorial misconduct are “substantively identical”); Walker v. Palahovich, No. 05-
0609, 2007 WL 666763, at *5-6 (E.D. Pa. Feb. 6, 2007) (same), aff’d, 280 F. App’x 212
(3d Cir. 2008) (finding the state court’s holding that the prosecutorial misconduct at issue
did not violate federal law was not contrary to, or an unreasonable application of, clearly
established federal law); Young v. Klem, No. 04-CV-0843, 2006 WL 487139, at *2 (E.D.
Pa. Feb. 28, 2006) (finding the state standard for prosecutorial misconduct to be
consistent with Supreme Court law).

                                              9
against him was so weak as to be outweighed by the alleged prosecutorial misconduct.11

Accordingly, viewing the trial court’s opinion on the narrow issue of prosecutorial

misconduct through the lens of the federal standard articulated in Donnelly, the trial

court’s decision was not contrary to, or an unreasonable application of, clearly

established federal law.

                                 IV.    CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s denial of Reid’s

Petition for a Writ of Habeas Corpus.




11
  We note that the trial judge found that the “evidence of [Reid’s] guilt was
overwhelming.” Commonwealth v. Reid, No. 8907-008, slip op. at 14 (Ct. Com. Pl.,
Phila. Cnty., May 30, 2002).

                                            10
