NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 11

- 1682

_____________ SAMUEL SANTIAGO PEREZ , Appellant

v. GERALD ROZUM, Superintendent SCI Somerset; ATTORNEY GENERAL OF THE COMMONWEALTH OF P ENNSYLVANIA; DISTRICT ATTORNEY OF LANCASTER COUNTY

_____________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Crim. No. 3:07

- cv - 00305 ) District Ju dge : Honorable Kim R. Gibson

______________ Argued Janu ary 24 , 2012 Before: McKEE, Chief Judge , FISHER and GREENAWAY, JR. , Circuit Judges ( Opinion Filed: July 1 3 , 2012 )
R obert E. Mielnicki, Esq. (Argued ) Seewald, Mielnicki & Petro 429 Forbes Avenue 700 Allegheny Building Pittsburgh, PA 15219 Attorney f

or Appellant Andrew J. Gonzalez, Esq. ( Argued ) Lancaster County Office of District Attorney 50 North Duke Street Lancaster, PA 17608 Attorney f

or Appellees2 ___________ OPINION

___________ McKEE, Chief Judge

. Pennsylvania state prisoner Samuel Santi a go Perez appeals the District Court‟s denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. For the reasons that follow, we will affirm.
I. In 2000, Perez was charged with criminal homi cide and cr iminal conspiracy in connection with th e shooting death of Leslie Samaniego , an innocent bystander killed during a shoo tout between rival groups in Lancaster, Pennsylvania

. The Commonwealth‟s theory of the case at trial was that Perez, a member of one of the
groups , had fired gunshots at the r ival group , that a bullet fired by one of those rivals had killed Samaniego , and that P erez could be held criminally responsible for her death pursuant to Pennsylvania‟s doctrine of transferred intent. Under that doctrine ,

if an individual shoots at other s and that provokes a return of fire by the intended targets resulting in the striking of a bystander, the individual who initiates the gunfire may be held criminally responsible for the injuries sustained by the victim; that is, the intent to kill may be established as to one person and transferred to a victim caught and killed in the same incident. (J.A. at 304 (citing Commonwealth v. Devine , 750 A.2d 899 (Pa. Super. 2000).) The trial court instructed the jury that “the key difference ” between first

- d egree3

murder and third

- degree murder “ is that first

- degree murder requires something cal led a specific intent to kill.” (J.A. at 79 3.) As part of its instructions on sp ecific intent, the court stated that “[t] he use of a deadly weapon on a vital part of the victim‟s body may be considered as an item of circumstantial evidence from which you may, if you choose, infer that the defendant had the specific intent to kill. ” ( Id. ) During its deliberations , the jury asked the court to explain again the differen ce between first

- degree murder and third

- degree murder. The court responded by reiterating its previous instructions, inclu ding the deadly weapon instruction

. Thereafter, the jur y resumed i ts deliberations and found Perez guilty of first

- degree murder an d criminal conspiracy. The trial court sentenced him to life imprisonment for the murder conviction, and imposed a concurrent 10

- to 20

- year prison term for the conspiracy conviction. On direct appeal, Pere z argued, inter alia , that his trial counsel had been ineffective for failing to object to the deadly weapon instruction , for the Commonwealth had conceded that neither Perez nor his alleged co

- conspirator had shot Samaniego

. The Pennsylvania Superior Court rejected all of Perez‟s claims and affirmed t he judgment of
sentence. Despite noting that his allegation of ineffectiveness had “arguable merit,” the Superior Court concluded that this claim nonetheless failed because he had not shown that he was prejudiced by counsel‟s failure to object to the inst ruction.
Perez subsequently petitioned the Pennsylvania Supreme Court to review the Superior Co urt‟s decision. In a per curiam order, the Pennsylvania Supreme Court , citing its decision in Commonwealth v. Grant , 813 A.2d 726 , 738 (Pa. 2002) (holding that , “as a4

general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review”), gran ted the petition as to Perez‟s deadly weapon instruction claim , vacated the Superior Court‟s disposition of that claim, and dismissed the appeal without pre

judice to consideration of that claim on collateral review

. Thereafter , Perez filed a petition pursuant to Pennsylvania‟s Post Conviction Relief Act (“PCRA”) , reiterating his deadly weapon instruction claim and prese nting t wo

new ineffectiveness claims

. After holding an ev identiary hearing, the trial court denied the petition

. T he Superior Court affirmed that judgment , concluding, as it had before, that Perez had not shown that he was prejudiced by trial coun sel‟s f ailure to object to the deadly weapon instruction

. After the Pennsylvania Supreme Court denied Perez‟s p et ition to re view the Superior Court‟s latest decision , he timely filed a habeas petition in the Dist rict Court pursuant to § 2254, raising his three PCRA claims and a sufficiency of the evidence claim that he had exhausted on direct appeal

. The District Court referred the case to a Magistrate Judge, who recommended that the court deny Perez‟s habeas petition on the merits . Despite characterizing the Superior Court‟s analysis of the deadly weapon instruction claim as “ a bit of hand waving ,” (J.A. at 24), the Magistrate Judge determined that “fairminded jurists could easily agree with the Superior Court‟s analysis (and find that a reasonable juror woul d have simply ignored the challenged instruction as irrelevant because there was no evidenc e Perez shot Samaniego).” ( Id. at 25 .) As a result, the Magistrate Judge concluded that the Superior Court‟s analysis was not an unreasonable5

application of Strick

land v. Washington , 466 U.S. 668 (1984), and thus did not warrant habeas relief.
On March 4, 2011, the District Court denied Perez‟s habeas petition, but also granted a certificate of appealability (“COA”) as to Perez‟s de adly weapon instruction claim. T his appeal followed

. 1
II. The District Court had jurisdiction pursuant to 28 U.S.C. § 2254, and we have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review a district court‟s denial of habeas relief de novo

. Vega v. United States , 493 F.3d 310, 314 (3d Cir. 2007). Where, as here, the state court has denied the petitioner‟s claim on the merits , we may grant habeas relief only if that state court decision (1) “was contrary to, or involved an unreasonable application of, clearly establis hed Federal law, as determined by the Supreme Court of the United States ,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 2 28 U.S.C.

1 Perez moved to expand the COA , but we denied that motion; therefore, his deadly weapon instruction claim is the only claim before us. 2 We find no merit to Perez‟s argument that § 2254(d)‟s deferential standard does not app ly here because the Superio r Court “never analyzed [his ] claim under clearly established federal law.” (Pet‟r‟s Br. 45. ) The United States Supreme Court “ha[s] made clear that as long as the reasoning of the state court does not contradict relevant Supre me Court precedent, [§ 2254(d)‟s] general rule of deference applies.” Priester v. Vaughn , 382 F.3d 394, 397

- 98 (3d Cir. 2004) (citing Early v. Packer , 537 U.S. 3 (2002), and Woodford v. Visciotti , 537 U.S. 19 (2002)). Although t he Superior Court did not cite the clearly established federal law at issue here

— the Supreme Court‟s decision in Strickland

— it did apply Pennsylvania‟s three

- part test for evaluating ineffectiveness claims. ( See J.A. at 197 (reciting Pennsylvania‟s three

- part test and citing6

§ 2254(d). “This is a difficult to m eet and highly deferential standard for evaluating
state

- court rulings, which demands that state

- court decisions be given the benefit of the doubt.” 3 Cullen v. Pinholster , 131 S. Ct. 1388, 1398 (2011) (internal quotation marks and citations omitted).
In determining whether a state court has unreasonably applied clearly established federal law, 4 “ a habeas court must determine what arguments or theories supporte d 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
h olding 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.‟ ” Brown v.

C ommonwealth v. Hawkins , 894 A.2d 716, 721 (Pa. 2006)).) Because “th[is] state standard is „the same‟ as Strickland ‟s,” Rompilla v. Horn , 355 F.3d 233, 248 (3d Cir. 2004), rev’d on other grounds sub nom. Rompilla v. Beard , 545 U.S. 374 (2005) (quoting Comm onwealth v. Pierce , 52 7 A.2d 973, 976

- 77 (Pa. 1987)), we agree with the District Court that § 2254(d) applies here. See also Boyd v. Warden , 579 F.3d 330, 334 n.2 (3d Cir. 2009) (en banc) (Scirica, C.J., concurring) (“[A] Pennsylvania court has adjudicate d a Strickland claim on the merits where it has applied the state

- law standard to that claim.”). 3 As the Supreme Court recently stated in Coleman v. Johnson , 132 S. Ct. 2060, 2065 (2012) (per curiam) , the state court‟s determination “is entitled to con s iderable deference under [§ 2254(d)]. ” 4 Perez argues that § 2254(d)‟s “unreasonable determination of the facts” prong is also implicated here because the Superior Court erroneously determined that the trial court‟s deadly weapon instruction was a correc t statement of law. But that conclusion was a legal, not a factual, determination. Accordingly, only § 2254(d)‟s “unreasonable app lication” prong applies here

.7

Wenerowicz , 663 F.3d 619, 630 (3d Cir. 2011) (quoting Harrington , 131 S. Ct. at 786)

. III. We analyze Perez‟s deadly weapon instruction claim under Strickland ‟s two

- prong test for evaluating ineffectiveness of counsel claims. Under this test , a petitioner must show (1) that his counsel‟s performance was deficient , and (2) that the petiti oner was prejudiced by this deficient performance

. Strickland , 466 U.S. at 687

. To satisfy the prejudice prong , a petitioner “must show that there is a reasonable probability that, but for counsel‟s unprofessional errors, the result of the proceeding wou ld have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694

. Because § 2254(d)‟s deferential standard applies here, the question before us is whether the Superior Court‟s conclusion th at Perez had not shown prejudice was an unreasonable application of Strickland

. In considering this question, we must analyze “the challenged instruction in the context of the entire charge and in light of the evidence and arguments presented at trial.” Williams v. Beard , 637 F.3d 195, 223 (3d Cir. 2011). It is undisputed that the deadly weapon instruct ion was inapplicable to Perez‟s
case, for t here was no evidence that he had used a deadly weapon on a vital part of Samaniego ‟s body

. W hile the Superior Court viewed this ins truction as “merely superfluous ” in light of the trial court‟s remaining instructions on specific intent, 5 (J.A. at

5 Perez does not dispute that the balance of the trial court‟s instructions on specific intent , which immediately preceded the deadly weapon instruction, applied to his case and8

199), Perez disagrees . He contends that, because the instruction used the phrase “ the use of a deadly weapon ,” not “ th e defendant’s use of a deadly weapon, ” the jury may have believed

— incorr ectly

— that it could infer his specific intent to kill from anyone’s use of a deadly weapon on a vital part of Samaniego‟s body. Perez‟s argument is not without some merit . B ut even if the jury did interpret the trial court‟s deadly weapon instruction to mean that it could infer his specific intent to kill from anyone‟s use of a deadly weapon on a vital part of Samaniego‟s body, it does not necessarily follow that the outcome of his trial hinged on that instruction

. Rather, that

correctly stated Pennsylvania law. Those instructions were as follows:

A person has the specific intent to kill if he has a fully

formed intent to kill and is conscious of his own intention. As my earlier definition of malice indicates, a killing by a person who has a specific intent to kill would, of course, be a killing with malice. Stated differently, a killing is with a specific intent to kill if it is willful, del iberate, and premeditated. The specific intent to kill, including premeditation needed for first

- degree murder, does not require planning or previous thought for any particular length of time. It can occur quickly. All that is necessary is that there b e enough time so that the defendant can and does fully form an intent to kill and is conscious of that intention. When deciding whether the defendant had the specific intent to kill, you should consider all the evidence regarding his words and conduct an d the attending circumstances that may show his state of mind. (J.A. at 793.)9

instruction affected the outcome of his trial only if (1) the jury believed that it could
construe anyone‟s use of a deadly weapon on a vital part of Samaniego‟s body as evidence of Perez‟s specific inten t to kill , and (2) the jury determined that, without this evidence, the Commonwealth could not meet its burden of establishing that Perez had possessed a specific intent to kill. To be sure, i t is possible that both of the s e conditions were present here. But Perez must show much more than that to obtain habeas relief; he must establish not only that there is a reasonable probability that these conditions were present (i.e., that he was prejudiced by trial counsel‟s failure to object to the instruction ) , b ut also that the Superior Court acted unreasonably in concluding that there was no such prejudice. Having reviewed the evidence at trial and considered the jury charge as a whole, we do not necessarily disagree with Perez‟ s claim of prejudice

. Neverthele ss, we cannot, on this record, conclude th at the Superior Court‟s decision to the contrary was unreasonable

. Accordingly, we agree with the District Court‟s decision to deny Perez habeas relief

. IV. In light of the above, we will affirm the Distric t Court‟s March 4, 2011 order.