                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2002

Stevens v. DE Corr Ctr
Precedential or Non-Precedential: Precedential

Docket No. 01-3315




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PRECEDENTIAL

       Filed July 2, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3315

DARRELL W. STEVENS

v.

DELAWARE CORRECTIONAL CENTER;
ATTORNEY GENERAL OF THE STATE OF DELAWARE,
       Appellants

On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 97-cv-00130)
District Judge: Hon. Gregory M. Sleet

Argued: April 5, 2002

Before: SLOVITER, BARRY and ALARCON,*
Circuit Judges

(Filed: July 2, 2002)

Thomas E. Brown (Argued)
Department of Justice
Wilmington, DE 19801

 Attorney for Appellants
_________________________________________________________________

* Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth
Circuit, sitting by designation.


       Charles M. Oberly, III
       Karen V. Sullivan (Argued)
       Oberly, Jennings & Rhodunda, P.A.
       Wilmington, DE 19899

        Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The State of Delaware appeals from the order of the
District Court for the District of Delaware conditionally
granting the petition of Darrell Stevens for a writ of habeas
corpus. See Stevens v. Del. Corr. Ctr., 152 F. Supp. 2d 561
(D. Del. 2001). The State raises two arguments on appeal:
(1) that the ineffective assistance claim upon which the
District Court granted federal habeas relief was
unexhausted and is thus procedurally barred, and (2) in
the alternative, that the state courts’ application of
Strickland v. Washington, 466 U.S. 668 (1984), was not
objectively unreasonable under 28 U.S.C. S 2254(d) (2001).

I.

FACTS AND PROCEDURAL BACKGROUND

A. Facts1

On March 16, 1990 at about 4 p.m., Tracey Auterson
went with some friends to a bar called Mr. D’s Pizza &
Restaurant. Sometime that evening, Marvin Lindsay,
Auterson’s boyfriend, with whom she had been living until
earlier that week, arrived at Mr. D’s. The two quarreled,
after which Lindsay left the bar. At approximately 11:30
p.m., Auterson called Lindsay at his home and asked if she
could stay with him that night, rather than return to her
parents’ home where she had been staying. He said she
_________________________________________________________________

1. Some of the facts, the procedural history, and the arguments of the
parties below appear in the District Court’s opinion, Stevens v. Del. Corr.
Ctr., 152 F. Supp. 2d 561 (D. Del. 2001).

                                  2


could stay with him but he declined her request to come
pick her up at the bar.

According to Auterson’s testimony, after the phone call
she started to walk to Lindsay’s home, about a fifteen-
minute walk from Mr. D’s. On the way, she was grabbed
from behind, dragged into an apple orchard, and forcibly
raped. During the struggle, she scraped her attacker’s
genitals with her fingernails. Later she fainted. When she
regained consciousness, the assailant was still with her,
but he subsequently fled. Auterson was unable to identify
her attacker because she was lying on her stomach part of
the time and was told to keep her eyes closed when she
was later rolled over onto her back.

After the assailant fled, Auterson ran out of the orchard
and shortly thereafter, at approximately 2:20 a.m., she
went to Lindsay’s home and told him that she had been
raped. Lindsay noted that Auterson’s clothes were in
disarray and that she was upset. Lindsay testified, however,
that at the time he was not sure whether he believed her
story. Lindsay spent about a half hour to calm Auterson
down, after which they both went to sleep.

Lindsay left for work at about 3:30 a.m. After discussing
the incident with his co-workers, Lindsay called Auterson
at approximately 8:00 a.m. to tell her she should report the
rape to the police and that if she did not call the police she
should go to her mother’s home. According to Auterson, at
about 9:00 a.m., she returned to the scene of the rape
because she needed a cigarette and believed she lost her
cigarettes in the orchard. While there, she found the tank
top that she had been wearing the previous evening. She
then became frightened and returned to Lindsay’s home.

After Lindsay returned from work at about 2:00 p.m.,
Auterson called the police. Detective Young interviewed
Auterson that afternoon at Lindsay’s home and in Lindsay’s
presence. Young and Auterson then returned to the orchard
where, in an area of the orchard where the ground
appeared compressed, they found her underpants and a
wallet belonging to Stevens.

Thereafter, Detective Young and Auterson went to the
hospital for a physical examination. Semen was removed

                                3


from Auterson’s vagina and blood and semen were found on
her skirt. DNA testing revealed that both semen samples
matched Stevens’ DNA and the blood was consistent with
Stevens’ blood type (and not Auterson’s). Young and
Auterson then went to the police station where Detective
Young reinterviewed Auterson, this time on audiotape.
Auterson was unable to give Detective Young a physical
description of her assailant.

Auterson testified that she had never seen Stevens
before, had never been on a date or otherwise socialized
with him, and had not danced with him on the night in
question:

       Q: Have you ever seen [the defendant] before?

       A: No.

       Q: Okay. Did you ever socialize with that man before
       that you recall today?

       A: I don’t recognize him, no.

       Q: Did you ever go out with him, date him? Did you
       ever have any sexual relations with him ever in your
       life?

       A: No.

       . . . .

       Q: Would you be able today to identify him as the
       person who was with you in the orchard that night?

       A: To tell you the truth, no.

App. at 49-50.

Auterson also testified that, although she had been at
Mr. D’s for more than seven hours, she only consumed
about one and a half glasses of beer. She did acknowledge
that, when she left the bar, she was "buzzed" but not
"seriously impaired." Stevens, 152 F. Supp. 2d at 567.
Stevens was arrested on March 19, 1990. He admits that
he was also at Mr. D’s on March 16, 1990. According to
Stevens, he got very drunk, having consumed
approximately four pitchers of beer and one or two shots of
alcohol that evening. Stevens was able to recall many

                                4


details of his actions in the bar that evening such as
ordering a tuna sub but only eating half of it, App. at 44,
and ordering four pitchers of beer, App. at 45, but he was
unable to remember anything after leaving the bar. He did
testify that he was "fairly certain" that he left the bar alone,
App. at 46, and that his next memory was waking up the
following morning in a driveway behind the bar without his
wallet. App. at 46-47. He further testified that he did not
know Auterson, although he may have seen her at Mr. D’s
on March 16:

       Q: The young lady who testified here . . . Tracey
       Auterson, do you know her?

       A: No, sir, I don’t.

       Q: You don’t recall --

       A: I might have seen her at the bar.

       Q: But you don’t have any specific memory of that?

       A: No, sir; I don’t know her personally.

App. at 48a.

After Stevens’ arrest, the police examined him and found
a scrape, sore, or abrasion of some sort on his scrotum. A
photograph of this mark was shown to the jury.

Stevens was charged with first-degree unlawful sexual
intercourse and second-degree sexual penetration. Under
Delaware law at the time of Stevens’ trial, a person could be
convicted of first-degree unlawful sexual intercourse if the
following elements were present: (1) intentional sexual
intercourse with another person (2) without the other
person’s consent, (3) when the other person was not a
voluntary social companion on the occasion of the
particular sexual intercourse in question and (4) when the
other person had not consented to sexual intercourse with
the person in question for the previous twelve months. Del.
Code Ann. tit. 11, S 775(a)(2) (repealed 1998).2 Under then-
existing Delaware law, if the prosecution failed to establish
_________________________________________________________________

2. The crime of rape in the first degree is now codified in Del. Code Ann.
tit. 11, S 773 (2001) and no longer refers to whether the victim and the
defendant were voluntary social companions.

                                5
that the defendant and the victim were not voluntary social
companions, the crime of first-degree unlawful sexual
intercourse was reduced to third-degree unlawful sexual
intercourse. Del. Code Ann. tit. 11, S 773 (repealed 1998).

B. Stevens’ Trial

To defend Stevens, his mother, Peggy Lane, hired Dennis
Reardon. Because Stevens has no memory of what he did
after leaving Mr. D’s, he could not affirmatively deny
engaging in sexual intercourse with Auterson. Instead,
Reardon’s trial strategy was to argue that Stevens did not
have sexual intercourse with Auterson, but, in the
alternative, to argue that if he had sex with her, it was
consensual. In support of the latter, Stevens testified that
he does not get violent when he is drunk. That testimony
was corroborated by the testimony of Maureen Stokes, a
former girlfriend of Stevens. Reardon suggested to the jury
that Auterson must have lied to Lindsay about being raped
in order to cover up having consensual sex with Stevens.

Reardon also tried to elicit from Stokes a confirmation of
Stevens’ explanation of the mark on his genitalia. At trial,
the prosecution argued that this mark corroborated
Auterson’s claim that she scraped her attacker’s genitalia.
According to the prosecution, her claim was further
corroborated by the blood found on her skirt. In the
prosecution’s view, the mark on Stevens’ genitalia
undermined the defense’s consensual sex theory. Stevens
testified that he had a "history" of herpes and that the
mark on his scrotum was a herpes sore, not a scratch.
Reardon attempted to corroborate Stevens’ history of herpes
by testimony from Stokes. Reardon had apparently failed to
discuss with Stokes his intention to question her on this
subject, because Stokes testified that she was unaware that
Stevens ever had herpes. Despite the prosecution’s
emphasis of this point on cross-examination of Stokes,
Reardon continued to press the issue on redirect. Stokes
again denied ever knowing that Stevens had herpes, despite
having been in a close and intimate relationship with him
for about a year.

Reardon also called two witnesses who were present at
Mr. D’s on the evening of the rape. Kathy Theodorakos, the

                                6


owner of Mr. D’s, testified that before she left the bar that
evening, between 9:00 and 9:30 p.m., she saw Stevens and
he was not drunk. Karen Cates, a friend of Stevens,
testified that she saw him dancing that evening with a
group of people that included Auterson but she did not see
him dancing with Auterson one-on-one. She also testified
that when she saw Stevens dancing at approximately 10:00
p.m., he appeared to be drunk or "high" but was not falling
down or stumbling. Cates also testified that when she was
driving home at about 11:00 p.m., she saw Stevens walking
by himself in a direction toward his home, which was in a
different direction than the apple orchard.

Stevens was convicted of first-degree unlawful sexual
intercourse3 by a jury in Delaware Superior Court in
February 1991 and he was thereafter sentenced to life
imprisonment without the possibility of parole or the
reduction of his sentence for twenty years. In June 1992,
Stevens’ conviction and sentence were affirmed by the
Delaware Supreme Court on appeal. Stevens v. State, 610
A.2d 727 (Del. 1992).

C. Post-Conviction Proceedings

According to Lane, Stevens’ mother, it was her
understanding when she hired Reardon to represent her
son that Reardon was going to hire a private investigator to
attempt to locate potentially favorable witnesses because
Stevens had little recollection of the night of the alleged
rape due to his heavy drinking and his subsequent memory
lapse. In particular, since Stevens could provide almost no
information to assist Reardon in finding people who were at
Mr. D’s on the night of the alleged rape, Lane agreed to pay
the investigator’s fees. Reardon did not, however, hire an
investigator. Stevens maintains that until the first day of
the trial he and his mother were unaware of Reardon’s
failure to hire an investigator.

According to a statement by Lane submitted in support of
_________________________________________________________________

3. The jury found Stevens not guilty on the two counts of second-degree
sexual penetration, counts that were based on the allegation that
Stevens had inserted his fingers into Auterson’s vagina and anus prior
to intercourse.

                                 7


Stevens’ motion for post-conviction relief, Kathy
Theodorakos, the owner of Mr. D’s, told her that Reardon
met with Theodorakos at Mr. D’s prior to trial and that she
gave him the names of additional people he should contact.
Supp. App at 47. Reardon, however, merely left his
business cards with Theodorakos and asked her to pass
them out and have people call him. Reardon also
apparently contacted approximately ten possible witnesses
suggested by Stevens or Lane.

After Stevens was convicted, Lane hired two private
investigators to try to identify individuals with information
relevant to her son’s case. On October 17, 1994, Stevens
filed a motion for post-conviction relief in Delaware
Superior Court in which he raised an ineffective assistance
of counsel claim alleging, inter alia, Reardon’s failure to
conduct an adequate investigation. Stevens identified
various potential witnesses, attached the investigators’
summaries of interviews with the witnesses they had
located, and submitted letters from three potential
witnesses. Some of the letters and interview notes included
attacks on Auterson, attributing to her a reputation for
promiscuity and for liking violent sex, and some contained
information from people claiming to have been present at
Mr. D’s on the night in question and to have seen Stevens
and Auterson dancing and socializing together at the bar.
For example, Jan and Randy Miller both claimed that they
saw Stevens and Auterson dancing and drinking together,
that Auterson appeared to be drunk and was kissing
Stevens, and that Stevens and Auterson left the bar
together.

The Superior Court ordered Reardon to file a response to
Stevens’ ineffective assistance of counsel claims. Reardon
submitted an affidavit stating that because of the degree of
Stevens’ intoxication and his memory lapse, Stevens" ‘was
unable to give me anything to work on as far as forming a
defense.’ " Stevens, 152 F. Supp. 2d at 572 (quoting
Appellant’s Appendix at 11, Stevens v. State, 676 A.2d 907
(Del. 1996) (No. 95-323)). Reardon stated that after
reviewing the evidence and talking to witnesses, he decided
that " ‘the only defense possible was to attempt to persuade
the jury that [Auterson] consented to sex with Mr. Stevens,

                                8


then she attempted to cover herself by telling her boyfriend
she was raped.’ " Id. at 572-73 (alternations in original)
(quoting Appellant’s Appendix at 11, Stevens (No. 95-323)).

Reardon identified ten names of possible witnesses that
Stevens and his mother had provided and attested that " ‘all
of the above were contacted by me either personally or by
phone prior to trial.’ " Id. at 573 (quoting Appellants’
Appendix at 12, Stevens (No. 95-323)). His affidavit does
not describe the extent of the "contacts" or the information
he obtained from them. Of the ten names given to him by
Stevens and his mother, Reardon apparently issued
subpoenas to five of them, and four testified at trial. Only
two -- Theodorakos and Cates -- testified as to the events
at Mr. D’s on the night in question. Reardon’s affidavit did
not deny Lane’s claim that Reardon simply left business
cards with Theodorakos, rather than following up himself
with the names she provided to him. Stevens filed a
response to Reardon’s affidavit in which Stevens noted
Reardon’s failure to hire a private investigator as promised
and Reardon’s failure to pursue the leads given to him by
Theodorakos.

The Superior Court referred the matter to a
Commissioner who concluded that Stevens had not
established either of the two prongs necessary to prevail on
an ineffective assistance of counsel claim under Strickland.
The Superior Court issued an order adopting the
recommendations of the Commissioner. State v. Stevens,
No. IK90-03-0476-R1, 1995 WL 465149, at *1 (Del. Super.
Ct. July 18, 1995) (appending Commissioner’s report).
Stevens appealed the denial of his motion to the Delaware
Supreme Court. The Delaware Supreme Court affirmed the
denial of post-conviction relief. Stevens v. State, 676 A.2d
907 (Del. 1996).
In March 1997, Stevens filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. S 2254. Stevens
claimed he was denied the effective assistance of counsel,
contending that Reardon was deficient in several ways
relating to the investigation (or lack thereof) and the
preparation of the case before trial. In the appendix
accompanying his opening brief in the habeas proceeding,
Stevens presented for the first time in any court affidavits

                                9


(unsigned) from various witnesses in support of his
ineffective assistance of counsel claim. Supp. App. at 17-
24. Three weeks later, Stevens submitted revised copies of
the affidavits signed by the affiants.

The District Court convened an evidentiary hearing
limited to addressing the reasonableness of Reardon’s
performance on behalf of Stevens. The District Court
described Reardon’s testimony at the hearing by saying
"[u]nfortunately, and incredibly, Reardon had virtually no
recollection regarding the extent of his pretrial investigation
or much else concerning his representation of Stevens."
Stevens, 152 F. Supp. 2d at 576. Reardon could not locate
any of his files related to Stevens’ case and was unable to
refute any of the testimony by Stevens and his mother
concerning representations he had made to them prior to
trial. He did not recall failing to pursue all the leads
Theodorakos gave him but did testify that it fit his normal
practice to have left his business cards with her and asking
her to have witnesses call him long distance. Finally,
although Reardon could not recall discussing the hiring of
a private investigator with Stevens’ mother, he admitted
that he had never hired an investigator in more than thirty
years of practice. Id.

On July 23, 2001, the District Court conditionally
granted Stevens’ habeas petition based on the
ineffectiveness claim. Stevens, 152 F. Supp. 2d at 565. The
State of Delaware appeals, arguing first, that Steven’s
ineffective assistance claim is procedurally barred because
he had not exhausted his state remedies, and second, that
the state courts’ application of Strickland was neither
objectively unreasonable nor prejudicial.

II.

JURISDICTION AND STANDARD OF REVIEW

We review de novo a "district court’s determination of
whether an issue has been exhausted." Whitney v. Horn,
280 F.3d 240, 249 (3d Cir. 2002). This court also conducts
a plenary review of a district court’s legal conclusion but

                                10


reviews its factual conclusions using the clearly erroneous
standard. Id.

The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) altered the standard of review that a federal
habeas court must apply to a state prisoner’s claim that
was adjudicated on the merits in state court. See Williams
v. Taylor, 529 U.S. 362, 402-13 (2000) (interpreting 28
U.S.C. S 2254(d)(1)); see also Dunn v. Colleran, 247 F.3d
450, 457 (3d Cir. 2001) (explaining Williams). Under
AEDPA, in conducting a habeas analysis a federal court
must presume that the factual findings of both state trial
and appellate courts are correct, a presumption that can
only be overcome on the basis of clear and convincing
evidence to the contrary. 28 U.S.C. S 2254(e)(1); Duncan v.
Morgan, 256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S.
Ct. 269 (2001). A federal court may not issue a writ of
habeas corpus unless the state court adjudication of the
claim "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. S 2254(d)(1).

The Supreme Court in Williams interpreted the "contrary
to" clause of this provision as follows: "a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts." Williams, 529 U.S. at 413.
Additionally, the Williams Court interpreted the
"unreasonable application" clause as allowing"a federal
habeas court [to] grant the writ if the state court identifies
the correct governing legal principle from this Court’s
decisions but unreasonably applies that principle to the
facts of the prisoner’s case." Id. The Court further explained
that under the "unreasonable application" clause, "a federal
habeas court may not issue the writ simply because that
court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable." Id. at 411.

                                11


The "clearly established federal law" applicable to
Stevens’ claims of ineffective assistance of counsel is the
familiar two-pronged test the Court articulated in Strickland
v. Washington, 466 U.S. 668 (1984). Under Strickland,
Stevens must first establish that Reardon’s performance
was constitutionally deficient by showing that his
representation "fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 688. Second,
Stevens must show that there is a "reasonable probability"
that Reardon’s deficient performance prejudiced his defense
to the extent that counsel’s mistakes and/or omissions may
well have affected the outcome of the case against him. Id.
at 694. The Supreme Court recently reconfirmed that
counsel’s failure to conduct an adequate investigation must
be scrutinized under the Strickland test. See Bell v. Cone,
122 S. Ct. 1843, 1852 (2002) (subjecting counsel’s failure
to adduce mitigating evidence to the performance and
prejudice components of Strickland).

III.

DISCUSSION

A. Exhaustion

Before a federal court can consider granting a petition for
a writ of habeas corpus to a person incarcerated pursuant
to a state court judgment, the petitioner must first exhaust
any available state court remedies. 28 U.S.C. S 2254(b)(1);
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). To
satisfy the exhaustion requirement, the petitioner must
"fairly present" all federal claims to the highest state court
before bringing them in federal court. Whitney v. Horn, 280
F.3d 240, 250 (3d Cir. 2002). State remedies are not
deemed exhausted if the petitioner "has the right under the
law of the State to raise, by any available procedure, the
question presented." 28 U.S.C. S 2254(c).

A failure to exhaust will be "excused" when the habeas
petitioner’s claims are procedurally barred under state
rules. Whitney, 280 F.3d at 250 (citing Gray v. Netherland,
518 U.S. 152, 161 (1996)); see also 28 U.S.C.
S 2254(b)(1)(B)(i). Under such circumstances, federal courts

                                12


may not consider the merits of such claims unless the
petitioner can establish "cause and prejudice" or a
"fundamental miscarriage of justice" to excuse the
procedural default. See Whitney, 280 F.3d at 252-53;
McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999)
(citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

Here, the State argues that Stevens has failed to exhaust
his state remedies because the ineffective assistance of
counsel argument he made in the District Court was
stronger than the one he made in the state post-conviction
courts, and therefore Stevens’ federal claim is procedurally
barred. Specifically, Stevens submitted to the Superior
Court that heard his collateral case copies of letters and
investigator notes that he or his mother had apparently
solicited after his trial. Stevens claimed the persons who
wrote the letters or who had been interviewed should have
been called for trial to provide impeachment testimony
against Auterson and to testify that Stevens and Auterson
had danced together and left the bar together. The State
argues that the letters offered to the Superior Court differ
from the affidavits offered to the District Court. In fact, the
Superior Court said it viewed Stevens’ unverified allegations
with grave suspicion.

Stevens responds that the affidavits presented no new
facts but rather merely recite facts already submitted to the
state courts. The District Court agreed, as do we. The
affidavits presented in the District Court do "not
fundamentally alter the legal claim already considered by
the state courts." Vasquez v. Hillery, 474 U.S. 254, 260
(1986). For this reason, Stevens’ submission of the
affidavits does not render his claims unexhausted. We
therefore turn to the substantive claims of Stevens’ habeas
petition.

B. Ineffective Assistance of Counsel

Stevens claims that Reardon’s performance as his
counsel was constitutionally deficient because he made an
inadequate effort to identify favorable witnesses and failed
to hire a private investigator. The District Court concluded
that because the purpose of hiring a private investigator
would have been to assist with the identification of

                                13


favorable witnesses, these two claims merge into the single
claim that Reardon’s attempts to identify witnesses were
inadequate. Stevens, 152 F. Supp. 2d at 571 & n.15.
Assessing this claim, the District Court concluded that
Reardon’s failure to conduct an investigation to try to locate
witnesses was objectively unreasonable and that Stevens
was prejudiced by this failure to investigate. Id. at 580-81.
To evaluate the District Court’s conclusions, we turn to the
two-pronged Strickland test.

We have held that "[t]he standard by which we judge
deficient performance is an objective standard of
reasonableness, viewed to the extent possible from the
attorney’s perspective at the time, without ‘the distorting
effects of hindsight.’ " Duncan v. Morton , 256 F.3d 189, 200
(3d Cir. 2001) (quoting Strickland, 466 U.S. at 688-90). In
addressing the reasonableness of an attorney’s
representation, a reviewing court must be deferential in its
scrutiny "because it is all too easy to conclude that a
particular act or omission of counsel was unreasonable in
the harsh light of hindsight." Bell v. Cone , 122 S.Ct. 1843,
1854 (2002) (citing Strickland, 466 U.S. at 689).
Furthermore, a party claiming ineffective assistance must
identify specific errors by counsel, and the court must
indulge a strong presumption that counsel’s conduct was
reasonable. Strickland, 466 U.S. at 690.

It happens that Strickland also involved an ineffectiveness
claim relating to a duty to investigate. The Supreme Court
did not offer any special standards concerning the duty to
investigate, but it did say that "counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary." Id. at
691. A decision not to investigate must be directly assessed
for "reasonableness in all the circumstances," and the
habeas court must apply "a heavy measure of deference to
counsel’s judgments." Id. The Court’s observations in
Strickland speak to the issues raised in this case:

        The reasonableness of counsel’s actions may be
       determined or substantially influenced by the
       defendant’s own statements or actions. Counsel’s
       actions are usually based, quite properly, on informed
       strategic choices made by the defendant and on

                                14


       information supplied by the defendant. In particular,
       what investigation decisions are reasonable depends
       critically on such information. For example, when the
       facts that support a certain potential line of defense are
       generally known to counsel because of what the
       defendant has said, the need for further investigation
       may be considerably diminished or eliminated
       altogether. And when a defendant has given counsel
       reason to believe that pursuing certain investigations
       would be fruitless or even harmful, counsel’s failure to
       pursue those investigations may not later be
       challenged as unreasonable.

Id. (emphasis added).

Reardon claimed that the only way to defend Stevens
given the proof that there had been sexual contact between
Stevens and Auterson was to argue that Auterson
consented to sex with Stevens. The state courts accepted
that strategy as reasonable. The District Court also
concluded the strategy was reasonable but found that
Reardon was deficient in how he carried out this reasonable
strategy. In particular, the court noted that despite the fact
that Reardon knew that he could not rely on Stevens to
recount the events of the night in question, Reardon’s
affidavit merely states that he contacted the ten individuals
that Stevens and his mother asked him to contact and that
he interviewed Auterson’s boyfriend.

In contrast to the District Court’s view of Reardon’s
performance, the Delaware courts were satisfied with
Reardon’s affidavit. The Commissioner stated that Reardon
"followed every lead given him by Stevens." Stevens, 1995
WL 465149, at *4. The Delaware Supreme Court similarly
noted that Reardon’s affidavit "avers that he investigated all
of the leads provided to him by Stevens." Stevens v. State,
No. 95-323, 1996 WL 69769, at **2 (Del. Jan. 24, 1996).

The District Court concluded that the Delaware courts’
characterizations of Reardon’s affidavit were "rather
generous," noting that "[Reardon] did not state that he
‘followed’ or ‘investigated’ the leads provided by Stevens"
but "merely stated that the individuals that Stevens and his
mother identified were ‘contacted by me, either personally

                                15


or by phone.’ " Stevens, 152 F. Supp. 2d at 575 (quoting
Appellants’ Appendix at 12, Stevens (No. 95-323)). The
court remarked that Reardon’s affidavit "gives no clue as to
the extent of these ‘contacts,’ or whether the information he
learned in this manner either encouraged or discouraged
further investigation." Id. The District Court also observed
that neither the Commissioner nor the Delaware Supreme
Court "acknowledged Stevens’ contention that Reardon
failed to hire a private investigator as promised," nor
mentioned Reardon’s "alleged failure to follow up on the
leads provided by Theodorakos." Id. The District Court
noted that the "state courts seemed quite impressed by
Reardon’s rather unimpressive response to Stevens’
allegations." Id.

The District Court further disagreed with the implication
by the Delaware state courts that the extent of Reardon’s
investigation was reasonable in light of Stevens’ claimed
memory lapse. Although the District Court recognized that
Strickland instructs that the degree of investigation that is
reasonable depends in large part on the information
provided by the defendant, Strickland, 466 U.S. at 691, the
District Court believed that "Stevens’ asserted lack of
memory should have heightened Reardon’s duty to conduct
an independent investigation and to follow up on the leads
provided by Theodorakos." Stevens, 152 F. Supp. at 575.
The court stated that "given Stevens’ memory lapse, it
would seem less reasonable to do no more than follow up
on leads that he provided." Id.

The District Court further disagreed with the
Commissioner’s apparent satisfaction with Reardon’s
attempts to undermine Auterson’s credibility on cross-
examination by calling " ‘witnesses who testified that
Stevens and the victim were seen dancing together that
evening.’ " Id. (quoting Stevens , 1995 WL 465149, at *4).
The District Court noted that only one witness, Cates,
testified that she saw them dancing, but that was in a
group rather than one-on-one. Inasmuch as this was"far
short of the allegations contained in the private
investigators’ interview notes attached to Stevens’ motion,"
the court commented that "[s]urely, Reardon could not have
reasonably concluded that the availability of Cates’
testimony obviated the need for further investigation." Id.

                                16


The District Court cited our decision in United States v.
Gray, 878 F.2d 702 (3d Cir. 1989), for the proposition that
"[a]n attorney’s performance is deficient when he or she
fails to conduct any investigation into exculpatory evidence
and has not provided any explanation for not doing so."
Stevens, 152 F. Supp. 2d at 576. The District Court held
that Reardon’s efforts fell short of minimally acceptable
professional standards and therefore found that the state
courts’ conclusion to the contrary was unreasonable. Id. at
577.

On appeal, the State takes issue with several of the
District Court’s findings. First, the State argues that the
District Court improperly assigned the burden of proof
under Strickland by independently reweighing the
substance of the affidavit presented by Reardon in the state
post-conviction action. Reardon stated in the affidavit that
he "contacted" all the potential witnesses identified by
Stevens either personally or by phone. The state courts had
described Reardon’s affidavit as stating that Reardon had
"followed" or "investigated" leads provided by Stevens,
whereas the District Court made a point of the distinction
between the meaning of the word "contacted," used by
Reardon, and the words "followed" or "investigated," used
by the state courts. According to the State, this constituted
reweighing by the District Court. Br. of Appellants at 21-22.

The State also argues that the District Court erred in
drawing an adverse inference from defense counsel’s
inability to recall specific details of his representation of
Stevens more than nine years after the trial, and
emphasizes that it was Stevens, the habeas petitioner, who
had the burden of establishing his right to relief and all
facts necessary to show a constitutional violation. Br. of
Appellants at 23-24.

The State also argues that the District Court misapplied
the Strickland test, and therefore erred in concluding that
Reardon’s performance was deficient. The State notes that
the relevant inquiry under Strickland is not whether other
investigatory avenues were available but whether defense
counsel’s choices were reasonable at the time he made
them. We find most persuasive the State’s argument that
Reardon had no duty to investigate witnesses who

                                17


contradicted his own client’s testimony. Stevens’ testimony
at trial was that he remembered events inside the bar as
well as leaving the bar alone, but that he had no
recollection of any events after leaving the bar. Therefore,
the State argues that it was not unreasonable for Reardon
to limit his investigation in light of Stevens’ own
statements.

As the Supreme Court held in Strickland, it is reasonable
and proper for counsel to make strategic choices about
both trial strategy and pre-trial investigation in light of
information supplied by a client. Strickland, 466 U.S. at
691. Although in some rare instances counsel may decide
to take the unusual step of impeaching his or her own
client, it is not unreasonable for a lawyer to decide to
pursue investigatory avenues and trial strategies that are
consistent with the client’s account of the events in
question, especially if the client plans to offer sworn
testimony regarding those events.

Under the circumstances of this case, there was no
reason why Reardon should have considered contradicting
his client’s recollection of the events inside Mr. D’s. Stevens
recalled many specific events inside the bar. He testified
that he did not dance with or otherwise have contact with
Auterson inside Mr. D’s that night. Significantly, the
testimony of Auterson, the victim, was in complete accord
with that of Stevens in this respect.
The state courts’ conclusion that Reardon’s strategy
satisfied the first prong of Strickland was not unreasonable
under the AEDPA standard of review because Reardon
conducted his investigation and shaped his trial strategy
around Stevens’ account. The facts that Stevens apparently
had no recollection of the events of the evening after he left
the bar and that he was "fairly certain" that he left the bar
alone, App. at 46, were not inconsistent with his testimony
about what occurred that night before he blacked out and
there was therefore no reason why Reardon should have
crafted his pre-trial and trial strategies in a way that in
effect completely undermined Stevens’ recollections.

Had Reardon sought to present a persuasive defense of
Stevens at trial on the theory that Auterson and Stevens

                                18


had met at the bar, socialized there and left together, and
thus were voluntary social companions, he would have had
to try to impeach both his own client and the prosecution’s
principal witness, the alleged victim. No case holds that
Strickland requires that counsel pursue such a strategy. It
follows that the state courts were not unreasonable in
holding that Reardon’s failure to pursue an investigation of
the events in the bar did not render his representation of
Stevens deficient.

Our decision in Gray, on which Stevens relies, is not
inconsistent with this conclusion. Gray was arrested by
police officers who, having been called to the scene of a
fight, discovered a firearm and ammunition in Gray’s
pocket. Gray, 878 F.2d at 704-05. Gray was charged with
possession of a firearm as a convicted felon in violation of
federal law. Gray presented an affirmative defense of self-
defense, arguing that he took the firearm from an assailant
during a fight in order to prevent the assailant from
carrying out a threat to use the gun against him. Gray’s
counsel made no effort to investigate the case. He did not
attempt to interview any of the more than twenty
eyewitnesses to the fight between Gray and his assailant,
many of whom would have been easy to locate. Further,
Gray’s counsel made no efforts to contact an especially
significant eyewitness to the fight, the mother of Gray’s
child and the then-girlfriend of Gray’s assailant. Id. at 714.

Counsel’s primary excuse at trial was that Gray did not
want to subpoena witnesses and force them to testify. We
observed that "Gray’s reluctance to subpoena witnesses . . .
did not absolve [his counsel] of his independent
professional responsibility to investigate what information
. . . potential witnesses possessed." Id. at 712. Moreover, we
noted that Gray’s hesitance to subpoena witnesses was
based on inaccurate information, as Gray’s counsel did not
inform him (because counsel did not himself know) that
subpoenaed witnesses would have been paid for their time.
Id. at 709.
We found that Gray’s counsel performed "below the
minimum standard of reasonable professional
representation," id. at 712, because"[c]ounsel offered no
strategic justification for his failure to make any effort to

                                19


investigate the case, and indeed he could have offered no
such rationale," id. at 711. We reached this conclusion
while adhering to the rule of Strickland that:

       [i]n the context of defense counsel’s duty to investigate,
       "strategic choices made after thorough investigation of
       law and facts relevant to plausible options are virtually
       unchallengeable; and strategic choices made after less
       than complete investigation are reasonable precisely to
       the extent that reasonable professional judgments
       support the limitations on investigation." The
       reasonableness of counsel’s actions may be affected by
       the defendant’s actions and choices, and counsel’s
       failure to pursue certain investigations cannot be later
       challenged as unreasonable when the defendant has
       given counsel reason to believe that a line of
       investigation should not be pursued.

Id. at 710 (quoting Strickland, 466 U.S. at 690-91)
(emphasis added).

We note first that Gray was a direct appeal of a federal
conviction, over which our review is broader, and was
decided before passage of AEDPA. Moreover, there is a
significant difference in counsel’s failure to investigate in
Gray and that alleged in the present case. Although
Reardon concededly did not conduct as thorough an
investigation as he might have, unlike Gray’s counsel he
did make some investigatory inquiries. Further, whereas
Gray’s counsel lacked any strategic reason for not
conducting an investigation, Reardon had, as the state
courts found, a straightforward and legitimate reason for
not pursuing certain lines of inquiry as part of his
investigation. Most significant, there was a risk of conflict
between Stevens’ recollection and that of the potential
witnesses that Stevens claims Reardon should have
pursued. Stevens, in contrast to Gray, did give his counsel
"reason to believe that a line of investigation should not be
pursued." Id. (citing Strickland, 466 U.S. at 691).

Accordingly, we agree with the state’s contention that the
application by state courts of the Strickland standard was
not objectively unreasonable. The District Court’s decision
to the contrary was erroneous.4 We will accordingly reverse
the court’s grant of a writ of habeas corpus.
_________________________________________________________________

4. In light of our conclusion that counsel’s performance was not
deficient, we need not reach the prejudice prong of the Strickland

                                20
IV.

CONCLUSION

For the reasons given herein, the District Court’s decision
conditionally granting a writ of habeas corpus to Stevens
will be reversed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

inquiry.

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