2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-8-2011

Anthony Brown v. Wenerowicz

Precedential or Non-Precedential: Precedential

Docket No. 10-3203

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Anthony Brown v. Wenerowicz" (2011). 2011 Decisions. Paper 20.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/20
 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3203

No. 10-3516

___________

ANTHONY T. BROWN

v.

*MICHAEL WENEROWICZ, SUPERINTENDENT, 

SCI GRATERFORD; *RAYMOND LAWLER, 

SUPERINTENDENT, SCI HUNTINGDON; 

DISTRICT ATTORNEY OF THE COUNTY OF 

PHILADELPHIA; ATTORNEY GENERAL OF THE 

STATE OF PENNSYLVANIA, 

 Appellants

*(Amended per Clerk's Order of 12/15/10)

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 07-cv-01098)

District Judge: Honorable Louis H. Pollak

___________

Argued September 20, 2011
2

Before: FISHER, HARDIMAN and GREENAWAY, JR., 

Circuit Judges.

(Filed: December 8, 2011)

Salvatore C. Adamo [Argued]

Suite 300

1434 Knox Avenue

Easton, PA 18040

Attorneys for Plaintiff-Appellee

Anne Palmer [Argued]

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Attorneys for Defendant-Appellants

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Anthony Brown was convicted in Pennsylvania state 

court of first-degree murder, reckless endangerment, and 

possession of an instrument of crime. After exhausting his 

state court remedies, Brown filed a federal habeas petition 

pursuant to 28 U.S.C. § 2254(d)(1), claiming that the decision 

of the Pennsylvania Superior Court was an unreasonable 

application of Strickland v. Washington, 466 U.S. 668 (1984). 

The United States District Court for the Eastern District of 

Pennsylvania granted Brown‘s petition following an 
3

evidentiary hearing. The Commonwealth appeals, claiming 

that under the stringent requirements of the Anti-Terrorism 

and Effective Death Penalty Act of 1996 (AEDPA), Brown 

was entitled to neither a federal evidentiary hearing nor the 

issuance of the writ.

I

A

On September 7, 1998, the Rorie family attended a 

Labor Day celebration at the 600 block of Conestoga Street in 

Philadelphia, Pennsylvania. As the block party ended 

sometime after 8:00 p.m., the matriarch of the family, Frances 

Rorie, began to sweep the sidewalk while thirty others 

cleaned. Suddenly, Tiffany Thompson ran toward the crowd 

yelling ―they‘re coming, they got a gun.‖ A vehicle rounded 

the corner of Poplar and Conestoga Streets, and four men 

emerged from the car. One man fired a gunshot into the air. 

As Frances Rorie tried to find shelter behind a car, a second 

shooter pointed an Uzi pistol at the Rorie home and fired 

seventeen shots into the crowd. One shot hit Frances in the 

head, killing her instantly.

Frances Rorie‘s murder capped a day of heated 

confrontation between neighbors. The trouble began in the 

morning, when children from Conestoga Street argued with 

children from Girard Avenue. The mother of some of the 

Girard Avenue children was Kim Brown, sister of Appellee 

Anthony Brown. Accompanied by her friend, Sharon Carter, 

Kim approached Frances‘s granddaughter, Tamika 

Thompson, who referred the women to her mother, Alanda 

Rorie, at 647 Conestoga Street. There, Kim and Sharon 

argued with Alanda, Frances, and Yvonne Rorie.
4

The argument at Alanda Rorie‘s home did not relieve 

the tensions between the families. Sometime between 3:00 

and 4:00 p.m., Kim Brown‘s son Hakim threw a rock at 

Yvonne Rorie‘s son Rafeek. The Rories then grabbed 

brooms and marched to the corner of Conestoga and Girard. 

The Browns in turn wielded knives while their friend, 

Kareema Latimer, threatened to ―get her .357 and spray the 

whole corner.‖ A few hours after Latimer issued her threat, 

Tamika and Yvonne spotted Appellee Anthony Brown, 

Anthony Fingers, Kevin Johnson, and two other men standing 

at the corner with Kareema Latimer, who pointed at the Rorie 

home.

According to Yvonne Rorie, the shooting started 

fifteen to twenty minutes later. Tamika Thompson later 

testified that she did not know precisely how much time 

elapsed, but knew it was more than five minutes later. A 

police radio call reported the shooting at 8:23 or 8:24 p.m.

When police arrived, Tamika and Yvonne reported 

that they had seen the men standing at the corner, that at least 

two of them had guns, and that one had pointed a gun at the 

Rorie home before he started shooting. Tamika described the 

assailant as tall, light-skinned, skinny, and about 22 years-old. 

She said he was wearing a blue cap with a red brim, a white 

shirt, and blue jean shorts, and driving a four-door gray car. 

Yvonne described the shooter as tall, light-skinned, and 

wearing a white shirt, blue or black shorts, and a white 

baseball cap. Yvonne also identified the shooter as Anthony 

Brown. Three days later, both Tamika and Yvonne picked 

Anthony Brown out of a photo array. At trial, Tamika again 

identified Anthony Brown as one of the shooters.
5

Tiffany Thompson, who saw the gunmen approaching, 

told police the shooter lived at 5408 Girard Avenue. The 

police promptly executed a search warrant for that address 

and discovered some clothing matching the descriptions 

Tamika and Yvonne had provided, including a white shirt, 

dark blue jean shorts, brown boots, and an Atlanta Braves 

cap. They also found a photo of Anthony Brown wearing the 

same clothes, his mail, and a traffic citation issued on the day 

of the shooting. A warrant issued for Brown‘s arrest, and he 

surrendered later that week.

B

At trial, Brown presented a misidentification defense 

and an alibi defense. His misidentification defense relied on 

the testimony of Frances Rorie‘s grandson, Gary Jones, and 

Rorie‘s daughter, Timmsel.

Contrary to the testimony of Tamika Thompson and 

Yvonne Rorie, Gary Jones testified on direct examination that 

the shooter was short, dark-skinned, and wearing a plaid shirt, 

blue shorts, black Timberland boots, and a red and blue 

Atlanta Braves cap. He described another man (not the 

shooter) as a light-skinned, bald, mustachioed man, who wore 

a tee-shirt, blue shorts, and Reebok sneakers. On crossexamination, the prosecution impeached Jones with his prior 

statement to police, which was not only contrary to his 

testimony on direct examination, but also similar to the 

descriptions given by Tamika Thompson and Yvonne Rorie 

shortly after the shooting. In that statement, Jones described 

the shooter as tall and light-skinned, wearing an Atlanta 

Braves cap, light blue shorts, a white shirt, and black boots.
6

Timmsel Rorie testified on direct examination that she 

initially described the shooter to police as tall, light-skinned, 

and wearing a red plaid shirt. She identified another man (not 

the shooter) as a tall, light-skinned man of 18 or 19, wearing a 

white shirt and long blue jeans. According to Timmsel, that 

man was Anthony Brown. On cross-examination, the 

prosecution impeached Timmsel with the fact that just days 

after the shooting she identified Anthony Brown as the 

shooter. Moreover, Timmsel eventually made an in-court 

identification of Anthony Brown as the shooter and testified 

that she did not correct her initial misstatement to the police 

because she wanted her boyfriend to kill Brown to avenge her 

mother‘s murder.

Brown‘s alibi defense relied on the testimony of 

Lynnette Bright, who was the college roommate of Brown‘s 

cousin, Tiyana Miller. According to Bright, she and Miller 

went to a TGI Friday‘s restaurant at 17th Street and Benjamin 

Franklin Parkway to buy take-out food at approximately 7:30 

p.m. on the night of the shooting. Bright testified that about 

fifteen minutes after they arrived, Miller noticed Anthony 

Brown walking toward the front of the restaurant. Miller and 

Brown spoke for a few minutes before Brown returned to his 

table. Bright testified that she and Miller were seated near the 

front door of the restaurant, that they waited a long time to get 

their food, and that they left between 8:15 and 8:20 p.m. 

Bright stated that she never saw Brown leave.

On cross-examination, Bright admitted that she knew 

several of Brown‘s relatives. She was impeached with 

inconsistent statements regarding the time she arrived at the 

restaurant, as well as with her failure to cooperate with the 

District Attorney‘s investigation. Bright also was unable to 

describe what Brown was wearing at the restaurant. Finally, 
7

Bright eventually admitted that she lied to a defense 

investigator when she told him that she saw Brown eating 

with his friends when she left the restaurant and she never 

saw Brown seated at his table.

Brown‘s cousin Tiyana Miller corroborated Bright‘s 

testimony that they went to the TGI Friday‘s between 7:15 

and 7:30 p.m. According to Miller, it already was dark when 

they left for the restaurant, and they waited fifteen to twenty 

minutes before placing their order. While they waited, Miller 

saw Brown emerge from the dining area to use the phone,1

and she chatted with him. Miller testified that she and Bright 

waited about an hour for their food and left at approximately 

8:20 p.m. She stated that when she left, Brown still was 

seated with Anthony Fingers, Kevin Johnson, and two 

women.

Miller was impeached with evidence that after the 

shooting she returned to the restaurant to ask if they had a 

video surveillance system that could pinpoint when Brown 

left on the night of the murder. Her testimony was also 

undermined because she neither contacted family members to 

advise them that she had seen Brown that night, nor contacted 

the police with her information or responded to letters from 

the District Attorney. Finally, like Bright, she could not 

describe what Brown was wearing at the restaurant.

Kevin Johnson, who allegedly accompanied Brown to 

the restaurant, also testified for the defense. According to 

 

1 Kim Brown had called her brother, Anthony Brown, 

and he returned her call from a payphone at the restaurant. 

Kevin Johnson later testified that Brown told him the phone 

call concerned the dispute at Conestoga and Girard.
8

Johnson, they arrived at TGI Friday‘s before 7:00 p.m., while 

it was still daylight, and left after it was dark. He testified 

that they were seated on the second floor, not in the bar area 

where Bright and Miller could have seen them.

Finally, Brown testified in his own defense. Brown 

told the jury that on the day of the murder, he was driving to a 

different TGI Friday‘s when he received a traffic citation, 

which lists the time of the stop as 6:41 p.m. Brown gave the 

officer an alias and an incorrect address because he often 

violated traffic laws and feared being arrested. According to 

Brown, he arrived at the first TGI Friday‘s with Kevin 

Johnson, Anthony Fingers, and three women they met that 

afternoon, but it was crowded, so they decided to go to the 

TGI Friday‘s on the Parkway instead, arriving at 

approximately 7:10 to 7:15 p.m. After they were seated, 

Brown saw Miller and Bright near the door. He talked to 

them before his food arrived and eventually left the restaurant 

at 8:45 p.m.2

Brown testified that after leaving the restaurant, he, 

Anthony Fingers, and Kevin Johnson drove to Johnson‘s 

automotive detail shop at 59th and Race Streets, where they 

spent about ten minutes. Brown claimed they then drove 

home to Girard Avenue, where he found police already 

gathered.

 

2 Although Brown later conceded on collateral review

that he was given a receipt for his bill at TGI Friday‘s, he 

never offered it into evidence to corroborate when he left the 

restaurant.
9

C

Brown was represented at trial by attorney Tariq El 

Shabazz. When El Shabazz rose to call the defense‘s alibi 

witnesses, the prosecution objected because El Shabazz had 

failed to file a notice of alibi as required under Pennsylvania 

law. See Pa. R. Crim. P. 567. El Shabazz initially claimed 

that he had filed the notice, but later admitted that he had not. 

Notwithstanding El Shabazz‘s failure to file a notice of alibi, 

the trial court allowed Bright, Miller, and Johnson to testify 

because the prosecution had received written statements from 

them. But the trial court excluded two alibi witnesses who 

worked at TGI Friday‘s: manager Andre Osborne and 

waitress Stacy Szmyt.

The jury convicted Brown of all charges. After his 

post-trial motions were denied, Brown raised several issues 

on direct appeal, including that counsel was ineffective for 

failing to file a notice of alibi. The Superior Court dismissed 

the claims without prejudice to Brown‘s right to raise them on 

collateral review. The Pennsylvania Supreme Court 

subsequently denied Brown‘s petition for allowance of 

appeal.

D

Brown filed a petition for collateral review under 

Pennsylvania‘s Post-Conviction Relief Act (PCRA), raising 

the same issues he raised on direct appeal. Brown later filed a 

supplement to the petition, arguing for the first time that his 

counsel was ineffective for failing to present the testimony of 

Malik Easley, an alleged eyewitness to the shooting.
10

Attached to Brown‘s PCRA petition were two witness 

statements and three affidavits further supporting his alibi. 

The witness statements were from the two witnesses who had 

not been permitted to testify at trial: Andre Osborne and 

Stacy Szmyt. Osborne confirmed he was a manager at TGI 

Friday‘s on the night of the shooting and that he saw Brown 

with two other men and some women at Table 307. Osborne 

stated that he remembered them because they were loud and 

because he suspected they might not pay their bill. Osborne 

was unsure what time the group left but remembered that the 

sun had already set. Szmyt stated that she waited on Table 

307 that night and vaguely remembered serving a rowdy 

group. She offered no information about when the group 

departed.

The three affidavits supported Brown‘s claim that his 

counsel was ineffective. Brown‘s father, Arthur Boyer, 

attested that he told El Shabazz several times prior to trial that 

alibi witnesses were available and asked if El Shabazz had 

interviewed the waitress at the restaurant. El Shabazz replied 

that he was ―working on it.‖ In a second affidavit, Brown 

claimed he informed El Shabazz of his alibi, gave him the 

names of his dinner companions, and told him their waitress‘s 

name was Stacy. Brown claimed that El Shabazz: (1) never 

interviewed any of the diners; (2) hired an investigator to 

locate witnesses but failed to pay the fee; and (3) hired a new 

investigator only on the eve of trial. The new investigator, 

Brian Grevious, stated in an affidavit that he was retained 

three days prior to trial and that he located Osborne and 

Szmyt and took their statements.

The PCRA court dismissed Brown‘s petition for 

collateral relief. Commonwealth v. Brown, C.P. 9810–0366, 

at *1 (Pa. Comm. Pleas Ct. June 6, 2008). Citing both 
11

Strickland v. Washington and state law precedents, the court 

rejected Brown‘s ineffective assistance claim. Id. at *5–17. 

The court reasoned that El Shabazz‘s performance was not 

deficient because he did not learn of the two alibi witnesses 

until the sixth day of trial. Id. at *7. The court also 

concluded that the absence of Osborne‘s and Szmyt‘s 

testimony did not prejudice Brown because, even assuming 

its relevancy, it would have been ―cumulative‖ and 

―unnecessary.‖ Id. at *8.

Brown appealed to the Pennsylvania Superior Court, 

which affirmed. Commonwealth v. Brown, No. 2271 EDA 

2005, at *1 (Pa. Super. Ct. Apr. 9, 2009). The Superior Court 

reasoned that Brown had failed to show that the alibi 

witnesses were available to testify at trial. Id. at *10–11. 

Alternatively, the Superior Court concluded that even had El 

Shabazz been aware of the witnesses, their testimony would 

have been ―merely cumulative.‖ Id. at *12.

While Brown‘s appeal was pending in the Superior 

Court, he filed a petition for writ of habeas corpus in the

United States District Court for the Eastern District of 

Pennsylvania. Following the Superior Court‘s affirmance, the 

Magistrate Judge conducted an evidentiary hearing regarding 

Brown‘s ineffective assistance of counsel claim.

The evidentiary hearing revealed that although he had 

hired an investigator, El Shabazz never received any 

information because he failed to pay the bill. Brown v. 

Wakefield, No. 07-1098, 2010 WL 2606443, at *12 (E.D. Pa. 

Jan. 28, 2010). El Shabazz then hired Grevious ―less than 

one week prior to the start of trial.‖ Id. at *9. The night 

before El Shabazz brought Szmyt and Osborne to court, 
12

Grevious informed El Shabazz that he had found them and 

they were ―ready and willing to testify.‖ Id.

Osborne‘s and Szmyt‘s testimony at the federal 

evidentiary hearing added little to the witness statements they 

had submitted to the state courts. Osborne remembered that 

he was worried that Brown and his party might not pay their 

bill, that they eventually paid, and that it was ―dark‖ when 

they left. Id. at *9–10. Szmyt reaffirmed that her prior 

statements were her true recollections of the events of that 

night, but she could ―not really‖ recall the events by the time 

of the hearing.

El Shabazz testified that he failed to submit a notice of 

alibi for Osborne and Szmyt, as well as for an additional 

witness, Malik Easley. Id. at *12. El Shabazz stated that he 

would not have called Easley to testify because of strategic 

concerns,

3

but admitted that his failure to file a notice for 

Szmyt and Osborne impaired his defense of Brown. Id.

The Commonwealth also submitted evidence at the 

hearing. Philadelphia Police Detective John McDermott 

stated that he had driven the route from TGI Friday‘s to the 

corner of Conestoga and Girard and that the trip took twentyone minutes in moderate traffic. Id. at *13. A diversion to 

 

3

If called at trial, Easley would have testified that he 

was present during the murder and that, although he did not 

clearly see the shooting, he knew Brown was not the 

assailant. Id. at *10. El Shabazz testified he would not have 

called Easley because his testimony would have corroborated 

some details of the descriptions of the shooter given by 

prosecution witnesses and would have placed a car similar to 

Brown‘s at the scene. Id.
13

Johnson‘s auto shop added only one or two minutes. Id. 

Using an almanac, Detective McDermott testified that the sun 

set on September 7, 1998, at 7:23 p.m. and that the end of 

―civil twilight‖ was 7:50 p.m. Id.

The Magistrate Judge recommended granting Brown‘s 

petition. According to the Magistrate Judge, El Shabazz‘s 

mistakes prejudiced Brown because the ―evidence of guilt 

was hardly overwhelming,‖ no murder weapon was ever 

found, and descriptions of the assailant were inconsistent. Id.

at *15. He also noted that Osborne would have been the only 

disinterested witness to testify that Brown left the restaurant 

when it was ―dark,‖ which would have corroborated Bright‘s 

and Miller‘s testimony that Brown left the restaurant too late 

to be the shooter. Id.

The District Court adopted the Magistrate Judge‘s 

recommendation and granted Brown‘s petition, largely 

because it agreed that Osborne‘s testimony corroborated 

Brown‘s alibi. Brown v. Wakefield, No. 07-1098, 2010 WL 

2596900, at *10 (E.D. Pa. June 24, 2010). Noting that the 

sun set at 7:23 p.m. and the end of civil twilight was 7:50 

p.m., the District Court concluded that Osborne‘s testimony 

that Brown left TGI Friday‘s when it was ―dark‖ placed 

Brown at the restaurant at least sometime between 7:23 and 

7:50 p.m. Id. Because Yvonne Rorie testified that she saw 

Kareema Latimer meet with Brown fifteen to twenty minutes 

before the shooting, the District Court concluded that Brown 

would have had to be at the scene at about 8:00 p.m. Id. 

Brown testified that it took him fifteen minutes to drive to the 

auto shop and that he spent ten minutes there. And Detective 

McDermott testified at the evidentiary hearing that a similar 

trip took twenty-one minutes. Id. at *11. Based on that 

testimony, the District Court reasoned that ―a jury could have 
14

concluded from Osborne‘s testimony, had it been presented at 

trial, that [Brown] did not leave until twilight had ended, 7:50 

p.m., a time when [Brown] would likely have been unable to 

reach the scene of the crime in sufficient time to meet with 

Kareema Latimer.‖ Id. Moreover, Osborne‘s statement that 

Brown left when it was ―dark‖ corroborated Miller‘s, 

Bright‘s, and Brown‘s testimony that Brown left after 8:15 

p.m. Id.

The District Court did not adopt the Magistrate 

Judge‘s finding that Osborne had recalled Brown leaving 

when it was ―nighttime, not just twilight,‖ because Osborne 

testified only that it was ―definitely dark outside.‖ Id. The 

District Court also declined to adopt the Magistrate Judge‘s 

conclusion that El Shabazz was aware of alibi witnesses 

before the trial started. Id. This disagreement between the 

Magistrate Judge and the District Court was immaterial, 

however, because El Shabazz should have been aware of the 

witnesses. Id. at *12–13. Finally, the District Court adopted 

the conclusion that Osborne and Szmyt were ―ready and 

willing to testify,‖ based on the hearing testimony of El 

Shabazz, Grevious, Osborne, and Szmyt. Id. at *13.

In light of these factual findings, the District Court 

held that ―the PCRA court‘s application of Strickland, and the 

Superior Court‘s affirmance, [were] unreasonable.‖ Id. at 

*14. In doing so, the Court reached two overarching 

conclusions. First, the state courts applied the wrong standard 

for determining whether El Shabazz was ineffective because 

they did not sufficiently consider whether he conducted a 

diligent investigation into possible alibis for Brown. Id. at 

*14–16. Second, the state courts unreasonably concluded that 

Brown was not prejudiced by his counsel‘s mistakes. The 

state courts failed to properly consider whether there was a 
15

reasonable probability that, but for counsel‘s unprofessional 

errors, the result of the proceedings would have been 

different. Such a probability existed, according to the District 

Court, because Osborne was a disinterested witness who 

―would have bolstered the credibility of the petitioner and 

other alibi witnesses.‖ Id. at *17. Regarding Osborne‘s 

testimony that it was ―dark‖ when Brown left the restaurant, 

the Court wrote: ―while not definitely proving that [Brown] 

could not have been at the scene of the crime . . . [it] puts into 

serious question whether [Brown] had enough time to make it 

. . . to the scene of the shooting . . . .‖ Id. The District Court 

also concluded that the state courts incorrectly regarded 

Osborne‘s and Szmyt‘s testimony as ―cumulative.‖ Id. at 

*18. According to the Court, ―where defense witnesses 

[were] impeached for having a close relationship to [Brown], 

and prosecution eyewitnesses had a conflict with [Brown‘s] 

family, the existence of disinterested witnesses corroborating 

[Brown‘s] alibi could weigh heavily in the jury‘s decision of 

which set of witnesses to credit.‖ Id. Therefore, ―a 

reasonable probability exist[ed] that, if the jury had heard 

Osborne‘s testimony, the jury would have found reasonable 

doubt.‖ Id.

The Commonwealth raises two issues on appeal. First, 

it claims the District Court erred when it held an evidentiary 

hearing because Brown was not diligent in developing the 

factual record in state court. Second, it argues the District 

Court erred when it concluded that the state courts 

unreasonably applied federal law in denying Brown‘s 

petition.
16

II

The District Court had subject matter jurisdiction 

pursuant to 28 U.S.C. §§ 2241 and 2254(a). Our jurisdiction 

lies under 28 U.S.C. §§ 1291 and 2253(a).

―We have plenary review over the District Court‘s 

grant of habeas corpus.‖ Washington v. Sobina, 509 F.3d 

613, 618–19 (3d Cir. 2007) (citing Rolan v. Vaughn, 445 F.3d 

671, 577 (3d Cir. 2006)). ―Accordingly, we will  ̳review the 

state courts‘ determinations under the same standard that the 

District Court was required to apply,‘‖ which are the 

standards set forth in AEDPA. Lewis v. Horn, 581 F.3d 92, 

100 (3d Cir. 2009) (quoting Thomas v. Horn, 570 F.3d 105, 

113 (3d Cir. 2009)).

A federal court may not grant habeas relief to a person 

in state custody whose claims were adjudicated on the merits 

unless that adjudication:

(1) resulted in a decision that was 

contrary to, or involved an 

unreasonable application of, 

clearly established Federal law, as 

determined by the Supreme Court 

of the United States; or

(2) resulted in a decision that was 

based on an unreasonable 

determination of the facts in light 

of the evidence presented in the 

State court proceeding.

28 U.S.C. § 2254(d).
17

III

As a threshold matter, the Commonwealth claims the 

District Court should not have granted Brown an evidentiary 

hearing. We agree based on Cullen v. Pinholster, 131 S. Ct. 

1388 (2011), which the Supreme Court decided after the 

District Court ruled in this case. In Pinholster, the Supreme 

Court explained that: ―review under § 2254(d)(1) is limited 

to the record that was before the state court that adjudicated 

the claim on the merits.‖ Id. at 1398.

Because we find Pinholster controlling, we review it in 

some detail. Pinholster was convicted in California state 

court of first-degree murder and sentenced to death. He 

sought post-conviction relief, claiming his counsel was 

ineffective at the penalty phase by failing to investigate or 

present mitigating evidence, including evidence that 

Pinholster suffered from mental disorders. Id. at 1396. The 

psychiatrist Pinholster‘s counsel consulted before trial, Dr. 

Stalberg, concluded that Pinholster did not suffer from a 

mental disorder. Not surprisingly, Dr. Stalberg was not called 

to testify at Pinholster‘s trial. Id. On collateral review, 

Pinholster supported his ineffective assistance claim with 

academic, medical, and legal records, as well as declarations 

from family members, one of his trial attorneys, and a 

psychiatrist, all of which suggested Pinholster suffered from 

bipolar mood and seizure disorders. Id. Pinholster‘s petition 

was denied. Id.

Pinholster filed a federal habeas petition in which he 

reiterated his ineffective assistance claim and added new 

allegations that his counsel failed to provide Dr. Stalberg with 

enough information to make an accurate report. Id. In 

support of Pinholster‘s new allegations, Dr. Stalberg declared 
18

that had he known of evidence gathered after trial, he would 

have conducted ―further inquiry‖ before concluding that 

Pinholster did not suffer from a mental disorder. Id.

The federal district court granted Pinholster an 

evidentiary hearing. Id. Before the hearing, however, Dr. 

Stalberg averred that the new evidence did not change his 

diagnosis. Id. at 1397. Consequently, Pinholster did not call 

him to testify at the hearing, opting instead for new experts 

whose testimony would be more favorable to him. Id. The 

state also offered evidence at the federal evidentiary hearing, 

calling a psychiatrist who denied that Pinholster suffered 

from a mental disorder. Id. The district court granted 

Pinholster habeas relief, and the Court of Appeals for the 

Ninth Circuit ultimately affirmed in an en banc opinion. See 

Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009) (en banc). 

After considering evidence from the evidentiary hearing, the 

Ninth Circuit concluded that the California Supreme Court 

had unreasonably applied Strickland. Id. at 666–84.

The Supreme Court reversed, holding that ―[i]f a claim 

has been adjudicated on the merits by a state court, a federal 

habeas petition[er] must overcome the limitation of 

§ 2254(d)(1) on the record that was before that state court.‖ 

Pinholster, 131 S. Ct. at 1400 (footnote omitted). The Court 

reasoned that the purpose of 28 U.S.C. § 2254 is ―to channel 

prisoners‘ claims first to the state courts‖ and that ―[i]t would 

be contrary to that purpose to allow a petitioner to overcome 

an adverse state-court decision with new evidence introduced 

in a federal habeas court and reviewed by that court in the 

first instance effectively de novo.‖ Id. at 1398–99. The Court 

was puzzled by ―the notion that a state court can be deemed 

to have unreasonably applied federal law to evidence it did 

not even know existed.‖ Id. at 1399 n.3.
19

In light of Pinholster, district courts cannot conduct 

evidentiary hearings to supplement the existing state court 

record under 28 U.S.C. § 2254(d). Otherwise, federal habeas 

petitioners would be able to circumvent the finality of state 

court judgments by establishing a new factual record. This 

would contravene AEDPA, which requires petitioners to 

diligently present the facts in state court before proceeding to 

the federal courthouse. As the Supreme Court reaffirmed: 

―Federal courts sitting in habeas are not an alternative forum 

for trying facts and issues which a prisoner made insufficient 

effort to pursue in state court proceedings.‖ Pinholster, 131 

S. Ct. at 1401 (citing Williams v. Taylor, 529 U.S. 420, 437 

(2000)).

As in Pinholster, here Brown‘s state petition for postconviction relief was denied on the merits, and he sought 

federal relief under 28 U.S.C. § 2254(d). Like Pinholster, 

Brown sought to supplement the record with evidence he 

never presented to the state courts. The Magistrate Judge 

conducted an evidentiary hearing to explore Brown‘s 

ineffective assistance claim, which essentially resulted in a de 

novo trial, as both sides marshaled new evidence for the 

federal hearing. This was contrary to AEDPA, which obliged 

the District Court to base its review only on the evidence 

Brown presented in state court. Therefore, we hold that the 

District Court erred in conducting an evidentiary hearing.4

 

4 Although the parties‘ arguments regarding the 

propriety of the federal evidentiary hearing focus on 28 

U.S.C. § 2254(e)(2), Pinholster renders that provision 

inapplicable to this case. When a prisoner has ―failed to 

develop the factual basis of a claim in State court 

proceedings,‖ § 2254(e)(2) bars a federal court from holding 
20

IV

Having determined that the federal evidentiary hearing 

was improper, we consider Brown‘s habeas petition in light 

of the record he made in the Pennsylvania courts.

Brown claims the denial of his petition involved an 

―unreasonable application of[] clearly established Federal 

law, as determined by the Supreme Court of the United 

 

an evidentiary hearing unless certain statutory requirements

are met. Pinholster, 131 S. Ct. at 1400 n.4.

Prior to AEDPA, ―the decision to grant an evidentiary 

hearing was generally left to the sound discretion of district 

courts.‖ Schriro v. Landrigan, 550 U.S. 465, 473 (2007) 

(citing Brown v. Allen, 344 U.S. 443, 463–64 (1953), and 

Townsend v. Sain, 372 U.S. 293, 313 (1963)). ―AEDPA, 

however, changed the standards for granting federal habeas 

relief.‖ Id. at 473. Accordingly, we previously recognized 

that so long as a petitioner does not run afoul of § 2254(e)(2), 

―the district court [is] permitted under the AEDPA, though 

not required, to grant an evidentiary hearing.‖ Goldblum v. 

Klem, 510 F.3d 204, 220–21 (3d Cir. 2007) (citing Campbell 

v. Vaughn, 209 F.3d 280, 286–87 (3d Cir. 2000)). This is no 

longer the case in light of Pinholster and our holding today.

Although it speaks directly to the unavailability of 

evidentiary hearings to adjudicate claims brought under § 

2254(d), the exact scope of § 2254(e)(2) is unclear after 

Pinholster. See Pinholster, 131 S. Ct. at 1401 n.8 (―We see 

no need in this case to address the proper application of § 

2254(e)(2).‖). It is clear, however, that our jurisprudence 

applying § 2254(e)(2) remains applicable ―where § 

2254(d)(1) does not bar federal habeas relief.‖ Id. at 1401.
21

States.‖ 28 U.S.C. § 2254(d)(1). Specifically, he contends it 

was unreasonable for the Superior Court to conclude that El 

Shabazz‘s failure to develop an alibi defense did not warrant 

a new trial based on Strickland. We disagree.

In determining whether a state court unreasonably 

applied federal law under 28 U.S.C. § 2254(d)(1), ―a habeas 

court must determine what arguments or theories supported or 

. . . could have supported, the state court‘s decision; and then 

it must ask whether it is possible fairminded jurists could 

disagree that those arguments or theories are inconsistent with 

the holding in a prior decision of [the Supreme Court].‖ 

Harrington v. Richter, 131 S. Ct. 770, 786 (2011). The 

question is not whether the state court‘s holding was wrong, 

but whether it was reasonable. Indeed, ―even a strong case 

for relief does not mean the state court‘s contrary conclusion 

was unreasonable.‖ Id. (citing Lockyer v. Andrade, 538 U.S. 

63, 75 (2003)).

There is no dispute here as to the relevant clearly 

established law. Under Strickland‘s familiar two-part test, we 

consider whether counsel‘s performance was deficient and, if 

so, whether it prejudiced Brown. Strickland, 466 U.S. at 687. 

―The standards created by Strickland and § 2254(d) are both 

 ̳highly deferential,‘ and when the two apply in tandem, the 

review is  ̳doubly so.‘‖ Harrington, 131 S. Ct. at 788 

(citations omitted). Accordingly, we are ―not authorized to 

grant habeas corpus relief simply because we disagree with 

the state court‘s decision or because we would have reached a 

different result if left to our own devices.‖ Werts v. Vaughn, 

228 F.3d 178, 197 (3d Cir. 2000) (citing Matteo v. 

Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 

1999)). The question is ―whether there is any reasonable 
22

argument that counsel satisfied Strickland‘s deferential 

standard.‖ Harrington, 131 S. Ct. at 788.

The Commonwealth has not challenged the District

Court‘s holding that El Shabazz was deficient, so we will 

consider only whether his mistakes prejudiced Brown. To 

demonstrate prejudice, Brown must establish ―a reasonable 

probability that, but for counsel‘s unprofessional errors, the 

result in the proceeding would have been different.‖ 

Strickland, 466 U.S. at 694. He ―need not show that 

counsel‘s deficient performance  ̳more likely than not altered 

the outcome of the case‘—rather, he must show only  ̳a 

probability sufficient to undermine confidence in the 

outcome.‘‖ Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir. 2005) 

(quoting Strickland, 466 U.S. at 693–94). On the other hand, 

it is not enough ―to show that the errors had some conceivable 

effect on the outcome of the proceeding.‖ Harrington, 131 S. 

Ct. at 787 (citing Strickland, 466 U.S. at 693). Counsel‘s 

errors must be ―so serious as to deprive the defendant of a fair 

trial.‖ Id. at 787–88 (citing Strickland, 466 U.S. at 687). The 

likelihood of a different result must be substantial, not just 

conceivable. Id.

Anthony Brown has not shown that his counsel‘s 

failure to develop an alibi defense prejudiced his trial. Unlike 

many criminal prosecutions, the case against Brown was not 

based on circumstantial evidence. Tamika Thompson, 

Timmsel Rorie, and Yvonne Rorie all witnessed the murder 

and picked Brown out of a photo array. Tamika and Timmsel 

testified at trial that Brown was the assailant. Just minutes 

after the shooting, Tamika and Yvonne gave similar 

descriptions of the assailant to police, and those descriptions 

matched Brown‘s appearance. Tiffany Thompson, who saw 

the men approaching, told police that the shooter lived at 
23

5408 Girard Avenue, where officers recovered clothing 

matching the descriptions given by Tamika and Yvonne, 

along with a photograph of Brown wearing those clothes, 

Brown‘s mail, and the traffic citation that Brown had received 

en route to TGI Friday‘s on the night of the shooting. Tamika 

also told police that the shooter drove a four-door gray car, a 

description matching Brown‘s automobile. Tamika also 

rebutted Brown‘s alibi by placing his car at Conestoga and 

Girard at the time of the murder, rather than at TGI Friday‘s 

or the auto shop.

In addition to physical evidence and eyewitness 

testimony, the prosecution presented a strong motive for the 

crime. The day of the murder, Brown‘s sister Kim was 

involved in a heated feud with the victim and her family. A 

Brown family friend, Kareema Latimer, had previously 

threatened to ―spray the whole corner,‖ and she was seen, just 

minutes before the murder, pointing out the Rorie home to 

Anthony Brown and four other men. Kevin Johnson testified 

that Kim Brown paged her brother Anthony at TGI Friday‘s 

to talk about the dispute between the Rories of Conestoga 

Street and the Browns of Girard Avenue, and Lynnette Bright 

and Tiyana Miller claimed to have seen Brown emerge from 

the restaurant to return that call on a pay phone. Although the 

timeline is inexact, the shooting occurred less than an hour 

later. Based on this evidence, the jury reasonably could have 

concluded that Anthony Brown killed Frances Rorie in 

retaliation for the dispute between the Rories and the Browns.

Nor would the excluded alibi witnesses, Osborne and 

Szmyt, have rebutted the prosecution‘s case. In their witness 

statements submitted to the PCRA court, Osborne and Szmyt 

merely recalled that Brown was at TGI Friday‘s on the 

evening of the murder, a fact the prosecution conceded 
24

throughout the trial. Neither Osborne nor Szmyt remembered 

when Brown departed the restaurant, and Osborne could say 

only that the sun had set. The murder occurred shortly before 

8:24 p.m., and Brown was seen conferring with Kareema 

Latimer five to twenty minutes earlier, so Osborne‘s and 

Szmyt‘s statements were consistent with the prosecution‘s 

theory of the case. A jury could have determined that Brown 

left the restaurant sometime after it appeared to Osborne that 

the sun had set and still had time to meet with Kareema 

Latimer shortly after 8:00 p.m. before opening fire around 

8:23 p.m. Based on this timeline, it was not unreasonable for 

the Pennsylvania Superior Court to conclude that there was 

no prejudice under Strickland because the excluded testimony 

would have been ―merely cumulative.‖

V

Even if the federal evidentiary hearing had been 

proper, we would hold that El Shabazz‘s deficient 

performance did not prejudice Brown. In holding otherwise, 

the District Court‘s ―lengthy opinion . . . discloses an 

improper understanding of § 2254(d)‘s unreasonableness 

standard and of its operation in the context of a Strickland

claim.‖ Harrington, 131 S. Ct. at 785.

The evidence presented at the evidentiary hearing 

added little to Brown‘s defense. The only addition to 

Osborne‘s prior statement in state court was his recollection 

that it was ―dark‖ when Brown left the restaurant. This vague 

description is consistent with his prior testimony that the sun 

had set. Similarly, Szmyt testified only that her prior 

statement was an accurate recollection. Thus, Osborne‘s and 

Szmyt‘s hearing testimony merely confirmed their state court 

testimony.
25

Ironically, the Commonwealth presented the evidence 

the District Court found most helpful to Brown because it 

filled in some of the gaps in Brown‘s timeline. For example, 

Detective McDermott stated that it took approximately 

twenty-two to twenty-three minutes to make the trip from 

TGI Friday‘s to the corner of Conestoga and Girard. 

McDermott also testified that the sun set on September 7, 

1998, at 7:23 p.m. and that the end of ―civil twilight‖ was 

7:50 p.m.

But that evidence too was insufficient to establish an 

alibi for Brown. Assuming Brown left the restaurant when it 

was ―dark‖ between sunset (7:23 p.m.) and the end of 

―twilight‖ (7:50 p.m.), he could have reached the corner of 

Conestoga and Girard in time to meet with Kareema Latimer 

shortly after 8:00 p.m. If he left at 7:50 p.m. and drove the 

―twenty-two to twenty-three minutes‖ to the crime scene, he 

would have arrived between 8:12 and 8:13 p.m., eleven or 

twelve minutes before the murder.5 Witnesses testified that 

the shooting started sometime ―after five minutes‖ and 

perhaps ―fifteen to twenty minutes‖ later, estimates that are 

far from precise. Even assuming that he left TGI Friday‘s at 

7:50 p.m., Brown could have been the shooter. Moreover, a 

scenario in which he left as early as 7:23 p.m.—a full twentyseven minutes earlier—is consistent with the record, even 

after the evidentiary hearing.

Despite the equivocal nature of this evidence, the 

District Court found prejudice and granted relief. In doing so, 

the District Court gave too little deference to the 

 

5

The District Court neither accepted nor rejected 

Brown‘s self-serving testimony that he stopped at the auto 

store, and we need not consider it.
26

Pennsylvania Superior Court. See Harrington, 131 S. Ct. at 

786 (―The [court] appears to have treated the 

unreasonableness question as a test of its confidence in the 

result it would have reached under de novo review.‖). The 

proper question was whether fair-minded jurists could agree 

with the Superior Court, not whether it erred in denying 

relief. ―An unreasonable application of federal law is 

different from an incorrect application of federal law.‖ 

Pinholster, 131 S. Ct. at 1411 (citing Harrington, 131 S. Ct. 

at 785). That is because ―[a] state court must be granted a 

deference and latitude that are not in operation when the case 

involves review under the Strickland standard itself.‖ 

Harrington, 131 S. Ct. at 785.

The District Court concluded that ―Osborne‘s 

testimony, had it been presented at trial, would have 

corroborated the testimony of other witnesses that placed 

petitioner at TGI Friday‘s at a time when petitioner could not 

have been at the scene of the murder in time to consult with 

Kareema Latimer at approximately 8:00 p.m. or to commit 

the shooting before 8:23 p.m.‖ Brown, 2010 WL 2596900, at 

*18 (emphasis added). As the Commonwealth argues, 

determining that Osborne‘s testimony placed Brown at the 

restaurant too late for him to be the shooter required the Court 

to draw several inferences in Brown‘s favor:

Even without crediting [Brown‘s] testimony 

about the [ten minute] stopover, [Brown] would 

have had to leave the restaurant by 

approximately 7:45 p.m., a time within twilight. 

As Osborne testified at the evidentiary hearing 

that ―it wasn‘t light out . . . it was definitely 

dark outside,‖ a jury could have concluded from 

Osborne‘s testimony, had it been presented at 
27

trial, that petitioner did not leave until twilight 

had ended, 7:50 p.m., a time when petitioner 

would likely have been unable to reach the 

scene of the crime in sufficient time to meet 

with Kareema Latimer. The statement that it 

was ―dark‖ out also provides corroboration to 

Miller‘s, Bright‘s, and [Brown‘s] testimony at 

trial that [Brown] did not leave the restaurant 

until after 8:15 p.m., a time when it would have 

clearly been dark out.

Id. (emphasis added).

Although the District Court correctly determined that a 

jury could have concluded Brown did not leave until after 

7:50 p.m., or even 8:15 p.m., the critical question is whether a 

reasonable jury could have concluded otherwise. The sun set 

at 7:23 p.m., a half hour before ―twilight‖ ended and almost 

an hour before 8:15 p.m., the time at which the District Court 

assumed that it was ―clearly‖ dark outside. The District Court 

provides no explanation for why it might not have been 

―dark‖ at, for example, 7:30 p.m., when Brown would have 

had enough time to drive to the scene of the murder, making 

the uncorroborated ten-minute stop along the way. Kevin 

Johnson testified at trial that it was dark by 7:00 p.m., and 

Tiyana Miller testified that it was already dark when she and 

Lynnette Bright walked to the restaurant between 7:15 and 

7:30 p.m. In fact, the sky could have been dark even before 

sunset because it rained shortly after the murder. Brown has 

not, and cannot, present incontrovertible evidence that it was 

―dark‖ only after 7:50 p.m. Though Osborne‘s testimony in 

some scenarios might suggest that Brown could not have been 

the assailant, several assumptions are necessary to reach that 

conclusion. But ―Strickland places the burden on the 
28

defendant . . . to show a  ̳reasonable probability‘ that the 

result would have been different.‖ Wong v. Belmontes, 130 S. 

Ct. 383, 390–91 (2009). Brown cannot meet that burden in 

light of the speculative and equivocal nature of the evidence 

of record.

The District Court also emphasized that Osborne was 

the only disinterested witness who placed Brown at the 

restaurant. Brown, 2010 WL 2596900, at *18. In the District 

Court‘s view, ―[f]inding that there is no prejudice solely 

because the testimony would be in accord with the testimony 

of others and thereby  ̳cumulative‘ is an unreasonable 

application of Strickland‘s prejudice prong when such 

corroborative testimony would come from a witness that a 

jury could find more credible than those who testified at 

trial.‖6 Id.

 

6

The District Court concluded that ―the state courts 

applied a blanket rule that testimony which would mirror 

other witnesses was  ̳cumulative‘ and could not be 

prejudicial.‖ Id. at *16. We disagree that the state courts 

applied such a rule. Brown‘s state habeas petition was not 

denied ―merely‖ because the excluded evidence was 

―cumulative.‖ Rather, it was denied because the evidence 

was ―merely cumulative.‖ Id. at *14 n.9 (―As an appellant is 

not prejudiced by the failure of trial counsel to present merely 

cumulative evidence, an appellant‘s claim of ineffective 

assistance of counsel on this basis must fail.‖ (quoting the 

Superior Court opinion)). In other words, the state courts 

reasoned that there was no prejudice because the excluded 

evidence did not add anything material to the existing record. 

Cf. Pinholster, 131 S. Ct. at 1410 (―The  ̳new‘ evidence 

largely duplicated the mitigation evidence at trial.‖).
29

Yet even if Osborne would have provided more 

credible testimony than other witnesses who placed Brown at 

the restaurant, it does not follow that there was a reasonable 

probability that Osborne‘s testimony would have made a 

difference. The District Court noted that ―such corroborative 

testimony would come from a witness that a jury could find 

more credible than those who testified at trial,‖ id. (emphasis 

added), but that does not mean that there is a reasonable 

probability that a jury would do so. Speculation is not 

enough under AEDPA. The Superior Court‘s determination 

must necessarily be unreasonable. Cf. Pinholster, 131 S. Ct. 

at 1410 (―The new material is thus not so significant that, 

even assuming . . . counsel performed deficiently, it was 

necessarily unreasonable for the [state court] to conclude that 

[there was no prejudice].‖ (emphasis added)).

Ultimately, the District Court reasoned that Osborne 

―could have corroborated large portions of [Brown‘s] alibi,‖ 

which ―placed [Brown] at the TGI Friday‘s at a time when 

[he] could not have been at the scene of the murder in time to 

consult with Kareema.‖ Brown, 2010 WL 2596900, at *17–

18. Had El Shabazz presented Osborne‘s testimony to the 

state court jury, it might have agreed with the District Court. 

But it is equally plausible that Osborne‘s testimony would 

have made no difference. Because AEDPA gives state courts

the benefit of that doubt, the judgment of the District Court 

cannot stand. See Harrington, 131 S. Ct. at 780–81.

VI

For the reasons stated, we will reverse the judgment of 

the District Court granting Brown‘s petition for writ of habeas 

corpus.