NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3845

_____________

FRANK HUGHLEY,

Appellant

v.

GOVERNMENT OF THE VIRGIN ISLANDS

_______________

On Appeal from the Appellate Division of the 

District Court of the Virgin Islands

District Court No. 1-06-cv-00110

District Judge: The Honorable Curtis V. Gomez

District Judge: The Honorable Raymond L. Finch

Superior Court Judge: The Honorable Audrey L. Thomas 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 3, 2012

Before: SMITH, HARDIMAN, and ROTH, Circuit Judges

(Filed: August 23, 2013)

_____________________

 OPINION

_____________________

SMITH, Circuit Judge.

In 1995, a jury convicted Frank Hughley of three counts of aggravated rape in the 

first degree and six counts of unlawful sexual contact in the first degree in violation of 14 

V.I. Code §§ 1700(a)(1) and 1708(2). The Territorial Court of the Virgin Islands 
2

sentenced Hughley to 26 years’ imprisonment without parole. On appeal to the Appellate 

Division of the District Court of the Virgin Islands, Hughley argued that his convictions 

should be set aside because of the ineffectiveness of his trial counsel. He asserted that his

counsel was ineffective for several reasons, including his counsel’s decision to empanel 

an all-female jury. Because ineffective assistance claims are usually not heard on direct 

appeal in light of the undeveloped record, the Appellate Division dismissed Hughley’s 

appeal. 

Thereafter, he filed a habeas petition under 5 V.I. Code § 1303 in the Superior 

Court of the Virgin Islands, asserting the same ineffective assistance of counsel claim.1 

Consistent with Strickland v. Washington, 466 U.S. 668, 687 (1984), the Superior Court

considered whether Hughley had been deprived of the effective assistance of counsel and,

if so, whether he had been prejudiced by counsel’s deficient performance. The Superior 

Court determined that counsel’s performance was “the product of a reasoned trial 

strategy” and that Hughley had not complained about counsel’s decisions at trial. 

Alternatively, the Superior Court concluded that “[e]ven if [counsel’s] decisions 

constituted serious errors, it is clear that Hughley did not establish prejudice from these 

errors.” For these reasons, the Superior Court denied his habeas petition.

A timely appeal to the Appellate Division followed, 48 U.S.C. § 1613a(a), which 

remanded Hughley’s case to the Superior Court to rule on Hughley’s request for a 

 

1

 On October 29, 2004, when the Virgin Islands legislature established the Supreme 

Court of the Virgin Islands as an appellate court, it changed the name of the Territorial 

Court of the Virgin Islands to the Superior Court of the Virgin Islands. See Act of Oct. 

29, 2004, No. 6687, sec. 6, § 2, 2004 V.I. Legis. 6687 (2004).
3

certificate of probable cause under Virgin Islands Rule of Appellate Procedure 14(b).2 

Although the Superior Court denied the certificate, Hughley’s notice of appeal 

constituted “a request to the Appellate Division for a certificate” of probable cause. V.I. 

R. App. P. 14(b). The Appellate Division implicitly concluded that a constitutional 

question warranted review and proceeded to address the merits of Hughley’s ineffective 

assistance of counsel claim. 

The Appellate Division disagreed with the Superior Court’s determination that 

Hughley’s counsel’s performance was based on a reasonable trial strategy. It concluded

that “[i]n the aggregate,” counsel’s “representation fell below the objective threshold of 

reasonably competent representation.” Nonetheless, the Appellate Division affirmed the 

Superior Court’s judgment because it agreed that Hughley could not satisfy the prejudice 

prong of Strickland. It cited the testimony of the examining physician, the statements to 

the examining physician by one of the child victims about what had occurred, the 

testimony of the child psychologist who worked with the second child victim, the 

identification of Hughley by one of the child victims, and the damning testimony of the 

two child victims.

Proceeding pro se, Hughley filed a timely appeal to this Court pursuant to 48 

U.S.C. § 1613a(c) and 28 U.S.C. § 1291. Hughley again asserts that the ineffectiveness 

of his counsel warrants vacating his convictions.

 

2

 A “certificate of probable cause” was the predecessor of the “certificate of 

appealability” required under 28 U.S.C. § 2253(c)(1). The certificate of probable cause 

required the petitioner “to make a ‘substantial showing of the denial of a federal right.’” 

Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (brackets and internal citation omitted). 
4

I.

Before turning to the merits, we examine our jurisdiction over this appeal in light 

of our “independent responsibility” to confirm our jurisdiction.3In re Flat Glass 

Antitrust Litig., 288 F.3d 83, 88 n.5 (3d Cir. 2002) (quoting In re Ford Motor Co., 110 

F.3d 954, 958–59 (3d Cir. 1997)). Our colleague’s thoughtful dissent contends that we 

lack jurisdiction because a territorial law eliminated the District Court’s appellate 

jurisdiction over Hughley’s appeal. We disagree. 

Congress authorized the Virgin Islands legislature to vest original jurisdiction over 

territorial actions in the territorial courts. See 48 U.S.C. § 1612(b); Callwood v. Enos, 

230 F.3d 627, 631 (3d Cir. 2000). The Virgin Islands legislature eventually did so by 

passing 4 V.I. Code § 76(a), which gave the Superior Court “original jurisdiction in all 

civil actions regardless of the amount in controversy” and “in all criminal actions.” 4 V.I. 

Code § 76(a), (b). In Callwood, we interpreted § 76(a) as implicitly repealing the District 

Court’s original jurisdiction under 5 V.I. Code § 1303 to hear territorial habeas petitions. 

230 F.3d at 632. As a result, we concluded that the District Court lacked original

jurisdiction over territorial habeas petitions. Id.

But Callwood’s holding does not extend to the District Court’s appellate

jurisdiction over Superior Court rulings on territorial habeas petitions. Callwood

involved only a question about the District Court’s original jurisdiction under 5 V.I. Code 

 

3 Of course, our discussion in this section pertains only to appeals filed before January 

27, 2007, the date on which the Virgin Islands Supreme Court officially assumed 

appellate jurisdiction over appeals from the Superior Court. See Hypolite v. People of 

Virgin Islands, 2009 WL 152319, at *2 (V.I. Jan. 21, 2009).
5

§ 1303 over territorial habeas petitions. The case had nothing to do with the District 

Court’s appellate jurisdiction under 4 V.I. Code § 33 over territorial habeas petitions. See

48 U.S.C. § 1613a(a) (“[T]he District Court of the Virgin Islands shall have such 

appellate jurisdiction over the courts of the Virgin Islands established by local law to the 

extent now or hereafter prescribed by local law . . . .”); 4 V.I. Code § 33 (granting, 

pursuant to 48 U.S.C. § 1613a(a), appellate jurisdiction to the District Court “to review 

the judgments and orders of the [Superior Court] in all . . . civil cases and criminal cases 

in which the defendant has been convicted, other than on a plea of guilty”); Gov’t of 

Virgin Islands v. Warner, 48 F.3d 688, 692 (3d Cir. 1995) (holding that under the 

Revised Organic Act, 4 V.I. Code § 33’s limitation on cases involving guilty pleas does 

not preclude appellate jurisdiction over such cases where colorable constitutional claims 

are raised). Nor can Callwood’s holding be extended to divest the District Court of its 

appellate jurisdiction over territorial habeas petitions. By its plain text, § 76(a) alters 

only the “original jurisdiction” of the District Court. As we previously acknowledged in 

Parrott v. Government of Virgin Islands, § 76(a) has no effect on the District Court’s 

appellate jurisdiction under 4 V.I. Code § 33 over territorial habeas petitions. 230 F.3d 

615, 619 & n.5 (3d Cir. 2000) (noting that, although “the District Court loses jurisdiction 

to the Territorial Court over local matters” to the extent that the Virgin Islands legislature 

divests the District Court of “original jurisdiction,” the District Court “continues, 

however, to sit as an appellate court to review local matters decided by the Territorial 

Court” under 48 U.S.C. § 1613a(a)).4

 

4 We recognize that under Walker v. Government of the Virgin Islands, 230 F.3d 82, 89 
6

We therefore conclude that the District Court properly exercised appellate 

jurisdiction over Hughley’s appeal.

II.

Having confirmed our jurisdiction, we now turn to the merits of Hughley’s claim. 

We exercise plenary review over the adjudication of Strickland’s performance and 

prejudice prongs. Duncan v. Morton, 256 F.3d 189, 200 (3d Cir. 2001). After 

consideration of the briefs of the parties and the record before us, we will not disturb the 

judgment of the Appellate Division, which affirmed the Superior Court’s denial of 

Hughley’s habeas petition under 5 V.I. Code § 1303. We agree with the Appellate 

Division that Hughley cannot demonstrate prejudice in light of the overwhelming 

evidence against him.

5

 

For the reasons set forth above, we will affirm the judgment of the Appellate 

Division of the District Court. 

 

(3d Cir. 2000), a habeas petitioner in custody pursuant to a sentence of the Territorial 

Court of the Virgin Islands who is seeking to appeal the denial of his petition for habeas 

corpus under § 2254 must obtain a certificate of appealability to proceed before this 

court. A certificate of appealability is not necessary here because the District Court did 

not deny relief under § 2254. Instead, the District Court, acting in its capacity under 48 

U.S.C. § 1613a(a) as the Appellate Division, affirmed the judgment of the Superior Court 

denying Hughley’s habeas petition under 5 V.I. Code § 1303.

5

 We are mindful that Hughley’s brief focuses on the deficient performance prong of his 

Strickland claim. Because we agree with the Appellate Division that Hughley cannot 

show that he was prejudiced, we need not address the deficient performance prong. 466 

U.S. at 697 (instructing that courts need not “address both components . . . if the 

defendant makes an insufficient showing on one”).
1

Hughley v. Government of the Virgin Islands, No. 11-3845

HARDIMAN, Circuit Judge, dissenting.

I would dismiss this appeal for lack of jurisdiction. The majority contends that 

jurisdiction lies pursuant to Virgin Islands law (5 V.I.C. § 1303). In my view, the District 

Court of the Virgin Islands has jurisdiction to hear habeas petitions—whether initially or 

on appeal—only pursuant to federal law (28 U.S.C. §§ 2241, 2254). Because federal law 

(28 U.S.C. § 2253) requires that a certificate of appealability issue before the Court of 

Appeals may consider a habeas petition, dismissal of this appeal is required.

I

Pursuant to the Revised Organic Act of 1954, the District Court, with limited 

exceptions, exercised general jurisdiction over all causes of action authorized by local 

law, and its federal jurisdiction was strictly limited to hearing cases arising under the 

Constitution, treaties, and laws of the United States. See Act of July 22, 1954, ch. 558, 

§ 22, 68 Stat. 497; see also Callwood v. Enos, 230 F.3d 627, 630 (3d Cir. 2000)

(explaining history); Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1057 (3d Cir. 1982), 

superseded in part by statute, 48 U.S.C. § 1612 (explaining that the District Court acted

“more like a state court of general jurisdiction than a United States district court”). In 

this era, the District Court “heard the majority of cases brought in the Virgin Islands, 

whether they were brought under federal or local law, civil law or criminal law.” 

Callwood, 230 F.3d at 630 (citing Carty, 679 F.2d at 1057). Its jurisdiction included 

habeas petitions, which the District Court heard pursuant to local law, 5 V.I.C. § 1303, 
2

which provides: “The writ of habeas corpus may be granted by the district court, upon 

petition by or on behalf of any person restrained of his liberty.” 

In 1984, Congress rewrote the jurisdictional provisions of the Revised Organic 

Act. See Act of Oct. 5, 1984, Pub. L. No. 98-454, 98 Stat. 1732. It expanded the federal 

jurisdiction of the District Court to make it coextensive with United States District 

Courts. See 48 U.S.C. § 1612(a); Callwood, 230 F.3d at 631. At the same time, 

Congress empowered the Virgin Islands legislature to vest jurisdiction over local actions 

exclusively in the local courts. See 48 U.S.C. § 1612(b); Callwood, 230 F.3d at 631. The 

Virgin Islands legislature did just that in 1990, vesting jurisdiction over all local civil 

actions in the Superior Court as of October 1, 1991. See 4 V.I.C. § 76(a); Callwood, 230 

F.3d at 631. 

In a trilogy of cases decided October 13, 2000, we explained the impact of these 

jurisdictional changes on the relationship between the local courts and the District Court 

relative to the adjudication of habeas petitions. See Callwood v. Enos, 230 F.3d 627 (3d 

Cir. 2000); Parrott v. Gov’t of Virgin Islands, 230 F.3d 615 (3d Cir. 2000); Walker v. 

Gov’t of Virgin Islands, 230 F.3d 82 (3d Cir. 2000). 

In Callwood, we considered whether the District Court could continue to exercise 

habeas jurisdiction pursuant to local law over petitions filed by prisoners convicted of 

local crimes. See 230 F.3d at 631–32. Because the newly enacted 4 V.I.C. § 76(a) vested 

jurisdiction over all civil actions in the local courts, we held that “the District Court of the 

Virgin Islands was divested of jurisdiction to consider petitions for writs of habeas corpus 

under territorial habeas corpus law. . . . [T]o the extent that [5 V.I.C.] § 1303 vests 
3

jurisdiction in the District Court over a habeas corpus action brought under that section, it 

. . . has been repealed.” Id. at 632. In Parrott, we made clear that such habeas petitions

must be brought in the Superior Court, even if the petitioner had been convicted of a local 

crime in the District Court at a time when it exercised general jurisdiction. 230 F.3d at 

624.1 

In Walker, we considered whether the District Court could nonetheless exercise 

jurisdiction pursuant to federal habeas law over petitions filed by prisoners who had 

violated local law. See 230 F.3d at 85–87. Citing Callwood, we found that “the District 

Court properly held that it was without jurisdiction to grant Walker relief under § 1303.” 

Id. at 85. However, after examining the amendments to the Revised Organic Act enacted 

in 1984, we held that the District Court could exercise jurisdiction over habeas corpus 

petitions from those in custody on account of Superior Court judgments pursuant to 

federal habeas law, specifically 28 U.S.C. § 2254. Id. at 87. We based this holding, in 

part, on the fact that Congress expanded the jurisdiction of the District Court of the 

Virgin Islands to make it coextensive with United States District Courts, and that 

Congress “specifically provided that, with respect to the granting of writs of habeas 

corpus, the relationship between the District Court of the Virgin Islands and the 

[Superior] Court shall be equivalent to that of the district courts of the United States and 

the courts of the several States.” Id.; see also 48 U.S.C. § 1612(a) (vesting expanded 

 

1

Prisoners convicted of federal crimes in the District Court may challenge their 

convictions directly in the District Court under 28 U.S.C. § 2255, as would any prisoner 

convicted of a federal crime in a district court of the United States. George v. Sively, 254 

F.3d 438, 441 (3d Cir. 2001). 
4

federal jurisdiction); id. § 1613 (clarifying the relationship between the District Court of 

the Virgin Islands and the local courts). Having found that jurisdiction in the District 

Court was proper under § 2254, we dismissed the appeal for lack of appellate jurisdiction 

because the petitioner had not been granted a certificate of appealability, as required by 

28 U.S.C. § 2253(c). See Walker, 230 F.3d at 89–90. 

Relying on Walker, we also found in Callwood that the District Court had 

jurisdiction under federal habeas law over petitions attacking local parole proceedings. 

Callwood, 230 F.3d at 632–33. Citing Walker’s discussion of the jurisdictional changes 

to the Revised Organic Act made by Congress in 1984, “we conclude[d] that although the 

District Court of the Virgin Islands does not have jurisdiction over Callwood’s petition 

under § 1303, . . . it does have jurisdiction under 28 U.S.C. § 2241.” Id. at 633 (footnote 

omitted). Because Callwood had not exhausted his local remedies as required under 

federal habeas law, we dismissed his petition without prejudice to his ability to “refil[e] 

his challenge under § 2241 after exhaustion.” Id. at 634. 

II

Applying the aforementioned principles to this appeal, certain conclusions are 

apparent. Had Hughley’s habeas petition been filed initially in the District Court

invoking 5 V.I.C. § 1303 as its jurisdictional basis, Callwood, Parrott, and Walker would 

mandate dismissal. E.g., Callwood, 230 F.3d at 632. Likewise, had Hughley exhausted 

local remedies by filing a § 1303 petition in the Superior Court and then filed a separate 

habeas petition in the District Court, as a state prisoner in one of the fifty states would do, 

the District Court could hear the case under 28 U.S.C. § 2254. Walker, 230 F.3d at 87. 
5

Thereafter, a certificate of appealability under 28 U.S.C. § 2253(c) would be required 

before we could hear any appeal. Id. at 89. 

The majority distinguishes Hughley’s case from either of these two scenarios 

because his petition was first filed in the Superior Court under 5 V.I.C. § 1303 and the 

District Court heard the case in its appellate capacity under 48 U.S.C. § 1613a(a).2 See

Maj. Typescript at 5. I find the majority’s distinction in conflict with the relevant trilogy. 

To be sure, both Walker and Callwood dealt with habeas petitions that had been 

filed directly in the District Court under § 1303, whereas here the District Court 

considered Hughley’s § 1303 habeas petition on appeal from the Superior Court via 

§ 1613a(a). But this distinction makes no difference because the underlying ability of the 

District Court to grant habeas relief is still grounded in local law—§ 1613a(a) gives the 

District Court the power only to hear the appeal; § 1303 provides the substantive basis for 

habeas relief. Under the majority’s analysis, the District Court would be empowered to 

grant a habeas petition under § 1303. But Callwood held that the District Court has no

power to grant relief under § 1303. See Callwood, 230 F.3d at 632; see also Walker, 230 

F.3d at 85 (“[T]he District Court properly held that it was without jurisdiction to grant 

Walker relief under § 1303.”). Indeed, Callwood made no distinction between the 

District Court acting in its appellate capacity or hearing a habeas petition as a quasi 

territorial court under § 1303. Rather, we stated unequivocally that “to the extent that 

 

2

In the 1984 amendments to the Revised Organic Act, Congress provided that 

until the Virgin Islands legislature established an appellate court, the District Court would 

exercise appellate jurisdiction over the decisions of the local courts. See Act of Oct. 5, 

1984, Pub. L. No. 98-454, § 704, 98 Stat. 1732 (codified at 48 U.S.C. § 1613a). 
6

§ 1303 vests jurisdiction in the District Court over a habeas corpus action brought under 

that section, it . . . has been repealed,” and also “that the District Court of the Virgin 

Islands does not have jurisdiction under § 1303 over petitions filed under that section 

after October 1, 1991.” 230 F.3d at 632. 

Furthermore, if § 1613a(a) granted the District Court jurisdiction over habeas 

actions brought under § 1303, there would have been no need for Walker and Callwood

to hold that jurisdiction was proper under § 2254 and § 2241, respectively. Walker, 230 

F.3d at 85, 87; Callwood, 230 F.3d at 632–33. Instead, the petitioners in both cases could 

have gone to the Superior Court under § 1303 and then appealed to the District Court. 

Likewise, Callwood’s statement that the petitioner could refile his habeas petition under 

§ 2241 in the District Court after he exhausted local remedies, 230 F.3d at 634, would 

have been unnecessary—the petitioner could have appealed the Superior Court decision 

without any need to invoke § 2241. These principles are reinforced by the fact that in 

Parrott, we required petitioners convicted of local crimes to file habeas petitions in the 

Superior Court. 230 F.3d at 624. If the majority’s view were correct, petitioners never

would have to invoke § 2254 or § 2241 to obtain review in the District Court, a result 

which cannot be squared with Walker and Callwood.

3

 

 

3

This is not to say, of course, that the District Court is deprived of jurisdiction to 

hear habeas appeals. Rather, the District Court may hear habeas appeals pursuant to 

§ 2254 or § 2241. The oddity that this seems to implicate is only temporary; now that the 

Virgin Islands Supreme Court has been established, the District Court will soon be 

without any appellate jurisdiction once its last appellate case is closed. See 48 U.S.C. 

§ 1613a(d). Thereafter, cases like Hughley’s will be subject to review in the District 

Court only through § 2254. 
7

III

In sum, the statutory framework, as interpreted by Walker, Callwood, and Parrott,

mandates the following procedure. A petitioner—like Hughley—who collaterally attacks

his local law conviction must file a habeas petition under 5 V.I.C. § 1303 in the Superior 

Court. Parrott, 230 F.3d at 624. Thereafter, he can obtain review in the District Court 

pursuant to 28 U.S.C. § 2254 or 28 U.S.C. § 2241. Callwood, 230 F.3d at 234; Walker, 

230 F.3d at 87. If a petitioner wishes to appeal to the Third Circuit, he must comply with 

the certificate of appealability requirement imposed by 28 U.S.C. § 2253. Walker, 230 

F.3d at 89. 

My reading of the statutory framework is buttressed by my confidence that 

Congress could not have intended to give preferential treatment to prisoners in the Virgin 

Islands over prisoners in the fifty States. In enacting the amendments to the Revised 

Organic Act in 1984, Congress “specifically provided that, with respect to the granting of 

writs of habeas corpus, the relationship between the District Court of the Virgin Islands 

and the [Superior] Court shall be equivalent to that of the district courts of the United 

States and the courts of the several States.” Walker, 230 F.3d at 87; see also 48 U.S.C. 

§ 1613. And by enacting the Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA) with its certificate of appealability requirement, “Congress confirmed the 

necessity and the requirement of differential treatment for those appeals deserving of 

attention from those that plainly do not.” Miller-El v. Cockrell, 537 U.S. 322, 337 

(2003). The majority’s reasoning eviscerates both of these principles by enabling

prisoners convicted of Virgin Islands crimes to obtain review in our Court as of right 
8

while prisoners in the fifty States must satisfy the onerous gatekeeping requirements of 

AEDPA. By doing so, the majority guarantees that this Court will hear all habeas 

appeals filed by Virgin Islands prisoners, not just the ones “deserving of attention.” 

I respectfully dissent.